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3 See, for example, Kimbrell, George, “Nanomaterial Consumer Products and FDA Regulation: Regulatory Challenges and Necessary Amendments”, 3 Nanotechnology Law & Business (2006), pp. 329–338 Google Scholar; Clarence Davies, J., “Managing the Effects of Nanotechnology” (Washington, DC: Project on Emerging Nanotechnologies 2006)Google Scholar; Taylor, Michael R., “Regulating the Products of Nanotechnology: Does FDA Have the Tools It Needs?” (Washington DC: Project on Emerging Nanotechnologies 2006)Google Scholar; Friends of the Earth Australia, “Mounting Evidence that Carbon Nanotubes may be the New Asbestos” (Melbourne: FoE 2008)Google Scholar; Clarence Davies, J., “From Novel Materials to Next Generation Nanotechnology: A New Approach to Regulating the Products of Nanotechnology”, in Hodge, Graeme, Bowman, Diana and Maynard, Andrew (eds), International Handbook on Regulating Nanotechnologies (Cheltenham: Edward Elgar 2010), pp. 545–570 Google Scholar; Breggin, Linda and Pendergrass, John, “Regulation of Nanoscale Materials under Media-Specific Environmental Laws”, in Hodge, , Bowman, and Maynard, (eds), International Handbook on Regulating Nanotechnologies, supra, pp. 342–371.Google Scholar

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5 Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products (recast) (the “Cosmetic Regulation”) has recently replaced the Cosmetics Directive from 1976 (Council Directive 76/768/EEC). The Regulation entered into force in January 2010. In March 2009 the European Parliament voted in favour of the proposal to update the Novel Foods Regulation with special treatment for nanoparticles and nanomaterials. See, Bowman, Diana, D'Silva, Joel and Van Calster, Geert, “Defining Nanomaterials for the purpose of Regulation within the European Union”, 1(2) European Journal of Risk Regulation (2010), pp. 116–117.CrossRefGoogle Scholar

6 See, for example, NanoAction, “Principles for the Oversight of Nanotechnologies and Nanomaterials” (Washington, DC: NanoAction 2007)Google Scholar; Friends of the Earth Australia, “Nanotechnology & Sunscreens: A Consumer Guide for Avoiding Nano-Sunscreens” (Melbourne: FoEA 2007)Google Scholar; and Australian Council of Trade Unions, “Fact Sheet: Nanotechnology – Why Unions are Concerned” (Melbourne: ACTU 2009).

7 See Breggin, Linda, Falkner, Robert, Jaspers, Nico, Pendergrass, John and Porter, Read, “Securing the Promise of Nanotechnologies – Towards Transatlantic Regulatory Cooperation”, Report (Chatham House: London 2009), pp. 91–93.Google Scholar

8 In the case of mandatory labelling the costs of labelling are generally passed on to all consumers, while in a voluntary scheme, those who wish to have the information pay for it.

9 For example, the introduction of mandatory labelling in cosmetics was opposed by Germany on the basis that it could be viewed by consumers as a warning. See Euractiv, “Germany Opposed ‘Nano’ Label for Cosmetics”, 24 November 2009, available on the Internet at <http://www.euractiv.com/en/enterprise-jobs/germanyopposed-nano-label-cosmetics/article-187583> (last accessed 12 October 2010).

10 Pape, S., “May Contain” Labelling: Adequate Consumer Warning or Unnecessarily Defensive Manufacturer Behaviour?, 32 Journal of Consumer Policy (2009), p. 177.CrossRefGoogle Scholar

11 Ibid., p. 183; see also, Gregory Conko, “Eat, Drink and be Merry: Why Mandatory Biotech Food Labelling is Unnecessary (Cascade Policy Institute 2002).

12 See D’Silva, Joel and Van Calster, Geert, “For me to Know and You to find out? Participatory Mechanisms, The Aarhus Convention and New Technologies, 4(2) Studies in Ethics, Law and Technology (2010), Article 3.Google Scholar

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16 Ibid.; see also Ramjoue, Celina, “The Transatlantic Rift in Genetically Modified Food Policy”, 20 Journal of Agricultural and Environmental Ethics (2007), pp. 419–436.CrossRefGoogle Scholar

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22 Ibid.

