Product Liability for nanotechnology

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.