ORIGINAL

PUBLIC DOCUMNT

UNITED STATES OF AMRICA

BEFORE THE FEDERA TRAE COMMISSION

In the Matter of

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NOV Z 7 2013

56 K'()I/

SECRETARY

ECM BioFilms, Inc.,

a corporation, also d/b/a

Enviroplastics International

Docket No. 9358

COMPLAINT COUNSEL'S FIRST REQUEST

FOR ADMISSIONS TO ECM BIOFILMS, INC

Pursuant to Rule 3.32 of the Federal Trade Commission's Rules of Practice for

Adjudicative Proceedings and Provision 11 ofthe Administration Law Judge's Scheduling Order

in this matter, Complaint Counsel hereby requests that respondent ECM Biofims, Inc. admit the

trth ofthe following statements or opinions of fact within ten (10) days from the date of service

of this Request.

DEFINITIONS

1. "Biodegradation" or any variation thereof, means decomposition into elements found in

nature by the action of living organisms such as bacteria or fungi.

2. "Complete" means 100%.

3. "ECM" means ECM Biofims, Inc., including without limitation, its agents, employees,

officers, or anyone else acting on its behalf.

4. "ECM Additives" means plastic additives manufactured by ECM, including but not

limited to "Masterbatch Pellets."

5. "ECM Plastics" means plastics that contain ECM Additives.
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6. "FTC Access Letter" means the letter request sent to ECM BioFilms, Inc. dated August

30,2011.

7. "Plastic" means conventional, commercial application polyolefins (any ofthe

polyethylenes and polypropylenes), EVAs, PVCs, PETs, PSs, PUs and any combination

of these resins.

8. "Landfill" means a landfill accepting household municipal solid waste that is available to

all or virtally all consumers everyhere ECM Plastics are sold.

INSTRUCTIONS

1. For the purposes of this Request for Admissions, each paragraph constitutes a separate

statement and is to be admitted or denied separately.

2. Pursuant to Rule 3.32, you must specifically admit or deny the requested admission, or

set forth in detail the reasons why you cannot admit or deny the matter. A denial must

fairly meet the substance of the requested admission, and when good faith requires that

you qualify your answer or deny only a part of the requested admission, you must specify

what portion of it is tre and qualify or deny the remainder. In addition, you may not

give lack of information or knowledge as a reason for failure to admit or deny unless you

state that you have made reasonable inquiry and that the information known or readily

obtainable by you is insuffcient to enable you to admit or deny.

3. Rule 3.32(b) requires that your responses be sworn to under oath.

4. It is not grounds for objection that the requested admission relates to opinions of fact or

the application of law to fact. Your belief that the matter on which an admission is

requested presents a genuine issue for tral does not, on that ground alone, provide a valid

basis for objection.

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ADMISSION REQUESTS

Complaint Counsel requests the following admissions:

1. The website UR known as ww.ecmbiofims.com ("ECM Website") has been

controlled at all times by ECM.

2. Since its creation, the ECM Website has been publicly available on the Internet.

3. Plastic is not inherently Biodegradable.

4. Exhibit CX-OOOOl, "Certificate of Biodegradabilty of Plastics" is representative of

certificates ECM provided to at least some of its customers.

5. Exhibit CX-00002, ECM-FTC-000066, a biodegradable logo ("Logo"), is representative

of the logos that ECM provided to at least some of its customers.

6. The documents that ECM submitted to Federal Trade Commission staff, with Bates

numbers between ECM-FTC-OOOOOI and ECM-FTC-000241, constitute all ofthe

scientific tests and studies that ECM submitted in response to the FTC Access Letter

requesting substantiation for its claims that ECM Plastics are Biodegradable ("ECM

Substantiation Materials").

7. None of the ECM Substantiation Materials are based on testing protocols that state that

they simulate conditions tyically found in Landfills.

8. ECM does not possess or rely on any scientific test that showed, during the course of the

test, complete Biodegradation ofECM Plastics.

9. ECM does not possess or rely on any scientific test that showed, during the course of the

test, that 90% or more of the ECM Plastic Biodegraded.

10. ECM bases its claims that ECM Plastics wil completely Biodegrade in some period

greater than a year on extrapolations of test results obtained in tests conducted over

periods less than a year in which the test sample did not completely Biodegrade.

11. ECM based its claim that ECM Plastics wil completely Biodegrade in nine months to

five years on extrapolations of results obtained in tests conducted over periods less than a

year in which the test sample did not completely Biodegrade.

12. ECM does not possess or rely on any consumer perception evidence supporting how

ECM's customers or end-use consumers interpret the term "biodegradable."

