Skip to main content
SpringerLink
Log in

Product Liability for Nanotechnology

  • Original Paper
  • Published:
Journal of Consumer Policy Aims and scope Submit manuscript

Abstract

The regulation of nanotechnology has been relatively well covered by policy-makers and academic commentators. Surprisingly, the potential impact of civil products liability has been less explored and yet, in an innovative industry sector, this should be of crucial concern to businesses and policy-makers generally. This paper explores this in the light of the EU Products Liability Directive. It explores the nature of risks and develops a new terminology to differentiate risks according to whether they are totally unexpected risks, potential but still unexpected risks, or suspected identified defects (either due to a characteristic of the product related to the defect or by analogy with another nanoproduct). The perhaps startling conclusion is that the more unknown a risk is the more likely a product containing it is to be found defective. However, the uncertainty surrounding this new area of science may give some leeway for the narrow development risks defence and that may have implications for the liability exposure of nanotechnology industries in those states that have chosen to exclude the development risks defence.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. However, it should be remembered that redress is also possible under Sale of Goods Directive 99/44, where development risks do not apply; although the redress is only against the seller (not the producer) and in a few systems it may be difficult or impossible to recover for consequential personal injury damages arising for breach of sales law.

  2. This is a popularized version. When you seek more detail it links to SCHENHIR report which is written in technical language.

  3. A v National Blood Authority [2001] 3 All ER 289.

  4. A v National Blood Authority [2001] 3 All ER 289, at para. 56.

  5. Directive 85/374/EEC Article 7(d)

  6. The rejection of such defence by the US Supreme Court: Wyeth v Levine, 129 S. Ct. 1187.

  7. A v National Blood Authority [2001] 3 All ER 289.

  8. Proposal for a Council Directive Relating to the Approximation of Laws, Regulations and Administrative Provisions, of The Member States Concerning Liability for Defective Products, Art 1, OJ 1976 C 241/9.

  9. In fact during discussions on the Directive insurers had been confident that insurance would be available.

  10. European Commission v United Kingdom C-300/95 [1996] ECR I-2649.

  11. Indeed there is an interesting question of whether the Directive can impose liability on the basis of the defendants having a duty to have undertaken further research: see Mildred (2005) op cit at 187. Probably this has to be addressed through negligence law.

  12. A v National Blood Authority [2001] 3 All ER 289.

  13. Cour d’Appel, Paris, 23 September 2004, N° 02/16713, D 2005, 1012 gave a far more generous interpretation of the defence. However, that judgment was so generous that it was surely not correct and the decision itself was overturned by the Cour de Cassation on the ground that the defence did not apply as the Directive had not been implemented in France Cass. civ. 1e, 15 May 2007, n°05-10.234, D 2007, 1592.

References

  • BRE & NCC. (2007). Warning: too much information can harm! A final report by the BRE and NCC on maximising the positive impact of regulated information for consumers and markets. London: Better Regulation Executive and National Consumer Council.

    Google Scholar 

  • Brüggemeier, G. (2006). Haftungsrecht, Struktur, Prinzipien, Schutzbereich. Berlin: Springer.

    Google Scholar 

  • Burk, B. & Bozcar, D. (1994). Biotechnology and tort liability: a strategic industry at risk. University of Pittsburg Law Review, 55, 791–864.

    Google Scholar 

  • Eurobarometer. (2005). Eurobarometer 63.1: Social values, science and technology. Retrieved from: http://www.esds.ac.uk/findingData/snDescription.asp?sn=5477

  • European Commission. (2004a). Towards a European strategy for Nanotechnology. Communication from the Commission. COM (2004) 338 final.

  • European Commission. (2004b). Nanotechnology: A preliminary risk analysis on the basis of a workshop organized by the health and consumer protection directorate general of the European Commission. Retrieved from: http://ec.europa.eu/health/ph_risk/documents/ev_20040301_en.pdf Documents from the 2007 workshop are Retrieved from: http://ec.europa.eu/health/ph_risk/ev_20071025_en.htm and those from the 2008 workshop at: http://ec.europa.eu/health/ph_risk/ev_20081002_en.htm.

  • European Commission. (2005). Nanosciences and nanotechnologies: An action plan for Europe 2005–2009. Communication from the Commission to the Council, the European Parliament and the Economic and Social Committee. COM (2005) 243.

  • European Commission. (2007a). Nanosciences and nanotechnologies: An action plan for Europe 2005-2009. First Implementation Report 2005-2007. Communication from the Commission to the Council, the European Parliament and the Economic and Social Committee. COM(2007) 505 final.

  • European Commission. (2007b). Opinion on: The scientific aspects of the existing and proposed definitions relating to products of nanoscience and nanotechnologies. Scientific Committee on Emerging and Newly Identified Health Risks SCENIHIR. Retrieved from: http://ec.europa.eu/health/ph_risk/committees/04_scenihr/docs/scenihr_o_012.pdf

  • European Commission. (2007c). Preliminary opinion on safety of nanomaterials in cosmetic products. Scientific Committee on Consumer Products. Retrieved from: http://ec.europa.eu/health/ph_risk/committees/04_sccp/sccp_cons_04_en.htm

  • European Group on Ethics in Science and New Technologies. (2007): Publications 2000 – 2009. Retrieved from: http://ec.europa.eu/european_group_ethics/publications/index_en.htm

  • Latin, H. (1994). Good warnings, bad products, and cognitive limitations. University of California Los Angeles Law Review, 41, 1193–1295.

    Google Scholar 

  • Mildred, M. (2005). The development risks defence. In D. Fairgrieve (Ed.), Product liability in comparative perspective (pp. 167–191). Cambridge: Cambridge University Press.

    Google Scholar 

  • Mildred, M. (2007). Pharmaceutical products: the relationship between regulatory approval and the existence of a defect. European Business Law Review, 18, 1267–1282.

    Google Scholar 

  • Mildred, M. & Howells, G. (1998). Comment on “development risks: unanswered questions”. Modern Law Review, 61, 560–570.

    Article  Google Scholar 

  • Miller, J. & Goldberg, R. (2004). Product liability (2nd ed.). Oxford: Oxford University Press.

    Google Scholar 

  • Newdick, C. (1988). The development risk defence of the Consumer Protection Act 1987. The Cambridge Law Journal, 47, 455–476.

    Article  Google Scholar 

  • Newdick, C. (1991). Risk, uncertainty and ‘knowledge’ in the development risk defence. Anglo American Law Review, 20, 127.

    Google Scholar 

  • Pugh, C. & Pilgerstorfer, M. (2004). The development risks defence—knowledge, discoverability and creative leaps. Journal of Personal Injury Law, 4, 258.

    Google Scholar 

  • SCENIHR (2006). Nanotechnologies. Retrieved from: http://ec.europa.eu/health/opinions2/en/nanotechnologies/

  • Stapleton, J. (1994). Product liability. London: Butterworths.

    Google Scholar 

  • Stapleton, J. (1999). Products liability in the United Kingdom: the myths of Reform 34. Texas International Law Journal, 45(3), 53–61.

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. The School of Law, The University of Manchester, LLB Barrister, Room Number: 3.20, Oxford Road, Manchester, M13 9PL, UK

    Geraint Howells

Authors
  1. Geraint Howells
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Geraint Howells.

Rights and permissions

Reprints and permissions

About this article

Cite this article

Howells, G. Product Liability for Nanotechnology. J Consum Policy 32, 381–391 (2009). https://doi.org/10.1007/s10603-009-9115-8

Download citation

  • Received:

  • Accepted:

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s10603-009-9115-8

Keywords

Search

Navigation