ANNOTATED PROPOSED ORDER

2

ANNOTATED PROPOSED ORDER

ordinary consumer to hear and comprehend it. Any visual disclosure shall 

be presented in a manner that stands out in the context in which it is 

presented, so that it is sufficiently prominent, due to its size and shade, 

contrast to the background against which it appears, the length of time it 

appears on the screen, and its location, for an ordinary consumer to notice, 

read and comprehend it; and

C. Regardless of the medium used to disseminate it, the disclosure shall be in 

understandable language and syntax. Nothing contrary to, inconsistent 

with, or in mitigation of the disclosure shall be used in any 

communication.

2. “Close proximity” means on the same print page, web page, online service page, 

or other electronic page, and proximate to the triggering representation, and not accessed 

or displayed through hyperlinks, pop-ups, interstitials, or other means. 

3. “Commerce” shall mean as defined in Section 4 of the Federal Trade Commission 

Act, 15 U.S.C. § 44.

4. “Competent and reliable scientific evidence”2 shall mean tests, analyses, research, 

or studies that have been conducted and evaluated in an objective manner by qualified 

persons, that are generally accepted in the profession to yield accurate and reliable 

results, and that are sufficient in quality and quantity based on standards generally 

accepted in the relevant scientific fields, when considered in light of the entire body of 

relevant and reliable scientific evidence, to substantiate that a representation is true.3 

Specifically:

 2 The Commission routinely requires that marketers support environmental claims 

with “competent and reliable scientific evidence.” See, e.g., Down to Earth Designs, 

Inc., No. C-4443 (F.T.C. 2014); Clear Choices Housewares, Inc., No. 122-3288 (F.T.C. 

2013); Kmart Corp., No. 82-3186 (F.T.C. 2009); Tender Corp., No. 82-3188 (F.T.C. 

2009); Dyna-E Int’l Inc., No. 82-3187 (F.T.C. 2009); Archer Daniels Midland Co., 117 

F.T.C. 403, 415 (1994); Mobil Oil Corp., 116 F.T.C. 113, 120-121 (1993); American 

Enviro. Prods., Inc., 115 F.T.C. 399, 408-09 (1992); see also The Guides for 

Environmental Marketing, 16 C.F.R. § 260.8(b) (hereinafter “The Green Guides”) (“A 

marketer making an unqualified degradable claim should have competent and reliable 

scientific evidence that the entire item will completely break down and return to nature 

(i.e., decompose into elements found in nature) within a reasonably short period of time 

after customary disposal.”) (emphasis added); FOF ¶ 134 (the competent and reliable 

scientific evidence standard is consistent with the level of substantiation expected from 

experts in the field). Furthermore, as our accompanying brief makes clear, a Pfizer 

factors analysis demonstrates that “competent and reliable scientific evidence” is the 

correct standard. See In re Pfizer Inc., 81 F.T.C. 23 (1972). Additionally, as part of the 

Pfizer factors analysis, the accompanying brief discusses why the order’s requirements

are consistent with that standard. 

3 This Commission used this definition of “competent and reliable scientific 

evidence” in Gorell Enterprises, Inc., No. C-4360, 2012 FTC LEXIS 96, *5-8 (May 16, 

2012) (consent) (energy saving claims for windows). See also FTC v. AJM Packaging, 
ANNOTATED PROPOSED ORDER

3

ANNOTATED PROPOSED ORDER

A. For unqualified biodegradability claims, any scientific technical protocol 

(or combination of protocols) substantiating such claims must assure 

complete decomposition within one year and replicate, i.e., simulate, the 

physical conditions found in landfills, where most trash is disposed.4

B. For qualified biodegradability claims, any scientific technical protocol (or 

combination of protocols) substantiating such claims must both:

i. assure the entire product will (1) completely decompose into 

elements found in nature5 in the stated timeframe or, if not 

qualified by time, within one year; or (2) decompose into elements 

found in nature at the rate and to the extent stated in the 

representation; and

ii. replicate, i.e., simulate, the physical conditions found in the type of 

disposal facility or method stated in the representation or, if not 

qualified by disposal facility or method, the conditions found in 

landfills, where most trash is disposed.

