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.
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."