UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSI 

COMMISIONERS: Edith Ramirez, Chairwoman 

Julie Brill 

576508 

Maureen K. Ohlhausen 

Joshua D. Wright 

Terrell McSweeny ORIGINAL 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

PUBLIC 

COMPLAINT COUNSEL'S APPEAL BRIEF 

Jessica L. Rich 

Director 

James Kohm 

Associate Director 

Frank G01m an 

Assistant Director 

Dated: Febmmy 27, 2015 

Katherine Johnson 

Elisa Jillson 

Federal Trade Commission 

Bmeau of Consumer Protection 

Division of Enforcement 

600 Pennsylvania Ave., N.W., CC-9528 

Washington, D.C. 20580 

Telephone: (202) 326-2185; -3001 

Facsimile: (202) 326-3259 

Counsel Supporting the Complaint 
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RECORD REFERENCES

CCFF – Complaint Counsel’s Proposed Findings of Fact

CCX – Complaint Counsel’s Exhibit

Dep. – Deposition transcript

ID – Initial Decision

IDFF – Initial Decision Findings of Facts 

RX – Respondent’s Exhibit

Tr. – Trial Transcript 
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TABLE OF CONTENTS

I. STATEMENT OF THE CASE............................................................................... 1

A. Introduction............................................................................................................. 1

B. Summary of Facts ................................................................................................... 3

1. ECM’s Deceptive Claims. .......................................................................... 3

2. ECM’s Bogus Testing................................................................................. 3

3. ECM Sells the Right to Advertise Plastic Products as Biodegradable. ...... 4

4. ECM Ignored Repeated Warnings that its Additive Does Not Work......... 5

C. Summary of the Argument...................................................................................... 5

II. QUESTIONS PRESENTED................................................................................... 6

III. ARGUMENT.......................................................................................................... 6

A. ECM Made Implied Claims of Complete Biodegradability in a Landfill in a 

Reasonably Short Period of Time........................................................................... 6

1. Convergent Results of the Four Studies in the Record Prove Well Beyond 

a Preponderance that a Significant Minority of Consumers Infer Complete 

Biodegradation in a Landfill in a Short Time. ............................................ 7

2. The APCO and Synovate Studies, Taken Together, Establish that 

Consumers Infer Short Biodegradation Times. ........................................ 10

3. Dr. Frederick’s Methodologically-Sound Study Convincingly 

Demonstrates Significant Consumer Inference of Short Biodegradation

Times and Bolsters APCO and Synovate’s Similar Conclusions............. 12

a. Dr. Frederick’s Study Drew Representative Samples from the 

Appropriate Population: American Consumers. ........................... 13

b. Dr. Frederick’s Study Asked Appropriate Questions—Including 

the Central Question in this Case.................................................. 19

c. There Is No Credible Evidence of “Disinterest Bias.” ................. 22

d. Dr. Frederick Correctly Analyzed the Results of His Study in BiasMinimizing Ways.......................................................................... 24

4. ECM’s Own Study Further Demonstrates that Consumers Infer a Short 

Timeframe for Biodegradation. ................................................................ 26

5. Evidence that ECM Intended to Make the Implied Claim Further Supports 

the Conclusion that ECM Made the Claim............................................... 29

B. The ALJ Erred in Not Finding Liability for ECM’s Implied Claims. .................. 30

1. The ALJ’s Interpretation of Biodegradable Renders ECM’s Implied 

Claims Meaningless.................................................................................. 31

2. ECM Plastic Cannot Be Biodegradable.................................................... 32
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a. The Relevant Scientific Community Considers Conventional 

Plastics Non-Biodegradable.......................................................... 36

b. There Is No Scientific Basis to Believe ECM’s Purported 

Technology Could Possibly Work................................................ 38

c. ECM Does Not Have Tests the Relevant Scientific Community 

Would Require to Support its Extraordinary Claim that ECM 

Plastic Is Biodegradable in a Landfill........................................... 40

C. Substantial Record Evidence Supports a Stronger Remedy. ................................ 47

IV. PROPOSED ORDER............................................................................................ 49
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TABLE OF AUTHORITIES

