Docket No. 9358 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSI 

COMMISSIONERS: 

In the Matter of 

ECM BioFilms, Inc., 

Edith Ramirez, Chairwoman 

Julie Brill 

Maureen K. Ohlhausen 

Joshua D. Wright 

Terrell McSweeny 

Docket No. 9358 

ORIGINAL 

a corporation, also d/b/a 

Enviroplastics International, PUBLIC DOCUMENT 

Respondent. 

RESPONDENT'S SUPPLEMENTAL BRIEF 

Respondent ECM BioFilms, Inc. ("ECM") hereby files its Supplemental Brief answering 

the questions posed in the Commission's May 29, 2015 Order. 

Summary 

As explained in Dr. David A. Stewmi's attached affidavit and below, no survey in the 

record is causal or experimental with appropriate test and control groups. To satisfy their burden 

in supp01i of the alleged implied rate claim, Complaint Cmmsel had to introduce into evidence a 

valid causal or experimental smvey with proper controls, or at least a valid descriptive survey 

with open-ended questions that allowed respondents to answer in their own words. Complaint 

Counsel did neither. Dr. Stewmi' s descriptive smvey is the only reliable survey of record. Data 

from that survey reveals that no significant minority of consumers infer from the unqualified 

"biodegradable" claim that an ECM plastic will completely decompose within any fixed time 

period. Moreover, there is no "convergence" among the APCO, Synovate, and Frederick 

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Docket No. 9358 PUBLIC DOCUMENT

surveys, and none between them and Dr. Stewart’s study. Without valid and reliable surveys 

confirming any set rate, let alone the alleged implied rate claim, there is no evidence capable of

upsetting the ALJ’s well-reasoned decision that there is no implied rate claim.

A. No surveys in the record are causal or experimental.

To constitute a valid causal or experimental survey, a survey must have: “a well-defined 

independent variable (or treatment); a well-defined and sensitive dependent variable (a measure 

of outcome); a treatment group (that receives the treatment); a control or comparison group (that 

does not receive the treatment); random assignment of respondents to the treatment and control 

groups; identical measures of outcome for both the treatment and control groups; comparability 

in the treatment and control groups on all factors other than the presence or absence of the 

treatment, and a representative sample of a relevant population.” Exh. A (Stewart Affidavit) at ¶ 

1; see Cumberland Packing Corp. v. Monsanto Co., 32 F. Supp. 2d 561, 574 (E.D.N.Y. 1999) 

(explaining that “appropriate use of controls is crucial” for a survey to be “causal”); Wells Fargo 

& Co v. WhenU.com, Inc., 293 F. Supp. 2d 734, 769 (E.D. Mich. 2003) (citing 3 J. McCarthy on 

Trademarks & Unfair Competition § 32:187 (4th ed. 2003) (explaining that surveys must include 

proper controls to make “causal inferences”)).

None of the surveys of record possess those requisite elements. Exh. A at ¶ 2. That is 

because all surveys of record were “designed as descriptive surveys with the objective of 

determining how consumers understand the meaning of the term ‘biodegradable’ in general and 

in specific contexts.” Exh. A at ¶ 5. The Commission earlier acknowledged that the APCO and 

Synovate surveys “may be faulted for lacking control groups...” RX 195 at 121 n.409.

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Dr. Frederick’s “survey”1 was not causal with appropriate test and control groups. He

lacked, inter alia, a well-defined and sensitive measure of outcome. Exh. A at ¶ 11. That 

element is critical because, for a valid causal survey, the surveyor must eliminate threats to valid 

inference making, which requires assurance that manipulations of particular variables actually 

represent what they are presumed to represent. Id. at ¶ 4. For example, if a question asks, “how 

long does this product take to biodegrade?” and is accompanied by an image of a bag with the 

word “biodegradable” in green font, and a respondent answers “one year,” without a follow up 

question determining why the respondent answered “one year” we cannot know the true reason:

whether, e.g., the respondent answered that way because he or she presumed green font

indicative of rapid biodegradation or because he or she thought the bag depicted was of a certain

composition (e.g., compostable), a small size or thinness deemed more rapidly biodegradable.

The Commission cannot reliably determine why Dr. Frederick’s respondents answered that 

certain products would biodegrade within one year absent that additional data because “[t]he 

design of Dr. Frederick’s survey allowed only one question per respondent and did not permit 

follow-up questions that would provide a means for examining such interaction effects.” Exh. A 

at ¶ 4.

Dr. Stewart explains that “the existence of pre-existing and scientifically incorrect beliefs 

among some consumers that untreated plastics biodegrade very rapidly serves to bias the use of 

any control that is a plastic product.” Id. at ¶ 21. Frederick’s data did not reveal each 

respondent’s baseline understanding of plastics biodegradability. Therefore, Dr. Frederick 

cannot know whether it is the ECM logo, the bag depicted, a part of his question, or another 

factor, that actually caused any single respondent to answer one year or less to any question. 

1 Dr. Frederick’s survey is wholly unreliable and invalid. ALJID at 189–202; ECM 

Answering Brief at § IV(E).

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“Valid inferences about the generalizability of the findings of an experiment” are only 

appropriate where the “experiment is representative of what actually transpires in the 

marketplace.” Exh. A at ¶ 4; see also E. Deborah Jay, Ten Truths of False Advertising Surveys,

103 THE TRADEMARK REPORTER 1116, 1148 (2013) (explaining that “surveys have been 

discredited for showing test group respondents an advertisement that has a different ‘graphic 

representation’ from the challenged advertisement or an advertisement that is not the same as the 

challenged advertisement”); L&F Prods. V. Procter & Gamble Co., 845 F. Supp. 984, 996 

(S.D.N.Y. 1994), aff’d 45 F.3d 709 (2d Cir. 1995). “Dr. Frederick’s survey makes no effort to 

replicate the information characteristics of the environment in which the ECM product is sold.”

Exh. A at ¶ 4. Frederick admitted that he never saw an actual product containing ECM’s logo

and that the images he used were fabricated, not actual images of marketed products. Frederick, 

Tr. 1265–66; ALJFF ¶¶ 443–47, 453. They thus fail to provide a true assessment of what 

transpires in the marketplace.

Moreover, Dr. Frederick’s survey is not causal because “the responses obtained from 

survey participants [do] not provide for qualifications and contingencies that would change the 

very meaning of respondents’ answers.” Id. at ¶ 7. Without qualifications and contingencies, a 

surveyor cannot discern respondents’ true beliefs. For example “1 year” is not the same as 

“maybe 1 year, it depends.” Id. at ¶ 31. However, respondents to Frederick’s survey were not 

permitted to add the “it depends” or “maybe” to their answers. Frederick summarily dismissed 

qualified answers, refusing to code answers like “I don’t know,” but coding responses like “1 

nanosecond,” all in an avowed attempt to bolster the APCO survey results. ALJFF ¶¶ 353, 393,

401.

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Docket No. 9358 PUBLIC DOCUMENT

Even if Frederick’s survey was valid and causal (it is neither), his data nevertheless fails 

to support his conclusion that a significant minority of consumers were misled by an unqualified 

“biodegradable” claim. The delta between Frederick’s so-called test (Questions 3H and 3I) and 

control (Questions 3O and 3P) questions was just 6–7%, well below the threshold required to

determine that a communication created an implied marketing claim. Exh. A at ¶ 10. 

