UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSI 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

PUBLIC DOCUMENT 

569210 

ORAL ARGUMENT REQUESTED 

COMPLAINT COUNSEL'S OPPOSITION 

TO RESPONDENT'S SECOND AND THIRD MOTIONS TO EXCLUDE THE 

OHIO STATE STUDY 

fu a continuing eff01i to exclude a damaging, peer-reviewed study perf01med by two 

Ohio State researchers ("the Ohio State Study"), Respondent ECM filed two frivolous motions 

(and a supplemental memorandum) alleging discovery misconduct. Because none of these 

filings is grounded in the law or supp01i ed by fact, the Comi should deny both motions. 

I. ECM's Motion to Exclude the Ohio State Study Based on " Intentional Dissuasion" 

Lacks Merit. 

First, Respondent enoneously argues that a letter sent by an FTC attomey pursuant to 

FTC confidentiality regulations constitutes a discove1y abuse. See Second Motion To Exclude 

(Mar. 20, 2014). Specifically, the FTC Act and FTC regulations require that, in ce1iain 

circumstances, pmi ies who submit materials to the FTC be provided "an opportl.mity to seek an 

appropriate protective or in camera order." 16 C.F.R. § 4. 10(g); see also 15 U.S.C. §§ 57b-2(b), 

57b-2(c), 57b-2(f). The FTC's conespondence with Dr. Michel, which f01m s the basis for 

ECM's motion, was sent by an FTC attomey to allow production of the subpoenaed materials in 

compliance with these requirements - a fact that ECM conveniently ignores. 

1 ECM also fails to 

mention that the FTC's letter allowed immediate production of materials not subject to these 

1 fudeed, despite block-quoting nearly half the FTC's letter, ECM omits - with ellipses -

that the FTC sent the submitter notice because the third-pmiy materials requested by the 

subpoena "may be entitled to confidential treatment under the FTC Rules of Practice .... " 

Compare Second Motion to Exclude at 6 with Second Motion to Exclude at RX-B. 
PUBLIC DOCUMENT

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protections and, indeed, Dr. Michel produced such documents by the subpoena return date.2

Likewise, ECM fails to inform the Court that the materials in question were collected by the FTC 

(and provided to Dr. Michel) in the context of two entirely different matters and that the 

correspondence ECM complains of was sent by the lead attorney for those matters, who is not 

Complaint Counsel.3

Moreover, contrary to ECM’s unfounded allegations, FTC staff did not delay sending the 

submitter notices. Rather, Dr. Michel contacted the FTC about the discovery request for the first 

time on March 12, 2014, and the attorney he contacted immediately contacted Complaint 

Counsel. CX-A (M. Wilshire Dec.) ¶ 6. It was at this time that Complaint Counsel first learned 

that anyone at the FTC had contact with Dr. Michel. CX-B (K. Johnson Dec.) ¶ 4; CX-C (K. 

Pessolano Dec.) ¶¶ 2-3; Clarification (Mar. 13, 2014) at 1. Two days later, the FTC sent the 

submitter notices, informed Dr. Michel that it did not object to the production of materials not 

covered under the FTC’s confidentiality regulations, and instructed Dr. Michel to wait to 

produce potentially confidential third-party materials in compliance with FTC regulations and 

his non-disclosure agreement. CX-A:1; CX-A ¶ 7.

Significantly, ECM has cited to no authority for imposing sanctions on these facts, 

relying instead on cases involving private parties – with no statutory obligations – who dissuaded 

third parties to withhold subpoenaed materials entirely. See Second Motion at 8.4

 In contrast, 

2 ECM erroneously states that the FTC’s direction that Dr. Michel produce materials he 

received from the FTC consistent with the FTC’s confidentiality regulations “applied to all but 

one ECM subpoena request (item 20).” Second Motion to Exclude at 6. However, of the 21 

document requests propounded, the only subpoena request implicated by the FTC’s 

confidentiality regulations was Request 20. See Second Motion to Exclude at RX-A:3 

(explaining that all documents related to item 20 were produced, with the exception of 

documents containing information submitted to the FTC by third parties and noting that Ohio 

State would answer the other 20 requests). 

3

 When the Commission issued the Complaint, two attorneys represented Complaint 

Counsel: Katherine Johnson and Elisa Jillson. See Notice of Appearance (Nov. 15, 2013). 

Subsequently, Jonathan Cohen filed an appearance on Complaint Counsel’s behalf. See Notice 

of Appearance (Dec. 12, 2013). With respect to this matter, no other attorneys represent 

Complaint Counsel currently, or have ever represented Complaint Counsel. 

4

 ECM’s assertion that Complaint Counsel has violated the Rules of Professional 

Responsibility is equally baseless. Specifically, as discussed in Section I, supra, Complaint 
PUBLIC DOCUMENT

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the FTC directed Dr. Michel – who holds these materials as an agent – to produce materials not 

covered by its confidentiality regulations and to produce confidential third-party materials

consistent with its confidentiality regulations. See CX-A; 16 C.F.R. § 4.10(d).5 Indeed, the nondisclosure agreement – which incorporates the FTC’s confidentiality regulations – requires FTC 

staff or the FTC General Counsel to consent to disclosure of FTC materials. Id. Thus, far from 

thwarting discovery, the FTC’s letter is the mechanism by which discovery may proceed.6

Accordingly, it does not constitute a failure to comply with discovery obligations – let alone an 

“unjustified” one, as Rule 3.38 requires. See Order (Mar. 11, 2014) at 3 (citing In re IT&T, 104 

Counsel has instructed Dr. Michel to produce documents responsive to ECM’s request and, 

accordingly has not obstructed ECM’s access to discovery in violation of D.C. Rule of 

Professional Conduct § 3.4(a). Further, Rule 3.4(f) involves requests of non-parties to refrain 

from “voluntarily” providing adverse parties relevant information and, thus, does not implicate 

formal discovery. D.C. R. Prof’l Conduct §3.4(f). Moreover, it specifically exempts agents like 

Dr. Michel from the rule. Id. Indeed, the cases ECM cites as support for its outlandish 

accusations are inapposite. Harlan v. Lewis 141 F.R.D. 107, 113 (E.D. Ark. 1992), involved a 

defense attorney’s attempt to influence third-party testimony, and In re Minniti, 2000 WL 

275852, at *1-2 (Jan. 4, 2000) involved an attorney who threatened sanctions if the third party 

produced the subpoenaed materials and later misrepresented that the case had been dismissed. 

Ironically, Mr. Emord’s groundless accusations of unethical conduct and requests for bar referral 

may themselves violate the Virginia Bar’s ethics rules. See Va. R. Prof’l Conduct § 3.4(i) 

(prohibiting an attorney from “[p]resent[ing] or threaten[ing] to present criminal or disciplinary 

charges solely to obtain an advantage in a civil matter”); Va. R. Prof’l Conduct § 3.4(j) (a lawyer 

may not “[f]ile a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial,

or take other action on behalf of the client when the lawyer knows or when it is obvious that such 

action would serve merely to harass or maliciously injure another.”). 

5

 16 C.F.R § 4.10(d) expressly applies to information in the custody of a consultant or 

contractor retained by the FTC who has agreed in writing not to disclose third-party materials 

marked confidential by the FTC. The non-disclosure agreement provides that a recipient of FTC 

materials may not: (1) divulge materials and information to anyone other than an FTC employee 

or contractor who has signed a non-disclosure agreement or (2) “directly or indirectly use . . . 

FTC materials and information for any purpose other than that directly associated with . . . 

officially assigned duties.” See CX-A:1. It further provides that disclosures may be made “at 

and consistent with directions of FTC staff during an adjudicative or judicial proceeding to 

which the FTC is a party.” Id. (emphasis added). By signing the non-disclosure agreement –

which makes clear that the FTC retains control of the use of the documents it provides – Dr. 

Michel is an agent for purposes of using FTC-provided documents. See RESTATEMENT (THIRD)

OF AGENCY § 1.01 (2006) (“Agency is the fiduciary relationship that arises when one person (a 

‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the 

principal’s behalf and subject to the principal’s control, and the agent manifests assent or 

otherwise consents so to act.”). 

6 This effort to facilitate discovery stands in marked contrast to the months of delay 

caused by ECM’s refusal to disclose its customer list and subsequent frivolous motions to 

prevent Complaint Counsel from obtaining basic discovery from its customers. 
PUBLIC DOCUMENT

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F.T.C. 280, 1984 WL 565367 at *127 (July 25, 1984)) (sanctions may be appropriate for failure 

to comply with discovery obligations where the failure was unjustified). 

