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Nanotechnology: Promise Or Pandora’s Box?

May 1, 2007

By Charles E. Reynolds, II

This article was originally published in In-House Defense Quarterly, Spring 2007, Vol. 2, No. 2.  Reprinted by permission.

What is Nanotech?

The accepted definition of “nanotechnology” is “the design characterization, production and application of structures, devices and systems by controlling shape and size at nanometer scale.” Nano products are literally the cutting edge of technology in a wide number of fields. One nanometer is one billionth of a meter, or for purposes of reference, one eighty thousandth of a human hair. Nanotechnology potentially allows the creation of new substances or products one atom at a time by moving and placing electrons. Current technology allows control over a single “nano,” which is smaller than a cell but larger than an atom. This creates an infinite combination of uses from medicine, to electronics, to more efficient energy and pollution controls.

Nanotechnology is not a new science, as the semiconductor industry has been working at the nanometer scale for many years while developing ever smaller transistors and computer chips. However, given the present pace of development, it is likely various industries will soon be working on a microscopic level currently unimagined. This creates not only the potential of new products, but of whole new substances or possibly even new elements that do not presently exist.

At the moment, one of the widely quoted estimates puts the annual value of all nanotechnology related products at $1 trillion by 2011-15. European funding for nanotechnology is presently €1 billion while at home the 21st Century Nanotechnology Research and Development Act, passed in 2003, allocated nearly $3.7 billion to nanotechnology from 2003-8. According to the Woodrow Wilson International Center for Scholars in Washington DC, more that 200 “nano” products exist. A very short list of product categories integrating nanotechnology today are as follows.

Automotive Manufacture–A plastic nanocomposite is being used for “step assists” in the GM Safari and Astro Vans. It is scratch-resistant, light-weight, rust-proof and generates improvements in strength and reductions in weight, which lead to fuel savings and increased longevity. In 2001, Toyota started using nanocomposites in a bumper that makes it 60 percent lighter and twice as resistant to denting and scratching. In the coming years many more auto parts are expected to be products of nanotechnology.

Automotive Products–”Clarity Defender,” released by Nano-Films, provides for a protective coating for windshields. The coating helps to protect against rain, snow, frost and bugs by putting a nano-created film on the windshield that acts as a protectant.

Bedding–Simmons Beautyrest and BackCare mattresses use a three-layer system. Coolmax-channeled fibers on the top wisk away moisture quickly. Then a Nano-Tex layer, which is semi-impervious, traps fluids and particles so they may be washed away. The last layer is a Terry cloth that has a Teflon fabric protector coating.

Burn and Wound Dressings–Currently, Curad has developed a way of using nanoparticles to control silver and use it as a natural antibacterial in their bandages.

Cleansers–EcoTru Nanoemulsive Disinfectant Cleaner claims to clean and disinfect in one step. It is the only FDA-registered Tox Category IV disinfectant product in the United States.

Clothing–Stain repellent Eddie Bauer Nano-Care™ khakis, with surface fibers of 10 to 100 nanometers, uses a process that coats each fiber of fabric with “nano-whiskers.” Nano-Tex, a Burlington Industries subsidiary, developed the “nano-whisker” technology. Dockers also makes khakis, a dress shirt and even a tie treated with what they call “Stain Defender,” another example of the same nanoscale cloth treatment.

Cosmetics and Sunscreens–Sunscreens are utilizing nanoparticles that are extremely effective at absorbing light, especially in the ultraviolet (UV) range. Due to the particle size, they spread more easily, cover better and save money since you use less. They are transparent, unlike traditional screens that are white. These sunscreens are so successful that by 2001 they captured 60 percent of the Australian sunscreen market. However, the cosmetics industry is a prime target for nanotechnology critics and resulting suspicion chiefly because its products are normally applied directly to the skin on a daily basis.

Dental Adhesive–Adper Single-Bond Plus Adhesive, made by a 3M subsidiary, incorporates a silica nanofiller technology that forms a strong bond to tooth enamel and does not need to be shaken by dentists before use because there is no nanoclustering.

Electronics–Kodak is producing OLED color screens (made of nanostructured polymer films) for use in car stereos and cell phones. OLEDs (organic light emitting diodes) may enable a thinner, lighter, more flexible, less power consuming displays and other consumer products such as cameras, PDAs, laptops, televisions and other as yet undreamt of applications.

