In a recent article published by the Washington Legal Foundation, the attorney-author asks: “Is It Time to Consider a Nanotechnology Liability Protection Plan?” In answer to this question, the author advocates the establishment of a Nanotechnology Insurance Fund (“NIF”) with two principle purposes: “1) provide an exclusive source of compensation for people such as consumers or workers who claim, and can prove, injury from nanoparticles and 2) pay for any required environmental cleanup and restoration costs.” He also suggests the NIF could be used to fund nano-related EHS research. Finally, he believes this proposal “is a better solution for potential nanotechnology liability problems than years of tedious and expensive litigation followed by large and bankrupting settlements or judgments.” Nanotechnology: Don’t Delay Liability Risk Assessments and Solutions, Washington Legal Foundation, Vol. 21 No. 37 (Dec. 8, 2006).

     JCM: The author’s proposal seems premature. The nanotechnology industry is still in its infancy and no nano-related EHS lawsuits have yet been filed. The potential adverse health and environmental effects of nanoparticles are undetermined. Top nanotechnology scientists indicate basic research regarding the EHS effects of certain nanoparticles may not be completed until 2012 or later. See Safe handling of nanotechnology, Nature, Volume 444 Number 7117 pp. 243-400 (November 16, 2006). Simply put, while initial scientific research urges caution, it is too early to even remotely suggest the nano-industry will someday find itself in near bankruptcy from EHS litigation.

     Further, establishing a NIF would send the wrong message to the public, essentially conceding catastrophic personal injuries and/or environmental problems are a foreseeable likelihood. Why else would manufacturers establish a recovery fund? The larger question will then become why are nanomanufacturers are proceeding to market their products to the public if they belief such a high level of exposure is possible? The establishment of a NIF will also be an invitation to plaintiffs’ attorneys to “find” clients with alleged injuries so they can partake of the fund and recover large contingent fees. If there are no nano-related EHS lawsuits pending before the fund it established, there will be thousands filed shortly thereafter.

     Rather than rushing to establish a NIF, each nanomanufacturer should take responsibility for the EHS implications of its own products consistent with existing products liability law and government regulation.