Complaint Counsel’s attempt to argue post hoc that the “test” questions were actually

questions 3J and 3K is improper. Questions 3J and 3K are different from the alleged “control” 

questions, 3O and 3P, and are biased by over-emphasizing the term “biodegradable.” See CCX 

860 and compare Questions 3J and 3K with 3O and 3P. Dr. Stewart explains that:

[T]here is an 18% greater response of one year or less to the question that

explicitly refers to biodegradability as part of the question. This is a clear and 

unambiguous measure of the degree to which a question that specifically 

draws attention to biodegradability is a leading question.

Exh. A at ¶ 6 at n.7.

Courts draw no conclusions from demonstrably leading questions. See, e.g., Novartis 

Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Phram., Co., 290 F.3d 578 (3d 

Cir. 2002) (quotations omitted) (“A survey is not credible if it relies on leading questions which 

are inherently suggestive and invite guessing by those who did not get any clear message at 

all.”); Scotts Co. v. United Indus. Corp., 315 F.3d 264, 277 (4th Cir. 2002) (same).

In sum, no survey of record is causal or experimental. Exh. A at ¶¶ 3, 5, 11–12. The 

Frederick survey is entirely unreliable. ALJID at 189–202. At hearing and in his attached 

affidavit, Dr. Stewart explained that Frederick’s survey lacks the requisite elements of a valid 

descriptive survey, let alone a causal survey. Exh. A at ¶¶ 3–10. But even if the Frederick 

survey is somehow heroically rescued and deemed causal, his own data reveal no significant

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Docket No. 9358 PUBLIC DOCUMENT

minority of consumers believes “biodegradable” means the product will decompose within one 

year after customary disposal. Exh. A at ¶ 10.

B. Dr. Stewart’s Descriptive Survey Shows that Complaint Counsel Did Not Meet 

Their Burden

The relative value of descriptive surveys compared to causal or experimental surveys “is 

highly dependent on the state of existing knowledge and the presenting research question.” Exh. 

A at ¶ 19; see also Johnson & Johnson * Merck Consumer Pharms. Co. v. Smithkline Beecham 

Corp., 960 F.2d 294, 300 (2d Cir. 1992). To meet their burden, Complaint Counsel had to 

present evidence demonstrating, through closed-ended questions with appropriate controls or 

open-ended questions allowing respondents to answer in their own words, that a significant 

minority of consumers interpret the unqualified claim “biodegradable” to mean complete 

decomposition within one year after customary disposal. See In the Matter of Telebrands Corp.,

140 F.T.C. 278, *318 (2005). Complaint Counsel presented no such evidence. 

Before a causal survey is appropriate, the surveyor must first know “the current state of 

consumer’s knowledge, understanding, beliefs, attitudes, and behavior.” Exh. A at ¶ 19. At trial, 

Dr. Stewart explained that:

When you’re exploring something that’s relatively new and unexplored, it’s 

desirable not to impose too much structure. What one wants to do is to 

understand the phenomena, understand consumers’ perceptions, understand 

consumers’ behavior. And in order to do that, you really have to give license 

to consumers to express their opinion.

Stewart, Tr. 2510. “For example, if a descriptive survey indicates that the majority of consumers 

understand that the rate of biodegradability depends on materials and environmental conditions, 

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any measure of consumer belief that is ultimately employed in a causal survey must reflect those 

contingencies. To do otherwise results in a biased and invalid research design.” Exh. A at ¶ 12. 

Moreover, there must be an accepted scientific standard (a scientifically accepted time 

within which biodegradation of plastics occurs) before causal survey data would be reliable in 

this case. Exh. A. at ¶ 12. There is none. “Without such a standard there is no basis for 

concluding that some number of respondents have been misled by a test stimulus, such as the 

word ‘biodegradable,’ and there can be no valid basis for comparing the responses of survey 

participants in the test condition with the responses of survey participants in the control 

condition.” Id. A causal survey is premature given the limited understanding of consumer 

beliefs, and the lack of a scientifically accepted time within which biodegradation of plastics 

should occur.

Dr. Stewart therefore chose not to perform a causal study, performing instead a survey 

designed “to understand the perceptions of consumers with respect to biodegradability, what the 

meaning of the term was, complete with any contingencies, dependencies, context effects that 

they might bring to bear.” Stewart, Tr. 2531; RX 856 at 15. Only with that information can a

surveyor properly design a causal survey, because without that information, the surveyor cannot 

know what controls would be appropriate. Exh. A at ¶ 18.

That critical point notwithstanding, Complaint Counsel theorizes that the simple use of 

the word “biodegradable” connotes the implied rate claim. When attempting to prove that an 

implied claim exists, “courts have widely recognized the need for consumer surveys to adjust for 

so-called ‘background noise,’ i.e., extrinsic factors, pre-existing beliefs, general confusion or 

other factors, other than the stimulus at issue, that contribute to a survey's results.” Wells Fargo,

293 F. Supp. 2d at 768; Proctor & Gamble Pharm, Inc. v. Hoffman-LaRoche Inc., 2006 WL 

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Docket No. 9358 PUBLIC DOCUMENT

2588002, *25 (S.D.N.Y. Sept. 6, 2006); Pfizer, Inc. v. Miles, Inc., 868 F. Supp. 437, 447 (D. 

Conn. 1994); Procter & Gamble Co. v. Ultreo, Inc., 574 F. Supp. 2d 339, 351 (S.D.N.Y. 2008); 

SmithKline Beecham Consumer Healthcare L.P. v. Johnson & Johnson-Merck Consumer 

Pharms. Co., 2001 WL 588846, at *2 (S.D.N.Y. June 1, 2001), aff’d, 19 Fed. Appx. 17 (2d Cir. 

2001). The Wells Fargo decision explained that:

[A] survey design must include a control group in order to account for the 

effects of “noise.” The control group functions as a baseline and provides a 

measure of the degree to which respondents are likely to give an answer not as 

a result of the thing at issue, but because of other factors, such as the survey's 

questions, the survey's procedures or some other potential influence on a 

respondent's answer such as pre-existing beliefs. By adding an appropriate 

control group, the survey expert can test exactly the influence of the stimulus. 

Had [the expert] used a control group, he might have been able to make a 

“causal inference” that was clear and unambiguous.

Id. at 768–69 (internal citations and quotations omitted).

The lack of causal data here means Complaint Counsel has not proven the existence of

implied claims. Complaint Counsel had to prove that “at least a significant minority of 

reasonable consumers” were misled by an implied advertising claim. In the Matter of POM 

Wonderful, 155 F.T.C. 1, *13 (2013); see also ALJID at 222 (collecting cases); Exh. A at ¶ 20 

(“Complaint Counsel needed to offer a valid causal survey”). They failed to do so. Exh. A at ¶ 

20.

In Thompson Medical, the Commission relied on surveys that had proper controls when 

finding that the respondent made implied claims. In the Matter of Thompson Med., 104 F.T.C. 

648, at [39] (1984). In Kraft, the ALJ relied on Dr. Stewart’s copy tests to deduce “which 

messages the respondents saw in the advertisements tested,” but only because Dr. Stewart used 

proper controls. In re Kraft, Inc., 114 F.T.C. 40, *107 (1991). As the ALJ explained, “[t]he 

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Docket No. 9358 PUBLIC DOCUMENT

Commission recognizes that because of pre-exiting bias, control advertisements should be 

used...” Id. at *110.

Thus, controls are required for closed-ended questions, but not for properly formatted 

open-ended questions. In re Stouffer Foods Corp., 118 F.T.C. 746, *808 (1994). Open-ended 

questions do not require controls because “open-ended questions properly attempt[] to elicit 

unprompted responses in a consumer’s own words describing what he or she took away from the 

ad.” Id. In Stouffer, for example, the open-ended questions “properly continued to probe for 

more responses.” Id. In Telebrands, the Commission reiterated that controls are necessary to 

find an implied claim unless the survey uses “[o]pen-ended questions allow[ing] survey 

participants themselves to articulate the central claim of the ad – those that first come to mind.”