Cases

Am. Home Prods., Corp., 98 F.T.C. 136 (1981)........................................................................... 14

Bristol-Myers Co., 85 F.T.C. 688 (1975)...................................................................................... 14

Charlton v. FTC, 543 F.2d 903 (D.C. Cir. 1976) ........................................................................... 5

Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602 (1993) ....................... 5

Daniel Chapter One, No. 9329, 2009 FTC LEXIS 157 (Aug. 5, 2009)....................................... 36

Firestone Tire & Rubber Co. v. FTC, 481 F.2d 246 (6th Cir. 1973)............................................ 10

FTC v. Pantron I Corp., 33 F.3d 1088 (9th Cir. 1994)................................................................. 37

Kraft, Inc., 114 F.T.C. 40 (1991)...................................................................................... 10, 16, 23

Novartis Corp., 127 F.T.C. 580 (1999)......................................................................................... 33

Pfizer Inc., 81 F.T.C. 23 (1972).................................................................................................... 36

POM Wonderful LLC, No. 9344, 2013 FTC LEXIS 6 (Jan. 10, 2013) ................................. passim

Schering Plough Corp., 118 F.T.C. 1030 (1994).......................................................................... 52

Standard Oil Co. v. FTC, 577 F.2d 653 (9th Cir. 1978)............................................................... 52

Steadman v. SEC, 450 U.S. 91 (1981) ............................................................................................ 5

Stouffer Foods, 118 F.T.C. 746 (1994)....................................................................... 15, 23, 51, 52

Telebrands Corp., 140 F.T.C. 278 (2005) .............................................................................. 10, 33

Thompson Med. Co., 104 F.T.C. 648 (1984) ......................................................................... passim

Other Authorities

FTC Policy Statement Regarding Advertising Substantiation, 104 F.T.C. 839, 840 (1984) ....... 36

Regulations

16 C.F.R. § 260.8............................................................................................................................ 7

16 C.F.R. § 3.43............................................................................................................................ 23

16 C.F.R. § 3.54.............................................................................................................................. 5
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I. STATEMENT OF THE CASE

A. Introduction

This is a straightforward deception case. ECM Biofilms, Inc. (“ECM”) sells an additive 

that it contends makes plastic “biodegradable.” Specifically, for almost a decade, ECM 

expressly claimed that mixing its “revolutionary” additive with plastic would make the plastic

completely biodegrade in nine months to five years in a landfill. Since the FTC revised its 

Guides for Environmental Marketing in October 2012, ECM has also claimed that its additive 

enables plastic to completely biodegrade in a landfill “in some period greater than a year.” ECM 

provided its plastic manufacturer customers with certificates, logos, flyers, ad copy, and more to 

pass these false claims to hundreds of businesses and millions of end-use consumers.

At trial, ECM’s own experts conceded that ECM’s nine-month-to-five-year claim is false. 

The ALJ correctly found this material claim false and unsubstantiated in violation of the FTC 

Act. The ALJ also correctly found that ECM provided its customers with the means and 

instrumentalities to make deceptive biodegradability claims. 

However, ECM not only made false and unsubstantiated express claims but also 

deceptive implied claims. Overwhelming evidence of consumer perception and Respondent’s 

intent—well beyond a preponderance1

—demonstrates that ECM’s unqualified claims told

1 Complaint Counsel’s burden is to prove each element of the case by a preponderance of 

the evidence. (ID 164-165, citing cases.) This is not a high standard. To the contrary, the 

“preponderance” standard merely requires proof that “the existence of a fact is more probable 

than its nonexistence.” Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 

602, 622 (1993). The Commission has de novo review authority, 16 C.F.R. § 3.54, and its 

decision must be sustained if supported by “substantial evidence.” Charlton v. FTC, 543 F.22d 
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consumers that “biodegradable” plastic would break down completely in a landfill in a 

reasonably short time (less than five years). Specifically, each of the four surveys in the record 

shows that significant minorities (and likely majorities) of consumers perceive short timeframes 

for unqualified biodegradable claims. Moreover, ECM repeatedly told its customers that their 

plastic could be labeled biodegradable because the additive caused complete landfill breakdown 

within one or five years.

