Nanotechnology and the Products of Inherited Regulation

Date01 March 2012
Published date01 March 2012
DOIhttp://doi.org/10.1111/j.1467-6478.2012.00572.x
JOURNAL OF LAW AND SOCIETY
VOLUME 39, NUMBER 1, MARCH 2012
ISSN: 0263-323X, pp. 93±112
Nanotechnology and the Products of Inherited Regulation
Elen Stokes*
New technologies do not always elicit new regulatory responses. More
often than not, policymakers deal with new technologies by deferring
to existing regulatory regimes. This article argues that there are often
overlooked consequences of grafting a new technological area, dis-
playing different types of risks and uncertainties, onto an existing
regulatory framework. Not only can it entail the application of ill-
suited rules and standards, but it can also involve the reproduction of
deeply ingrained traditions and assumptions which, under the weight
of history, makes scrutiny extremely difficult. As is shown here, nano-
technology-enhanced products inherit a raft of consumer protection
rules as well as a regulatory predisposition to internal market
facilitation. So entrenched is the focus on market opening that making
ad hoc changes to existing regulations to incorporate the broader
concerns around nano-products cannot escape the reach of a very
powerful market context.
INTRODUCTION
This article looks at the consequences of applying old regulatory measures to
new regulatory problems. It addresses, along with the volume as a whole,
what happens when legal regulation confronts and adapts to increasingly
complex and contested technological worlds. Much has been written about
the inability of the law to keep up with technological innovation in the
93
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Cardiff Law School, Law Building, Museum Avenue, Cardiff CF10 3X,
Wales, and ESRC Research Centre for Business Relationships, Account-
ability, Sustainability and Society (BRASS), Cardiff University, 55 Park
Place, Cardiff CF10 3AX, Wales
StokesER@cardiff.ac.uk
I am grateful to Liz Fisher, Antonia Layard, Bob Lee, Marie Lee, and Steven Vaughan for
helpful comments on an earlier draft. I retain sole responsibility for the content, including
any errors or omissions.
marketplace.
1
The relationship is typically characterized as one of initial
struggle, a race between science's hare and law's tortoise, in which the law
marches ahead `but in the rear and limping a little'.
2
A commonly held
perception is that, unless and until the law responds, the latest high-tech
products will enjoy an initial period without regulation.
Yet, the reality is often quite different. It is hard to imagine that a new
technology could ever be completely `lawless'.
3
Given the vast number of
EU measures protecting occupational health and safety, public health, and
the environment, which have wide and overlapping remits, it is incon-
ceivable that the latest high-tech products could slip through the regulatory
net. Most of the time there is already legislation in place to deal with
unwanted outcomes. Where these provisions impose general standards such
as `safety' and `risk prevention', they are considered to be broad enough to
cover all technological developments, even those that were unimaginable
when the rules were drafted.
4
However, regulatory coverage is no guarantee of regulatory adequacy, for
it may well be the case that the measures relied upon are ill-suited to the
threats and opportunities of technological progress. This is one of the more
troublesome and less well understood implications of the reverence shown
for prior regulations. As is shown here, the use of existing provisions to
regulate a new area carries its own operational and ideological baggage. In
practice it involves more than the application of old rules to new products; it
entails the continued presence of the policy substructure, the underlying aims
and assumptions of those rules.
To illustrate, the article looks at the emergence of new consumer products
containing nano-materials. Section I introduces `nanotechnology' before
exploring the politics of its regulation. It explains that, in spite of dis-
agreement between EU institutions, the Commission's view is that nano-
products can be regulated using existing measures designed to deal with
conventional types of product. Section II suggests that the extrapolation of
specific rules from conventional products to functionally different nano-
products is problematic, because it cannot be assumed that the same
standards or assessment requirements should be equally applied. The dif-
ficulties run much deeper than this, however, where nano-products inherit
not only regulatory rules but regulatory predispositions. Consumer protec-
tion regulation in the EU seeks, above all else, to facilitate the functioning of
the internal market. Since nano-products are presumed to fall within the
94
1 See, for example, R.A. Posner, Catastrophe: Risk and Response (2004) 8; G.E.
Marchant, `The Growing Gap Between Emerging Technologies and the Law'
(2011) 7 International Library of Ethics, Law and Technology 19±33.
2 Windeyer J in Mount Isa v. Pusey (1970) 125 CLR 383, at 395.
3 G.V. Calster, `Regulating Nanotechnology in the European Union' (2006) Nano-
technology Law & Business 359±372, at 360.
4 D. Friedman, `Does Technology Require New Law?' (2001) 25 Harvard J. of Law
& Public Policy 71±85.
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School

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