Further, ECM’s suggestion that a protective order somehow vitiates the FTC’s obligation 

to provide submitter notice pursuant to § 4.10(g) flies in the face of the regulation’s plain 

language, which provides that a submitter “will be afforded an opportunity to seek an appropriate 

protective order or in camera order.” 16 C.F.R. § 4.10(g) (emphasis added); accord 46 Fed. Reg. 

26284, 26287 (May 12, 1981) (Final Rule) (explaining that “rule 4.10(g) information will not be 

disclosed in administrative or adjudicatory proceedings without affording the submitter an 

opportunity to obtain a protective or in camera order”) (emphasis added). Indeed, the protective 

order provides identical protections for confidential materials submitted by third parties, 

requiring that “any party receiv[ing] a discovery request . . . that may require the disclosure of 

confidential material . . . shall promptly notify the submitter” and that “such notification shall be 

in writing and be received by the submitter at least 10 business days before production.” 

Protective Order (Oct. 22, 2013) ¶ 11 (emphasis added). It makes no sense that potentially 

confidential third-party materials should receive less protection simply because ECM 

propounded their request on an FTC expert in an unrelated matter who may not disclose the 

potentially confidential documents at all.7 See 16 C.F.R § 4.10(d). 

7 Notwithstanding its flowery language and citations to The Federalist, the quasiConstitutional “separation of functions” argument that ECM’s March 25 Supplement asserts is 

flat-out wrong because it is based entirely on the erroneous assumption that Mr. Wilshire is “one 

of Complaint Counsel.” See Supplement at 1. Mr. Wilshire is not Complaint Counsel in this 

action, he has never been Complaint Counsel, he had no “involvement in the investigation of 

ECM,” CX-A ¶ 5, and his “only participation in the litigation with ECM has been related to the 

sanctions motions ECM filed regarding [his] contact with Dr. Michel,” see id. ECM cites 

nothing in support of its mistaken claim that Mr. Wilshire is “one of Complaint Counsel”—

which is ipse dixit reflecting either misguided speculation or a gross misunderstanding of 

Complaint Counsel’s role vis-à-vis the rest of the FTC. Notably, Mr. Wilshire’s March 24 letter 

instructed Dr. Michel “to produce, as soon as reasonably possible, responsive documents” 

belonging to third party Down to Earth Designs, Inc., because Down to Earth waived any 

objection under 16 C.F.R. § 4.10(g). See Supp. at RX-J. How Mr. Wilshire’s instruction to 

produce documents could have possibly violated the Administrative Procedure Act and the 

“separation of functions” doctrine is unclear, especially given that he is not Complaint Counsel. 

Furthermore, even if Mr. Wilshire served as Complaint Counsel – and he does not – there is no 

conceivable reason that informing a document custodian to disclose documents to ECM more 

quickly than regulations require would violate any law or doctrine. 
PUBLIC DOCUMENT

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II. ECM’s Motion to Exclude the Ohio State Study Based on Inadvertent Late 

Disclosure Lacks Merit. 

Second, ECM argues that Complaint Counsel improperly withheld the Ohio State Study 

for more than a year.8

 In doing so, ECM ignores the fact that Dr. Michel provided the study to 

the FTC in the course of an entirely different matter. It also misstates the law, erroneously 

suggesting that Complaint Counsel has an obligation “to distribute discovery requests to all 

employees and agents of . . . the FTC.” See Third Motion to Exclude (Mar. 20, 2014) at 5 (citing 

Nat’l Assoc. of Radiation Survivors v. Turnage, 115 F.R.D. 543, 556 (N.D. Cal. 1987). 

Significantly, the case ECM relies on involved federal court litigation rather than administrative 

litigation under the FTC’s Rules. Indeed, Rule 3.31 makes clear that “[c]omplaint counsel need 

only search for materials that were collected or reviewed in the course of the investigation of the 

matter or prosecution of the case and that are in the possession, custody or control of the Bureaus 

or Offices of the Commission that investigated the matter, including the Bureau of Economics.”

16 C.F.R § 3.31(c)(2). 

Here, although a draft of the study was received by an FTC attorney on November 2,

2012, it was received in conjunction with a search for experts in two entirely unrelated 

investigations, see CX-A ¶¶ 3-4, it was not known to Complaint Counsel prior to February 14,

2014, CX-B ¶ 3, and it was not used in the investigation or prosecution of the ECM matter prior 

to that time, id. at ¶ 4. Furthermore, Complaint Counsel’s lack of knowledge about the existence 

of this document was entirely justified. Specifically, because Mr. Wilshire – who received the 

document from Dr. Michel – had no involvement in the investigation or prosecution of ECM, his 

files were not searched. CX-A ¶ 5; CX-B ¶ 8.9 Ms. Pessolano, who left the agency ten months

8 ECM’s argument is wrong, but ECM asserts it anyway at least partly to divert attention 

from its obstructionist approach to discovery that caused months of delay with respect to core 

issues – including ECM’s belated document production, ECM’s refusal to disclose a customer 

list, and ECM’s two failed motions to limit Complaint Counsel’s ability to contact its customers. 

9 One of these matters, In re gDiapers, resulted in a public complaint. As is evident from 

the complaint in that matter, the issue in gDiapers involved primarily claims of biodegradability 

in a composting (aerobic) environment – as opposed to biodegradability in a landfill (which is an 

anaerobic environment). The other matter, In re Biobags, also involved primarily composting 

(aerobic) claims. 
PUBLIC DOCUMENT

6

before the Complaint, received the Ohio State Study in connection with her duties on these 

unrelated matters.10 CX-C ¶ 2. Furthermore, when Ms. Pessolano left the agency, she archived 

all of her e-mails and electronic files from the ECM investigation and turned over paper files to 

Ms. Johnson. CX-B ¶ 6; CX-C ¶ 4. These files were searched upon receipt of ECM’s First 

Document Request. CX-B ¶ 7. Because Ms. Pessolano did not realize the relevance of the study 

to the ECM investigation,11 she did not show it to Ms. Johnson or copy it to the ECM 

investigative file,12 CX-C ¶ 3, which is why Complaint Counsel did not identify it. 

Further, once we discovered that attorneys at the FTC had previous contact with Dr. 

Michel, Complaint Counsel immediately informed Respondent’s counsel and the Court. 

Complaint Counsel then searched the files of the unrelated matters and produced documents 

responsive to ECM’s First Document Request. CX-B ¶ 7. We also began producing documents 

responsive to Requests 1 and 3 of ECM’s Second RFPD on March 18, 2014 – almost two weeks 

before our response is due. Simply put, Respondent has put forth no evidence to support its

allegations that Complaint Counsel disregarded its discovery obligations. The evidence shows 

that, at most, the late production of the article was inadvertent. In such circumstances, this Court 

has declined to impose sanctions. In re OSF Healthcare Sys., No. 9349, 2012 WL 861973, at 

*3-4 (Mar. 2, 2012). 

10 Notwithstanding the fact that it involved a separate investigation, we disclose Mr. 

Wilshire’s email forwarding the draft study to Ms. Pessalano solely to end ECM’s speculation 

that Ms. Pessalano somehow received it in connection with this case – she did not. We reserve 

our right to limit our search for responsive materials in accordance with 16 C.F.R § 3.31(c)(2). 

See supra at 5. 

11 Significantly, Ms. Pessolano received a draft journal article that did not reference ECM 

in the “Executive Summary,” or otherwise until page four. See RX-A. Ms. Pessolano does not 

recall reviewing the document. CX-C ¶ 3. Had she realized it concerned ECM, consistent with 

her standard practice, she would have forwarded it to Ms. Johnson. See id.

12 Assuming, arguendo, that Ms. Pessolano should have recognized its relevance and

forwarded it to Ms. Johnson, the oversight was entirely inadvertent and de minimis. In contrast, 

ECM has conducted a calculated, months-long stonewalling campaign involving, among other 

things, the delay of its entire document production and its refusal to disclose a customer list. 
PUBLIC DOCUMENT

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III. The Sanctions ECM Seeks are Unwarranted. 

As this Court has recognized, sanctions must be “reasonable in light of the material 

withheld.” Order (Mar. 11, 2014) at 3 (citations omitted). The chief sanction ECM seeks – the 

exclusion of the Ohio State Study – is extraordinary and unwarranted on these facts. To begin, 

unlike most discovery disputes, the Ohio State Study is a published study that is publicly 

available – a fact that mitigates harm from a late production. Furthermore, as the Court is aware, 

Complaint Counsel already proposed a mutual extension of the fact discovery deadline.13 See

Motion (Mar. 18, 2014). 