Telebrands, 140 F.T.C. at *318. The Commission again explained that “closed-ended questions 

require the use of some type of control mechanism.” Id. at *319; see also Procter & Gamble,

2006 WL 2588002, at *23 (the “Commission has long recognized that a control of some kind is 

necessary for closed-ended questions and that ... there is a potential for yea-saying inherent in the 

closed-ended question format”).

FTC jurisprudence therefore mirrors the federal courts’ standards for survey evidence;

where a party bears the burden of proving that consumers are deceived by an implied claim, that 

party must submit consumer survey evidence demonstrating a causal connection between the 

claim and the confusion, either through closed-ended questions with proper controls, or “[o]penended questions allow[ing] survey participants themselves to articulate the central claim of the 

ad – those that first come to mind.” Telebrands, 140 F.T.C. at *318.2 Without knowing the 

2 During oral argument, Commissioner Wright observed that the Commission “should be 

... comparing the consumer perception with the biodegradability claim or label to the baseline 

perception in its absence.” Tr. 67:5–9.

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Docket No. 9358 PUBLIC DOCUMENT

percentage of consumers who believe that an unlabeled plastic would biodegrade within one 

year, the Commission cannot reach any conclusion as to how many consumers were affected by 

the unqualified ECM biodegradable claim. Absent an appropriate baseline number and an 

appropriate open-ended question, nothing connects the belief that a product will biodegrade 

within one year to ECM’s unqualified biodegradable claim. 

Dr. Frederick’s survey did not include those questions (he asked only one question per 

respondent). Almost all of his questions assumed a bias, that the word “biodegradable” connoted 

a rate or time for biodegradation.3 In fact, when respondents tried to articulate an answer with 

contingencies, e.g., that “it depends,” Dr. Frederick refused to code those answers. ALJFF ¶¶ 

371, 393. Frederick only coded answers that included both a numeric specification and temporal 

unit. ALJFF ¶ 392. His coding rendered his entire survey closed-ended by limiting response 

options to those that included a numeric specification and a temporal unit. RX 856 at P. 10 

(explaining that closed-ended questions are those where respondents are “given a limited number 

of options for response”). Under FTC precedent, Frederick’s survey cannot be used to prove the 

existence of an implied claim. 

The only survey question in the record that allowed respondents “to articulate the central 

claim” in their own words was number 1 in Dr. Stewart’s survey: “When you hear the word

biodegradable, what does that mean to you?” RX 605 at 7. Although that question did not elicit 

“causal data,” it is the type routinely relied upon by the Commission to determine whether an 

implied claim exists. Telebrands, 140 F.T.C. at *318; Stouffer, 1118 F.T.C. at *807. Therefore, 

3 Of the 63 questions Frederick asked, 52 included “how long,” “how much time,” “how 

many months,” “how many years,” “period of time,” “took longer than,” “amount of time,” “how 

much longer,” “how much more quickly,” “faster,” “take longer,” “more quickly,” or a temporal 

unit and a numeric specification. CCX 860 at 27–45. The remaining 11 asked variants of the 

seemingly irrelevant question, “Will this product break down into elements found in nature?” 

CCX 860 at 37–43.

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Docket No. 9358 PUBLIC DOCUMENT

Dr. Stewart’s question 1 is entitled to great weight when determining whether the term 

“biodegradable” implied to a significant minority of reasonable consumers complete 

decomposition into elements found in nature within one year after customary disposal. Fully 

82% of respondents thought “biodegradable”—the only word at issue here—was “something 

about disintegration, decomposition or breakdown.” Exh. A at ¶ 15. Just three percent (3%)

equated the term “biodegradable” with a rate of biodegradation. RX 605 at 7.4

Question 4 of Dr. Stewarts’ survey asked: “If something is degradable, how long do you 

think it would take for it to decompose or decay?” Exh. A at ¶ 15. That question cannot be used 

to prove the existence of an implied claim because it was not an open-ended question that 

“allow[ed] survey participants themselves to articulate the central claim of the ad.” Telebrands,

140 F.T.C. at *318. That question required an answer with a length of time, even though most 

respondents had already stated that the word “biodegradable” did not connote a rate or time.

That question contrasts with the open-ended questions the Commission relies upon to find an 

implied claim. See Stouffer, 1118 F.T.C. at *807 (giving weight to the question: “What point or 

points does the ad [] make about the product?”); 118 F.T.C. at *807; Telebrands, 140 F.T.C. at 

*448 (“what does the Ab Force commercial say, show, or imply about Ab Force?”). 

Any attempt to excerpt and view in isolation the results of Question 4 (to favor a fixed 

year term as implied by “biodegradation”) without regard to, or based on a discounting of,

responses to open-ended questions in the Stewart survey results in an unprecedented, 

unrepresentative, and biased determination. That bias is “indefensible” because the totality of 

Dr. Stewart’s data “clearly demonstrates otherwise – 98% of respondents believe that there is 

variation in the amount of time required for a material to biodegrade.” Exh. A at ¶ 16.

4 Respondents could have provided more than one response to Question 1. Exh. A at ¶ 15 

n. 18.

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Docket No. 9358 PUBLIC DOCUMENT

C. The degree of convergence among surveys in the record cannot be quantified

There is no precedent supporting the proposition that flawed surveys which share 

“similar” results can collectively validate results of any one of those flawed surveys. ALJID at 

211–12. Dr. Frederick premises his convergence validity theory, for which there is no 

foundation in the statistics literature, on the assumption that his Google survey somehow cures

the APCO and Synovate surveys.5 Id. at 211. “However, the Google survey is itself so seriously 

flawed that no valid conclusions can be drawn from it.” ALJID at 211; see also ALJID at § 

II.D.4.b.iv. As the ALJ explained, “it defies logic to contend that three flawed surveys can 

somehow rehabilitate one another and create probative weight that otherwise does not exist, on 

the ground that the results are ‘fairly similar.’” Id.

Dr. Stewart explains: “It is not possible to quantify the degree of convergence among the 

studies in the record because the four surveys have different questions, different responses, 

different samples, different methodologies, different times of data collection, different 

approaches to coding, and different analyses.” Exh. A at ¶ 30. Moreover, the APCO, Synovate, 

and Frederick surveys are “methodologically flawed,” so “[e]mploying a ‘convergence’ analysis 

of all studies [is] improper under the relevant scientific and academic authorities.” Id. at ¶ 30.

Dr. Stewart further explains:

[E]ven assuming that [the surveys other than Stewart’s] were reliable (they are 

not), the only point of convergence among the four [inclusive of Stewart’s] is 

the conclusion that consumers exhibit considerable variability in how they 

define the length of time it takes for something to biodegrade. Even on that 

point any superficially apparent convergence is limited by the narrow, and 

leading set of questions offered and/or responses thereto considered in the 

APCO, Synovate, and Frederick surveys. 

To the extent that the APCO, Synovate, and Frederick surveys “converge,” that convergence 

5 Dr. Frederick based his novel ‘convergence’ theory on the results of the APCO, 

Synovate, and Google surveys, and not on the Stewart survey. ALJID at 208 at n. 34.

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results from the sharing of biased results: all three used closed-ended questions. All three 

required respondents to answer in absolutes, without allowing contingencies (e.g., “it depends”). 

