ECM Biofilms’ biodegradability claims based on “competent and reliable evidence,” says judge

By Karen Laird and Clare Goldsberry

In his initial decision in the case of the FTC versus ECM BioFilms, the Federal Trade Commission's Chief Administrative Law Judge D. Michael Chappell ruled that plastics additive manufacturer ECM Biofilms Inc. violated the FTC Act by deceptively claiming, and providing others with the means to claim, that plastics treated with ECM additives would completely biodegrade in a landfill within nine months to five years, and that tests proved this claim.

However, he also found that the FTC had failed to prove that ECM's biodegradability claims implied that ECM Plastics will "completely biodegrade into elements found in nature, in a landfill, within one year."

"The tests upon which ECM relies constitute competent and reliable evidence demonstrating that ECM Plastics are biodegradable, including in a landfill, and Complaint Counsel have not met their burden of proving that these claims are false or unsubstantiated," he wrote.

The FTC had filed an administrative complaint against ECM in 2013, alleging that ECM's biodegradability claims were misleading. The complaint charged that ECM's coated plastics do not biodegrade within a reasonably short period of time after disposal in a landfill, and that ECM had no substantiation to support its claims that its additives make plastic products biodegradable.

It said that ECM advertises its additives on its website and through marketing materials, such as fliers and brochures that are available to distributors and manufacturers that incorporate ECM additives into their products. The complaint further stated that ECM issued its own "Certificates of Biodegradability of Plastic Products," which it allegedly uses to convince its customers that its additives make plastic products biodegradable.

The order accompanying the initial decision would bar ECM from representing that "any product or package will completely biodegrade within any time period," unless the representation is true and not misleading and substantiated by competent and reliable scientific evidence. The order also would bar ECM and related entities from providing others with the means and instrumentalities to make such deceptive claims.

ECM BioFilms intends to abide by all terms of the order and has issued the following corporate statement: "ECM BioFilms respects the decision of Administrative Law Judge Chappell. We are particularly gratified that Judge Chappell determined, based on a thorough review of all scientific evidence, that ECM's representation that its ECM MasterBatch Pellets cause plastics to biodegrade is supported by competent and reliable scientific evidence. We have long since discontinued making claims concerning estimated periods within which biodegradation may occur and have no intention of making such claims in the future."

The initial decision will become the final decision of the Commission 30 days after it is served upon the parties, unless a party files a timely notice of appeal or the Commission places the case on its own docket for review.

Commenting on this case and the decision of Judge Chappell, Danny Clark, president of ENSO Plastics, a global supplier of environmental plastic solutions based in Mesa, AZ, said: “The recent FTC judgment is a huge win for the biodegradable additive industry. It clearly shows that the industry has and continues to utilize valid and reliable scientific protocols to back up the data that biodegradable additive technologies are in fact landfill biodegradable and it demonstrates that the FTC Green Guidelines should be updated to reflect social and scientifically valid information.”

ENSO Plastics has done extensive research on its products, which include a full spectrum of solutions from compostability, landfill biodegradable, marine degradable, renewable (biobased) and customized solutions that lower a company’s carbon footprint and meet the high performance demands of today’s products. ENSO Plastics produces ENSO Restore, an additive to enhance biodegradation of traditional materials including PET, PE, PS, PVC, PP and more, and has ASTM D5526, D5511, D5988 and BMP (bio methane potential) biodegradation validation. The company’s ENSO Renew is a renewable biopolymer used as a stand-alone or as a replacement polymer for PE and PP, and is ASTM D6400 certified.

“It’s clear that the judge recognized the nature of biodegradation and the intrinsic properties of biodegradable materials,” said Clark. “Additionally, the ruling clarified that the one year limitation on biodegradable claims outlined in the FTC Green Guidelines are not valid requirements for biodegradability.”

[Editor’s Note: Anyone interested in reading the entire 330-page decision can find it online at www.emord.com]