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There are two schools of thought regarding the growing and developing nanotechnology industry. The first believes the technology will vastly improve our quality of life. Nanotechnology's advocates think that nanotechnology will reduce poverty and improve living standards throughout the world. They think nanotechnology will revolutionize the next decade much as the Internet revolutionized the 1990s.
The second school of thought is that nanotechnology is a technological nightmare and will become the next asbestos - only worse.
Nanotechnology is an emerging field of study and manufacturing where particles are controlled and formed on an atomic and molecular scale. The potential uses of manufactured nanoparticles in products are staggering. Nanoparticles are already in wide use in applications ranging from odor-free socks to cancer therapy. The technology is being researched and used by multiple industries, including the agricultural and food industries. According to some experts, the sales of products including nanoparticles may reach as high as $1 trillion within five years.
Many manufacturers are interested in nanotechnology because nanoparticles have some extraordinary characteristics, including greater electrical conductivity and extreme strength. Nanoparticles are also lighter than plastic. Individual carbon nanotubes (CNTs) are the strongest material ever developed - stronger than steel or diamonds, though at this point there is no way to weave CNTs together.
There are a handful of types of nanoparticles, but they all have at least one characteristic in common - they are extremely small. CNTs, which are receiving the most scrutiny, are 100 nanometers or smaller. How small is a nanometer? The relative size of one nanometer to one meter is the same as that of a marble to the size of the earth. A nanoparticle is just 1/50,000th of the width of a human hair and is so small that it can't be seen with conventional microscopes. A nanometer is so small, that it is the length that a man's whiskers typically grow in just the time it takes him to raise the razor from the counter to his face.
Though nanoparticles have different shapes, CNTs are relatively long and thin, similar to asbestos fibers.
CNTs are created by bonding a layer of graphite into a narrow tube through the application of quantum chemistry.
Unlike other emerging fields of technologies, manufacturers have found that employing the technology is cost-effective. More than 400 companies around the world are actively researching and developing nanotechnology and that number is expected to increase to more than 1,000 during the next decade.
Since the technology is developing faster than knowledge concerning its safety, there have yet to be any specific U.S. government regulations promulgated regarding testing or product labeling (including food containing CNTs), nor are there any OSHA regulations specific to work with nanoparticles.
Nanotechnology is being used in a variety of applications. However, its use in agriculture and food is likely to cause concern because of the potential hazards posed by consuming CNTs.
There are already at least 104 food or food-related products that are known to contain CNTs or other nanoparticles. The actual figure is probably much higher since most companies are reluctant to advertise their use of nanomaterial due to a possible backlash from consumers.
Lower water consumption
According to an October 2009 article in Nano, the American Chemical Society's magazine, a recent study indicates that tomato seeds exposed to CNTs sprouted twice as fast as control seeds and the resulting seedlings weighed more than twice as much as the untreated plants. The study concluded that the effects may have occurred because CNTs penetrate the hard outer coating of seeds and boost water uptake. In the same way, CNTs could enhance the water intake of the roots of plants. With more water going to the roots of the plants instead of the soil, less water would be needed to grow crops.
According to the World Bank, 67 percent of the world's water consumption is used in agriculture, 19 percent is used by industry, and only less than 9 percent is used for individual/residential purposes. By reducing the amount of water used in agriculture, more fresh water would be available for individual use. Nanotechnology advocates believe that water consumption could be reduced by at least 50 percent and possibly up to 90 percent. Crops could be grown in relatively arid conditions. More food could be grown less expensively in smaller controlled areas such as greenhouses. Eventually, nanotechnology could even be used to purify water.
Insecticides and fertilizers
No major agrochemical company in the United States is on record as using nanoparticles in insecticides, herbicides, or fertilizers. However, Syngenta of Australia (the world's largest agrochemical company) has been using nano-size particles for several years in a turf growth regulator. The product is used prior to the onset of stresses such as heat, drought, disease and foot traffic. It strengthens the turf, and allows it to withstand ongoing stresses throughout the season.
Syngenta also owns a patent for a product that would include nano-size capsules containing insecticides that would remain inert until they come in contact with the alkaline interior of the stomachs of certain insects. The capsules would then burst and the insecticide would kill the pests.
It is believed that pesticide containing nanoparticles dissolves more easily in water enabling easier application to crops. Treated pesticides will also be more stable, while having greater killing capacity than conventional insecticides.
Nanotechnology will soon be used to improve the nitrogen use efficiency of crops. With conventional fertilizer, 50 to 70 percent of the nitrogen that is applied to crops is lost due to leaching, emissions, and incorporation by soil microorganisms. Research has shown, however, that CNTs can penetrate the roots of plants, enhancing the delivery of nitrogen. Therefore, the technology would allow less fertilizer to be used, with less run-off and resulting pollution, for better results.
