This Note explores EPA’s statutory authority to regulate pesticides, and the policies EPA has adopted to regulate pesticides used to preserve consumer products. The use of nanosilver—small particles of silver under 100 nanometers (nm)—as an antimicrobial pesticide has brought some recent attention to EPA’s policies on articles treated with pesticides. Some public health and environmental advocates have been critical of EPA for approving the use of nanosilver as an antimicrobial in textiles and other consumer products. In general, advocates are concerned that nano-scale particles might have increased toxicity due to their size—that the tiny particles may pass through membranes and organs that ordinarily filter and block pollutants, and then accumulate in places that larger particles cannot. There is a mixed scientific literature on the toxicity profile of nano-scale particles, but nanosilver has at least the same toxicity as non-nanosilver and there are some indications of greater toxicity. In Section I, this Note documents some of the toxicity issues with nanosilver. Section II discusses those concerns within the regulatory framework EPA uses to assess and regulate pesticide risks. Section III discusses the treated articles exemption to FIFRA and how the lack of hazard labeling under the exemption could run counter to the statutory provision that allows for regulatory exemptions to “carry out the purposes of [the Act].”
Section IV explores the history of the treated articles exemption, and argues the exemption does not represent a statutory limitation and can be challenged with proposals to label downstream treated articles. This perspective prioritizes EPA’s mandate to prevent adverse effects on human health and the environment, and does not prioritize society’s interest in rapid technological advances in protection from pests. However, even if a reader would allow more benefits from new pesticide products despite increased risks, this Note hopes to satisfy all readers that the treated articles exemption is not a statutory limitation of FIFRA itself. This Note aims to provide historical context for the treated articles exemption to explain the exemption’s statutory parameters. Hopefully, this Note will be helpful in efforts to allow more information to pass to consumers in the marketing and labeling of treated articles, and to help consumers better understand the technologies in our products, and the risks and benefits of pesticides in our products.
Should You Know About the Pesticides in Your Clothes? Nanosilver and the Treated Articles Exemption to FIFRA.
Minnesota Journal of Law, Science & Technology.
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