For example, results from ASTM (American Society for Testing and Materials) 

International D5511-12, Standard Test Method for Determining Anaerobic 

Biodegradation of Plastic Materials under High Solids Anaerobic Digestion Conditions, 

or any prior version thereof, are not competent and reliable scientific evidence supporting 

unqualified claims, or claims of outcomes beyond the parameters and results of the actual 

test performed.6

 

Stipulated Order for Permanent Injunction and Civil Penalty Judgment, No. 13-cv-01510, 

at 5 (D.D.C. Oct. 1, 2013) (regarding “biodegradable” claims; the new order employed 

the same definition of “competent and reliable scientific evidence” as proposed here). 

The Commission employed similar variants in earlier orders. Pure Bamboo, LLC, No. C4274, 2009 FTC LEXIS 231, *5-6 (Dec. 15, 2009) (consent) (bamboo fiber, 

environmentally friendly, degradable, or anti-microbial claims for textile products); 

Kmart Corp., No. C-4263, 2009 FTC LEXIS 144, *3-4, (July 15, 2009) (consent) 

(degradable claims for paper products or disposable tableware products or packages); 

Lentek Int’l, Inc., 135 F.T.C. 311, 340-42 (2003) (consent) (certain claims for air cleaning 

or pest control products). 

4 To determine whether a product will biodegrade in a landfill (and how long it 

will take), the test must simulate landfill conditions. See, e.g., FOF ¶¶ 136, 154. 

5 Substantial numbers of consumers understand that a product labelled 

“biodegradable” will decompose into elements found in nature. FOF ¶ 312; see also The 

Green Guides, 16 C.F.R. § 260.8(b) (requiring competent and reliable scientific evidence 

that the entire item will completely break down and return to nature (i.e., decompose into 

elements found in nature)). 

6 Both sides’ experts criticized the ASTM D5511 in numerous respects. See FOF 

¶¶ 136, 139-40; 178, 187. 
ANNOTATED PROPOSED ORDER

4

ANNOTATED PROPOSED ORDER

5. “Customary disposal” means any disposal method whereby respondent’s products 

ultimately will be disposed of in a landfill, in an incinerator, or in a recycling facility.

7

6. “Degradable” includes biodegradable, oxo-biodegradable, oxo-degradable, or 

photodegradable, or any variation thereof.8

7. “Landfill” means a municipal solid waste landfill that receives household waste. 

“Landfill” does not include landfills that are operated as bioreactors or those that are

actively managed to enhance decomposition.9 

8. “Means and instrumentalities” shall mean any information, including, but not 

necessarily limited to, any advertising, labeling, or promotional, sales training, or 

purported substantiation materials, for use by trade customers in their marketing of any 

product, package, or service, in or affecting commerce.10

9. Unless otherwise specified, “respondent” shall mean ECM BioFilms, Inc., a 

corporation, and its successors and assigns.

I.

IT IS ORDERED that respondent, and its officers, agents, representatives, and 

employees, directly or through any corporation, partnership, subsidiary, division, or other 

device, in connection with the manufacturing, labeling, advertising, promotion, offering 

for sale, sale, or distribution of any product, package, or service, in or affecting 

commerce, shall not represent, in any manner, directly or indirectly, expressly or by 

implication:

 7 The evidence establishes that a majority of consumers understand that a plastic 

product labelled “biodegradable” will biodegrade in a landfill. FOF ¶ 311. 

8 This definition matches the language in The Green Guides, 16 C.F.R. § 260.8(a). 

9 Only 2% of landfills are permitted by the Environmental Protection Agency as 

“bioreactors.” FOF ¶ 434. Even accepting the testimony of ECM’s expert that 15%-20% 

of landfills take some measures to enhance biodegradation, the overwhelming majority of 

landfills do not take such steps. (Tolaymat, Tr. 338; Barlaz, Tr. 2200-2). Accordingly—

even crediting ECM’s testimony—most products customarily disposed of in landfills will 

not go to landfills with bioreactor-like features. 