Energy–China’s largest coal company (Shenhua Group) has licensed technology from Hydrocarbon Technologies that will enable it to liquefy coal and turn it into gas. The process uses a gel-based nanoscale catalyst, which improves the efficiency and reduces the cost.

Food Storage–Nano silver is used to kill germs in shoe liners, food storage containers, air fresheners, washing machines and other products. Nano silver is reputed to inhibit the development of germs, therefore making it ideal for long term food storage.

Medical and Drug Devices–Perhaps nowhere does nanotechnology have more potential than in the field of medicine. The possibilities that currently exist are too many to list but, generally, scientists have developed “nanotubes” that interact with the body in a variety of ways. Primarily, they can be used for highly efficient delivery systems of medicines or actually to bond with the cells of the body to insulate them against disease. Other scientists are working on carbon nanotube CT Imaging that allows a clarity of images not previously thought to be possible. Some nanotubes are made of proteins that can be manipulated in ways to aid the healing of bone growth or cell alteration to promote increased immunities.

Respirators–Argonide Nanomaterials, an Orlando based manufacturer of nanoparticles and nanofiltration products, makes a filter that is capable of filtering the smallest of particles. The performance is due to its nano size alumina fiber, which attracts and retains sub-micron and nanosize particles. This disposable filter retains 99.9999+ percent of viruses at water flow rates several hundred times greater than virus-rated ultra porous membranes. It is useful for sterilization of biological, pharmaceutical and medical serums, protein separation, collector/concentrator for biological warfare detectors and potentially more.

Sporting Goods–Wilson Double Core tennis balls have a nanocomposite coating that keeps it bouncing twice as long as an old-style ball. Made by InMat LLC, this nanocomposite is a mix of butyl rubber, intermingled with nanoclay particles, giving the ball a substantially longer shelf life.

Wilson also offers three drivers, a fairway wood, four balls and even a golf bag made using nano-materials. The Chicago-based firm began looking into the potential of nanotechnology six years ago, but didn’t come out with a product–the NCODE series of tennis rackets–until 2004. Later in the year, it started shipping drivers and fairway woods, whose crowns are constructed with nano carbon. Wilson claims this construction creates a low-density, high-strength clubhead.

What Makes Nanotechnology Potentially Dangerous?

The very heart of all concerns having to do with nanotechnology is the fact that among the distinct properties of nanoparticles is their potential to penetrate barriers in the body that would otherwise exclude particles, raising fears about possible toxicity. Preliminary studies have shown that some types of nanoparticles could cause lung damage in rats, but these studies have not shown similar effects of such particles on humans to date. While the end use consumer is always a concern to any entity manipulating or employing nanoparticles, the immediate concern is for those individuals working in the manufacture of such products. Presumably in some cases, they would have the greatest exposure to nanoparticles prior to being incorporated into a solid state product.

Currently, the largest and most well known report giving a full analysis on nanotechnology is the one prepared by The Royal Society and The Royal Academy of Engineering titled Nanoscience and Nanotechnology (“Nano Report”). Since there is very little known about nanoparticles, The Royal Society and The Royal Academy of Engineering used studies on quartz, asbestos and air pollution to explain the potential dangers of nanotechnology.

The Nano Report notes quartz is a common material that can potentially be fatal. “Toxicological studies have shown that relatively low exposure to micrometresized particles of quartz causes severe lung inflammation, cell death, fibrosis and tumors in rats.” Nanoscience and Nanotechnology at 36. The Nano Report says further studies suggest that quartz is toxic because of its large surface area in comparison to molecules of same mass. The surface area is highly reactive and generates its own reactive atoms that cause oxidative damage in defensive cells that take up the particle, like macrophage, which would break down the quartz (or other debris) in the lungs. Studies cited in the report demonstrate surface area and surface activity are the reasons for toxicity in mineral particles.

Regrettably, the paper also uses asbestos to assess the potential health hazards of nanoparticles. Asbestos fibers cause many diseases of the lungs when inhaled and some prove to be fatal. Fibers are generally defined as having a length three times as long as their diameter. Fibers narrower than about 3mm have aerodynamic properties that allow them to reach the gas-exchange part of the lung when inhaled, whereas those longer than about 15mm are too long to be readily removed by macrophage. Nanoscience and Nanotechnology at 37. Asbestos fibers cause health hazards in two main ways. Toxicity of the fibers in lungs depends on the ability of the fiber to attract defensive cells, which can cause asbestosis and lung cancer. Asbestos fibers are also hazardous when they make their way to the lining (pleura) of the lung in significant numbers. This causes a fatal tumor called mesothelioma. Studies cited in the Nano Report found the ability of a fiber to make it to the lining depends directly on its solubility. The more soluble the fiber, the more likely it is to break into shorter particles that can be removed by macrophage.