Fruits and Vegetables
According to one USDA research scientist, products containing nanoparticles can be found today in produce sections in some large grocery chains and vegetable wholesalers. Apples, pears, peppers, cucumbers and other fruits and vegetables are coated with a thin, wax-like coating that may include nanoparticles to protect the color, protect the flavor, and extend shelf-life. Similar applications can be used to make bread shinier and closer to being microbe-free.
Food Products
Nanoparticles are being used in nutritional supplements and sports drinks. Some manufacturers advertise the addition of nanoparticles and claim that the particles increase the potency and vitamin absorption of their supplements.
Food Packaging
Nanoparticles are used in food and beverage packaging. The particles are added to silica, which is one of the ingredients used in manufacturing plastic. The treated plastic prevents the penetration of oxygen and gas through the plastic and therefore extends the product’s shelf life. For the same reason, nanoparticles are also used in plastic wrap sold for home-kitchen use.
Some fast food franchises reportedly use adhesives containing nanoparticles in their hamburger containers. When used as an adhesive in place of starch particles, the material requires less water and thus less time and energy to dry than conventional material.
Nanoparticles will soon be added to the coating inside ketchup and mayonnaise bottles so that the contents pour out more easily and do not get stuck to the sides or bottoms of the bottles. Though it is not yet being manufactured, the product is already being promoted as being environmentally friendly because it will reduce leftover traces of condiments in bottles.
Nanoparticles are also incorporated into food contact material such as crockery, chopping boards, tea pots, and other kitchenware. Nano-size silver particles are added for improved antibacterial properties.
In the very near-term more foods, including meats, fast foods, confectionary products, and baked goods, will probably be coated with waxy coatings including nanoparticles - if this is not occurring already - in order to increase their shelf life. However, the present and near-term uses of nanotechnology in agriculture and food processing only scratch the surface of the technology's potential.
Precision Farming
The relatively low cost of the technology may lead to spreading tiny sensors, called motes or smart dust, in farm fields. The sensors would radio information to farmers regarding soil moisture and fertilizer needs. The information would be pertinent to the precise field locations.
Genetic Modification
Though genetically modified foods and nanotechnology both employ high-tech science and alter food, for the most part, the technologies are distinct issues. Most studies suggest that the consumption of genetically modified foods is probably not harmful to humans, while there are studies that suggest that the inhalation or ingestion of CNTs may very well be harmful.
In some instances, however, the two technologies are used in tandem and nanotechnology is being used in genetic modification, to transport a greater number of genes used to modify plant and animal structure. Also, nanotechnology could be used to regulate and trigger the chemicals that trigger gene expression. An example of this is an experiment, at the University of Thailand, where scientists used nanotechnology to change the color of rice. The scientists are now expanding on their work to develop strains of rice that can be grown throughout the year.
Food packaging
Food packaging may be designed to interact with the food contents and release antimicrobials, antioxidants, enzymes, and flavors to keep the food appearing fresh. The food could also interact with the label on the package to inform the consumer as to how "fresh" the contents are.
Food additives
Nanotechnology will probably be used to increase the vitamin, fiber, and protein content of foods. It can also be employed to reduce the amount of fat, carbohydrates, and calories that are absorbed from foods. Through the use of nanotechnology, designer food can be concocted to fit each consumer so that the food is capable of changing color, flavor, texture, or nutritional properties to suit any given individual's tastes, dietary restrictions, or allergies.
There is a growing widespread belief that CNTs pose significant health and environmental risks. As noted above, CNTs are under particular scrutiny because their long narrow shape is similar to asbestos, but much smaller. Fortunately, there are some studies indicating, though not conclusively proving that like asbestos, CNTs do not penetrate the skin and do not pose a hazard by mere skin contact. This is important, because clothing is already being manufactured with nanotechnology components.
On the other hand, there are multiple studies suggesting that CNTs, like asbestos, pose potential risks to human health when ingested or inhaled. The studies indicate that repeated and prolonged exposure could cause DNA damage leading to cancer, mesothelioma, and heart and brain disease.
Researchers at the University of Edinburgh injected CNTs into the abdominal cavity of mice. The experiment is considered a predictor of long fiber response in the lung lining. The results demonstrate that CNTs show the same effects as asbestos fibers. Other studies have shown that nanomaterial easily enters the blood stream following inhalation, which could result in additional problems.
One of the problems with airborne asbestos fibers is that they are so small they easily pass through conventional dust masks and most respirators. The only effective protection for the inhalation of asbestos fibers is the use of hepa-filter respirators. CNTs are even smaller.