ALJID at 204; Exh. A at ¶ 7. Only Dr. Stewart’s survey “provided an opportunity for consumers 

to offer contingencies and qualifications in their responses.” Exh. A at ¶ 30.

Complaint Counsel has not shown that at least a significant minority of reasonable

consumers interpret the claim “biodegradable” to mean complete decomposition into elements 

found in nature within one year.6 The ALJ correctly found that Complaint Counsel failed to 

meet that burden. ALJID at 223.

The Commission must find substantial evidence to overturn the ALJ’s well-reasoned 

decision. POM Wonderful, LLC v. F.T.C., 777 F.3d 478, 490 (D.C. Cir. 2015). The 

Commission has conceded that the APCO and Synovate surveys are flawed. RX 348 at 121 

n.409. Dr. Frederick’s survey is also flawed and invalid. ALJID at 189–202. “[I]nterpret[ing]

the results of [Dr. Stewart’s] survey as though they support a specific belief among consumers 

that there is a specific rate of degradation that defines biodegradability” is “indefensible.” Exh. 

A at ¶ 16. No evidence shows that a significant minority of reasonable consumers associate the 

claim “biodegradable” with complete biodegradation within any fixed term or years, let alone 

within one year, after customary disposal.

6 Significantly, believing that a plastic product will biodegrade completely within one 

year without qualification is unreasonable because it is scientifically invalid. ALJID at 233–34.

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Respectfully submitted,

s/ Eric Awerbuch

Jonathan W. Emord 

Peter A. Arhangelsky

Bethany R. Kennedy

Eric J. Awerbuch

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937

Facsimile: 202-466-6938

DATED: June 22, 2015

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Docket No. 9358 PUBLIC DOCUMENT

CERTIFICATE OF SERVICE

I hereby certify that on June 22, 2015, I caused a true and correct copy of the foregoing to 

be served as follows:

One electronic copy and one copy through the FTC’s e-filing system to the Office of the 

Secretary:

Donald Clark, Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Room H-159

Washington, DC 20580

One electronic copy to the Office of the Administrative Law Judge:

The Honorable D. Michael Chappell

Administrative Law Judge

600 Pennsylvania Ave., NW

Suite 110

Washington, DC, 20580

One electronic copy to Counsel for the Federal Trade Commission:

Katherine Johnson

Complaint Counsel

Federal Trade Commission

kjohnson@ftc.gov

Elisa Jillson

Complaint Counsel

Federal Trade Commission

ejillson@ftc.gov

Date: June 22, 2015

Eric Awerbuch

Attorney

15
EXHIBIT A
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISIONERS: Edith Ramirez, Chairwoman

Julie Brill

Maureen K. Ohlhausen

Joshua D. Wright

Terrell McSweeny

In the Matter of

ECM BioFilms, Inc.,

a corporation, also d/b/a

Enviroplastics International,

Respondent.

Docket No. 9358

PUBLIC DOCUMENT

DECLARATION OF DR. DAVID W. STEWART IN SUPPORT OF RESPONDENT’S 

SUPPLEMENTAL BRIEF

1. I am David W. Stewart and I have previously provided an expert report,

deposition testimony, and trial testimony in the matter of the Federal Trade Commission v.

ECM BioFilms, Inc. My prior expert report included statements of my qualifications and 

described and provided the results of a survey of consumers’ understanding of the meaning of 

the term biodegradable. My earlier report also included a copy of my curriculum vitae.

2. I have been asked by counsel for ECM Biofilms to provide responses to the 

following three questions posed by the Federal Trade Commission. Below I present each 

question and immediately thereafter my response.
A. Can the survey evidence in the record be interpreted as causal or experimental 

surveys with appropriate test and control groups? Would it be appropriate to do so? If 

so, please explain what inferences can be drawn from such an interpretation in light of 

relevant legal authority and statistical methods. If not, please explain why not.

3. None of the surveys offered in the present matter may be properly interpreted as

a causal or experimental survey with appropriate test and control groups. In order to constitute a 

valid causal or experimental survey, a survey must have the following elements: a well-defined 

independent variable (or treatment); a well-defined and sensitive dependent variable (a measure 

of outcome); a treatment group (that receives the treatment); a control or comparison group (that 

does not receive the treatment); random assignment of respondents to the treatment and control 

groups; identical measures of outcome for both the treatment and control groups; comparability 

in the treatment and control groups on all factors other than the presence or absence of the 

treatment, and a representative sample of a relevant population.1 None of the surveys conducted 

in this case possess all of these requisite elements for a causal survey or experiment.

4. The design of a valid causal survey or experiment requires the control or 

elimination of numerous threats to the validity of the design and the inferences that can be drawn 

from the results.2 There are threats to valid inference making. Elimination of such threats 

requires assurance that the manipulations of particular variables actually represent what they are 

assumed to represent. For example, if prior beliefs are evoked by a stimulus, those prior beliefs, 

rather than the stimulus itself, may be responsible for any results obtained. In the context of the 

Frederick studies prior beliefs about biodegradability in general or the biodegradability of 

1 See William R. Shadish, Thomas D. Cook and Donald T. Campbell (2002), Experimental and Quasiexperimental Designs for Generalized Causal Inference, (New York: Houghton Mifflin). There is no simple 

checklist of the characteristics of a causal research design because implementation of a characteristics is as 

important as the presence or absence of that characteristic.

2 Roger E. Kirk (2013), Experimental Design: Procedures for the Behavioral Sciences, 4th Edition, (Thousand 

Oaks, CA: Sage); Shari Seidman Diamond and Jerre B. Swann (2012), Trademark and Deceptive Advertising 

Surveys: Life, Science and Law, (Chicago: ABA Publishing).

 2 

 
plastics in particular may interact with the content of any label to produce the response of a 

survey participant. For example, a respondent might believe that all plastic biodegrades but that 

a plastic bag or container that is labeled as biodegradable will degrade more rapidly than a bag or 

container that is not so labeled. On the other hand, another respondent may believe that the color 

green is associated with environmentally friendly products and base their response on the color 

rather than the wording. Such interactions would be particularly problematic when survey 

respondents differ in their prior beliefs, as is clearly the case based on both the Frederick and 

Stewart data. The design of Dr. Frederick’s survey allowed only one question per respondent 

and did not permit follow-up questions that would provide a means for examining such 

interaction effects. Similarly, valid inferences about the generalizability of the findings of an 

experiment are contingent on whether what is manipulated in the experiment is representative of 

what actually transpires in the marketplace.3 Dr. Frederick’s survey makes no effort to replicate 

the information characteristics of the environment in which the ECM product is sold. There are 

threats to statistical conclusion validity and external validity, which include failure to use reliable 

measures and random heterogeneity among respondents.4 In the case of the Frederick survey, 

the only measures that are used are time estimates that are insensitive to respondents’

understanding of the contingent nature of such time estimates. Measures that do not provide for 

responses that are contingent on other factors, such as type of material and the environment,

severely limit the validity of any conclusions that may be drawn from an experiment. There are 

threats to internal validity,5 which in the case of the Frederick survey would include the question 

3 See Kirk, p. 16.

4 See Kirk, pp. 17, 19; Shari Seidman Diamond (2012), “Control Foundations: Rationales and Approaches,” in 

Shari Seidman Diamond and Jerre B. Swann (2012), Trademark and Deceptive Advertising Surveys: Life, Science 

and Law, (Chicago: ABA Publishing), pp. 201 – 216.

