Rick Weiss reported in yesterday’s Washington Post that the EPA plans to regulate silver nanomaterials used in consumer products as "germ-killing" agents:
The decision — which will affect the marketing of high-tech odor-destroying shoe liners, food-storage containers, air fresheners, washing machines and a wide range of other products that contain tiny bacteria-killing particles of silver — marks a significant reversal in federal policy. * * *
Under the new determination, first reported on Tuesday by the Daily Environment Report, a Washington publication, and confirmed yesterday by the EPA, any company wishing to sell a product that it claims will kill germs by the release of nanotech silver or related technology will first have to provide scientific evidence that the product does not pose an environmental risk.
The EPA plans to regulate these materials under the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"). Howard Lovy from NanoBot questions whether the EPA is really breaking new ground in its regulation, since it already regulates the use of silver as an anti-microbial agent.
As always, I imagine, the devil is in the details. While EPA might already regulate silver under FIFRA, it probably will not apply the same regulatory standards to "nano-silver." It will be interesting to see how much safety testing EPA requires "nano-silver" manufacturers to use, and whether those manufacturers will conduct the testing necessary to pass muster (or whether they will simply abandon the project). I’m reminded of the issue of OSHA regulation of nanomaterials: only a few years back, manufacturers of carbon nanotubes were submitting MSDSs that were essentially the same as for graphite (which is used to make the nanotubes).
Jonathan Adler of Case Law School and the Volokh Conspiracy emphasizes that the new regulations will only apply to companies that make germ-killing claims in connection with the marketing of nano silver-containing products.