Moreover, even if ECM could articulate some theory of harm (which it cannot), courts 

have refused to exclude evidence where a failure to produce was inadvertent. See In re OSF 

Healthcare Sys., No. 9349, 2012 WL 861973, at *3-4 (Mar. 2, 2012); accord Order (Feb. 4, 

2014) at 5 (declining to bar respondents from pursuing certain defenses as a sanction for refusal 

to answer an interrogatory for five weeks and holding that a full answer to the interrogatory 

constituted a “just” remedy); Order (Mar. 11, 2014) at 2 (denying sanctions where most of the 

requested discovery was provided and Respondents committed to complete production). ECM 

has cited to no cases indicating otherwise and, indeed, the cases it does cite are inapposite.14

13 In contrast, ECM proposes only a unilateral extension. 

14 As discussed below, Benitz-Garcia, Bonds, and Batson involved whether dismissal of a 

case was proper for discovery violations and concluded that it was not. In Moore v. Chicago, 2006 WL 1710234, at *11-12 (N.D. Ill. June 14, 2006), the court imposed fees as a sanction

rather than dismissal. Similarly, Turnage involved the imposition of fees, additional discovery, 

and a special master to oversee discovery as a sanction. 115 F.R.D. at 558-61. In Republic of 

China v. Nat’l Union Fire Ins. Co., 142 F. Supp. 551, 556-57 (D. Md. 1956), the court refused to 

impose sanctions where the government’s refusal to answer an interrogatory would have been 

prejudicial to foreign relations. Further, HUD v. First Source Financial, 2007 WL 3173360, at 

*3, *5, *7 (H.U.D. Oct. 12, 2007), involved a default judgment against the respondent for failure 

to participate in discovery or defend the action at all and In re Somerson, 2003 WL 22855212, at 

*1-2, *5 (D.O.L. Nov. 25, 2003), involved dismissal of a complaint alleging wrongful 

termination where the complainant, among other things, sent harassing and threating e-mails to 

witnesses. Finally, ECM cites In the Matter of Basic Research, 2005 WL 3524918, *2-3 (F.T.C. 

Nov. 22, 2005) for the assertion that “[s]anctions for the discovery violations present here are 

warranted.” See Third Motion To Exclude at 4. However, Basic Research involved a very 

different situation involving Complaint Counsel’s alleged failure to comply with expert 

disclosure requirements – and, in any event, the Court denied the sanctions motion. See Basic 

Research, 2005 WL 3524918, at *3 (denying sanctions based on Complaint Counsel’s “sworn 

declaration certifying that Complaint Counsel was not aware that Heymsfield was listed as a co-
PUBLIC DOCUMENT

8

Likewise, ECM’s attempt to exclude the Ohio State Study based on the short delay the 

FTC’s confidentiality regulations require should fail. ECM has not established any nexus 

between the third-party confidential documents and the Ohio State Study. Indeed, although 

ECM repeatedly has alleged conspiracy and bias, see e.g., Mot. at 3-4, such accusations are 

baseless. Moreover, ECM has not articulated how (at most) a 10-day delay – roughly the same 

amount of time ECM took to subpoena Dr. Michel after learning of his article – warrants 

exclusion. Nor has it cited a single case that supports its position.

ECM’s other requested sanctions – dismissal of the case, removal of counsel, and referral 

of counsel to the DC Bar and the Inspector General – are even more ridiculous. As the cases 

ECM relies on make clear, “a case should not be dismissed with prejudice except ‘when a 

plaintiff’s misconduct is particularly egregious or extreme.’” Benitz-Garcia v. Gonzalez-Vega,

468 F.3d 1, 5 (1st Cir. 2006) (reversing dismissal where three discovery deadlines were violated)

quoting Benjamin v. Aroostook Med. Ctr., 57 F.3d 101, 107 (1st Cir. 1995); see also Bonds v. 

District of Columbia, 93 F.3d 801, 808-09 (D.D.C. 1996) (reversing dismissal where lesser 

sanctions not considered); Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 516 (5th Cir. 1985) 

(same); Moore v. Chicago, 2006 WL 1710234, at *15 (N.D. Ill. June 14, 2006) (denying 

dismissal for discovery violations).15 Similarly, we are unaware of any authority (and ECM cites 

none) in which a court disqualified attorneys to sanction them over an unintentional discovery 

infraction. The facts here – that the FTC allowed a prior expert to expeditiously produce 

materials consistent with its confidentiality regulations and, at most, inadvertently produced a 

publicly available document late – do not come close to meeting these standards. Moreover, as 

author on studies that had been published and later withdrawn from publication”), motion for 

reconsideration denied, 2006 WL 159735 (F.T.C. Jan. 10, 2006). Note that Westlaw erroneously 

reports two proposed orders filed by a Basic Research respondent as the Court’s orders, see 2006 

WL 159735 (F.T.C. Dec. 6, 2005), although the Court denied both the sanctions motions, see

2005 WL 3524918, and the subsequent motions to reconsider that denial, see 2005 WL 3524918. 

15 Arias v. Dyncorp Aerospace Operations, 677 F. Supp. 2d 330, 333-34 (D.D.C. 2010), 

in which the court dismissed certain classes of plaintiffs (as opposed to the case as a whole), 

involved plaintiffs who failed for two years to complete questionnaire responses in violation of 

multiple court orders. 
PUBLIC DOCUMENT

9

discussed in Section I, supra, ECM’s allegations regarding unethical conduct are based on 

misreading of the rules and are not supported in the caselaw. 

IV. Conclusion 

For all of these reasons, the Court should deny ECM’s Second and Third Motions to 

Exclude the Ohio State Study. 
Dated: March 27, 2014 

PUBLIC DOCUMENT 

Respectfully submitted, 

,/ 

/"' 

. h.the · hnson (kjol~3@ftc.gov) ~ t~na an Cohen (jcohen2@ftc.gov) 

v' Elisa Jillson ( ejillson@ftc.gov) 

10 

Federal Trade Commission 

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

Washington, DC 20580 

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

Fax: 202-326-2551 
PUBLIC DOCUMENT

11

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is appropriate given the disparity between the alleged impropriety (which 

is either nonexistent or inadvertent) and the drastic relief sought here, including: (1) the referral 

of Complaint Counsel to the bar; (2) the action’s dismissal; (3) the involvement of the Inspector 

General; (4) the exclusion of highly probative evidence from the Commission’s record; (5) 

injunctive relief to prohibit an FTC attorney not before the Court from communicating with an 

expert regarding another matter also not before the Court; and (6) the de facto elimination or

alteration of 16 C.F.R. § 4.10(g) as applied to experts. 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on March 27, 2014, I caused a true and con·ect copy of the foregoing 

to be served as follows: 

One electronic copy through the FTC's e-filing system, and one electronic courtesy copy to the 

Office of the Secretary: 

DonaldS. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc.gov 

One electronic courtesy copy and one paper courtesy copy to the Office of the Administrative 

Law Judge: 

The Honorable D. Michael Chappell 

Chief Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-110 

Washington, DC 20580 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emard 

Emord & Associates, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: j emord@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

321 0 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Date: March 27, 2014 

Peter Arhangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Kat · e Johnson (kjohnson3@ftc.gov) VJo athan Cohen (jcohen2@ftc.gov) 

Elisa Jillson ( ejillson@ftc.gov) 

Federal Trade Commission 

12 

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

Washington, DC 20580 

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

Fax: 202-326-2551 
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

 

 ) 

In the Matter of ) 

 ) 

ECM BioFilms, Inc., ) Docket No. 9358 

a corporation, also d/b/a ) 

Enviroplastics International ) PUBLIC DOCUMENT

 ) ORAL ARGUMENT REQUESTED

EXHIBITS IN OPPOSITION TO

ECM’S SECOND AND THIRD MOTIONS TO EXCLUDE THE OHIO STATE STUDY
Complaint Counsel 

Exhibit A 

CX-A
DECLARATION OF MATTHEW J. WILSHIRE 

Pursuant to 28 U.S.C. § 1746 

In accordance with28 U.S.C. § 1746, I declare tmderpenalty of perjury that the 

following is true and correct: 

1. I reside in Washington, D.C. I am over 18 years of age. I have personal knowledge of 

the facts set forth below. If called as a witness, I could and would competently testify thereto. 

2. I am a staff attorney with the Federal Trade Commission's ("FTC's") Bureau of 

Consumer Protection. I currently work in the Bureau's Division of Financial Practices. From 

May 2006 until January 2014, I worked in the Bureau's Division of Enforcement 

3. From approximately September 2012 until January 6, 2014, I was the lead attomey in the 

matter of Down to Earth Designs,. Inc., d/b/a gDiapers ("gDiapers") and another non-public 

investigation that concerned environmental marketing claims. 

