Regulating Nanotechnology Via Analogy, Pt. 2

[Blogger’s note: This post - a continuation of the previous one - is adapted from a talk I gave in March 2012 at the annual Business History Conference. Like the last post, it draws on research done by Roger Eardley-Pryor, an almost-finished graduate student I'm advising at UCSB, and me. I'm posting it here with his permission. Some of the images come from slides we put together for the talk.]In my last post, I discussed the ways in which policy makers could use historical analogies as tools when considering ways in which nanotechnologies might be regulated. At the end, I suggested that multiple definitions for nanotechnology posed a challenge for finding the one best analogy, however. So – what are examples of the analogies made between nanotech and other technologies and what does have to say about possible regulation paths…consider the following examples:

Example #1 – Genetically Modified Organisms

In April 2003, Prof. Vicki Colvin testified before Congress. A chemist at Rice University, Colvin also directed that school’s Center for Biological and Environmental Nanotechnology. This “emerging technology,” Colvin said, had a considerable “wow index.” ((House of Representatives Committee on Science, “The Societal Implications of Nanotechnology,” Hearing before the Committee on Science, House of Representatives (108^th Congress, 1^st Session), April 9, 2003, p. 49. A quick web search on “Vicki Colvin + wow to yuck” yields some 360,000 hits including several presentations and papers she and her Rice colleagues gave that use the phrase.)) However, Colvin warned, every promising new technology came with concerns that could drive it from “wow into yuck and ultimately into bankrupt.” To make her point, Colvin compared nanotech to recent experiences researchers and industry had experienced with genetically modified organisms. Colvin’s analogy – “wow to yuck” – made an effective sound bite. But it also conflated two very different histories of two specific emerging technologies.While some lessons from GMOs are appropriate for controlling the development of nanotechnology, the analogy doesn’t prove watertight. Unlike GMOs, nanotechnology does not always involve biological materials. And genetic engineering in general, never enjoyed any sort of unalloyed “wow” period. There was “yuck” from the outset. Criticism accompanied GMOs from the very start. Furthermore, giant agribusiness firms prospered handsomely even after the public’s widespread negative reactions to their products.  Lastly, living organisms – especially those associated with food – designed for broad release into the environment were almost guaranteed to generate concerns and protests. ((Ronald Sandler, “The GMO-Nanotech (Dis)Analogy?,” Bulletin of Science, Technology, and Society 26:1 (2006): 57-62; Arie Rip, “Folk Theories of Nanotechnologists,” Science as Culture, 2006, 15, 4: 349-65.)) Rhetorically, the GMO analogy was powerful…but a deeper analysis clearly suggests there were more differences than similarities.Example #2 – AsbestosA different definition of nanotech treats it like a new form of matter…stuff requiring special oversight, particularly in the workplace. Such a material definition of nanotechnology suggests a ready analogy to asbestos.  Given decades of enormous and expensive asbestos litigation, the analogies between asbestos and nanotechnology have prompted substantial toxicological analysis on new materials. ((A good article on this is Geoffrey Tweedale and Jock McCulloch, "Chrysophiles versus Chrysophobes: The White Asbestos Controversy, 1950s–2004," Isis , Vol. 95, No. 2 (June 2004), pp. 239-259.))  Carbon nanotubes (CNTs) are best known of these new nano-materials. With a long thin structure that resembles that of asbestos, numerous toxicological studies indicate that nanotubes share a similar toxicity. These similarities and the historical circumstances of attempts to regulate asbestos in the United States offer suggestions for how to proceed toward the regulation of certain nanotechnologies.Given the known threats of asbestos, the U.S. EPA attempted an all-out ban on its manufacture and use. However, in 1991, the U.S. Fifth Court of Appeals claimed EPA did not meet the requirements to impose the “least burdensome” controls. The court promptly lifted the ban for all but the most dangerous existing asbestos products. The inability of EPA to ban asbestos, despite decades of evidence confirming its hazards, indicates the need for serious reform of Toxic Substances Control Act or TOSCA, the existent United States’ law for chemical regulation. ((Marc Landry, “EPA and Nanotechnology: The Need for a Grand Bargain?,” in Governing Uncertainty: Environmental Regulation in the Age of Nanotechnology, edited by Christopher Bosso (Washington, DC: RFF Press, 2010), pp. 87.)) While this need for reform applies for existing substances like asbestos, it applies even more so for novel and analogous nanotechnologies like CNTs.Example #3 FalloutWith planetary fears about grey goo and self-replicating nanobots, figures like Michael Crichton, Bill Joy, Prince Charles, and, at times, even K. Eric Drexler, seemed to define nanotechnology as so broad, diverse, and nebulous that they rendered it as a questionable, minute, and invisible unknown.  This line of thinking suggested nanotechnology might be analogous to another existential and invisible, yet life-threatening technological byproduct - radioactive fallout.Each of the hundreds of open-air nuclear devices exploded between 1945 and 1980 released minute, invisible, radioactive debris that circulated around the planet’s stratosphere before falling back to earth, exposing humans and the environment to its harmful radioactivity. ((Harold L. Beck and Burton G. Bennett, “Historical Overview of Atmospheric Nuclear Weapons Testing and Estimates of Fallout in the Continental United States,” Health Physics 82:5 (May 2002): 591-608.)) The global spread of these materials throughout ecosystems and into human bodies occurred without full public or private consideration of their risks by policy-makers, by scientists, or by unknowingly exposed publics. In WWII and during the Cold War, the dictates of national security instigated the development and open-air testing of nuclear weapons.  However, by the end of the Cold War, national security came to be defined increasingly in terms of economic security.  