23 See Royal Society and Royal Academy of Engineering, “Nanoscience and Nanotechnologies: Opportunities and Uncertainties” (London: Royal Society & Royal Academy of Engineering 2004); Chaudhry, Qasim et al., Final Report: A Scoping Study to Identify Gaps in Environmental Regulation for the Products and Applications of Nanotechnologies (London: Defra 2006)Google Scholar; Taylor, Michael R., Assuring the Safety of Nanomaterials in Food Packaging: The Regulatory Process and Key Issues (Washington, DC: Woodrow Wilson International Centre for Scholars 2008)Google Scholar; Davies, Clarence, Oversight of Next Generation Nanotechnology (Washington, DC: Project on Emerging Nanotechnologies 2009).Google Scholar

24 Caswell, Julie, “How Labeling of Safety and Process Attributes Affects Markets for Food”, 27(2) Agricultural and Resource Economic Review (1998), pp. 151–158.CrossRefGoogle Scholar

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26 Ibid.

27 Nico Jaspers, “How to Avoid International Trade Disputes”, supra note 1, p. 169.

28 Falkner, Robert, Breggin, Linda, Jaspers, Nico, Pendergrass, John and Porter, Read, “Consumer Labelling of Nanomaterials in the EU and US: Convergence or Divergence?”, EERG Briefing Paper (London: Chatham House 2009), pp. 3–4.Google Scholar

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30 Caswell, Julie, “Labeling Policy for GMOs: To Each His Own?”, 3(1) AgBioForum (2000), p. 57.Google Scholar

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33 Thayer, James, “The SPS Agreement: Can It Regulate Trade in Nanotechnology”, 15 Duke Law and Technology Law Review (2005), p. 12.Google Scholar

34 Ibid., p. 3.

35 Ibid., p. 14.

36 Ibid., p. 15.

37 See Roberts, Michael, International Legal Issues Concerning Animal Cloning and Nanotechnology – More of the Same or are “The Times they are A-Changing?” (National Agricultural Law Center 2008), pp. 2–3.Google Scholar

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39 Article 5.1 of the SPS Agreement, which states that: “Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations.”

40 Article 5.7 of the SPS Agreement states that: “In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.”

41 Appellate Body Report, Japan – Measures Affecting Agricultural Products, WT/DS76/AB/R (February 22, 1999). The Appellate Body stated that the SPS Agreement's Article 5.7 operates as a qualified exemption from the obligation under Article 2.2 not to maintain SPS measures without sufficient scientific evidence. An overly broad and flexible interpretation of that obligation would render Article 5.7 meaningless.

42 WTO Report of the Appellate Body on EC Measures concerning Meat and Meat Products (Hormones) WT/DS26, 48/AB/R (January 16, 1998). The appellate body found that the EC's measures prohibiting the importation of hormone treated beef were in violation of Article 5.1 of the SPS Agreement.

43 European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/ DS293/R (21 November 2006)

44 Bowman, Diana and Hodge, Graeme, “A Small Matter of Regulation: An International Review of Nanotechnology Regulation”, 8 (1) Columbia Science and Technology Law Review (2008), p. 30.Google Scholar

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46 Michael Roberts, International Legal Issues Concerning Animal Cloning and Nanotechnology, supra note 37, p. 4.

47 Agreement on Technical Barriers to Trade, Preamble, Apr. 12, 1979, 31 U.S.T. 405, 1186, U.N.T.S. 276.

48 Diana Bowman and Graeme Hodge, supra note 44, p. 31.

49 Robert Falkner et al., “Consumer Labelling of Nanomaterials in the EU and US: Convergence or Divergence?”, supra note 28.

50 Buckingham, Donald and Phillips, Peter W.B., “Issues and Options for the Multilateral Regulation of GM Foods”, 2(1) The Estey Centre Journal of International Law and Trade Policy (2001), p. 186.Google Scholar

51 Ibid.

52 Robert Falkner et al., supra note 28.

53 Gary Marchant et al., supra note 15, pp. 62–65.

54 Robert Falkner et al., supra note 28.

55 Falkner, Robert, Breggin, Linda, Jaspers, Nico, Pendergrass, John and Porter, Read, “Regulating Nanomaterials: A Transatlantic Agenda”, EERG Briefing Paper (London: Chatham House 2009).Google Scholar