10 See, e.g., FTC v. Winsted Hosiery Co., 258 U.S. 483, 494 (1922) (“That a 

person is a wrongdoer who so furnishes another with the means of consummating a fraud 

has long been a part of the law.”); Regina Corp. v. FTC, 322 F.2d 765, 768 (3d Cir. 1963) 

(explaining that “with respect to those instances where petitioner did not contribute to the

misleading act, it is settled that one who places in the hands of another a means of 

consummating a fraud or competing unfairly in violation of the Federal Trade 

Commission Act is himself guilty of a violation of the Act”) (quotations, alternations, and 

citations omitted); FTC v. Five Star Auto Club, Inc., No. CIV-99-1693, 2000 U.S. Dist. 

LEXIS 10548, *9 (S.D.N.Y. June 9, 2000) (enjoining defendants “from providing to 

others the means and instrumentalities with which to make, expressly or by implication, 

orally or in writing, any false or misleading representation or omission of material fact”).
ANNOTATED PROPOSED ORDER

5

ANNOTATED PROPOSED ORDER

A. That any product or package is degradable, or that any product, package, 

or service affects a product or package’s degradability, unless11

i. the entire item will completely decompose into elements found in 

nature within one year after customary disposal;

12 or 

ii. the representation is clearly and prominently and in close 

proximity qualified by:

a. Either (1) the time to complete decomposition into elements 

found in nature; or (2) the rate and extent of decomposition 

into elements found in nature, provided that such qualification 

must disclose that the stated rate and extent of decomposition 

does not mean that the product or package will continue to 

decompose;13 and

b. If the product will not decompose in a customary disposal 

facility or by a customary method of disposal, both (1) the type 

of non-customary disposal facility or method and (2) the 

availability of such disposal facility or method to consumers 

where the product or package is marketed or sold

 11 The Order prevents deception while allowing ECM to make truthful, 

substantiated claims. To make a qualified claim about a product that will not completely 

biodegrade in a landfill within one year, ECM must: (1) conspicuously disclose the 

substantiated time to complete biodegradation; or (2) conspicuously disclose, with 

appropriate qualifications, the rate and extent of biodegradation shown through 

competent and reliable scientific evidence. If these claims are based on substantiation 

that applies only to certain disposal environments (i.e. – other than landfills), ECM must 

also conspicuously disclose this limitation.

12 This provision prevents ECM from making deceptive unqualified 

biodegradable claims suggesting that its additive will make plastics biodegrade within a 

year in landfills. See FOF ¶¶ 200, 204, 208, 298, 374 (substantial numbers of consumers 

interpret unqualified “biodegradable” claims on plastic labelled “biodegradable” to mean 

that the product will biodegrade within one year); FOF ¶¶ 11-12 (landfills are the 

dominant method for managing discarded waste in the United States); FOF ¶¶ 35-37, 

112-113 (ECM conveyed that plastics completely biodegrade in most landfill 

environments); FOF ¶ 311 (consumers understand unqualified “biodegradable” claims on 

plastic products to mean biodegradable in a landfill). 

13 At least a substantial number of consumers would otherwise extrapolate rate 

and extent information concerning biodegradation times. See FOF ¶ 448. 
ANNOTATED PROPOSED ORDER

6

ANNOTATED PROPOSED ORDER

and such representation is true, not misleading, and, at the time it is made, 

respondent possesses and relies upon competent and reliable scientific 

evidence that substantiates the representation.

14 

B. That any such product, package, or service offers any environmental 

benefit, unless the representation is true, not misleading, and, at the time it 

is made, respondent possesses and relies upon competent and reliable 

evidence, which when appropriate must be competent and reliable 

scientific evidence, that substantiates the representation.15

II.