4. In December 2012, the FTC retained Dr. Fred Michel of the Ohio State University as a 

consulting expert in the two environmental marketing matters referenced in Paragraph 3. The 

manager assigned to oversee my environmental marketing investigations did not oversee the 

matter of ECM BioFilms, Inc. ("ECM"). 

5. At no time did I have any involvement in the investigation ofECM. My only 

participation in the. litigation with ECM has been related to the sanctions motions ECM filed 

regarding my contact with Dr. Michel. 

6. On March 12, 2014, I received a phone call from Dr. MicheL He indicated that he had 

received a subpoena from the Federal Trade Commission related to the ECM matter. Prior to 

that phone call, I was unaware that Dr. Michel had received a subpoena. Dr. Michel stated that 

some responsive documents in his possession had been submitted to the FTC by third parties 

during my environmental marketing investigations. 

7. On March 14,2014, I sent notices to counsel for gDiapers and the other company we 

investigated. These notices informed gDiapers and the other company of their rights under 

Commission Rule 4.1 O(g)~ 16 C.F .R. § 4.1 O(g), to protect confidential infonnation. 

8. As a condition of acting as an FTC consulting expert, Dr. Michel executed a nondisclosure agreement. A true and correct copy of that non-disclosure agreement is attached 

hereto as Attachment 1. 

Executed this 26th ofMarch 2014 in Washington, D.C. 

Matthew J. Wilshire 
Complaint Counsel 

Exhibit A 

Attachment 1 

CX-A:1
PUBLIC DOCUMENT

CX-A:1 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

WASHINGTON, D.C. 20580 

NONDISCLOSURE AGREEMENT FOR CONTRACTORS 

(1) Disclosure of FTC materials and information. I will not divulge FTC materials and information 

for any purpose to any person other than an authorized person. 

"FTC materials and information" includes both materials and information provided to me 

by the FTC (whether the FTC received such materials and information from a submitter 

or generated them internally) and produced by me pursuant to my work for the FTC. It 

includes materials and information in any form, including, for example, electronic form, 

and it includes information identifying the existence of a nonpublic fTC investigation. 

An "authorized person" is 

(1) a member of the FTC staff, or 

(2) other contractor personnel from whom the Contracting Officer has 

received a signed FTC Nondisclosure Agreement for Contractors." 

(2) Use of FTC materials and information. I will not directly or indirectly use, or allow the use of, 

FTC materials and information for any purpose other than that directly associated with my 

officially assigned duties. I will not reveal the nature or content of FTC materials and 

information to any unauthorized person, either by direct action, counsel, recommendation or 

suggestion. 

(3) Return of FTC materials and information. At the conclusion of my work under this contract, I 

will return to the fTC {or destroy, at the request ofthe Contracting Officer's Technical 

Representative) all FTC materials, including copies, and all records conta~ning FTC materials and 

information. 

Consistent with the above, l understand that all reports or data first produced during my contract 

with the FTC and in connection with that contract shall be the sole property of the govern men( 

None of these provisions shall !iil1it disclosures: { 1) at and consistent with directions of FTC staff, 

during ali adjudicative or judicial proceeding to which the FTC is a party; or ·(2) with the written consent 

of the FTC General Counsel, or the General CciLihse'l's delegate, which -cor1sen.t can only be given if 

consistent with the FTC Act, the FTC's Rules of Practice, and any other applicable laws, regulations, or 

orders. 

Sanctions for misuse of FTC materials and information may include a fine of up to $10,000, 

imprisonment of up to ten years, or both. 

_F_r_e_de_r_lc_k_C_. _M_i-'-ch_e_l -'-J r:_: _____ (typed or printed name) 

_LM"t--=t.:....·.!....r.:...-..!../l;!l.'f'=..:. -~;..E=: ====;;i,'~C::.........iL~.:___· (signature) __ T_he_O_h_io_s_t_at_e_u_n_iv_e_r_si_tv ___ (company) 

11/8/2012 (date.) ----------------------------- __________ (contract number) 

(Atthe tfme of contract award, the Contracting Officer is--------------------

the Contracting Officer's Technical Representative is----------------------

FTC Form X33 (rev. 4/06) 
Complaint Counsel 

Exhibit B 

CX-B
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

PUBLIC DOCUMENT 

ORAL ARGUMENT REQUESTED 

DECLARATION OF KATHERINE JOHNSON 

IN OPPOSITION TO ECM'S SECOND AND TIDRD MOTIONS TO EXCLUDE 

THE OIDO STATE STUDY 

In accordance with 28 U.S.C. § 1746, I declare under penalty of perjury that the 

following is true and correct: 

1. I am over 18 years of age, and I am a citizen of the United States. I am employed 

by the Federal Trade Commission ("FTC") as an attorney in the Division of Enforcement in the 

Bureau of Consumer Protection. I am an attorney of record in the above-captioned matter, and I 

have personal knowledge of the facts set forth herein. 

2. I have been lead attorney on the investigation and prosecution of the ECM matter. 

Until Kathleen Pessolano left the agency in early 2013, she assisted me in the investigation of the 

ECMmatter. 

3. Neither I, nor anyone who has appeared in this matter as Complaint Counsel, 

knew of or was aware of the Ohio State Study, or any version thereof, prior to February 14, 

2014. 

4. Neither the Ohio State Study, nor any version thereof, was collected or reviewed 

by anyone who has appeared in this matter as Complaint Counsel during the investigation or 

prosecution of the ECM matter prior to February 14, 2014. 

5. On March 12,2014, Complaint Counsel first leamed that the FTC had prior 

contact with Dr. Michel. 

6. When Ms. Pessolano left the agency, she turned over to me archived emails and 

paper files from the ECM investigation. 

7. In accordance with Commission Rule 3.31(b) regarding mandatory initial 

disclosures, Rule 3.31(c) regarding the scope of discovery, and Respondent's First Set of 

Requests for Production of Documents, I searched the archived emails and paper files from the 

ECM investigation that Ms. Pessolano provided to me. 
8. Complaint Counsel did not search Matthew Wilshire's files because, other than 

assisting with the response to ECM's sanctions motions, Mr. Wilshire had no involvement in the 

investigation or prosecution of the ECM matter. 

Executed this 27th ofMarch, 2014 in Washington, D.C. 

~ Complaint Counsel 
Complaint Counsel 

Exhibit C 

CX-C
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE CO.l\fMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

EnviropJastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

NONPUBLIC DOCUMENT 

DECLARATION OF KATill>EEN PESSOLANO IN OPPOSITION 

TO RESPONDENT' S SECOND AND THIRD MOTIONS TO EXCLUDE THE 

OIDO STATE STUDY 

In accordance with 28 U.S.C. § 1746} I declare under penalty of perjury that the 

following is true and correct: 

1. I am over 18 years of age, and I am a citizen of the United States. I was 

employed by the Federal Trade Commission ("FTC") as an attorney in the Bureau of Consumer 

Protection from August 2009 to February 2013. I have personal knowledge of the facts set forth 

herein. 

2. On November 16, 2012~ I received from Matthew J. Wilshire an e-mail with two 

attachments, both of which were titled "Biodegradation ofBioplastics and Natural Fibers During 

Composting, Anaerobic Digestion and in Soil." I received the e-mail and attached document in 

connection with considering potential experts for two non-public investigations that were 

unrelated to the investigation ofECM BioFilms, Inc. ("ECM"). Attachment 1 hereto is a true 

and correct copy of the e-mail and attachments I received. 

3. I do not recall reviewing this document. Had I reviewed this document and 

realized that it mentioned ECM, I would have forwarded this document to Katherine Johnson, 

with whom I was working on the ECM investigation, or preserved this document in the 

investigation file and informed Ms. Johnson of its existence. It is my standard practice to inform 

colleagues of materials potentially relevant to an investigation. 

4. When I resigned the FTC for another position, I made a copy of e-mails I sent and 

received in connection with the ECM investigation and informed Ms. Johnson of where to locate 

those files. I also provided Ms. Johnson with paper files from the investigation. 