Even if one were to ignore the clear evidence that consumers understand unqualified 

biodegradable claims to mean a product will completely break down in a short period, the 

evidence still overwhelmingly demonstrates that ECM’s implied claim is false and 

unsubstantiated. At trial, a plastics expert, a landfill expert, and an expert in biochemistry all 

explained that conventional plastic does not biodegrade at all—let alone in landfills—and mixing 

in the ECM additive does nothing to change this scientific fact.

Moreover, substantial evidence establishes that ECM’s testing does not substantiate its 

Implied Claim. Had the ALJ looked to what experts in the field would require to substantiate 

Respondent’s scientifically radical claims, he would have had to find that Respondent’s

substantiation falls dramatically short. Specifically, the evidence overwhelmingly shows that: 

(1) there is no established mechanism or theory that would lead experts in the field to conclude 

that ECM’s technology works; and (2) ECM’s testing is neither of the type nor the quality that 

could substantiate its claims.

903, 907 (D.C. Cir. 1976). The “preponderance” and “substantial evidence” standards are 

identical. Steadman v. SEC, 450 U.S. 91, 101-102 (1981).
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B. Summary of Facts

1. ECM’s Deceptive Claims.

ECM made false and unsubstantiated claims to exploit end-use consumers’ concern about 

plastics and the environment. (CCFF ¶¶ 14, 17.) For nearly a decade, ECM falsely advised its 

customers (plastic manufacturers) that mixing the ECM additive (the “Additive”) with 

conventional plastic creates biodegradable plastic (“ECM Plastic”). (CCFF ¶¶ 18-19.)

According to ECM, using the Additive allows customers to make “biodegradable” claims for 

their plastic products. (CCFF ¶ 62.) Specifically, ECM made four false and unsubstantiated 

claims: 

x The ECM Additive enables plastic to “fully biodegrade” in “nine months to five years” 

“in landfills.” (CCFF ¶¶ 32-33.)

x ECM Plastic is “biodegradable.” (CCFF ¶¶ 27-30.)

x Testing proves its claims. (CCFF ¶¶ 44-45.)

x “Plastic products produced with our additives will biodegrade in biologically-active 

environments (including most landfills) in some period greater than a year.” (CCFF ¶

37.)2

In fact, none of these claims is true or substantiated for a very simple reason: physically 

blending the Additive with plastic does nothing to change a molecular structure that extant 

microorganisms cannot break down. (CCFF ¶¶ 7, 9.)

2. ECM’s Bogus Testing.

ECM regularly boasted of “hundreds of thousands of dollars” it spent on “independent” 

testing. (CCFF ¶ 57.) In fact, ECM only commissioned a handful of shoddy tests—none of 

2 ECM started using this disclaimer in October 2012, purportedly to comply with the 

guidance on “degradable claims” in the Commission’s Guides for the Use of Environmental 

Marketing Claims (“Green Guides”). 16 C.F.R. § 260.8. But ECM continued to make the “nine 

month to five year” claim to customers in marketing materials and emails. (CCFF ¶¶ 37-41.)
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which shows complete biodegradation in any timeframe or biodegradation in landfills at all. 

(CCFF ¶¶ 449, 454.) Some of ECM’s customers hired small laboratories to conduct additional 

tests, but none support ECM’s claims. (CCFF ¶ 454.) Unsurprisingly, when sophisticated 

prospective customers like 3M Corporation conducted their own valid testing, they found no 

biodegradation at all of the plastic itself. (CCFF ¶ 94.) Moreover, the only study of ECM Plastic 

published in a peer-reviewed, academic journal decisively concluded that the plastic itself does 

not biodegrade. (CCX-164.) ECM was well aware of these results but hid them from 

prospective customers, by steering them away from labs that provided negative results and 

towards labs whose dubious testing protocols provided the semblance of positive results. (CCFF 

¶ 99.)