Asbestos has become a very expensive problem. According to the Rand Corporation, defendants and insurers have spent a total of $70 billion on asbestos litigation through 2002, more than half of which was consumed by claimants’ and defendants’ litigation expenses.
Note that it has not yet been determined whether CNTs become airborne as easily as asbestos fibers. Also, there is conflicting research as to whether CNTs once inhaled or ingested are harmlessly absorbed by the body.
If CNTs prove to be harmful in the same way as asbestos fibers, the potential damage could be much greater since CNTs will likely be more widespread and have many more applications than asbestos. Also, CNTs will be consumed directly as food, which never occurred intentionally with asbestos.
Complicating the matter, there are no tests that are available to detect the presence of CNTs in food or other products.
The military is reportedly researching the potential use of nanotechnology as a weapon. Probably the most frightening potential use of the technology is a military or terrorist use of a theoretical a substance called "grey goo." It would be a self-replicating nanoparticle that would be used as a defoliant against every living plant with devastating and perhaps world-wide consequences.
Since the technology is so new, no regulations or standards have been promulgated with respect to their handling or disposal.
Some critics have proposed halting the development and application of nanotechnology in the U.S. until there has been more research regarding the potential health effects it might have. However, if such a law was enacted, it would likely only serve to move the developing nanotechnology industry to other countries.
The US Environmental Protection Agency (EPA) has not yet decided whether nano agrochemicals warrant special safety testing. However, manufacturers of certain CNTs are required to provide the agency notice prior to manufacturing nanomaterial. In February 2010, the EPA proposed a new use rule for CNTs that would require manufacturers and importers of nanotechnology to notify the EPA if they plan to use the substance differently than outlined in their pre-manufacture submission.
The new proposed rule indicates the EPA’s belief that uses different than those described in the pre-manufacture notice could result in increased exposures, thereby constituting a new use. The EPA rule would allow the agency to assess any new use.
The EPA and OSHA have proposed regulations that individuals handling the material would be required to wear gloves and other protective clothing, including full-face respirators. However, these regulations have not been enacted.
Even the trade association for the nanotechnology industry acknowledges that occupational health and safety regulations regarding the technology need to be developed and further research needs to be performed with respect to the technology's environmental impact.
The Nanotechnology Safety Act of 2010 was introduced in January in the US Senate by Mark Pryor (D-AR) and Benjamin Cardin (D-MD). The bill would establish a program within the Food and Drug Administration to assess the health and safety implications of nanotechnology in products and develop best practices for companies using the technology.
Many insurers do not inquire into an applicant's use of nanotechnology as a part of the underwriting process. One insurer has developed endorsements to exclude injury or damage related to the presence of nanotubes. On the other hand, Lexington Insurance Company is offering an insurance program for manufacturers of nanomaterials.
"The possible long-term consumer health effects of products developed with nanotechnology or containing nanoparticles are yet to be determined," says Deborah Summerlin, AAIS vice president of insurance lines. "There are some approved nanotechnology exclusions in the marketplace and some states are willing to approve those types of exclusions. However, it's likely that nanotechnology exclusions will meet serious objections in other states.
"One of the principal reasons insureds purchase liability insurance is to obtain coverage for bodily injury and property damage arising out of products that they manufacture, distribute, or otherwise handle. Excluding products exposures that are integral to their businesses could be viewed as an undermining of the protection of the insurance product."
Potential litigation could involve designers, manufacturers, sellers and distributors of CNT-containing products, as well as farmers. It is not unusual for a single asbestos complaint to name as many as 100 defendants. Assuming injury or damage is ultimately sustained, there is no reason to think that there would be fewer in litigation involving CNTs. Potential claims can be anticipated not only for commercial liability, but also for workers compensation for the workers involved in the manufacture, application, or disposal of CNTs. Liability arising out of the transportation of CNTs could even be an issue under automobile liability policies. For instance, if a truck transporting material containing CNTs spills its cargo, injury or damage may be alleged.
At this point, it is purely speculative in regard to whether claims will be presented for injury or damage arising out of exposure to CNTs. There is no known litigation, or even any known claims, alleging injury or damage as a result of nanoparticles. Note, however, that this is not surprising since if CNTs are harmful in the same way as asbestos particles, it could take decades for any damage or injuries to manifest themselves.
Could CNTs cause damage to the property of an insured?
Nanotechnology has been proposed as a tool to help clean up oil spills, polluted water, and superfund sites. An important question is whether in the future insureds will be liable for the cost of cleaning up CNTs. It is too early to make any predictions with any certainty.
