Sunday, March 25, 2007

FresherLonger, EPA, and nano one more time: It's all about labeling ... or not, rather


CNN.com recently picked up the silver nano story again, focusing on the need for more regulations, which seems to be the emerging frame of choice for journalists in this latest wave of nano stories.

Just as a refresher: Until late last year, Amazon.com and SharperImage.com used to sell FresherLonger food containers containing nano silver particles. Now they just sell FresherLonger containers, and all nano references have been removed from their web sites. What happened?

The answer is simple. Late last year, the EPA regulated some nano products. Well, actually, it didn't, really. What the EPA did do, was enforce their own FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act) regulations for some nano-based products using silver particles to kill bacteria and other microorganisms.
"If a product claims to control microorganisms (such as bacteria, mold, mildew, fungi) other than on or in humans or animals, the product is considered to be an antimicrobial product, and such products also are regulated as pesticides. For years, EPA has exempted from the registration requirements for pesticides, certain manufactured items (so-called “articles”) that are formulated with an antimicrobial additive, when the additive functions as a materials preservative (i.e., the additive is intended to protect the article itself from deterioration caused by certain microbes). However, to qualify for this exemption, the additive that is incorporated into the treated article must have been registered with EPA and labeled specifically for the purpose of being used as a materials preservative and the treated article must not be marketed with claims that the treated article or the additive within it have any antimicrobial effect on anything that is outside of the article itself."

(This is based on a more comprehensive overview by Arnold & Porter LLP.)

U.S. retailers acted swiftly. And two things about their decision to pull all nano references from product descriptions are especially noteworthy:

First, companies like Amazon.com or Sharperimage.com simply followed FIFRA regulations and toned down their antimicrobial claims in product descriptions and promotional materials in order to avoid having their food containers regulated as pesticides.

Second, and this is more interesting, some retailers went beyond FIFRA requirements and removed any mention of nanotechnology from their product descriptions, not just the references to antimicrobial qualities or nano silver particles. And in part, this may have been motivated by concerns about public reactions to EPA regulations of nanotechnology, more generally.

Ironically, of course, the National Resource Defense Council's (NRDC) strong stance on the labeling issue has produced some unintended consequences. As outlined earlier, FIFRA regulations state that if a product claims to control microorganisms (such as bacteria, mold, mildew, fungi) other than on or in humans or animals, the product is considered to be an antimicrobial product. And by pushing the EPA to regulate FresherLonger and related products under FIFRA in a November 22, 2006 letter, NRDC helped promote a situation that forced companies to either remove antimicrobial claims from their product descriptions or to have their food containers regulated under the Federal Insecticide, Fungicide, and Rodenticide Act.

All the back-and-forth over regulations, labels, and descriptions, so far, has achieved only one thing: The nano descriptions have been removed from products, such as FresherLonger, and consumers can't tell any more if they contain nano silver particles or not. According to the NRDC, of course, that "denies the public's right to know the active ingredient of these products."

4 comments:

Anonymous said...

It is also interesting to note that EPA has not received any FIFRA applications for products claiming to use nanotechnology. See http://www.nanolawreport.com/2007/03/articles/update-epa-fifra-and-nanosilver-issues/

-- John Monica

Andrew said...

Can the consumers tell whether the a product contain silver particles, be they nano- or micro-? As far as I can tell, chemical properties of a substance dominate the its bio-safety, while the size-effect of that substance seldom affects the result much.

Andrew said...

Sorry it's wrong to say the size effect seldom affects the result. But at least in many cases it is true that chemical properties dominate the toxicity.

Bynrdskynrd said...

What's even more funnier is that the FDA recommends the use of Silver as a antimicrobial, but the
I used to work as a stockroom employee at a Sharper Image; the first run of FresherLonger without the mention of Silver were nothing but the nanoparticle material sold as 'tupperware,' with the selling point being the rubber gasket seals. The boxes were just labeled as w/o nanoparticles.

Frankly, (next to the Ionic Breeze)it has been the best item that I ever bought as an employee, and wish that the new management would have taken the government to task like the previous owner would have.

And no--I am not a "plant" and I have been away from the company for about a year now...they get it right every now and then, like any corporation.