3. ECM Sells the Right to Advertise Plastic Products as Biodegradable.

ECM does not simply sell an additive. Far more importantly, it sells the (purported) 

ability to make a “biodegradable” advertising claim. (CCFF ¶ 62.) To that end, ECM provides 

its customers with tools to pass claims to downstream business customers and, ultimately, enduse consumers. (CCFF ¶ 65.) For example, ECM provided a “Certificate of Biodegradability,” 

which claims both to “certify” independent testing to accepted standards and “validate” 

biodegradable claims. (CCFF ¶¶ 47-48.) It also provided the ECM logo, a picture of a green 

tree with the words “ECM” and “Biodegradable.” (CCFF ¶¶ 62-63.) As ECM intended, its 

customers posted the certificate on their websites, sent it to their own customers, or copied the 

language verbatim in their marketing materials. (CCFF ¶¶ 59-61.) Customers often used either 

the logo or their own “biodegradable” logo on their products, sometimes with the express 

timeframe and landfill claims. (CCFF ¶ 59.) ECM also reviewed and revised customers’ 

“biodegradable” advertising claims, including advertisements and labels that repeat ECM’s false 

express claims. (CCFF ¶¶ 68-70, 462-66.)
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The deceptive advertising worked. ECM sold its bogus additive to about 300 customers. 

(CCFF ¶ 23.) These customers passed ECM’s deceptive claims to millions of consumers who 

used or purchased “biodegradable” grocery bags, shampoo bottles, Frisbees, golf tees, 

highlighters, cutlery, and more. (CCFF ¶¶ 24-25.)

4. ECM Ignored Repeated Warnings that its Additive Does Not Work.

ECM’s deception did not go undetected. At least two foreign tribunals, the National 

Advertising Division (“NAD”) of the Better Business Bureau, and prospective customers warned 

ECM that its testing did not support its claims (or that its product was a hoax.) (CCFF ¶ 102-

103.) ECM’s President, Robert Sinclair, knew that NAD (three times) as well as French and 

Italian courts found that customers using ECM’s “biodegradable” claims had made false and 

unsubstantiated claims. (CCFF ¶ 103.) Nonetheless, ECM continued to make them, explaining 

away credible criticism as bias or vendetta. (CCFF ¶¶ 104-106.)

C. Summary of the Argument

The ALJ correctly found that Respondent violated Section 5 by making material false and 

unsubstantiated efficacy and establishment claims. However, the analysis and findings were

critically flawed in numerous respects. First, overwhelming consumer perception evidence as 

well as ECM’s intent show it is more likely than not (i.e., a preponderance) that ECM made 

deceptive implied claims. Second, Complaint Counsel demonstrated by a preponderance of the 

evidence that ECM’s express and implied claims are false and unsubstantiated because ECM 

Plastic will not—and cannot—biodegrade in a landfill in any reasonably short period of time.

Moreover, ECM’s radical claims are not supported by the level of testing expected by the 

relevant scientific community, and these tests are neither of the type nor the quality to come 

anywhere close to that standard. Complaint Counsel’s proposed relief is necessary to prevent 
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future violations by a respondent that has continued to make claims despite having been on 

notice for years that its product is little more than a hoax.

II. QUESTIONS PRESENTED

1. Whether the compelling consumer perception evidence combined with clear intent 

evidence demonstrate that it is more likely than not that Respondent’s 

“biodegradable” claim and “some period greater than a year” claim implied to 

reasonable consumers that plastic treated with its additive would completely break 

down into elements found in nature in a landfill in a reasonably short period of time 

(i.e., within one or five years) (“Implied Claim”).

2. Whether the scientific evidence demonstrating that ECM’s additive does not—and 

cannot—make plastic biodegradable renders ECM’s Implied Claim false, and 

whether this fact, along with the lack of testing required by the relevant scientific 

community, renders ECM’s Implied Claim unsubstantiated.

3. Whether the Notice Order is necessary and appropriate to prevent future violations

because ECM knew its claims were false and unsubstantiated, yet continued to make 

them, and conceal contrary evidence from its customers.

III. ARGUMENT

A. ECM Made Implied Claims of Complete Biodegradability in a Landfill in a

Reasonably Short Period of Time.