13. ECM does not possess or rely on any consumer perception evidence supporting how

ECM's customers or end-use consumers interpret the term "biologically active landfiL."

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14. ECM does not possess or rely on any consumer perception evidence supporting how

ECM's customers or end-use consumers interpret a "reasonable" period of time for

complete biodegradation.

15. ECM does not possess or rely on any consumer perception evidence supporting how

ECM's customers or end-use consumers interpret the phrase "some period greater than

one year."

16. ASTM test protocols do not permit extrapolation of the results of ASTM tests to prove

complete Biodegradation.

ADDITIONAL REQUESTS FOR ADMISSION FOR THE PUROSES OF

AUTHENTICITY AND ADMISSmILITY OF EXHIBITS

Pursuant to the Court's Scheduling Order, the following Requestsfor the Purposes of

Authenticity and Admissibilty of Exhibits do not count against Complaint Counsel's numeric

limit on Requests for Admissions. See Scheduling Order at 6.

1. Exhibit CX-OOOOI attached hereto is authentic, genuine, and a tre and correct copy of

the Certificate of Biodegradabilty of Plastic Products that ECM provided to SL Plastic

Co. LTD, a customer ofECM. Exhibit CX-OOOOI is admissible into evidence in this

matter under Rule 3.43(e).

2. Exhibit CX -00002 attched hereto is authentic, genuine, and a tre and correct copy of a

promotional logo that ECM produced in response to the FTC Access Letter with Bates

number ECM-FTC-000066. Exhibit CX-00002 is admissible into evidence in this matter

under Rule 3.43(e).

3. Exhibit CX-00003 attached hereto is authentic, genuine, and a tre and correct copy of

promotional materials that ECM made available on the ECM Website from at least

August 2010 until October 2012. Exhibit CX-00003 is admissible into evidence in this

matter under Rule 3.43 (b).

4. Exhibit CX-00004 attached hereto is authentic, genuine, and a tre and correct copy of

promotional materials that ECM made available on the ECM website after October 2012.

Exhibit CX-00003 is admissible into evidence in this matter under Rule 3.43(b).

5. Exhibit CX -00005 attched hereto is authentic, genuine, and a tre and correct copy of a

promotional flyer that ECM that disseminated. Exhibit CX-00005 is admissible into

evidence in this matter under Rule 3.43(e).

6. Exhibit CX-00006 attached hereto is authentic, genuine, and a tre and correct copy of a

promotional brochure that ECM disseminated. Exhibit CX-00006 is admissible into

evidence in this matter under Rule 3 .43( e).

7. Exhibit CX -00007, attached hereto is authentic, enuine, and a true and correct copy of

the report

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produced by ECM in response to the FTC Access Letter with

beginning Bates number ECM-FTC-000069. Exhibit CX-00007 is admissible into

evidence in this matter under Rule 3 .43( e).

8. Exhibit CX -00008, attached hereto is authentic,

the

produced by ECM in response to the FTC Access Letter with

beginning Bates number ECM-FTC-000I06. ECM also produced a copy ofthis

document with beginning Bates number ECM-FTC-000283. Exhibit CX-00008 is

admissible into evidence in this matter under Rule 3.43(e).

9. Exhibit CX-00009, attached hereto is authentic, enuine, and a tre and correct co

the

produced by ECM in response to the FTC Access Letter with beginning Bates

number ECM-FTC-000124. ECM also produced a copy ofthis document with beginning

Bates number ECM-FTC-000244. Exhibit CX-00009 is admissible into evidence in this

matter under Rule 3.43(e).

10. Exhibit CX-000I0, attached hereto is authentic,

produced by ECM in response to the FTC Access Letter with

beginning Bates number ECM-FTC-000163. Exhibit CX-000I0 is admissible into

evidence in this matter under Rule 3.43(e).

11. Exhibit CX -00011, attched hereto is authentic,

produced by ECM in response to the FTC Access Letter with

beginning Bates number ECM-FTC-000171. Exhibit CX-OOOll is admissible into

evidence in this matter under Rule 3.43(e).

12. Exhibit CX-00012, attached hereto is authentic,

produced by ECM in response to the FTC Access Letter with

beginning Bates number ECM-FTC-000186. Exhibit CX-00012 is admissible into

evidence in this matter under Rule 3.43(e).

13. Exhibit CX-00013, attached hereto is authentic,

the

roduced by ECM in response to the FTC Access Letter with

beginning Bates number ECM-FTC-000198. Exhibit CX-00013 is admissible into

evidence in this matter under Rule 3.43(e).