Executed this 25th of March 2014 in Washington, D.C. 
Complaint Counsel 

Exhibit C 

Attachment 1 

CX-A:1
PUBLIC DOCUMENT

CX-C:1 at 1

From: 

To: 

Subject: 

Date: 

Attachments: 

Wilshire Matthew 

Pessolano Kathleen 

FW: Composting and bioplastics 

Friday, November 16, 2012 3:14:00 PM 

oomezmichelorbit2012d@ft2fcm pdf 

AEESDegradationD@ft2Gomez C2l pdf 

Matthew J. Wilshire 

Federal Trade Commission 

Bureau of Consumer Protection, Division of Enforcement 

Direct Dial: 202-326-2976 

From: Michel, Frederick [mailto:michel.36@osu.edu] 

Sent: Friday, November 02, 2012 10:39 AM 

To: Wilshire, Matthew 

Subject: Composting and bioplastics 

Matthew, 

Good to talk to you today. Attached is a recent paper I presented at the Organics Recycling and 

Biological Treatment (ORBIT) symposium in Rennes France last June and a powerpoint my student 

Eddie Gomez presented at the 2012 EcoSummit in Columbus. We are working on a couple of 

manuscripts based on this work to be submitted soon. 

Regards, 

Fred Michel 

+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+ 

Frederick C. Michel Jr., PhD 

Associate Professor of Biosystems Engineering 

Department of Food, Agricultural and Biological Engineering 

The Ohio State University-OARDC 

1680 Madison Ave. 

Wooster, OH 44691 

• 330.263.3859 

~ 330.263.3788 

f8l michel 36@osu edu 

-1! www,oardc.ohjo-state.edu/mjchei/CompostResearch.btm I 

Editor, Compost Science and Utilization journal 

www jgpress com/compostscjence/jndex html 

Associate Editor, Biological Engineering Division, ASABE 

www asabe org/pubs/jndex html 

President, Wayne County Sustainable Energy Network 

www. wcsen.org 
PUBLIC DOCUMENT

CX-C:1 at 2

+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+ 
PUBLIC DOCUMENT

CX-C:1 at 3

Biodegradation of Bioplastics and Natural Fibers during Com posting, Anaerobic Digestion and in Soil 

Eddie Gomez:•, Frederick C. Michel"·b 

Biodegradation of Bioplastics and Natural Fibers during 

Composting, Anaerobic Digestion and in Soil 

Eddie Gomez•, Frederick C. Michel Jr.•,b 

Contact: "Department of Food, Agricultural and Biological Engineering, The Ohio State University, 

OARDC, 1680 Madison Avenue, Wooster, OH 44691, USA. michel.36@osu.edu, gomez.69@osu.edu. 

bCorresponding author. 

EXECUTIVE SUMMARY 

Plastics are increasingly causing pollution problems in natural environments due to their recalcitrant nature. Various 

new materials have recently begun to be marketed that claim to biodegrade or compost during waste treatment. These 

materials include conventional plastics amended with additives that are meant to confer biodegradability or 

compostability as well as plastics made from biopolymers, and natural fiber based materials. Different industries are 

particularly intere.<;ted in these materials as alternatives to conventional plastics that are neither compostable nor 

biodegradable. In this study, the amount of carbon in various commercially available bioplastics and natural fibers 

converted to carbon dioxide (C02) and methane was determined during soil incubation, composting and anaerobic 

digestion (AD). The materials included biopolymers made from corn starch, polylactic acid and polyhydroxyalkanoate, 

natural fibers such as coconut coir, paper, dry manure and asphalt and soy-wax coated paper as well as polypropylene 

(PP) and other conventional plastics amended with additives claiming to confer biodegradability. Controls included 

cellulose paper, pots made from PP. During the 550 day soil incubation experiment, all materials degraded more slowly 

than the cellulose positive control. However the biopolymers and natural :fiber materials showed substantial degradation 

during this period. No significant degradation was observed for plastics amended with additives. During anaerobic 

digestion for 50 days, 75% of the cellulose paper, 20-25% of the biopolymers and less than 2% of the additive 

containing PP and PETE had been converted to biogas. After 110 days of composting, more than 70% of cellulose 

paper, 0.6% of an additive amended PP, 51% of a corn starch based bioplastic and 12% of a soy-wax coated paper was 

converted to C02• In conclusion, although certain biopolymers and natural fibers appear to biodegrade to an appreciable 

extent, none meet ASTM standards for biodegradability or compostability. Conventional plastics containing additives 

did not biodegrade differently than non-additive containing plastics. 

Keywords: bioplastics, composting, soil, anaerobic digestion, biodegradation. 

1 INTRODUCTION 

In 2010, the United States generated almost 14 million tons of plastics as containers and packaging and almost 7 

million tons of nondurable goods such as example plates and cups (EPA, 201 0). Only 8 percent of the total plastic 

waste generated was recovered for recycling. A va<;t majority of the plastics that are commercially available are made 

from non-renewable petroleum-based resources and are essentially not biodegradable. Thus, until improvements in 

recycling programs are made, tons of plastics will accumulate in landfills, minimizing the overall landfill (Hopewell et 

al., 2009). These materials are also increasingly causing pollution problems in natural environments due to their 

recalcitrant nature and due to energy use and greenhouse gas emissions during their life cycle (Kyrikou & Briassoulis, 

2007). Roadsides, parks, beaches and natural areas are inundated with plastic trash. 

One reason for limited plastics recycling is that it is often commingled with organic wastes (food scraps, wet paper, 

yard trimmings, soil and liquids), making it difficult and impractical to recycle without expensive cleaning and 

sanitizing procedures. Food scraps and wet, non-recyclable paper comprise an additional 50 million tons of municipal 

solid waste in the U.S. Com posting these mixed organics could potentially recover a sizable portion of the waste stream, 

dramatically increasing community organics recycling and natural resource sustainability. Biodegradable plastics can 

replace the non-degradabrt! plastics in these waste streams, allowing mixed wastes to be composted and making 

municipal composting a significant tool to divert large amounts of otherwise unrecoverable waste. 

ORBIT2012 
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CX-C:1 at 4

Biodegradation of Bioplastics and Natural Fibers during Com posting, Anaerobic Digestion and in Soil 

Eddie G6mez", Frederick C. Michet•·b 

Various plastic and natural materials have recently begun to be marketed that claim to biodegrade or compost during 

waste treatment (Song et al., 2009). These materials include conventional plastics amended with additives that are 

meant to confer biodegradability or compostability as well as plastics made from biopolymers, and natural fiber based 

materials. However, there is limited information about the extent or rate of biodegradation of these materials. There is a 

need to develop novel materials that are designed to fully or partially degrade under different conditions, including soil, 

composting and anaerobic digestion (AD); the latter mimics landfilling. Advantages of biodegradable materials include 

the increase in the economic feasibility of the landfill or anaerobic digestors due to methane gas collection for 

bioenergy production and volume reduction of the waste due to biodegradation during the active life of the of the 

system (International, 2011 ). One of the most pressing questions is whether the "biodegradable" plastics and natural 

fibers available in the market truly degrade. There is a lack of scientific information supporting the claims made by 

"novel" materials developers. 

Whereas some research has focused on the degradation of specific biopolymers and natural fibers that are used to 

produce bioplastics (Hanley et al., 2000; Ishigaki et al., 1999; Woolnough et al., 2010) there is lack of information on 

how the "novel" materials that are available in the market will degrade after incorporation into products or under 

conditions found during waste management or environmental release. These degradation rates are particularly important 

to studies quantifying the impact of specific products and processes on different environments. The overall objective of 

this study was to determine the biodegradability of a wide range of materials and additives claiming to be biodegradable 

or to confer biodegradability to conventional plastics. 

2 METHODOLOGY 

Laboratory-scale experiments were conducted to study the biodegradability of plastics under soil incubation, 

composting, AD conditions. The percent biodegradation was calculated by measuring the average carbon dioxide (C02) 

evolved from each treatment, subtracting this from the average C02 evolved from negative controls, and dividing this 

by the total amount of sample carbon added to each treatment. All materials were cut into I em squares and tested based 

on ASTM international standard test methods. 

2.1 Experimental procedure 

The compo~tability of bioplastics samples was determined based on ASTM D5338-98(2003) (International, 2003b). 

The test determines the percent of carbon in the plastic material that was converted to C02 during the course of a 

composting experiment that mimics the temperature and aeration conditions during full scale commercial composting. 