“[S]tudies of asbestos and other fibers have shown that their toxicity depends on two physical factors, length and diameter, and two chemical factors, surface activity and durability (ability to resist degradation).” Nanoscience and Nanotechnology at 38.

Air pollution studies were also analyzed to understand the effects of having nanoparticles in the air. The Nano Report expresses concern that certain substances like titanium dioxide and black carbon become more toxic than larger particles of the same material. The increase in toxicity in these particular particles is due to the presence of transition metals and their ability to generate reactive atoms. The Nano Report also cites studies showing the same increase in toxicity of particles that have no transition metals. Their toxicity is attributed to their large surface area and their ability to generate oxidative stress on cells.

The Nano Report’s general conclusions on what cause nanoparticles to be toxic are:

  • Total surface area that is presented to the target organ;
  • Chemical reactivity of the surface and particularly the ability to release reactive atoms;
  • The size of the particle (determines how it enters body and how far into tissue it may go); and
  • Solubility, it may be dispersed before initiating toxic reaction.

Nanoscience and Nanotechnology at 41.

The Nano Report concludes nanoparticles may enter the body through inhalation, absorption through the skin and ingestion. The small size of the particles makes the entry into the body potentially easy. Nanoparticles will vary in size and shape, so predicting how they are going to move through the air, ground and water is an impossible task.

Perhaps because of the analogies drawn from the Nano Report, most fears reside in the thought of nanoparticles in the air causing a “new asbestos problem.” One might assume since the particles are nanosized, they all would have the ability to be inhaled, but not all nanoparticles have the ability to be airborne. However, the Nano Report also explains the fear that some nanoparticles will be so small they may be able to penetrate directly into the skin, as opposed to inhalation to the lungs, and be passed to other parts of the body where they could pose more of a health hazard.

There is also the fear that nanotubes, strong nano-sized tubes made to (among other uses) conduct electricity, might become fibers that pass into the lungs and cannot be degraded by macrophage. This would cause a similar reaction to that of asbestos. Recently, researchers in San Diego have proven ultrafine particles, 100 nanometers or less, may go directly into the brain through the nose. The study showed particles of manganese can readily reach the brain. It is still unknown whether this translocation harms health because of the difficulty in tracking nanoparticles through the body.

The Royal Society paper expressed particular anxiety in the use of nanotechnology in cosmetics and sunscreens. Both currently use nanotechnology on products that are directly applied to the skin. The Society and Academy were particularly worried about the uses of titanium oxide in sunscreen. Recently, however, studies indicate titanium oxide cannot penetrate the skin, laying to rest some worry. The only reassurance some in the public have that the cosmetics sold with nanotechnology are non-toxic is that no one has filed any suit and claimed such.

 Public Perception

The possibility of inhaling or absorbing nanoparticles is likely to be unnerving to the public, but since there are even fewer studies on how nanoparticles react in the environment, some fear ingesting them directly from the food chain. There are no available studies of how nanoparticles may ultimately affect the environment, but the Nano Report suggests harmful nanoparticles could make their way through the food chain. It further speculates a large scale release of the right particles could potentially destroy some species or entire food chains. The need for more testing and regulation in this area is immense because the potential risk, hazards and effects of nanoparticles on the environment are unknown. Again, the lack of long term studies is likely to breed unfounded fears.

In fact, in April 2006, German state officials recalled a glass and ceramic surface protectant called “Magic Nano.” The protectant caused severe respiratory problems for roughly 77 people. It turns out the product did not actually contain any fabricated nanoparticles, but the caution lies in that although the cause was unclear, nanotechnology was blamed first. The lack of knowledge on the topic has made skepticism easy to come by and since it is currently nearly impossible to track how nanoparticles move through the body, there is no proof to the contrary unless an alternative cause of harm is identified.

This lack of certainty has not stopped special interests and potential plaintiffs from sounding the alarm bells with regard to certain nano products. Again, the cosmetic industry is likely to suffer particular scrutiny. A quick scan of the Internet reveals a number of groups are predicting dire consequences as a result of products using nanotechnology. Just one example is a quote from a website maintained by “Friends of the Earth.”