IT IS FURTHER ORDERED that respondent, and its officers, agents, 

representatives, and employees, directly or through any corporation, partnership, 

subsidiary, division, or other device, in connection with the manufacturing, labeling, 

advertising, promotion, offering for sale, sale, or distribution of any product, package, or 

service in or affecting commerce, shall not provide to others the means and 

instrumentalities with which to make, directly or indirectly, expressly or by implication, 

including through the use of endorsements or trade names, any false, unsubstantiated, or 

otherwise misleading representation of material fact regarding any environmental 

benefit.

16 

 14 This proposed relief is needed to stop ongoing deception because, for years,

ECM has been misusing incomplete test data that does not constitute competent and 

reliable scientific evidence. See, e.g., FOF ¶ 154 (experts agree that, to support claims of 

biodegradation in landfills, tests should be run at appropriate temperatures with 

appropriate anaerobic bacteria); see also supra at 3 n.6 (both sides’ experts criticize 

ASTM D5511). To determine whether an order is reasonably related to the unlawful 

practices, the Commission should consider: “(1) the seriousness and deliberateness of the 

violation; the ease with which the violative claim may be transferred to other products; 

and (3) whether the respondent has a history of prior violations.” In the Matter of POM 

Wonderful LLC, No. 9344, 2013 FTC LEXIS 6, *49 (Jan. 10, 2013). In this case, ECM’s 

violations were serious, repeated, and blatant. See, e.g., FOF ¶¶ 97-106. 

15 See FTC v. Ruberoid Co., 343 U.S. 470, 473, 475 (1952) (“[T]he Commission 

has wide discretion in its choice of a remedy deemed adequate to cope with the unlawful 

practices disclosed.”); Removatron Int’l Corp. v. FTC, 884 F.2d at 1498 (“Our role in 

reviewing a Commission order has been defined by the Supreme Court: It has been 

repeatedly held that the Commission has wide discretion in determining the type of order 

that is necessary to cope with unfair practices found, and that Congress has placed the 

primary responsibility for fashioning orders upon the Commission.”). This discretion 

allows the Commission to issue orders with fencing-in provisions that are broader than 

the respondent’s unlawful conduct. See, e.g., FTC v. Colgate-Palmolive Co., 380 U.S. 

374, 395 (1965) (“The Commission is not limited to prohibiting the illegal practice in the 

precise form in which it existed in the past. Having been caught violating the Act, 

respondents must expect some fencing in.”) (quotation omitted); see also FTC v. National 

Lead Co., 352 U.S. 419, 428-30 (1957); Jacob Siegel Co. v. FTC, 327 U.S. 608, 611-13 

(1946). 

16 This provision prevents ECM from providing its customers with the means and 

instrumentalities to deceive consumers. See FOF ¶¶53-65 (explaining that ECM 
ANNOTATED PROPOSED ORDER

7

ANNOTATED PROPOSED ORDER

III.

IT IS FURTHER ORDERED that respondent shall, for five (5) years17 after the 

last date of dissemination of any representation covered by this order, maintain and upon 

request make available to the Commission for inspection and copying:

A. All advertisements, labeling, packaging and promotional materials 

containing the representations specified in Parts I and II;

B. All materials that were relied upon in disseminating the representations 

specified in Parts I and II;

C. All tests, reports, studies, surveys, demonstrations, or other evidence in its 

possession or control that contradict, qualify, or call into question the 

representation, or the basis relied upon for the representation, including 

complaints and other communications with consumers or with 

governmental or consumer protection organizations; and

D. All acknowledgments of receipt of this order obtained pursuant to Part IV.

IV.

IT IS FURTHER ORDERED that respondent shall deliver a copy of this order 

to all current and future subsidiaries, current and future principals, officers, directors, and 

managers, and to all current and future employees, agents, and representatives having 

responsibilities relating to the subject matter of this order.18 Respondent shall secure 

from each such person a signed and dated statement acknowledging receipt of the order, 

with any electronic signatures complying with the requirements of the E-Sign Act, 15 

U.S.C. § 7001 et seq. Respondent shall deliver this order to current personnel within 

thirty (30) days after date of service the effective date of this order,19 and to future 

 

provided marketing materials to its clients and encouraged clients to make unqualified 

“biodegradable” claims for their products on the basis of the materials ECM provided); 

see also supra at 4 n.8. 

