Frequently on this site we have discussed legislation introduced in Congress that would have an impact on Nanotechnology, most recently just a few weeks ago with the introduction of S.3117, the Promote Nanotechnology in the Schools Act of 2010. Legislation affecting nanotechnology, nanoparticles, nanomaterials or nanoindustry are also being introduced in other national legislatures. Recently, Peter Julian, MP, a member of Canada’s New Democratic Party, introduced Bill C-494, which would affect the regulation of nanotechnology in Canada by amending the Canadian Environmental Protection Act of 1999 in several ways. Among these would be the following:
1)The Ministers of Health and the Environment would be required to "conduct research or studies relating to Nanotechnology, including nanomaterials, nanoparticles" and "sources of nanomaterials, and nanoparticles, how these would be transported, their effect on human health and the environment, how to develop and apply risks assessments and tests, and how to develop methods of preventing and mitigating risks"
2) "The Ministers shall establish a National Inventory respecting nanotechnology, including nanomaterials and nanoparticles. . . . " This National Inventory would then be published "in any manner that the Minister considers appropriate".
Similar language may be found in the reports published by groups such as Friends of the Earth and also in language being considered by the European Parliament.
3) Nanomaterials would be added to the Canadian Domestic Substances List if the Minister (which Minister, Health or Environment, is not specified in Bill C-494) "is satisfied that it
(a) was manufactured in or imported into Canada by any person;
(b) entered or was released into the environment without being subject to conditions under this or any other act of Parliament or of the legislature of a province".
If a nanomaterial does not appear on the Domestic Substances List, it’s use, manufacture, and/or import could be restricted.
4) Bill C-494 amends "significant new activity" in respect to nanomaterials to mean "any activity that results or may result in
a) the entry or release of the nanomaterial into the environment in a quantity or concentration that, in the Ministers opinion, is significantly greater than the quantity or concentration . . .that previously entered or was released into the environment or
b) the entry or release of the nanomaterial into the environment or the exposure or potential exposure of the environment to the nanomaterial in a manner and circumstances that, in the Ministers opinion, are significantly different from the manner and circumstances in which the nanomaterial previously entered or was released into the environment or of any previous exposure of the environment to the nanomaterial".
5) Information regarding nanomaterials would be turned over to the Ministers to determine if a nanomaterial "is toxic or capable of becoming toxic". Should the Ministers, after reviewing the information "suspect that a nanomaterial is toxic or capable of becoming toxic" they may either
A) Permit the manufacture or import of the nanomaterial "subject to any conditions that the Ministers may specify"
B) Prohibit the manufacture or import of the nanomaterials or
C) Request the submission of additional information or test results " that the Ministers consider necessary" to determine if the nanomaterial is toxic or capable of becoming toxic.
The prohibition on manufacture or import would expire after two years or on publication of a notice of proposed regulation in the Canada Gazette; the prohibition would then expire when the proposed regulation entered into force.
This bill is a step towards regulation of nanotechnology and nanomaterials in Canada. In a Press Release, Mr. Julian is quoted as saying that "There is a need for public policy governed by the parliamentary principle. . . . We need a proper balance between protecting Canadians from potential harmful consequences and allowing us to reap the benefits of nanotechnologies. . .."
While there is a need to err on the side of caution is a sound basis for regulation, Bill C-494, by leaving many decisions to be based on the opinions of the Ministers of Health and Environment, or more likely their staff members to whom they could delegate the authority, would seem to leave open the possibility of arbitrariness; Ministers could decide to prohibit the manufacture, import or use of a nanomaterial despite all indications that the nanomaterial and its use are safe and do not expose the environment or humans to any danger. A further problem is the use of the phrase "capable of being toxic", which can be interpreted very broadly. A third problem may lie in the two year prohibition itself. Many nanotech companies are small and precariously funded; a two year prohibition on manufacture or import could very well drive them into bankruptcy, depriving Canadians of the benefits of nanotechnology mentioned in Mr. Julian’s press release.
As the bill was only introduced on March 10 of this year, it is still in Committee and has not been scheduled for debate in Canada’s House of Commons (see status information here) and so may be changed in Committee or during the course of debate.