Each bioplastic sample (80 g dry) was mixed with a compost inoculum (350 g dry) and the moisture content of the 

mixture was adjusted to 60% using deionized water. On a wet-weight basis, each vessel contained approximately 1100 

g of materiaL 

The compost inoculum was obtained from the Ohio Research and Development Center (OARDC) composting site. This 

is a full scale windrow composting facility featuring a concrete composting surface and a built in aeration system. The 

compost contained a mixture of dairy manure and hardwood sawdust (Michel et al., 2004). Compost was then screened 

to less than 10 mm and large inert items were discarded. Compost was amended with ammonium phosphate to give an 

overall C:N of 20: I (by weight), including carbon contained in the test material. Com posting was performed using a 

bench scale reactor system featuring 18, 4-liter capacity reactors placed in an incubator set at 55°C. To maintain aerobic 

conditions, regulated humidified air at a -40°C dew point entered the vessels at a rate of 100 mllmin (Grewal eta!., 

2006). Air was exhausted at the top of the vessels through tubes attached to an air outlet and bubbled through flasks in a 

separate water bath set at 9°C to condense moisture from the off-gas. The off-gas was then analysed for percent C02 

(Vaisala model GMf 220, range 0 to 20%). Data was automatically recorded on a Campbell Scientific model 23XL 

data logger for each vessel every hour. Each vessel was also equipped with a K-type thermocouple to measure 

temperature in the mix near the middle of the compost, and data will be recorded automatically every 12 min. The 

experiments were conducted over a period of 110 days. 

The anaerobic digestion study determined the degree and rate of conversion of plastic materials to C02 and C~ during 

incubation under anaerobic conditions based on ASTM D5511 -02 (International, 2002). For this study test materials , 

ORBIT201 2 2 
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CX-C:1 at 5

Biodegradation of Bioplastics and Natural Fibers during Com posting, Anaerobic Digestion and in Soil 

Eddie Gomez•, Frederick C. Michel•.b 

were exposed to an active methanogenic inoculum derived from a full-scale anaerobic digester treating municipal 

sewage sludge. The test was designed to measure the percent conversion of carbon in the test materials to biogas, a 

combination of CfL, C02 and trace gases. These conditions resemble those found in high-solids anaerobic digestion 

systems and in biologically active landfills. 

The anaerobic digestion assays were performed using laboratory-scale batch reactors, without solids recycling. 

Temperatures were maintained at mesophilic (36 ± 1) conditions by means of incubators. The volume of gas produced, 

and biogas composition were quantified on a daily basis (Gomez et al., 20 I I). All the reactors were inoculated with 

methanogenically active sludge obtained from the Akron Waste Water treatment plants full-scale (3000 m3) anaerobic 

digester. Once inoculated, reactors were sealed to initiate a 7 day start-up phase. The start-up process involved adapting 

the digester biomass to the operational conditions of the laboratory-scale reactors. After proper functioning of the 

reactors was confirmed, sample materials (20 g dry) were added. The experiments were conducted over a period of 50 

days. 

For the soil incubation experiment the degree and rate of aerobic biodegradability of a plastic material in the 

environment determines the extent to which and time period over which the plastic may be mineralized according to 

ASTM D5988-03 (International, 2003a) test method. Agricultural soils were obtained fi·om experimental units at the 

OARDC. The soil media was a laboratory mixture of 43% certified organic top soil, 43% of no-till farm soil and 14% 

sand. Soil was sieved to less than 2-mm particle size, plant materials, stones, and other inert materials were removed. 

The soil was then analysed tor moisture holding capacity (MHC) according to ASTM test method D2980. For this 

experiment, 300 grams ofthe soil media (dw) were placed in the bottom of the vessels (figure 1). Soil was amended 

with ammonium phosphate to give a C:N of20:1 (by weight), including carbon contained in the test specimen. Distilled 

water was added to bring the moisture content of the mixture to 60% of the MHC. The test samples containing 1000 mg 

of carbon (- 2 of sample) were then mixed thoroughly with the soil. A solution containing· 20 ml of potassium 

hydroxide (KOH) 0.5N was placed in each vessel. The experiments were conducted over a period of550 days. 

2.2 Chemical parameters 

A variety of analytical measurements were used to monitor the biodegradation of sample materials during composting, 

AD and in soil experiments. These included C02 evolution, total carbon content of the media and plastics, total nitrogen 

and biogas production (C02 and CH4). 

The total carbon and nitrogen contents of the sample materials were measured according to methods developed by the 

US Composting Council (Composting Council et al., 2002) by the Service Testing and Research laboratory (STAR) at 

The OARDC in Wooster, OH. A VarioMax Carbon-Nitrogen combustion analyser (Elementar Americas Inc., Mount 

Laurel, NJ, U.S.) was used to carry out the analyses based on combustion followed by C02• Analyses for the complete 

suite of elements was performed in the same location by ICP analysis after microwave digestion (EPA Method 3051). 

The off-gas from the composting experiment was analysed for percent C02 using infrared spectroscopy (Vaisala model 

GMT 220, range 0 to 20%). A polaragraphic oxygen system was used to measure percent oxygen (02) (Mine Safety 

Appliances model "ULTIMA," nmge 0 to 25%). Data will be automatically recorded on a Campbell Scientific model 

23XL data Jogger for each vessel every hour. Each vessel wa~ equipped with a K-type thermocouple to measure 

temperatures in the mixes near the middle of the compost, and data was recorded automatically every 12 min. 

Volumetric production ofbiogas from the AD experiments was measured by collecting the off-gas fi·om the reactors in 

0.5 L tedlar bags. The gas volume evolved during the experiments was measured by pumping the gas through a drum 

type wet-test volumetric gas meter (RITTER®, Bochum, Germany), volumes were converted to standard temperature 

and pressure (STP) conditions based on the building temperature and pressure at the time of the measurement. The 

methane content in the biogas was determined using a gas chromatograph (GC) HP 6890 (Agilent Technologies, Santa 

Clara, CA, U.S.) series equipped with a ValcoPlot VP-Alumina (Valco Instruments Co. Inc., Ontario, Canada) column 

and a thermal conductivity detector (TCD) operated isothermally at 40°C. Helium was the carrier gas at a flow rate of 

20 ml/min. 

Carbon dioxide produced in each vessel containing soil reacted with KOH to form bicarbonate (KHC03). The amount 

of C02 produced was determined by titrating the remaining KOH solution with 0.25N hydrochloric acid to a 

phenolphthalein end-point. Vessels were incubated at room temperature. KOH traps were removed and titrated before 

their capacity was exceeded. In addition 0 2 content in the vessel was ensured not to fall below 18%. The time to replace 

ORBIT2012 3 
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Biodegradation of Bioplastics and Natural Fibers during Com posting, Anaerobic Digestion and in Soil 

Eddie Gomez•, Frederick C. Michel•.b 

a trap varied with test materials. Moreover, a frequency of every 3 to 4 days for the first 2 to 3 weeks and every I to 3 

thereafter was used. At the time of removal of the traps, the vessel was allowed to sit open for a maximum of 15 

minutes to allow for fresh air to get into the system. In addition, distilled water was added accordingly to maintain 

adequate moisture content. The test was terminated when the C02 evolution reached a plateau assuming that all 

accessible carbon was oxidized. 

2.3 2.3 Data analysis 

Three independent replicates will be used for each treatment. Analysis of variance (ANOV A) will be calculated for the 

average cumulative percent conversion for each of the tests. Comparisons for all pairs of bioconversion means will be 

performed using Tukey-Kramer HSD method. All conclusions will be based on a significant difference level of a = 

0.05. The statistical analyses will be performed using J.MP statistical program version 9 (SAS Institute Inc., SAS 

Campus Drive, NC, U.S.). 

3 RESULTS AND DISCUSSION 

Three materials were tested under composting conditions; corn starch biopolymer Ecotainer0 , soy wax coated paper, 

and polypropylene (PP) with 2% EC~ additive. The positive control used was cellulose paper. The initial rate of 

degradation was similar for the positive control and the Ecotainer0 , samples (Fig. ·1). The Ecotainer material continued 

to biodegrade steadily until the end of the experiment. Little conversion was observed for the soy wax coated paper or 

the PP with additive. Soy wax coated paper samples reached a maximum degradation after 15 to 20 days of the 

experiment. The average final carbon conversion for the coated paper and Ecotainer samples was 12.4±0.2 and 

51.3±0.2% respectively. Over 70% biodegradation wa~ observed for the positive control. Plastic with ECM additive did 

not show significant degradation over the period of study (I 10 days). 

90% ---··--·---------··----------·------- -------- - Positive 

- Paper + soy wax 

G 80% ,.. 

0 

~ 70% 

'!;; 

£ 60% 

u 

., 

~ 50% .. 

= 40% a 

= 

"; " 30% 

:§ 

.... 20% 0 

~ 10% 

0 20 40 60 80 100 120 

Timc(day) 

Figure 1. Cumulative carbon loss (COrC) during composting as the percentage of initial carbon (±SD) over time. For 

some data points SD bars are smaller than markers. 