5 See Kirk, p. 18.

 3 

 
of the direction of causality, that is, whether the stimuli are responsible for any observed beliefs 

or whether pre-existing beliefs drive the observed results.

5. The APCO, Synovate, Frederick, and Stewart surveys were all designed as 

descriptive surveys with the objective of determining how consumers understand the meaning of 

the term “biodegradable” in general and in specific contexts. Such an objective is consistent 

with the use of descriptive surveys. Appropriately designed descriptive surveys can provide 

insights about how consumers understand and use terms in the context of marketplace decisions

or other contexts.6

6. In the present matter the complainant appears to suggest that a portion of 

Professor Frederick’s survey represents a causal design. That conclusion is in error. The 

Frederick survey design suffers from all of the following problems: a failure to provide 

measures or stimuli that account for pre-existing beliefs, contingent responses, and heterogeneity 

among respondents, and a failure to provide representation of a reasonable facsimile of market 

conditions. Any effort to use any portion of the Frederick survey to make causal inferences is, 

thus, invalid. Complainant also appears to have some difficulty identifying exactly what 

constitutes the test condition. Professor Frederick originally compared responses of questions 

3O and 3P (the controls) to responses to questions 3H and 3I (the test stimuli). Complainant has 

changed the questions they say represent a response to the test stimuli from 3H and 3I to 

questions 3J and 3K on grounds that the pictures associated with questions 3H and 3I are hard to 

read. However, questions 3J and 3K are different from the questions used with the control 

stimuli and the questions themselves draw specific attention to biodegradability in the context of 

6 Paul J. Lavrakas (2008), “Content Analysis,” Encyclopedia of Survey Research Methods, (Thousand Oaks, CA: 

Sage), pp. 140 – 141; Janice Ballou (2008), “Open-ended Question,” Encyclopedia of Survey Research Methods,

(Thousand Oaks, CA: Sage), pp. 547 – 549; Patricia Labow (1980), Advanced Questionnaire Design, (Cambridge, 

MA: Abt Books), p. 134.

 4 

 
questions about the amount of time it would take for the stimuli to biodegrade. Questions 3J and

3K are clearly leading and are certainly not comparable to the questions used for the control 

products (3O and 3P).7 In sum, no portion of the Frederick survey meets the conditions required 

for a valid causal or experimental survey.

7. Frederick’s survey additionally cannot be interpreted as a causal or experimental 

survey because the responses obtained from survey participants did not provide for qualifications 

and contingencies that would change the very meaning of respondents’ answers. There is also no

scientific standard for the arbitrary conclusion that respondents who state that a biodegradability 

claim implies degradation in a year or less have been misled, especially in the absence of the 

types of qualifications that respondents might attach to a response (For example, Professor 

Frederick did not accept “it depends” as a valid response even though such a response is an 

accurate reflection of belief).

8. Even if Frederick’s survey could somehow be interpreted as a causal survey (it is 

not a causal survey), his survey was still invalid, incapable of rendering reliable results. His 

analyses of the survey discarded almost 30% of the answers because they were not given in an 

absolute, time specific manner. In addition, clearly nonsensical responses were coded as 

consistent with the conclusion that respondents’ understanding of biodegradability was that the 

process occurs in one year or less. Such responses take the form of “blah” or “momma,” “chair,” 

and even “go away” and “I don’t care.”8 Such responses are readily found in Professor 

7 Comparison of the responses to 3H and 3I versus 3J and 3K provides an estimate the effect of the leading 

questions: 14 – 18%. While one might argue that this difference is the result of differences in the readability of the 

stimuli, examination of the questions and associated stimuli make clear that labels associated with question 3I and 

3K are quite readable, yet there is an 18% greater response of one year or less to the question that explicitly refers to 

biodegradability as part of the question. This is a clear and unambiguous measure of the degree to which a question 

that specifically draws attention to biodegradability is a leading question.

8 See column labeled ‘Raw Answer” in the spreadsheet labeled “Concatenated Frederick Data 6-29-14.” CCX 863.

 5 

 
Frederick’s survey.9 It is for this reason, in part, that Professor Frederick refers to “codeable” 

responses, that is, responses that bear some relation to the question asked. Even if responses 

seem related to the questions asked and are therefore “codeable,” many of the responses are still 

silly or nonsensical. For example, Professor Frederick includes such answers as 1 second, 1 

nanosecond, 1 “sec,” 1 week, 1 “season,” 2 minutes, 2 days, 2 weeks, 10 minutes, 10 hours, 10

days, 12 minutes, 12 hours, 12 days (and 122 minutes) as meaningful and acceptable responses 

that suggest a belief that biodegradation occurs in less than a year. Professor Frederick 

indiscriminately accepts them all and codes them as 0.5 year.10 By my count more than 800 

responses were in terms of seconds, minutes, hours, days or weeks. By counting such responses 

he substantially inflates the number of respondents he counts as having given a response of one 

year or less to questions related to the amount of time consumers believe it takes for something 

to biodegrade.

9. Professor Frederick also did not code responses that suggest the respondent does 

not know, such as “don’t know” or “have no idea.” Such responses are very likely honest 

admissions of a lack of knowledge on the part of a respondent. In addition, numerous 

respondents gave a response such as “it depends,” which is arguably the most correct response.

Yet, Professor Frederick failed to include those responses in his results. The failure to include 

“don’t know” and “it depends” responses in the description of the results is problematic because 

9 As I noted in my earlier report and testimony, the very nature of Google Consumer Surveys creates incentives for 

respondents to offer nonsense answers because the survey question interrupts the respondent’s effort to read editorial 

content. Thus, the questions are at best a distraction and barrier to respondents whose objective is to access 

information, not complete a survey. This type of disruptive questioning creates a disinterest bias (Katrina Lerman 

(2013), Google Survey: Friend or Foe?, Greenbook, March 25, http://www.greenbookblog.org/2013/03/25/googleconsumer-surveys-friend-or-foe/); see also Jon A. Krosnick and Stanley Presser (2010), “Question and 

Questionnaire Design,” in Handbook of Survey Research, (Bingley, UK: Emerald Group Publishing), p. 265. Many 

respondents will simply offer a random or nonsensical response in order to move through the questions and get to 

the content in which they are interested.

10 Even if one accepts the responses as a serious effort to answer the question, such responses would more 

appropriately be interpreted as an indication of a lack of knowledge.

 6 

 
it reduces the denominator in the percentages that he reports, which has the effect of inflating the 

percentages he reports. Much like the APCO and Synovate surveys, Professor Frederick’s 

survey(s) sought to force fit survey respondents into pre-determined categories while ignoring 

evidence that many respondents had more nuanced opinions or no opinion at all.

10. Finally, even assuming, arguendo, that a portion of Professor Frederick’s survey 

can be interpreted as a causal design and suffers no other flaws, his results are inconsistent with 

the conclusion that the presence of the ECM logo and the term biodegradable on a plastic 

product creates any appreciable false or misleading beliefs. In response to his “control” 

products, a plastic container and a plastic bag, Dr. Frederick finds that 16% and 13% of 

respondents respectively believe they will biodegrade in one year or less.11 In contrast, in 

response to his “test” products, a plastic container and a plastic bag that include a picture of the 

ECM logo and the word biodegradable, he finds that 22% and 20% of respondents respectively 

believe they will biodegrade in one year or less.12 Thus, the net is only 6 – 7%, well below the 

threshold that is usually required for a determination that a communication created an implied 

marketing claim.13

11. In our reports and testimony, Professor Frederick and I both agree that the APCO 

and Synovate surveys are of little value. Neither survey is a causal or experimental survey 

because they do not possess the characteristics of a causal research design described above: a 

well-defined independent variable (or treatment); a well-defined and sensitive dependent variable 

(a measure of outcome); a treatment group (that receives the treatment); a control or comparison 

group (that does not receive the treatment); random assignment of respondents to the treatment 

11 Frederick Report, Appendix at 34 reporting results for questions 3O and 3P. 12 Frederick Report, Appendix at 31-32 reporting results for questions 3H and 3I. 13 Gerald L. Ford (2012), “Survey Percentages in Lanham Act Matters,” in Shari Seidman Diamond and Jerre B.

