UPDATE: EPA — FIFRA and “Nanosilver” Issues.

The American Bar Association Section’s of Environment, Energy, and Resources held the fifth in its series of eight Quick Teleconferences on Nanotechnology this afternoon. This particular teleconference dealt with “Nanotechnology and the Federal Insecticide, Fungicide, and Rodenticide Act" (“FIFRA”). Mark Duvall, Managing Counsel for The Dow Chemical Company moderated the teleconference, which also included speakers from US EPA and the ETC group from Canada.

Jim Jones represented EPA’s Office of Pesticides Programs, Office of Prevention, Pesticides and Toxic Substances, and discussed the agency’s efforts to-date under FIFRA. Mr. Jones indicated that there are currently no pesticides registered under FIFRA that claim to contain nanomaterials, nor have any applications for such products been submitted to EPA. However, he indicated that the agency anticipates receiving such applications in the near future and is currently preparing itself so it can “stay ahead of the curve” when/if such an application is submitted. The key question facing EPA in this regard appears to be whether or not nanomaterials behave the same as their bulk counterparts for EHS purposes. Another question is how to adequately identify nanomaterials when they are in fact presented in an application.

Mr. Jones also provided some insight into EPA’s position on the Samsung washing machine “silver nano” issue that has been in the press over the past few months. He indicated EPA intended to publish a statement in the Federal Register by “late-spring 2007” which will specifically focus on ion generators.  Additionally, Mr. Jones offered the position previously advanced here that the size of the particles allegedly emitted by the washing machine in question are “immaterial” for FIFRA purposes. Rather, the focus is on whether or not the product claims to control a pest (or microbe in this instance). If it does, then it is subject to regulation.  Mr. Jones also indicated that he suspects that Samsung’s machine may not even truly employ nanotechnology, and he does not know whether Samsung ultimately intends to file a FIFRA application.

JCM:  As I stated here before, my continued prognosis is that "while EPA’s upcoming notice to be published in the Federal Register will be of great interest, . . . . it will not use the Samsung issue as a reason for treating nanomaterials any differently from the way it treats other microbial killing materials."