ROOM AT THE BOTTOM? - Project on Emerging Nanotechnologies

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drugs, medical devices, food or color additives,
and cosmetics, but it has recently
declined to require consumer labels on these
items even if they contain nanoparticles. 84
Thus, states are not likely to be preempted by
federal nanotech labeling requirements and
would be free to adopt their own warning
labels similar to those provided by California’s
Proposition 65 for other toxic chemicals.
Under California’s law, a business is prohibited
from “knowingly and intentionally
expos[ing] any individual to a chemical
known to the state to cause cancer or reproductive
toxicity without first giving clear
and reasonable warning to such individual.”
85 These warnings usually take the form
of labels on consumer products, but they
may also be issued by posting signs at workplaces
or notices in restaurants, rental housing,
or newspapers. 86 Every year since the
law’s adoption, the state has published a
revised list of toxic chemicals that are covered
by Proposition 65’s warning requirements,
so the list stays current with new
findings about cancer-causing chemicals or
reproductive toxins. There are currently
about 750 chemicals on that list, ranging
from naturally occurring to synthetic chemicals
that may be additives or ingredients in
common household products, foods, drinks,
drugs, dyes, solvents, pesticides, or by-products
of chemical processes. 87 Although
Proposition 65 was enacted more than 10
years ago, it is still a landmark labeling law
that can serve as a model for other states.
The most recent California list of toxic
substances subject to Proposition 65 does not
contain any nanomaterials, but they could be
added to that list, and their appearance on
labels would begin to educate consumers
about potential exposures to such materials.
The key question will be whether research
into the health impacts of specific types of
nanoparticles or products containing them
can meet the law’s test for being known to
cause cancer or reproductive toxicity:
[I]f in the opinion of the state’s qualified
experts it has been clearly shown
through scientifically valid testing
according to generally accepted principles
to cause cancer or reproductive
toxicity, or if a body considered to be
authoritative by such experts has formally
identified it as causing cancer or
reproductive toxicity, or if an agency
in the state or federal government has
formally required it to be labeled or
identified as causing cancer or reproductive
toxicity. 88
As many commentators have pointed out and
as referenced above, much research is still
needed to determine the health and environmental
impacts of the many types of
nanoparticles and their respective, very complex
characteristics and interactions. These
uncertainties are the basis for FDA’s recent
decision not to require special labeling for
products that use nanotechnology, 89 and they
would doubtlessly pose a real obstacle to such
materials qualifying for California’s list and
related warning labels under Proposition 65.
Despite the FDA’s hesitancy about exerting
its oversight authority through labeling
requirements for nanomaterials within its
jurisdiction, the Council of State and
Territorial Epidemiologists (CSTE) has
recently adopted a resolution urging adoption
of the precautionary principle for dealing with
nanotechnology due to the currently quite
limited understanding of their effects on