Swann (2012), Trademark and Deceptive Advertising Surveys: Life, Science and Law, (Chicago: ABA Publishing), 

pp. 311 – 326.

 7 

 
and control groups; identical measures of outcome for both the treatment and control groups; and 

comparability in the treatment and control groups on all factors other than the presence or 

absence of the treatment.

12. Like the APCO, Synovate, and Frederick surveys, my survey is not a causal or 

experimental survey. At this point, a causal study on the issues present in this litigation would 

be infeasible and improper. There is no generally accepted scientific standard establishing an 

expected time within which biodegradation of plastics will occur.14 Such a standard is a 

necessary precondition to the design of a valid causal or experimental survey with test and 

control groups. Without such a standard there is no basis for concluding that some number of 

respondents have been misled by a test stimulus, such as the word “biodegradable,” and there 

can be no valid basis for comparing the responses of survey participants in the test condition with 

the responses of survey participants in the control condition. Even if differences exist between 

respondents in a test and a control condition, the absence of any standard for determining what 

response(s) are indicative of a false belief, makes comparisons between the groups meaningless.

Indeed, a descriptive survey would be a necessary step for informing the design of a causal study 

because a descriptive survey would provide a baseline for what consumers believe in the absence 

of any specific marketing communications. For example, if a descriptive survey indicates that 

the majority of consumers understand that the rate of biodegradability depends on materials and 

environmental conditions (as respondents to my survey revealed), any measure of consumer 

belief that is ultimately employed in a causal survey must reflect those contingencies. To do 

otherwise results in a biased and invalid research design.

13. The absence of a scientific standard against which to evaluate the truth or falsity 

of consumer beliefs, coupled with little history of prior research on public perception of 

14 Initial Decision at pp. 224–34.

 8 

 
biodegradability, make the design of any “causal” study premature at best. Such research would 

require the establishment of a “standard” for the truth or falsity of a belief. There is no generally 

accepted scientific standard here. In my response to Commission Question 2, I provide 

additional explanation of why a causal or experimental survey is inappropriate in the present 

context.

14. In contrast to the APCO, Synovate and Frederick surveys, my own survey 

provided an opportunity for respondents to answer in their own words with appropriate followup questions (probes) by live telephone interviewers. Abstract terms, like biodegradability, often 

mean very different things to different consumers.15 For example, one consumer may define and 

evaluate quality in terms of quantifiable measures of reliability, such as mean time to product 

failure, while another consumer may define and evaluate quality in terms of how well a product 

delivers a certain benefit sought by the consumer. Yet another consumer may define quality in 

terms of conformity to some standard of design or conformity to particular manufacturing 

requirements. My survey reveals similar differences in how consumers understand 

biodegradability. The approach I used to elicit verbal responses is quite similar to that used 

in other research settings.16 The type of interviewing employed was typical of what has 

been characterized as a “probing interview,” a type of in-depth interview, which is used 

when the purpose of the interview is to obtain accurate and complete information in a 

respondents’ own words.17

15 John R. Hauser and Don Clausing (1988), “The House of Quality,” Harvard Business Review, (May – June), 63-

73. 16 Charles J. Stewart and William B. Cash, Jr. (2003), Interviewing: Principles and Practices, 10th

Edition (New York: McGraw-Hill)

17 Charles J. Stewart and William B. Cash, Jr. (2003), Interviewing: Principles and Practices, 10th Edition (New 

York: McGraw-Hill), p. 105. Robert M. Groves, Floyd J. Fowler, Jr., Mick P. Couper, James M.

Lepkowski, Eleanor Singer, and Roger Tourangeau (2004), Survey Methodology, (New York: Wiley), p. 222.

 9 

 
15. In response to my question “when you hear the term ‘biodegradable’ what does 

that mean to you,” respondents offered a range of responses but 82% of the respondents 

mentioned something about disintegration, decomposition or breakdown. Twenty-six percent of 

the respondents mentioned something about safety but the majority of those also mentioned 

something about breaking down or decomposition.18 Thus there is a general understanding of 

biodegradability, at least at a conceptual level, that it means disintegration, decomposition or 

breakdown. Such understanding is important, because without it, subsequent answers to more 

specific questions must be treated with caution. When respondents in my survey were asked “if 

something is degradable, how long do you think it would take for it to decompose or decay?” this 

question elicited a very wide range of responses though the most common answer, offered by 

39% of the respondents was that it depends on the material or type of product. No other single 

response was offered by more than 6% of the respondents. However, even among these other 

responses there are statements related to differences in materials or context: 6% stated that paper 

degrades faster, 6% stated that plastic does not degrade or takes a long time to degrade, 5% 

indicated that it depends on conditions or how the product is disposed, 3% indicated that 

vegetation decomposes more quickly, and 3% stated that it depends on size. Thus, 68% of the 

respondents gave answers to a very general question about time to biodegradability that indicate 

recognition of differences in the rate of decomposition related to type of material and/or the 

context. Among respondents who gave a specific time frame, the most common single response 

was one to five years. That response was offered by 6% of the survey respondents. Only 

seventeen percent of the respondents offered a specific time frame of one year or less. In 

18 Respondents could offer more than one response, an advantage of open-ended question, so responses may total 

more than 100%.

 10 

 
contrast, 24% of the respondents offered answers of one year or longer. Fourteen percent of the 

responses gave a time frame of five years or more and 7% answered ten or more years.

16. The survey results make very clear that the vast majority of consumers have an 

understanding that the process of biodegradability is highly varied and that it is not always, or 

even often, a rapid process. Consistent with this conclusion, when survey respondents were 

directly asked whether they thought there were differences in the amount of time it takes for 

different types of products to biodegrade, decompose or decay, 98% of the respondents answered 

“yes.” The reasons respondents gave for this belief included the type or size of material, the 

context, and the environment. These results offer unambiguous evidence that consumers’ 

common understanding of the meaning of biodegradability recognizes significant time variance 

in the decomposition process. There is little evidence that consumer understanding of the term 

biodegradability is restricted to decomposition processes that occur within one year or less. This 

is a very important finding because it demonstrates that any effort to arbitrarily establish a single, 

hard, date certain criterion for consumers’ understanding of a claim on biodegradability, as Dr.

Frederick attempts to do, is inconsistent with consumer understanding and necessarily interjects 

bias. Thus, neither scientific evidence nor consumer perceptions are consistent with the criterion 

for deception apparently adopted by Dr. Frederick. That fact alone invalidates any conclusion(s) 

related to deception or causality based on Dr. Frederick’s survey. The finding that 98% of the 

respondents in my survey recognize that the rate of biodegradability over time varies by type and 

size of material and the environment in which degradation occurs also makes it indefensible to 

interpret the results of my survey as though they support a specific a belief among consumers 

that there is a specific rate of degradation that defines biodegradability. My results clearly 

 11 
demonstrate otherwise – 98% of respondents believe that there is variation in the amount of time 

required for a material to biodegrade.