“Engineered nanoparticles are being used in virtually every type of personal care product on the market, from sunscreens and anti-aging creams to toothpastes, despite preliminary scientific evidence that many types of nanoparticles can be toxic,” said Lisa Archer, Senior Health and Environmental Campaigner with Friends of the Earth U.S. “Corporations should stop marketing nano-laced products until these materials are proven safe and stop treating their customers like guinea pigs.”


The criticism of nanotechnology is not limited to those on the “internet fringes,” but also in such mainstream publications as Consumer Reports. The October 2006 issue of Consumer Reports had a special article dedicated to concerns about nanotechnology stating, with regard to such new products coming onto the market, “we seemed to have missed a few steps; manufacturing standards, labeling regulations, safety guidelines, and oh, yes, efficacy requirements.” It concludes by determining nanoparticles “. . . go places in the body previously off limits to their clunky cousins; they might have altered magnetic properties; they might be able to move from package to person in a way we just don’t yet understand.”

As more and more products employing nanotechnology hit the market, there are sure to be further mainstream criticisms and questions that raise public awareness, and by a regrettable cause and effect, more lawsuits.

What Does This Mean for Law in General?

The advent of nanotechnology is already causing a huge stir in Intellectual Property Law. Immediate questions focus on how to patent the technologies. Can we patent new elements? Can we patent nanotechnology processes? Do we patent the new substances to make a product or do we just patent the product? These are just a few examples of the concerns the U.S. Patent Office and many legal scholars have been investigating.

The U.S. government is also attempting to prevent nanotechnology from being the next mass tort litigation mostly by way of the Environmental Protection Agency (EPA). The EPA is using the Toxic Substance Control Act of 1976 for authority to regulate all new chemical substances. The EPA currently keeps a list of all accepted substances and requires the manufacturer of the substance provide the EPA with a pre-manufacturer notice 90 days before the date of the intended start of chemical production or the import of the chemical. The notice must contain:

  • Chemical identity/structure
  • Description of chemical uses
  • Production or Import Volume
  • Description of byproducts
  • Description of human exposure
  • Available information on human health/environmental effects
  • Description of disposal practices

The National Institute for Occupational Safety and Health (NIOSH) of the Center for Disease Control (CDC) is also studying how nanotechnology may potentially be harmful. The NIOSH has studies on mice that test the ways nanotechnology could enter into a human’s immune system. NIOSH says the nanoparticles are smaller than normal airborne contaminants and are more likely to build up in the body. The particles could potentially attach to any other particle and enter into airways, where it has been shown the nanoparticles accumulate easily and cause early fibrosis in mice. An excerpt from the NIOSH studies and findings on their website follows:

Discrete nanoparticles that deposit in the nasal region may be able to enter the brain by translocation along the olfactory nerve, as was recently observed in rats [Oberdöster et al. 2004]. The axonol transport of insoluble particles of 50, 200, and possibly 500 nm was also reported in the same research. This exposure route has not been studied in humans, and research is continuing to evaluate its relevance.

Ingestion is another route whereby nanoparticles may enter the body. Ingestion can occur from unintentional hand to mouth transfer of materials; this can occur with traditional materials, and it is scientifically reasonable to assume that it also could happen during handling of materials that contain nanoparticles. Ingestion may also accompany inhalation exposure because particles that are cleared from the respiratory tract via the mucociliary escalator may be swallowed [ICRP 1994]. Little is known about possible adverse effects from the ingestion of nanoparticles.

Most recently (in November 2006), the EPA announced formal plans to regulate parts of the nano industry. Specifically, it will regulate nano silver, which is used in a number of food storage containers, washing machines and other products to kill germs. With regard to washing machines in particular, the agency said, “the release of silver ions in the washing machines is a pesticide because it is a substance released into the laundry for purposes of killing pests.” As a result, the EPA decided it falls under the Federal Insecticide, Fungicide and Rodentcide Act. These health concerns will most likely drive future legislation relevant to nanotechnology.

Many believe nanotechnology is going to be the ultimate revolution in a variety of industries, but the technology is still young with a substantial amount of unknowns. The risks cannot even be assessed yet because we do not know what they are. Presumably, however, additional exposure to liability for a product will rise as companies increasingly have full control over every particle that goes into a product from design all the way to the end use consumer. While initial concerns regarding the toxicity of certain nanoparticles will initially reside with those in the manufacturing process, ultimately consumers will enter into the equation. If history is any guide, there will likely be more legislation, more regulation, more speculation and, ultimately, more litigation regarding nanotechnology.