Eleven different materials were tested in soil incubation experiments. The positive control used was cellulose 

paper. Bioconversion occurred at faster rate initially for most of the materials tested (Fig. 2). PHA and Ecobras0 , 

showed the greatest rate of degradation among the materials tested. This was followed by Cow Pot0 , paper + a~phalt, 

and Ecotainer. Materials derived from natural fibers (Coconut coir, Rice hull and Peat Pot~ showed a slower, but 

significant rate of degradation. No degradation was observed for PP and PETE with additives over the entire period of 

study. After 550 days, the PHA and Ecobras0 sample showed 56.4±0.7 and 53.0±0.8% carbon conversion to C02, 

respectively. Cumulative degradation of the materials made from paper and natural fibers were between 5 and 25%. 

ORBIT2012 4 
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Biodegradation Of Bioplastics and Natural Fibers during Com posting, Anaerobic Digestion and in Soil 

Eddie Gomez•, Frederick C. Michel•.b 

G 

..:. 

0 

80% r-----------------------------------------------------~---, 

70% 

~ 60% t-·- --- --- _.g -

"' 

u 

... 

-~ .. 

"S 

8 

= 

-

" 

.. 

:§ 

.... 

0 

'$. 

50% 

40% 

30% 

20%ii~~~ 10% 

0% 

0 100 200 300 400 500 600 

Time (day) 

._._.,Positive 

- Ecobras® 

- OP-47® 

--Eeotainet® 

~P TE+ 1% EcoPure® 

--PP +2%ECM® 

.....,. Paper+ asphalt 

-coconut coir 

oooo-Rice bull 

-Cow Pot® 

Figure 2. Cumulative carbon loss (C02-C) during soil incubation as the percentage of initial carbon (±SD) over time. 

For some data points SD bars are smaller than markers. 

Four materials were tested under anaerobic digestion conditions (Fig. 3). The positive control used was cellulose paper. 

The initial rate of degradation was highest for Ecotainer® and Ecobras® samples. The rate of degradation was steady 

through day 30 for these two samples and appeared to slow somewhat after this period. Final values for Ecotainer® and 

Ecobras® were of 26.4±8.0 and 20.2±6.7% over a 50 day period in an anaerobic environment, respectively. For 

treatments containing PP and PETE amended with additives, no significant degradation was observed over the period of 

study. Statistical analyses revealed that differences between Ecobras and Ecotainer were not significant. 

90% 

G 80% 

..:. 

0 

8 70% 

.. 

_.g "' 60% 

u 

-~ " 

"' 

50% 

"S 40% E 

= " 30% 

~ 

:s 20% ..... 

0 

'$. 10% 

0% 

0 

-----···········-·---······-··----·······-·-···--······ 

---··--·---·--·········· -··---·1----t--·----· 

5 10 15 20 25 

Time(day) 

30 35 40 45 50 

- Positive 

--PP + 2% ECM® 

- Ecobras® 

PE E+ I% EcoPure® 

- Ecotainer® 

Figure 3. Cumulative carbon loss (COrC) during anaerobic digestions as the percentage of initial carbon (±SD) over 

time. For some data points SD bars are smaller than markers. 

4 CONCLUSION 

Although certain biopolymers and natural fibers appear to biodegrade to an appreciable extent during composting, 

anaerobic digestion and soil incubation, none degrade at the same rate or to the same extent as positive controls. 

Therefore, none met ASTM standards for biodegradability or compostability. Conventional plastics containing additives 

that are marketed to improve biodegradability did not biodegrade differently than non-additive containing plastics and 

neither biodegraded to an appreciable extent. 

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REFERENCES 

Biodegradation of Bioplastics and Natural Fibers during Com posting, Anaerobic Digestion and in Soil 

Eddie Gomez•, Frederick c. Michel•·• 

Composting Council, R., Education, F., United States Composting, C. 2002. Test methods for the examination of 

composting and compost TMECC, US Composting Council. [Hauppage, N.Y.]. 

EPA, 0. 2010. 2009 Ohio Facility Data Report Tables, Division of Solid and Infectious Waste Management. Columbus. 

EPA, 0. 201 I. 2009 Solid Waste Reduction and Recycling Statistics, Division of Solid and Infectious Waste 

Management. Columbus. 

Gomez, E., Martin, J., Michel, F.C. 2011. Effects of organic loading rate on reactor performance and archaeal 

community structure in mesophilic anaerobic digesters treating municipal sewage sludge. Waste Management 

& Research, 29(1 1), I 117-1123. 

Grewal, S.K., R~jeev, S., Sreevatsan, S., Michel, F.C. 2006. Persistence of Mycobacterium avium subsp 

paratuberculosis and other zoonotic pathogens during simulated composting, manure packing, and liquid 

storage of dairy manure. Applied and Environmental Microbiology, 72(1), 565-574. 

Hanley, Z., Slabas, T., Elborough, K.M. 2000. The use of plant biotechnology for the production of biodegradable 

plastics. Trends in Plant Science, 5(2), 45-6. 

Hopewell, J., Dvorak, R., Kosior, E. 2009. Plastics recycling: challenges and opportunities. Philosophical Transactions 

of the Royal Society B-Biological Sciences, 364(1526), 2 I I 5-2126. 

International, A. 2003a. Standard test method for determining aerobic biodegradation in soil of plastic materials or 

residual plastic materials qfter composting (Standard D5988- 03). ASTM International, West Conshohocken, 

Pa. 

International, A. 2003b. Standard test method for determining aerobic biodegradation of plastic materials under 

controlled composting conditions (Standard D5338-98(2003)). ASTM International, West Conshohocken, Pa. 

International, A. 2011. Standard test method for determining anaerobic biodegradation of plastic materials under 

accelerated landfill conditions (Standard D5526- 94(201 I)el). ASTM International, West Conshohocken, Pa. 

International, A. 2002. Standard test method for determining anaerobic biodegradation of plastic materials under highsolids' anaerobic-digestion conditions (Standard D5511- 11). ASTM International, West Conshohocken, Pa. 

Ishigaki, T., Kawagoshi, Y., Ike, M., Fujita, M. 1999. Biodegradation of a polyvinyl alcohol-starch blend plastic film. 

World Journal of Microbiology & Biotechnology, 15(3), 32 I -327. 

Kyiikou, I., Briassoulis, D. 2007. Biodegradation of agricultural plastic films: A critical review. Journal of Polymers 

and the Environment, 15(2), 125-150. 

Michel, F.C., Pecchia, J.A., Rigot, J., Keener, H.M. 2004. Mass and nutrient losses during the composting of dairy 

manure amended with sawdust or straw. Compost Science & Utilization, 12(4), 323-334. 

Song, J.H., Murphy, R.J., Narayan, R., Davies, G.B.H. 2009. Biodegradable and compostable alternatives to 

conventional plastics. Philosophical Transactions of the Royal Society B-Biological Sciences, 364(1526), 

2127-2139. 

Woolnough, C.A., Yee, L.H., Charlton, T., Foster, L.J.R. 2010. Environmental degradation and biofouling of 'green' 

plastics including short and medium chain length polyhydroxyalkanoates. Polymer International, 59(5), 658-

667. 

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CX-C:1 at 10

Understanding the proiect 

m 

v 

o Development of our own biodegradable material. 

Understanding the factors affecting bioconversion . 

o Compare all products by means of a complete • Life C

Assessment study. Is recycling of plastics better for the 

environment than biodegradables? 
n 

>< I 

n 

...Jo. 

~ 

...Jo. 

...Jo. 

Presentation Outline 

o Background: · 

- Plastic use in the U.S. 

- Production of "green" plastics. 

- Certifications. 

o Experimental design 

o Results 

o Conclusion 

o Using the data of this proiect, what's next? 

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PUBLIC DOCUMENT 

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Reasons behind the proiect 

Figure 2. "Green" materials. 
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Background 

~ Biodegradable Products institute, NY, US. 

• Jbe Science of ·Biodegradatiou 

There ~s some oonft;J sion and dfsagreement abuut the term "biodegradabre.u 

Some unscrupulous manufacturers $abel products :as "biodegradabfreJl or 

"compostabte" when, in fa.cfi:1 they are onfy partially so. l!!! http:/ jwww.bpiworld.org/science-of-biodegrodotion 

INTERNATIONAL ~ 

rle~JB.dti t pla!lic., ~t--a Jrlastic tl~~~d tC' m;delig(} a tig<-

nili:ant cbm,ge in· ili ~-mial ilructuro mw:!er spocifit 

11 r.ir011rnmia~ OOildllbaRs resli&i11g in ll os~ of·snnJe propertk:& tlnt~fVI!Tlms mawred hy §tirndarn Is merhrnls ~rnp,TJflle to 'lf:le ~11a 1n:f illf .. •JBIJIDm·Ji!l a JleiflOO Iff 

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3.1.1 biodegradable • plastic- a de~radable plastic in which 

the: degradation results from the actinn of naturally oc.cun'ing 

microorganisms snell as bacteria, fungi, and algae . 

