Big Things Come In Small Packages: Ninth Circuit Issues Nation’s First Decision on Nanotechnology
by Peter Hsiao* and Andrew Stanley**
In November 2013, the Ninth Circuit Court of Appeals issued the first-ever court ruling on the use of nanotechnology in a consumer product. The case, Natural Resources Defense Council v. Environmental Protection Agency, 735 F.3d 873 (9th Cir. 2013), involved the EPA’s conditional registration of nanosilver as a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") (7 U.S.C. § 136). In a detailed opinion reviewing the technical merits of the petition, the court vacated EPA’s registration decision and remanded the matter for further administrative proceedings. The court’s decision temporarily prevents nanosilver from being used as an anti-bacterial agent in textiles.
As the first of its kind, the case offers unique insight into how the risks and benefits of nanotechnology are presented to the courts and the judicial reaction to new technology and traditional notions of deference to the scientific expertise of an agency charged with protecting the public. This article briefly describes nanotechnology in general, and the regulation of nanosilver in particular. It then introduces EPA and the FIFRA framework used to register pesticides in the United States. Finally, we review the NRDC v. EPA case and explain possible implications for companies seeking to use nanotechnology in the future.
Nanotechnology and Nanosilver