Along those lines, American scientists and policy-makers in the late 1990s and early 2000s framed the need for the federal development of nanotechnology in the rhetoric of economic national security.The nanotechnology enterprise has also yielded novel engineered particles that exist only at invisible scales; new particles that have found wide commercial distribution around the world before full public or private consideration of their potential risks to human health, or full consideration of their threats to our environmental security. In 2003, Oregon Congressman David Wu hinted at the analogy between nanotechnology and nuclear fallout by citing a historic example of regulating fallout’s novel and invisible threat via the Partial Nuclear Test Ban Treaty.  ((This treaty, signed in 1963 by the United States, the Soviet Union, and Great Britain after years of international negotiation, banned nuclear test explosions in the air, above the atmosphere, or at sea.))  Though Representative Wu celebrated the Test Ban Treaty for its international cooperation and control of hazardous fallout, he noted that “In many respects, the Nuclear Test Ban Treaty is nothing but a ban on experimentation.” ((House of Representatives Committee on Science, “The Societal Implications of Nanotechnology,” Hearing before the Committee on Science, House of Representatives (108^th Congress, 1^st Session), April 9, 2003: Wu, pg 91.)) At the time, organizations like ETC, Greenpeace, and Friends of the Earth-Australia had also called for a ban on nanotechnology production until researchers clearly understood all of nanotechnology’s EHS risks.  As with other examples, one’s definition of nanotechnology – here as an invisible, existential, and global threat – determined the appropriate analogy to prior technologies.  That definition, in turn, indicated to various nano-stakeholders particular forms of precaution, regulation, and control.  If nanotechnology was analogous to fallout, maybe the analogous regulation would be an outright ban that would forestall all future risks?Example #4 – Recombinant DNAA fourth definition for nanotechnology moves us beyond consideration of novel forms of matter and instead identifies nanotechnology as a suite of technological practices for manipulating nature – techniques that render the natural world as unnatural.  This identification of nanotechnology with particular lab practices yields an analogy to debate about recombinant DNA (rDNA) techniques of the 1970s.In the mid-1970s, scientists agreed to a moratorium on rDNA practices until they better understood the technology and until the U.S. National Institutes of Health (NIH) could establish proper guidelines. After the famous 1975 Asilomar Conference, the NIH’s Recombinant DNA Advisory Committee produced its research guidelines. These guidelines clearly defined specific biological techniques and instituted multiple layers for control, including requirement of biological containments. This ensemble of lab practices helped stimulate the rapid commercialization of modern biotech research and, one could argue, consumer acceptance.Nanotechnology-stakeholders have identified a similar goal of early anticipation and mutually agreeable control through their framework of anticipatory governance. For some nanotech stakeholders – particularly entrepreneurs affiliated with commercialized industry – the NIH’s decision to institute guidelines for rDNA technology, rather than push for legally binding regulations, offers possible paths for the eventual oversight of nanotechnology. Government guidelines consist of procedures that people are expected to follow when receiving federal dollars, whereas regulations are substantive rules for all actors that carry the authority of law. However, drawing lessons from rDNA and applying them to nano comes with drawbacks –for example, guidelines similar to those from the NIH might only apply to federally funded research. This would leave privately funded research in a different regulatory regime, subject not merely to guidelines, only to the hard law of regulation.Some concluding thoughts…"Nanotechnology” is a socially constructed collection of techno-scientific ideas, practices, and materials. But with such a broad and sometimes vague set of definitions for nanotechnology used by scientists, policy-makers, activists, and businesses, how can nano-stakeholders know what to regulate?Some scholars, including Andrew Maynard, a leading expert on risk science, suggest that regulators’ wish for strict definitions is misplaced. Maynard, for instance, believes that a precise definition for nanotechnology would actually impede proper regulation. ((Andrew Maynard, “Don’t Define Nanomaterials,” Nature 475 (7 July 2011): 31.))  Instead of a categorical definition, Maynard now argues that regulation must focus on its various “trigger points,” or empirical points that transition a material from conventional to risky. Here, one could imagine officials looking to historical examples to find other such ‘tipping points’ which catalyzed regulatory reform.But policy makers have moved in the opposite direction. In late 2011, Health Canada as well as the European Commission announced a specific set of politically designed definitions for nanomaterials to be used explicitly “for all regulatory purposes.”  Similarly, the United States’ most recent research strategy for environmental, health, and safety emphasized the need for federal agencies to establish agreed-upon definitions for nanomaterials. But, even as regulators moved toward a “one size fits all model”, analogies with other materials, techniques, and industries still prove useful. The US EPA, for instance, has considered whether certain materials should be regulated under rules that apply to insecticides. So, perhaps we can look forward to the drawing of new analogies, not to GMOs and asbestos and fallout but to DDT…So -- If historical analogies teach can teach us anything about the potential regulation of nano and other emerging technologies, they indicate the need to take a little risk in forming socially and politically constructed definitions of nano. These definitions should be based not just on science but rather mirror the complex and messy realm of research, policy, and application. No single analogy fits all cases but an ensemble of several (properly chosen, of course) can suggest possible regulatory options.