17. In contrast to the results of the APCO, Synovate, and Frederick surveys, my 

survey offers a picture of knowledgeable consumers with very sophisticated views of what 

biodegradation means. Plastic is just one more type of material that consumers are likely to 

understand exhibits the same variability as other materials. Any measure of consumer beliefs 

that fails to incorporate such consumer understanding, and Professor Frederick’s survey does not

(in fact, he ignores the evidence of such understanding in his own survey), is both invalid and 

highly biased.

B. In light of relevant legal authority and statistical methods, what weight should the 

Commission give to the results of descriptive surveys, which measure an attitude, 

characteristic, or belief that survey respondents hold, relative to the results of causal

surveys or experimental surveys, which use test and control groups to measure the 

effect of a specific variable? 

18. The creation of knowledge is a cumulative process that requires multiple and 

complementary methods of research. The conduct of valid and informative research requires a 

great deal of knowledge: (1) who to survey, (2) what questions, using which words, to ask, and 

(3) which kind of response types (open-ended or close-ended) and responses (alternative answers 

to close-ended questions).19 The design of causal or experimental surveys requires even more 

information than the design of a descriptive survey. There is the need to establish a reliable and 

sensitive measure of the effect of any treatment. There is the need to clearly define and 

operationalize a “treatment.” There is the need to assure a fair and valid “control.” While it is 

possible to suggest that these characteristics are present, as Dr. Frederick appears to do, 

19 Such information is often obtained by observational studies, in-depth personal interviews, or focus groups. Prior 

research may also inform the design of studies but there is little such research relevant to the present matter.

 12 

 
assertion is not the same as fact or proof. The data Dr. Frederick offers in his survey does not 

remotely meet the requirements for a causal survey. As I observed earlier, his measures are 

insensitive and inappropriate. His “treatment” condition does not address any of the specific 

claims in the present matter. His “control” is not informed by consumer perceptions. Indeed, at 

this point, any effort to design an “experiment” is at best premature.

19. The relative value of descriptive surveys, such as my own survey, compared to 

causal or experimental surveys is highly dependent on the state of existing knowledge and the 

presenting research question. Appropriately designed descriptive surveys can inform of the 

current state of consumer’s knowledge, understanding, beliefs, attitudes and behavior. Such 

information is requisite to the design of a valid causal or experimental survey. For example, if 

some consumers’ pre-existing belief, based on prior exposure to media stories, courses in school, 

or other sources, is that conventional plastics very rapidly biodegrade, the use of a plastic 

product as a control in an experiment designed to assess the impact of the term “biodegradable”

on a plastic product might produce misleading results.20 That is because such beliefs, even 

among a modest number of respondents, will increase the number of respondents who indicate 

that the control stimulus will rapidly biodegrade without a short time period, which, in turn, will 

inflate the net number of respondents who believe the test stimulus will biodegrade very rapidly.

20. In this situation, Complaint Counsel is attempting to prove that, through the use of 

the word “biodegradable” on a product, Respondent is making an implied claim that the product 

will decompose into elements found in nature within one year after customary disposal. It is 

well accepted that, unless the existence of the implied claim is obvious from the face of the 

advertisement, a party can only prove the existence of an implied claim through the use of a 

20 Mike Rappeport (2012), “Design Issues for Controls,” in Shari Seidman Diamond and Jerre B. Swann (eds.), 

Trademark and Deceptive Advertising Surveys: Life, Science and Law, (Chicago: ABA Publishing), pp. 217 – 239.

 13 

 
causal study.21 To prove that ECM, through the use of the word “biodegradable,” is making the 

implied claim, Complaint Counsel needed to offer a valid causal survey. No survey in the record 

is a valid causal survey. Consequently, no reliable evidence exists that ECM was responsible 

for, contributed to, or took advantage of the scientifically inaccurate understanding of a small 

minority of consumers with respect to plastics biodegradation.

21. Even if a substantial minority of consumers possessed some mistaken belief about 

the biodegradability of plastics made with the ECM Biofilms product that would not in and of 

itself indicate that any particular claim is deceptive. As my survey makes quite clear, consumers 

have many varied beliefs about biodegradability. There is no evidence that erroneous beliefs are 

the result of any marketing communications. It is well-established that many consumers possess 

false beliefs for reasons completely unrelated to any marketing communication.22 This is the 

reason that control conditions that correct for pre-existing false beliefs that are not attributable to 

marketing communications are required for a demonstration that a claim is misleading.23 In the 

present matter, there is no basis upon which to establish that consumers considered rate, rather 

than the fact of biodegradation, when making a purchasing decision. There is no foundation for 

a finding of deception based on the survey evidence. Rather, the existence of pre-existing and 

scientifically incorrect beliefs among some consumers that untreated plastics biodegrade very 

rapidly serves to bias the use of any control that is a plastic product. My survey makes very clear 

that some consumers possess an array of incorrect beliefs that do not appear to be based on 

21 Bruce P. Keller (2012), “Survey Evidence in False Advertising Cases,” in Shari Seidman Diamond and Jerre B.

Swann (eds.), Trademark and Deceptive Advertising Surveys: Life, Science and Law, (Chicago: ABA Publishing), 

pp. 167 – 197.

22 Jacob Jacoby, Wayne Hoyer and David A. Sheluga (1980), Miscomprehension of Televised Communications,

(New York: Advertising Education Foundation of the American Association of Advertising Agencies); Jacob Jacoby 

and Wayne Hoyer (1987), The Comprehension and Miscomprehension of Print Communication, (New York: 

Routledge). 23 Shari Seidman Diamond (2011), “Reference Guide on Survey Research,” in Reference Manual on 

Scientific Evidence, Third Edition, (Washington, DC: National Academies Press), pp. 359 – 423.

 14 

 
claims made by ECM Biofilms. Thus, my survey makes clear that two of three criteria required 

for a finding of deception are not present: (1) a false belief that is (2) attributable to actions of the 

marketer.24 At the same time, it is also quite clear based on the results of my survey that 

consumers understand that there is no absolute definition for biodegradability and no set rate or 

time period within which products can be expected to biodegrade.

22. As explained above, none of the surveys in this record can be interpreted as causal 

or experimental surveys. Furthermore, only my survey is a valid descriptive survey for reasons 

discussed throughout this affidavit.

23. The APCO and Synovate surveys appear to have used closed-ended questions, 

that is, survey respondents were asked questions and given a limited number of options for 

response. While closed-ended questions can be quite useful when there is a well-established, 

limited set of potential answers, they are unhelpful, and can be potentially misleading, when 

there is considerable heterogeneity among potential responses, e.g., many possible answers, and 

where answers may include nuances, qualifications and contextual boundaries.25 Indeed, it is 

well recognized that the use of open-ended questions, which allow respondents to answer in their 

own words, “is an absolutely essential tool when you are beginning work in an area and need to 

explore all aspects of an opinion area.”26

24. A critical limitation of closed-ended questions is that they tend to suggest 

greater homogeneity within a sample of respondents than may actually exist. In a world in 

which there are only four or five possible responses that exist without qualification or context, 

24 See Jef Richards (1990), Deceptive Advertising: Behavioral Study of a Legal Concept, (New York: Routledge) for 

a discussion of the legal definition of deception and its behavioral science foundations.

25 David A. Aaker, V. Kumar, and George S. Day (2004), Marketing Research, Eighth Edition, (New York: John 

Wiley and Sons), pp.315 -316.

26 Seymour Sudman and Norman M. Bradburn (1982), Asking Questions: A Practical Guide to Questionnaire 

Design, (San Francisco: Jossey-Bass), p. 151.