An advertisement “convey[s] a claim if consumers, acting reasonably under the 

circumstances, would interpret the advertisement to contain that message.” Kraft, Inc., 114 

F.T.C. 40, 120 (1991). An interpretation of an advertisement may be reasonable “even though it 

is not shared by a majority of consumers in the relevant class, or by particularly sophisticated 

consumers.” Id. at 122. Indeed, an interpretation is reasonable if a “significant minority” of 

consumers is likely to interpret the ad to make the claim. (ID 169, quoting Telebrands Corp.,

140 F.T.C. 278, 291 (2005)). Percentages ranging from 10% to 22% can constitute a significant 

minority. See, e.g., Firestone Tire & Rubber Co. v. FTC, 481 F.2d 246, 249 (6th Cir. 1973);

Telebrands, 140 F.T.C. at 325.
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To show that ECM made the Implied Claim, Complaint Counsel must prove by a 

preponderance of the evidence (i.e., that it is more likely than not) that a significant minority of 

consumers understood the advertising to make that claim. Overwhelming evidence—well 

beyond a preponderance—establishes that ECM made the Implied Claim.

1. Convergent Results of the Four Studies in the Record Prove Well Beyond a 

Preponderance that a Significant Minority of Consumers Infer Complete 

Biodegradation in a Landfill in a Short Time.

Four studies in the record reported on consumer perception of the claim “biodegradable.” 

Despite different methodologies, each study reached a strikingly similar conclusion: when 

consumers see an unqualified “biodegradable” advertising claim, they infer a short time for 

biodegradation. 

 In 2006, the American Plastics Council (“APCO”) conducted a telephone survey, 

and found that 60% of respondents believe that packages labeled “biodegradable” 

should biodegrade within one year, 65% believe such packages should biodegrade 

within four years, and 83% believe such packages will biodegrade in a landfill.

(CCFF ¶¶ 194, 195, 209; CCX-890 at 13.)

 In 2010, Synovate conducted an Internet panel survey, and reported that 25% of 

consumers believe that “less than one year” was a reasonable amount of time for a 

“biodegradable” package to decompose in a landfill, and 45% of consumers 

believe that “less than five years” was a reasonable amount of time. (CCFF ¶¶

368, 369, 211.) Seventy-two percent of consumers believe that a package labeled 

“biodegradable” will biodegrade in a landfill. (CCX-890 at 13.)

 In 2014, Dr. Shane Frederick used Google Consumer Surveys (“GCS”) to assess 

consumers’ understanding of plastic products labeled “biodegradable.” (CCFF ¶¶

198, 199.) He estimated that 35% believe such products will biodegrade within 

one year. (CCFF ¶ 200.) Depending on the type of question and the wording, 40-

76% understood that such product would biodegrade within five years. (CCFF ¶

212.) Dr. Frederick found that 42%-64% of consumers believe that plastic 

products will biodegrade in a landfill,3 (CCX-890 at 13), and 37%-50% of 

3 These numbers are probably lower than the numbers in APCO and Synovate (83% and 

72%) because those studies asked about generic “products” whereas Dr. Frederick asked about 

plastic products. (CCX-890 at 13.)
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consumers understand that a plastic product labeled “biodegradable” will break 

down completely into elements found in nature. (CCFF ¶ 312.)

 In 2014, ECM’s expert, Dr. David Stewart, supervised a 400-person telephone

survey. (CCFF ¶ 201.) When asked how long it would take for “something” 

biodegradable to decompose or decay, 206 respondents gave specific estimates of 

time: 33% estimated within one year and 58% estimated within five years.4

(CCFF ¶¶ 203-205, 210.) Dr. Stewart also asked respondents what ECM’s 

disclaimer “some period greater than a year” meant, and of the 150 respondents 

who gave specific time estimates, 50% estimated biodegradation within one year. 

(CCFF ¶¶ 206-7.)

In sum, four studies found that at least 25% of consumers (and likely more) believe that a

product advertised as “biodegradable” will biodegrade within one year, and at least 40% (and 

likely more) believe it will biodegrade within five years. In other words, the studies concluded 

that a number of consumers well exceeding the threshold for a “significant minority” believe that 

a product advertised as “biodegradable” should break down completely into elements found in 

nature in a landfill in a reasonably short period of time.5

Dr. Frederick, a full professor at Yale University’s School of Management and a 

prominent scholar on consumer behavior,6 explained that it is highly significant that four studies, 

4 For reasons discussed infra at 25-26, it is appropriate to analyze responses that actually 

mention a number and unit of time. But even considering every response, ECM’s own expert 

acknowledged that 17% of respondents referred to biodegradation within one year and 30% 

within five years. (Tr. 2790-91.) Thus, ECM’s own survey, viewed in the light most favorable 

to ECM, supports Complaint Counsel’s position.

