Regulation of Material Classes: Defining What, Exactly?

Andrew Maynard, currently the Chief Science Adviser for the Woodrow Wilson Institute’s Project on Emerging Technologies, and an experienced scientist in the area of nanotechnology and risk, has posted a provocative blog post.  One that is also confusing, at least to me.  The title of the post is “Why we don’t need a regulatory definition for nanomaterials,” and it is provocative because Maynard had, as he mentions

“Five years ago, I was a strong proponent of developing a regulatory definition of nanomaterials.  Today, with the knowledge we now have, I think we need to start thinking more innovatively about how we identify new materials that slip through the regulatory net – whatever we decide to call them.”

It’s a confusing piece for a number of different things, but they fall into two main categories.  Maynard seems to be falling into the basic trap that science must dictate policy.  For example, he expresses disapproval at a statement that “the decision on a regulatory definition of nanomaterials would be a policy decision.”  Put simply, any regulations involving harm would require a choice about what is an acceptable level of harm.  That is a value-based decision, and can only be informed by science, not dictated by it.

Then there’s the issue of what regulatory mechanisms he would advance in place of a defined class of materials.  He suggests that there would be definitions based on risks, but that seems a bit circular to me.  Perhaps that’s because I’m not convinced that nanomaterials don’t present unique risks, even though I would agree that we still don’t understand enough about this to be sure.  But I think defining materials based on the risks they present is at best an incomplete definition, much like Maynard sees the current emphasis on scale-based definitions as incomplete – if not harmful.  But effective regulation involves mitigation or prevention of the potential harms, and I know that scale and other physical characteristics of the particles at issue have to matter here.

Aside from the muddled writing, I think he’s framing the issue badly.  He’s arguing (at least he seems to be) for a level of regulatory flexibility due to two things: the uncertainty of the risks associated with nanoscale materials and with what kinds of materials do these risks exist.  Maynard is implying that what are commonly considered nanomaterials do not exactly map with the materials that contribute to the risks scientists and regulators are concerned about.  While I respect his concern that establishing a regulatory definition of nanomaterials would be counterproductive and not responsive to our shifting understanding of particles and risks, I’m not persuaded it has to be that way.  He mentions describing three new principles of regulating risk in a review paper, and I wish he had described them in the post.  Otherwise I feel like I’ve been spinning my wheels rather that seeing a new way forward.