The precautionary principle provides a framework for regulating emerging technologies in general and nanomaterials in particular. It counsels action in the presence of uncertainties about risk instead of assuming that nanomaterials are safe unless proven hazardous. Nanomaterials are regulated under different statutory programs depending on whether they are drugs, pesticides or other commercial chemicals. Recent developments in the regulation of nanomaterials that are not drugs or pesticides have demonstrated a trend towards application of the precautionary principle. This is a paradigm shift away from the requirement built into past interpretations of the Toxic Substances Control Act (“TSCA”) that manufacturing, processing and use of chemical substances cannot be restricted unless the regulatory authority proves an unreasonable risk. This same paradigm shift is incorporated into recent legislative proposals to amend TSCA.
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