 15 

 
survey participants will appear to agree more often. Even when there is maximum disagreement 

it will still appear as though sizeable portions of the sample agree with each of the limited 

number of responses. This problem of apparent, but false, homogeneity is exacerbated when 

potential responses are excluded and when respondents are forced to select an answer that may 

be only a best approximation of their real answer (or the least objectionable of alternatives with 

which they are presented).

25. An example of misleading homogeneity is found in the APCO survey question 

regarding how long it should take for something to decompose if it is labeled biodegradable.

Four of the six response options are a year or less while only two response options are longer 

than 2 years. Dr. Frederick agrees that this is a problem with the APCO survey. Given the lack 

of balance in the answers available to the respondents, it is not surprising that 60% of the 

respondents selected an answer of one year or less. Random responses spread among six 

options, four of which are one year or less, would result in 66% of the responses falling in one of 

the four response options related to one year or less. This is just what one might expect when 

consumers are asked factual questions about which they have little or no knowledge. Indeed, 

one of the responses, one month or less, is not even likely as a matter of fact but the presence of 

this response, coupled with the disproportionate number of other short term responses, serves to 

signal to the respondent that biodegradability should be associated with very short time frames.

Indeed, it is well recognized that the context of closed-ended responses, even when otherwise 

balanced, may be leading and influence survey respondents’ answers to a question because the 

 16 
scales used tend to shift responses and the questions misrepresent or omit material facts, among 

other reasons.27

26. The use of closed-ended questions is a problem in the APCO and Synovate 

surveys – they suggest greater agreement among respondents than may actually be the case. In 

addition, these two surveys may have excluded important answers from available response 

alternatives and neglected to capture important nuances, caveats, and qualifications that might 

substantially change the interpretation of a response. To illustrate, consider the fact that many 

respondents in my own survey, which used open-ended questions that allowed respondents to 

answer questions in their own words, offered responses that indicated the time to biodegrade 

depends on the materials and the environment in which the degradation might occur. In the 

absence of evidence that the response categories offered to respondents in the APCO and 

Synovate surveys include most of the potential answers to the relevant questions, and that 

respondents would have a reasonable basis for offering an opinion on such factual matters, the 

results from those surveys must be interpreted with extreme caution.

27. Even greater caution is required when using the results of these two surveys to 

inform policy-making decisions. Respondents in these two surveys are being asked for their 

opinions or beliefs. Indeed, as phrased, the relevant questions appear to ask for aspirational or 

hopeful responses (i.e., what the respondent would like to see rather than what the respondent 

believes actually exists). Respondents are thus not being asked about “facts” and many (most) 

respondents would not have the expertise to provide a factual response. Neither can their 

answers be regarded as a preference since realistic options, which would require qualification, 

27 Jacob Jacoby (2012), “Are Closed-ended Questions Leading Questions?,” Shari Seidman Diamond and Jerre B.

Swann (2012), Trademark and Deceptive Advertising Surveys: Law, Science and Design, (Chicago: ABA 

Publishing), pp 261 - 284.

 17 

 
are not provided. Such opinion data may be useful for understanding what people desire to see 

in future but it is not a justifiable basis for a finding that a claim is deceptive. Indeed, to the 

extent that some consumers have “learned” that plastic never biodegrades this prior belief will 

influence their answers to surveys. For example, after years of being told that fat in the diet is 

linked to heart disease the vast majority of Americans believe they should avoid or at least 

substantially reduce fat in their diet. Yet, there is substantial evidence that such beliefs are not 

supported by any science and that low fat diets are actually harmful for most people.28 Thus, the 

APCO and Synovate surveys have little probative value beyond suggesting that there is 

variability in what consumers understand about biodegradability. Even here, the design of these 

two surveys ensures findings of greater homogeneity than likely exists in the market. It was for 

this reason that in my own survey I chose to use open-ended questions.

28. Like the APCO and Synovate surveys, the Frederick survey is unhelpful in this 

case. Adding to the limitations of Professor Frederick’s “experiment” is the arbitrary nature of 

the criterion variable (the dependent variable), which assumes that any belief that 

biodegradation, whether plastic or some other product, requires more than a year is false and 

misleading. That definition is arbitrary and inconsistent with both science29 and the beliefs of 

98% of the respondent in my survey. The present matter is about whether consumers are or have 

been deceived by claims made by ECM Biofilm. The arbitrary criterion used in the Frederick 

survey ironically applies a deceptive standard to the determination of deception.

29. Even if Professor Frederick’s data were not fatally flawed he cannot draw any 

conclusions with respect to the source of consumers’ beliefs, assuming any defined beliefs even 

exist beyond general recognition that biodegradation means disintegration, decomposition, or 

28 Nina Teicholz (2014), The Big Fat Surprise: Why Butter, Meat and Cheese Belong in a Healthy Diet, (New York: 

Simon & Schuster).

29 See Initial Decision at pp. 224–34.

 18 

 
breakdown. His results suggest that there is considerable diversity among respondents in terms 

of their claimed knowledge about biodegradable products, their interest in the topic of 

biodegradability, and their views about the time it takes various materials to biodegrade. There 

is no reason to assume that any of these beliefs are the result of exposure to any marketing 

communications. It is certainly the case that in the absence of appropriate controls, and different 

types of questions, Professor Frederick can draw no conclusions about either the source of 

consumers’ beliefs or the influence of those beliefs on consumer behavior. Therefore his 

survey(s) have no probative value with respect to whether the claims in the present matter are 

deceptive.

C. Is it possible to quantify the degree of convergence among the consumer surveys in 

the record in this case (APCO, Synovate, Frederick, and Stewart) or within any single 

survey? If so, please calculate the degree of convergence, if any, of these surveys. If not, 

please explain the significance of the inability to quantify convergence to an issue or 

issues on appeal.

30. It is not possible to quantify the degree of convergence among the studies in the 

record because the four surveys have different questions, different responses, different samples, 

different methodologies, different times of data collection, different approaches to coding, and 

different analyses. The Frederick, APCO, and Synovate surveys were methodologically flawed 

and unreliable. Employing a “convergence” analysis of all studies would be improper under the 

relevant scientific and academic authorities. Even assuming that the APCO, Synovate, and 

Frederick surveys were reliable (they are not), the only point of convergence among the four 

surveys is the conclusion that consumers exhibit considerable variability in how they define the 

length of time it takes for something to biodegrade. Even on that point any superficially 

apparent convergence is limited by the narrow, and leading set of questions offered and/or 

 19 
responses thereto considered in the APCO, Synovate, and Frederick surveys. Only my survey 

provided an opportunity for consumers to offer contingencies and qualifications in their 

responses. Those contingencies and qualifications are critical for understanding consumers’ 

response to biodegradation given that 98% of respondents to my survey understand that there are 

differences in the amount of time it takes for different types of products to biodegrade, 

decompose or decay and that many consumers also understand that the environment in which 

biodegradation occurs influences the rate of biodegradation.

31. The four surveys use different questions, different responses, different samples, 

different methodologies, different times of data collection, different approaches to coding and 

different analyses. Only my survey afforded respondents an opportunity to offer a response such 

as “it depends,” which was by far the most common response. It would be inappropriate and 

wholly arbitrary to suggest that the response “1 to 5 years” is the same as the response, “it 

depends, maybe 1 to 5 years,” especially when the former response was offered in the absence of 

any opportunity for the respondent to offer contingencies and qualifications or where such 

contingencies and qualifications are ignored.

______________________ Executed on: __June 17, 2015____

Dr. David W. Stewart

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