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Background 

3.1.2 compostabte· plastic-a plnstic that ·undergoes degradation by biologicalprocesses during.composting to yield C02: 

water, inorganic compmmds: and biomass at a rate consistent 

with other known rompostable n1aterials and leave uo visible, 

dts' tmg ' uts.la~ ,. 1 bl e or . 'd toxtc resLDe-. 

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' The'r· must bfnd{;grade at . .a· rate COI1llfm mble: to yard t~1 mmlngs, f~od scrBps 

and umer co.mp'JS~abJe materi:a Is, sue~ as kraft.peper bags. 

• The'r must s~nte~rat~, sa

-ttrat RO mrge plastic fragments remarn· tn De 

SIJEenen·. OUt http:/ /www.bpiworld.org/BPI-Pvblic 

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COMPOSTABLE 

atQ4~tef· ·• .u~ca~us't•c l'to4~le.J}~\f . . . "00~~·*-

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Background 

Confused by the terms Biodegradable & Biobased? 

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A product tl1at ¥,ontait1S: IQO% annual!)' 

rene,vable raw n1aterials MAY or MAY 

NOT be biode.gradableloomp.ostahle. It all 

depends~ on the molecular strnctu~re of the 

material itself 

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Introduction 

The overall obiective of this study was to determine the 

biodegradability of a wide range of materials and 

additives that are commercially available claiming to be 

biodegradable or to confer biodegradability to 

conventional plastics. 

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Test materials 

Comeostabilit~ Anaerobic disestion Soil incubation 

Additives PP + 2% ECM® X X X 

PETE + 1 % EcoPure® X X 

tl) 

.. Ecotainer® X X X 

Cl) 

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~ Ecobras® X X 

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a. OP-47® X 0 

~ PHA X 

Paper + soy wax X X 

tl) 

Paper + asphalt X .. 

Cl) 

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~ Coconut coir X 

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:::) Rice hull X ""0 -0 c: 

z Cow Po1® X OJ 

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Peat Po1® X n 

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n Table 1. Description of test materials. Note: PP: Polypropylene, PETE: Polyethylene Terephtholate, PHA: n ...Jo. c: 

Q) Polyhydroxyalkanoote (PHA). 3: 

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Methodology 

o Three independent replicates were used for each treatment. 

o Bench-scale experiments were conducted. 

o Positive and negative controls used were cellulose paper and polypropylene, respectively. 

o All materials were cut into 1 em squares and tested based on ASTM international standard 

test methods. 

o Methods: 

Compostability: ASTM 05338-98(2003). 1 20 days. 

Soil incubation: ASTM D5988-03. 550 days. 

Anaerobic digestion: ASTM 05511-02. 50 days. 

o The percent biodegradation was calculated: 

01 _ ( evoll?ed from.samv{e -(evolved from negative control /0-

total amount of sample carbon added 

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Compostability 

Biorea:ctor System 

.CG.z, b2 and tem11erature 

meastirement, calibration 

0 4-liter bioreactor vessels. idreadill' h i!tH---"""" :.~ ~c'fa ri uba ;_:~~ru I _.,..,-~~ ::;,:ui ion. 

o Incubator set at 55°C. 

o 80g of test materials were 

mixed with 1 kg of mature 

dairy manure compost. 

o Regulated humidified air 

entered the vessels at a rate 

of 1 00 ml/min (Grewal et 

al., 2006). 

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~:£~:~3r ~~i!~:~;~:: to -- • MPI ~ 0 2Q010) Flo\>1 restridor!f;/stem Wate.rcondt>nsorand D ' II ,, . t , 0 >< /( • '()..' oo· -'-"" 1/ .. } ' . ""' (9'·c l .ata co ecuon compu l'r 0 , .. tr 1 = m mttl amrnont!l-<raP· , · · · ·· · n n ...Jo, Figure 3 . Schematic diagram and photograph of the bench-scale ~ 

~ . m - compostmg reactor system z 

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Anaerobic digestion 

o 2-liter batch reactors. 

o Incubator set at 37°(. 

o 60g of test materials were mixed 

with 340g of active sludge from a 

anaerobic digester. 

o The volume of gas produced, and 

biogas composition were 

quantified on a daily basis 

(Gomez et al., 2011 ). 

Figure 4. Photograph of the bench-scale AD reactor 

system. 

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Soil incubation 

o The soil media was a mixture of 

organic top, no-till farm soil and 

sand. 

o 2-liter vessels were used. 

o 300 g dry of the soil media were 

mixed with 2g of the test material. 

o Vessels were incubated at room 

tern perature. 

o A solution containing KOH (0.5N) was 

placed in each vessel to react with 

the C02• 

o The amount of C02 produced was 

determined by titrating with HCI 

(0.25N) to a phenolphthalein endpoint. Figure 5. Photograph of the bench-scale soil 

incubation vessels. 

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Understanding the data 

60% 

50% C evolved from sample 

1 

0 = .... 40% ..... 

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eli 30% ~ 

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10% 

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............................. * . ,- c l df . t l 2 I evo ve rom negatwe con ro 

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0% 

0 50 100 

Time (day) 

0/- X 3 /0 - total amount of sample carbon added 

Figure 6. Example of cumulative carbon loss (C02-C) as the percentage of initial carbon. 

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Results- composting 

90% 

Positive 

u - 80% I 

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u 70% 

--

-o-PP + 2% ECM® 

Paper+ soy wax "> 

0 60% 

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s 

30% = <.1 

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20% ... 

.... 

..... 

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to-o 10% 0 

0 ~ 

0% 

0 20 40 60 80 100 120 

Time (day) 

Figure 7. Cumulative carbon loss (C02-C) during composting as the percentage of initial carbon 

(±SD) over time. For some data points SO bars are smaller than markers • 

---· ··---- --·-----· 

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Results - anaerobic digestion 

90% ,-... 

y 80% N -- -,, ''" ''""""'"'''''-' o "N''''~··-··-.. ~~ -~---~-··'''' oooooooooooo ____ 'MO___ -

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40% 

30% +-······------------· -----1--------· 

20% 

~ 10% ........................ . .... -................... ____ ~-------

'$. o% 1 I , I I , I!~ I I I I , o I I I , I I e I 1 I I I I o II I I , I e II 1 I I I • r;~ 0 5 10 15 20 25 

Time (day) 

30 35 40 45 50 

....,.._Positive 

-{]-PP + 2% ECM® 

-.-Ecobras® 

PETE+ 1% EcoPure® 

- Ecotainer® 

Figure 8. Cumulative carbon loss (C02-C) during anaerobic digestions as the percentage of initial 

carbon (+SD) over time. For some data points SD bars ore smaller than markers • 

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Results - soil incubation 

80% -

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- 60% -<ll 

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..... 10% 0 

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0% 

0 100 200 300 400 

Time (day) 

500 

Positive 

- Ecobras® 

OP-47® 

- PHA 

-o-Ecotainer® 

PETE+ 1% EcoPure® 

-<>-PP + 2% ECM® 

~Paper + asphalt 

-t-Coconut coir 

-a-Rice hull 

-cow Pot® 600 

-o-PeatPot® 

Figure 9. Cumulative carbon loss (C02-C) during soil incubation as the percentage of initial carbon 

(±SD) over time. For some data points SD bars are smaller than ma rkers • 

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Conclusion 

o Certain biopolymers and natural fibers biodegraded to an 

appreciable extent during composting, anaerobic digestion 

and soil incubation 

o Conventional plastics did not biodegrade differently than nonadditive containing plastics and neither biodegraded to an 

appreciable extent. 

o None of the test materials degraded at the same rate or to 

the same extent as the positive controls. 

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What's next? 

o Stage 1: study of the biodegradation of materials that are available 

in the market. 

Method 1: C02 evolved. Status: completed. 

Method 2: SEM microscopy. Status: ongoing. 

o Stage 2: development of a biodegradable polymer from 

agricultural residues to understand the factors affecting 

biodegradation and production costs. Status: ongoing. 

o Stage 3: a novel approach of complete Life Cycle Assessment (LCA) 

study that will account for various end of life fates including 

composting, landfilling, soil degradation and environmental release. 

Status: ongoing. 

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CD 

Biodegradation of Bioplastics and Natural Fibers during 

Composting, Anaerobic Digestion and in Soil 

Thanks for your Attention 

.... ~ ~ " 

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CX-C:1 at 30

SEM microscopy 

Figure 10. SEM microscopy images of coconut coir {left) and paper+ asphalt {right) mate.rials 

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