14. Exhibit CX-00014, attached hereto is authentic,

the

roduced by ECM in response to the FTC

Access Letter with beginning Bates number ECM-FTC-000206. ECM also produced a

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copy ofthis document with beginning Bates number ECM-FTC-000301. Exhibit CX00014 is admissible into evidence in this matter under Rule 3.43(e).

15. Exhibit CX-00015, attched hereto is authentic, enuine, and a true and correct co

the

produced by ECM in response to the FTC

Access Letter with beginning Bates number ECM-FTC-000226. Exhibit CX-00015 is

admissible into evidence in this matter under Rule 3.43(e).

16. Exhibit CX-00016, attched hereto is authentic, enuine, and a tre and correct copy of

the

produced by ECM

in response to the FTC Access Letter with beginning Bates number ECM-FTC-000230.

Exhibit CX-00016 is admissible into evidence in this matter under Rule 3.43(e).

17. Exhibit CX-00017, attched hereto is authentic, genuine, and a tre and correct copy of

the Stadard Test Method for Determining Anaerobic Biodegradation of Plastic Materials

Under High-Solids Anaerobic-Digestion Conditions, ASTM D 5511 - 02.

18. Exhibit CX-00018, attched hereto is authentic, genuine, and a tre and correct copy of

the Standard Test Method for Determining Anaerobic Biodegradation of Plastic Materials

Under High-Solids Anaerobic-Digestion Conditions, ASTM D 5511 -11.

19. Exhibit CX-00019, attached hereto is authentic, genuine, and a tre and correct copy of

the Standard Test Method for Determining Anaerobic Biodegradation of Plastic Materials

Under High-Solids Anaerobic-Digestion Conditions, ASTM D 5511 - 12.

20. Exhibit CX-00020, attched hereto is authentic, genuine, and a true and correct copy of

the Standard Test Method for Determining Anaerobic Biodegradation of Plastic Materials

Under High-Solids Anaerobic-Digestion Conditions, ASTM D 5526 - 94 (Reapproved

2002).

Complaint Counsel reserves the right to propound the remainder of its RF As after Respondents

produce all outstanding discovery.

Dated: November 27,2013 Respectfully submitted,

lsI Katherine Johnson

Katherine Johnson (202) 326-2185

Elisa K. Jilson (202) 326-3001

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mailstop M-8102B

Washington, DC 20580

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CERTIFICATE OF SERVICE

I hereby certify that on November 27,2013, I caused a tre and correct copy of the

foregoing Complaint Counsel's First Request for Admissions to ECM BioFilms, Inc. to be

served as follows:

One electronic copy to Counsel for the Respondent:

Jonathan W. Emord

Emord & Associates, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Email: jemord@emord.com

Peter Arhangelsky

Emord & Associates, P.C.

3210 S. Gilbert Road, Suite 4

Chandler, AZ 85286

Email: parhangelsky@emord.com

Lou Caputo

Emord & Associates, P.C.

3210 S. Gilbert Road, Suite 4

Chandler, AZ 8,5286

Email: lcaputo@emord.com

I further certify that I possess a paper copy of the signed original of the foregoing

document that is available for review by the parties and the adjudicator.

Date: November 27,2013 lsI Katherine Johnson

Katherine Johnson

Complaint Counsel

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UNITED STATES OF AMRICA

BEFORE THE FEDERA TRAE COMMISSION

In the Matter of

)

)

)

)

)

)

)

ECM BioFilms, Inc., Docket No. 9358

a corporation, also d/b/a

Enviroplastics International PUBLIC DOCUMENT

SUPPLEMENTAL CERTIFICATE OF SERVICE FOR COMPLAINT COUNSEL'S

FIRST SET OF REQUEST FOR ADMISSIONS

I hereby certify that on December 13,2013, I also caused a true and correct copy of

Complaint Counsel's First Request for Admissions to ECM BioFilms, Inc. to be served as

follows:

One paper copy (PUBLIC), one paper copy (SUBJECT TO PROTECTIV ORDER), and an

electronic copy on compact disc to the Offce of the Secretary:

Donald S. Clark, Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Room H-I13

Washington, DC 20580

Email: secretary@ftc.gov

I fuer, certify that I possess a paper copy of the signed original of the foregoing

document that is available for review by the paries and the adjudicator.

".

Date: December 23,2013

"

Katherine Johnson (kjo n3@ftc.gov)

Jonathan Cohen Gcohen2@ftc.gov)

Elisa Jilson (ejilson@ftc.gov)

Federal Trade Commssion

600 Pennsylvana Ave., N.W. M-8102B

Washigton, DC 20580

Phone: 202-326-2185; -2551; -3001

Fax: 202-326-2551