Law and innovation in the context of nanomaterials: Barriers to sustainable development? Results of an empirical study

According to Art. 3(3) of the Treaty on the European Union, the Community is working towards the sustainable development of Europe – this constitutes the overriding long-term goal of the European Union. The guiding principle of sustainable development aspires towards the reduced exploitation of natural resources aimed at their long-term preservation and a reduced pollutant burden for protected natural resources. The target for 2020 is that "chemicals are used and produced in ways that lead to the minimization of significant adverse effects on human health and the environment" (’Johannesburg goals’). In addition, the guiding principle pursues the safeguarding of the basis for survival and economic production in order to maintain an adequate quality of life. These aims can only be achieved by far-reaching changes to the economic and social structures and also to patterns of consumption and production – consequently innovations are required. This requires specific regulatory strategies – particularly for product or process innovations – in order to create adequate incentives so that actors from trade and industry get innovations for sustainability off the ground. In connection with this the question arises as to how nanomaterials are to be regulated so that the innovation processes linked to these substances are aligned with the guiding principle of sustainable development. Nanomaterials are substances in terms of the REACH Regulation and therefore fall within its scope. However, REACH does not contain any provisions directed specifically at nanomaterials. The regulatory omissions arising from this – no definition for nanomaterials; tonnage quantity thresholds may be inappropriate for nanoscale substances; transitional periods for existing substances (phase-in substances, Art. 23) also apply to certain nanomaterials; test procedures are not designed to nanomaterial specifications, etc. – are discussed in depth in the literature. This article takes a different perspective. It examines to what degree REACH promotes innovations for sustainability through nanomaterials. The question of how the regulation affects the manufacturers' approach to nanomaterials was the subject of a survey sent to companies which manufacture and/or use nanomaterials. The survey questioned 37 companies based in Germany. Besides the issues of registering for REACH and carrying out safety assessments, the main focus of interest was on the relationships between substance risks and innovation and between REACH and innovation. The findings obtained from the survey were augmented by telephone interviews on this subject and by the results of a workshop held in Darmstadt, Germany, in December 2011 with representatives from companies and industry associations and experts on the regulation of nanomaterials. Finally, this contribution refers to the results of a study carried out for the European Commission on the innovative effects of REACH on emerging technologies. This document summarises the most important results from the empirical data and, where the data permits, draws some preliminary conclusions for a possible adaptation of the legal framework for nanomaterials.