17 The five-year retention requirement derives from the five-year statute of 

limitations applicable to order enforcement actions. See 28 U.S.C. § 2462. The 

Commission routinely approves this recordkeeping provision with a five-year retention 

period. See, e.g., In the Matter of POM Wonderful LLC, No. 9344, 2013 FTC LEXIS 5, 

*6 (Jan. 10, 2013). 

18 This provision promotes specific deterrence. The Commission routinely 

includes order acknowledgement requirements similar to the one the Proposed Order 

contains. POM Wonderful LLC, 2013 FTC LEXIS 5, at *6. 

19 To provide ECM more time to comply, and consistent with Section 5(g) of the 

FTC Act, Complaint Counsel proposes modifying the Notice Order’s original language 

(“within thirty (30) days after the date of service of this order”) to “within thirty (30) days 

after the effective date of this order.” See Rule 3.56(a) (orders generally effective sixty 
ANNOTATED PROPOSED ORDER

8

ANNOTATED PROPOSED ORDER

personnel within thirty (30) days after the person assumes such position or 

responsibilities.

V.

IT IS FURTHER ORDERED that respondent shall notify the Commission at 

least thirty (30) days prior to any change in the corporation that may affect compliance 

obligations arising under this order,20 including, but not limited to, a dissolution, 

assignment, sale, merger, or other action that would result in the emergence of a 

successor entity; the creation or dissolution of a subsidiary, parent, or affiliate that 

engages in any acts or practices subject to this order; the proposed filing of a bankruptcy 

petition; or a change in the business or corporate name or address. Provided, however, 

that, with respect to any proposed change in the corporation about which respondent 

learns less than thirty (30) days prior to the date such action is to take place, respondent 

shall notify the Commission as soon as is practicable after obtaining such knowledge. 

Unless otherwise directed by a representative of the Commission in writing, all 

notices required by this Part shall be emailed to Debrief@ftc.gov or sent by overnight 

courier (not the U.S. Postal Service) to: Associate Director for Enforcement, Bureau of 

Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Mail 

Stop M-8102B,

21 Washington, DC 20580. The subject line must begin: “ECM 

BioFilms, Inc., File No. ______.”

VI.

 

days after service); POM Wonderful, 2013 FTC LEXIS 5, *7 (Jan. 10, 2013) (using 

“thirty (30) days after the effective date of this Order”); In the Matter of Daniel Chapter 

One, 149 F.T.C. 1574, 1575 (2010) (modifying final order); Modified Final Order, In the 

Matter of Daniel Chapter One, No. 9329, at 4 (Jan. 25, 2010) (containing modified 

language referring to “final and effective date”). 

20 Compliance monitoring provisions are necessary to ensure adherence to the 

Commission’s orders. Cf. Five-Star, 97 F. Supp. 2d at 533 (noting that equitable relief 

“necessary to accomplish complete justice” includes “monitoring provisions, and 

reporting requirements”); FTC v. Think Achievement Corp., 144 F. Supp. 2d 1013, 1026-

29 (N.D. Ind. 2000) (“Courts may order record- keeping and monitoring to ensure 

compliance with a permanent injunction”), aff’d in part, rev’d in part on other grounds, 

312 F.3d 259 (7th Cir. 2002); FTC v. SlimAmerica, Inc., 77 F. Supp. 2d 1263, 1276 (S.D. 

Fla. 1999) (“Record-keeping and monitoring provisions in the permanent injunction are 

also appropriate to permit the Commission to police the defendants’ compliance with the 

order.”). The Commission routinely imposes provisions similar to those here. See, e.g., 