"We do not know whether nanoparticles actually cause property damage," says Paul N. Farquharson, of the law firm Semmes, Bowen & Semmes. "Certainly nanoparticles such as CNTs can be dispersed in any number of ways and migrate onto or even into property of an insured or a third party. Studies have found that the cutting of CNTs can lead to their airborne dispersal."
Farquharson adds that because of their small size (sub-cellular) it is possible that CNTs could be absorbed by plants and animals. This could lead to adverse effects on crops and livestock or natural flora and fauna in addition to contamination of real and personal property.
As noted earlier, it is unknown whether nanoparticles are harmful in the same way as asbestos particles or whether they can become airborne as easily. However, it is conceivable that nanoparticles from fertilizers, herbicides, and pesticides, could disburse throughout the storage buildings of insureds. It is also conceivable that farm fields could be considered contaminated.
Would property damage trigger coverage under a property policy?
According to Farquharson, the trigger of coverage is a multi-part inquiry so it is difficult to say whether any particular policy would be triggered absent a review of that policy.
"However," he says, "If it is determined that the presence of nanoparticles poses a health risk then we could see a coverage analysis similar to asbestos or pollution liability. In addition, unlike asbestos and pollution liability, it is unknown whether nanoparticle contamination actually might degrade the structural soundness of real or personal property. The current and projected use of nanoparticles is based, at least in part, on the understanding that the use of this technology will improve the strength and durability of the products of which they form a part."
Farquharson emphasizes that it is not known what impact unintentional presence or absorption of nanoparticles will have on property.
Could a BI/PD/PI action arise out of exposure to CNTs?
Farquharson believes that exposure to CNTs could lead to claims of property damage, bodily injury, and personal injury. He cites the studies that have shown that CNTs could be harmful if inhaled as compared to larger particles of the same substance.
In regard to agricultural general liability, there are two main classes of people who might claim injuries as a result of exposure to CNTs: agricultural workers and individuals who consume products containing the particles.
According to John Mullen, a mass tort expert with the law firm of
Nelson, Levine, de Luca & Horst, plaintiffs' attorneys do not need rock-hard science to bring a case.
"They need just enough science to avoid an early dismissal or sanctions," says Mullen. “They will then try to prove their case during litigation. We will likely see future litigation on this issue. We can look for creative plaintiffs' attorneys to find people with a propensity for respiratory problems. They will then attempt to link those problems with exposure to nanoparticles."
Mullen states that eventually we could see food liability and recall issues. He would not be surprised if there are liability assertions that run up the food supply chain alleging that no warnings were given of the existence of nanoparticles.
Do employers that use products containing nanoparticles have an obligation to warn and train employees regarding potential hazards? Due to the absence of any labeling requirements, agricultural employers might not even be aware of the existence of nanoparticles in seeds, pesticides, and emulsions. As noted earlier, there are no current OSHA regulations requiring specialized training for employees working with CNTs.
Property Damage
Mullen believes that we probably won't be seeing either first-party or third-party property claims in the immediate future, but that is not certain.
If the science develops in the direction of nanoparticles as environmental pollutants, "An argument could be made for a superfund-type action, but not soon," says Mullen. "The science will have to develop. Research may determine that some types of nanoparticles are safe, while others may not be."
Mullen notes that the way media and academia work, researchers who develop more sensational and alarming findings are more likely to receive attention than those that don't, increasing the likelihood of the development of problematic science.
Could a third-party lawsuit trigger liability coverage?
According to Mullen it could. Farquharson agrees.
"To the extent that a third party is alleging bodily injury, personal injury, or property damage arising out of exposure to or the presence of nanoparticles," Farquharson says, "A liability policy would likely have to respond. Absent an exclusion, the claim for such damages would be similar to an asbestos claim or any other contamination or pollution type exposure. It is uncertain whether CNTs or other nanoparticles might be excluded by a pollution exclusion."
Some of the issues regarding coverage for asbestos claims could also be issues with CNT-related claims. Among the definitions that might be contentious in litigation are:
- The definition of "pollutants";
- The definition of "occurrence";
- The definition of "products";
- The definition of "impaired property";
- The definition of "your work"; and
- The definition of "farming" and whether the application of coatings containing nanoparticles would be considered the alteration of products.
If CNTs prove to be harmful in the same way as asbestos, current exposure to the particles may not manifest themselves in cancer for another twenty years or longer. Claims could potentially be submitted for defense and indemnification many years after the expiration of a policy. As with asbestos, courts will need to determine whether the appropriate trigger of coverage is the initial exposure, the manifestation, or a continuous injury trigger. The industry could see insureds and insurers scrambling to reconstruct coverage, similar to what occurred with pollution and asbestos claims, long after most records have been destroyed.
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