Nanotechnology, an all-encompassing term for nanoscale science, engineering and technology, is the understanding and control of matter at dimensions of roughly 1 to 100 nanometers. One nanometer is one-billionth of 1 meter. The following examples help provide a sense of prospective:

• There are 25,400,000 nanometers in an inch
• A sheet of newspaper is about 100,000 nanometers thick
• On a comparative scale, if a marble were a nanometer, then 1 meter would be the size of the Earth. 

Nanosized particles exhibit unique properties relative to larger particles of the same substance and allow for the creation of new materials, structures and devices. Nanomaterials are being incorporated into different products to increase strength, durability, versatility, heat resistance and other useful properties.

According to the federal government’s National Nanotechnology Initiative, there are already more than 800 household products that rely on nanomaterials and nanotechnology processes. Such products include computer processors, stain-resistant, odor-resistant and wrinkle-free clothing, antibiotic bandages, cosmetics and sunscreen.

Products incorporating nanotechnology are estimated to have produced $200 billion in revenues in 2008, including $80 billion in the United States. While the number of workers potentially exposed to nanomaterials is unknown, demand for nanomaterials is expected to grow over the next decade with increasing use in medical devices, structural materials, consumer goods and energy-saving products.

Indeed, global nanotechnology product revenues are estimated to grow to $2.4 trillion by 2015 when it is estimated that more than 15 percent of all products will contain some form of nanotechnology.

Despite the increased presence of nanotechnology in our everyday lives, questions remain concerning the health, safety and environmental risks, if any, of nanotechnology. For example, are there health and safety risks associated with occupational exposure to nanomaterials, including carbon nanotubes (CNT) and carbon nano fibers (CNF)?

Occupational exposure to CNT and CNF can occur not only in the process of manufacturing them but also at the point of incorporating these materials into other products and applications. As of April 2013, the National Institute for Occupational Safety and Health (NIOSH), the leading federal agency conducting research and providing guidance on the occupational safety and health implications and applications of nanotechnology, was not aware of any reports of adverse health effects in workers producing or using CNT or CNF.[1]

However, according to Current Intelligence Bulletin 65, "Occupational Exposure to Carbon Nanotubes and Nanofiber," an April 2013 technical paper published by NIOSH, results from recent animal studies indicate that CNT and CNF have shown “adverse lung effects at relatively low-mass doses of CNT and CNF, including pulmonary inflammation and rapidly developing persistent fibrosis.”[2] In short, a number of animal studies analyzed by NIOSH showed that exposure to CNT and CNF caused asbestosis-like symptoms and/or mesothelioma.

While acknowledging that it remains unknown whether similar adverse effects occur in humans and that more research is needed, NIOSH recommended that occupational exposure to CNT and CNF not exceed 1 microgram per cubic meter of air. This is the lowest airborne concentration that can be accurately measured. Neither NIOSH’s recommended exposure limit (REL) nor its other recommendations in Current Intelligence Bulletin 65, however, have the force of law.

The United States Department of Labor’s Occupational Safety and Health Administration, which determines mandatory Permissible Exposure Limits (PEL) for workers exposed to hazardous substances, has not issued a PEL for exposure to CNT, CNF or any other nanomaterial.

In April 2013, OSHA published Fact Sheet 3634, “Working Safely with Nanomaterials” to provide “basic information to workers and employers on the most current understanding of potential hazards associated with this rapidly developing technology and [highlight] measures to control exposure to nanomaterials in the workplace.”[3]

In Fact Sheet 3634, OSHA states that because nanoparticles may be more hazardous than larger particles of the same substance, current exposure to limits for various substances may not provide adequate protection from nanoparticles of those substances.[4] While not a mandatory PEL, Fact Sheet 3634 then “recommends that worker exposure to respirable carbon nanotubes and carbon nanofibers not exceed 1.0 micrograms per cubic meter (µg/m3) as an 8-hour time-weighted average, based on the [NIOSH] proposed [REL].”[5]

The manufacturing and use of CNT, CNF and other nanomaterials pose potential risks to liability insurers due to the continually increasing global use of nanomaterials in industry and consumer products. While NIOSH’s REL does not have the force of law, NIOSH’s 150-page Current Intelligence Bulletin 65 and OSHA Fact Sheet 3634 may arm employees with ammunition to claim that employers have been put on notice about the potential occupational health and safety risks associated with CNT and CNF and the recommended occupational exposure limits to such nanomaterials.

Because liability policies generally cover, subject to other policy provisions and exclusions, loss arising from unforeseen events but not damages the insured knew could result, coverage for certain nanotechnology claims may turn on whether the insured knew or should have known that CNT and CNF could cause health problems at the time the insured manufactured, distributed or otherwise utilized nanomaterials.

As a result, liability insurers, particularly those issuing employers’ liability policies, should consider consulting with their insureds to determine whether they are manufacturing or distributing CNT and CNF or otherwise utilizing CNT and CNF in their products or services.

For any insured manufacturing, distributing or otherwise utilizing CNT and CNF, the liability insurer should further consider confirming that the insured is aware of NIOSH’s April 2013 Current Intelligence Bulletin 65 and its accompanying REL for CNT and CNF and the OSHA April 2013 Fact Sheet; understanding the insured’s response to the same; and ensuring that the insured has properly documented its response.

Insurers should also actively monitor the ongoing and evolving scientific and occupational safety information and regulations relating to nanotechnology.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Current Intelligence Bulletin 65: Occupational Exposure to Carbon Nanotubes and Nanofiber (April 2013), accessed at http://www.cdc.gov/niosh/docs/2013-145/pdfs/2013-145.pdf.

[2] Id.

[3] Occupational Safety and Health Administration Fact Sheet 3634 (April 2013), accessed at https://www.osha.gov/Publications/OSHA_FS-3634.pdf.

[4] Id.

[5] Id.