POM Wonderful, 2013 FTC LEXIS 5, at *7-*10 (similar provisions); Gorell Enters., 

2012 FTC LEXIS 96 at *10-*12 (similar provisions). 

21 We propose removing the reference to the (now outdated) mailstop. Packages 

sent via overnight courier can be delivered without a mailstop. 
ANNOTATED PROPOSED ORDER

9

ANNOTATED PROPOSED ORDER

IT IS FURTHER ORDERED that respondent shall, within sixty (60) days after 

the date of service effective date22 of this order file with the Commission a true and 

accurate report, in writing, setting forth in detail the manner and form in which 

respondent has complied with this order.23 Within ten (10) days of receipt of written 

notice from a representative of the Commission, respondent shall submit additional true 

and accurate written reports. Unless otherwise directed by a representative of the 

Commission in writing, all notices required by this Part shall be emailed to 

Debrief@ftc.gov or sent by overnight courier (not the U.S. Postal Service) to: Associate 

Director for Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 

600 Pennsylvania Avenue NW, Mail Stop 8102-B, Washington, DC 20580.24 The 

subject line must begin: “ECM BioFilms, Inc., File No. ______.”

VII.

This order will terminate twenty (20) years from the date of its issuance,25 or 

twenty (20) years from the most recent date that the United States or the Commission 

files a complaint (with or without an accompanying consent decree) in federal court 

alleging any violation of the order, whichever comes later; provided, however, that the 

filing of such a complaint will not affect the duration of:

A. Any Part in this order that terminates in less than twenty (20) years;

B. This order’s application to any respondent that is not named as a defendant 

in such complaint; and

C. This order if such complaint is filed after the order has terminated 

pursuant to this Part.

Provided, further, that if such complaint is dismissed or a federal court rules that the 

respondent did not violate any provision of the order, and the dismissal or ruling is either 

not appealed or upheld on appeal, then the order will terminate according to this Part as 

though the complaint had never been filed, except that the order will not terminate 

between the date such complaint is filed and the later of the deadline for appealing such 

dismissal or ruling and the date such dismissal or ruling is upheld on appeal.

 22 Consistent with the change to the Acknowledgments provision discussed supra 

at 7 n.18, Complaint Counsel proposes revising “within sixty (60) days after the date of 

service of this order” in the Notice Order to “within sixty (60) days after the effective 

date of this order.”

23 See supra at 8 n.21.

24 See supra at 8 n.22.

25 Twenty-year sunset provisions reflect longstanding Commission policy. See 

Policy Statement Regarding Duration of Competition and Consumer Protection Orders, 

60 FED. REG. 42,569 (Aug. 16, 1995). 
ANNOTATED PROPOSED ORDER

10

ANNOTATED PROPOSED ORDER

IN WITNESS WHEREOF, the Federal Trade Commission has issued this 

complaint against respondent and has caused it to be signed by its Secretary and its 

official seal to be hereto affixed, at Washington, D.C. this _____________ day of

________, 2014. 

By the Commission.

Donald S. Clark

Secretary

SEAL
CERTIFICATE OF SERVICE

I hereby certify that on September 25, 2014, I caused a true and correct copy of the 

foregoing to be served as follows:

One electronic copy to the Office of the Secretary, one hard copy, and one copy through the 

FTC’s e-filing system:

Donald S. Clark, Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Room H-159

Washington, DC 20580

Email: secretary@ftc.gov

One electronic copy and three hard copies to the Office of the Administrative Law Judge:

The Honorable D. Michael Chappell

Administrative Law Judge

600 Pennsylvania Ave., NW, Room H-110

Washington, DC 20580

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

Eric J. Awerbuch

Emord & Associates, P.C. 3210 S. Gilbert Road, Suite 4 Chandler, AZ 85286

Email: eawerbuch@emord.com

Date: September 25, 2014

/s/Katherine Johnson_________________

Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov)

Arturo DeCastro (adecastro@ftc.gov)

Federal Trade Commission

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

Washington, DC 20580

Phone: 202-326-2185; -2551; -2747

Fax: 202-326-2558