The Regulation of Nano-particles under the European Biocidal Products Directive: Challenges for Effective Civil Society Participation

This article considers factors that limit or exclude civil society involvement in the regulatory process for nanotechnologies by critically examining an attempt to mount a public-interest legal challenge against the UK Health and Safety Executive for failing to properly enforce the European Biocidal Products Directive in relation to nanosilver consumer products. The temporal gap between innovation research, knowledge of implications, and regulatory action can often be decades (Owen 2011). Often key stakeholders within civil society are positioned to identify certain relevant problems earlier than governance, regulatory, and investment actors. They might thus limit a dilemma of control(Collinridge, 1984) where technology at an early stage of development provides opportunities for control but insufficient evidence of impacts to justify or direct control, whereas greater maturity in the development process provides sufficient evidence of impacts but the technology has become 'locked in' after widespread application. One form of intervention in the regulatory process by civil society is litigation. This article critically reflects on the limitations encountered in pursuing a judicial review challenge in the UK between 2008 and 2010. This account highlights some of the structural conditions underlying the contemporary regulatory balance of forces which limit civil society participation (access to legal expertise, resources, scientific knowledge, public awareness, and the regulatory process itself). We also suggest that individuals and civil society organisations thus limited (without meaningful access) may legitimately turn to more explicitly political forms of engagement with nanotechnology. Direct action (as opposed to mediated) is a plausible alternative to regulatory participation and litigation. 1. WHAT IS NANOTECHNOLOGY, WHO IS CONCERNED AND WHY? 'Nanotechnology' as a word is understood in multiple ways by different professional communities. The ability to manipulate matter at or close to the nanometer (1x10-9m) is now a scientific, industrial, and commercial reality. At this scale matter can behave very differently by acting with quantum properties (Royal Society 2004). For research scientists, industrial engineers and chemists 'nanotechnology' is the possibility of creating new material properties useful for designing products (Royal Society 2004). [3] For the corporate boardroom it is the possibility of gaining competitive advantage because a product is cheaper, or can do something unique that other products cannot. For a government economic policy planner 'nanotechnology' is the elusive potential for a competitive regional economy in an increasingly competition driven global economy (Wullweber, 2007, 2009). For the labour or environmental movement it is a poorly articulated risk that follows more than a century of industrial and environmental hazards, many of which have resulted in deaths and ecological destruction followed by conflict, protest, litigation, and even industrial action (Plows & Reinsborough, 2011). For the legal and regulatory professionals however, the many meanings of the word 'nanotechnology' make it legally difficult to define.(ETUI 2010, ObservatoryNano 2011, ETC 2010, Hodge, Bowman, & Maynard 2010). [4] Regulators and law-makers struggle with effectively articulating what, if anything at all, is to be regulated. Furthermore, as this article points out, there is a relative incoherence to the existing regulatory frameworks at play.