5 While ECM did dispute the timing of biodegradation, it did not dispute Complaint 

Counsel’s allegation that “biodegradable” implies complete breakdown into elements found in 

nature in a landfill. (CCFF ¶ 311.) The evidence on both points is clear. The three studies that 

asked about landfills (APCO, Synovate, and GCS) found that between 42% and 83% of 

consumers believe that a “biodegradable” product will biodegrade in landfill. See supra at 7.

The only study that asked about “complete breakdown” (the GCS study) found that 37-50% of 

consumers believe that a “biodegradable” product will completely break down into elements 

found in nature. See id. The ALJ ignored this actual consumer evidence in favor of his 

unsupportable facial analysis. (ID 217-223.)

6 Dr. Frederick holds a Ph.D. in Decision Sciences from Carnegie Mellon, and has taught 

at some of the country’s most prestigious institutions, including the Woodrow Wilson School of 
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conducted with four distinct methodologies, at different times, by four sets of researchers

reached similar results.7 (CCFF ¶ 208.) Converging results from four reasonably reliable and 

valid studies with different methodologies is powerful evidence that the shared results are 

accurate. (CCFF ¶¶ 192-193, 208.) Dr. Frederick testified that because of this “convergent 

validity,” he could conclude with confidence that at least 35% of consumers believe that plastic 

products labeled “biodegradable” will biodegrade within one year. (CCFF ¶ 200.)8

Public and International Affairs at Princeton University, the Massachusetts Institute of 

Technology’s Sloan School of Business, and Yale University’s School of Management. (ID 18-

19, CCX-890 at 3, Exh. A.) At Princeton, Dr. Frederick worked as a research assistant for Nobel 

laureate Daniel Kahneman. (CCX-890 at 3, Exh. A.) Dr. Frederick has published extensively in 

prominent peer-reviewed journals on consumer judgment and decisionmaking, focusing on 

preferences and cognitive biases (including “anchoring”). (ID 19; CCX-890 at 3, Exh. A.) An 

affiliate with Yale’s Center for Consumer Insights, Dr. Frederick conducts and evaluates 

hundreds of surveys employing both traditional and newer Internet-based methodologies (such as 

Google Consumer Surveys). (ID 19; CCX-890 at 4-5, Exh. A.)

7 A graphical representation starkly shows their convergence: 

Within 1 Year Within 5 Years

APCO 60% 65%

Synovate 25% 45%

GCS Study 35% 40-76%

Stewart Survey 33% 58%

8 The ALJ found Dr. Frederick’s testimony less “credible” than the testimony of ECM’s 

expert, Dr. Stewart. (ID 46.) But the ALJ did not actually make any credibility findings. Rather 

than comment on the experts’ courtroom demeanor, the ALJ criticized Dr. Frederick based on his 

qualifications, opinions, use of an emerging survey tool, form of compensation, and the fact that 

he (a non-lawyer and first-time witness) could not recite legal standards. (ID 45-46, 188, 201.) 

Each criticism is entirely baseless: Dr. Frederick’s qualifications are impeccable (see supra note 

6), his opinions well-reasoned (see infra at 8-30), his use of a reliable survey tool reasonable (see 

infra at 13-26), his compensation a mere fraction of what Dr. Stewart received (see infra note 

13), and his ability to evaluate survey validity beyond any serious question. The Commission is 

equally equipped to evaluate such matters, so these flawed “credibility” findings, which are 

subject to de novo review, should be set aside. See, e.g., POM Wonderful LLC, No. 9344, 2013 

FTC LEXIS 6, at *100 n.23 (Jan. 10, 2013) (finding expert credible despite ALJ’s contrary 
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There is nothing new about this concept. (ID 211.) Although not using the technical 

term “convergent validity,” both the Commission and its ALJs have long recognized that the 

convergence of results from different consumer perception studies is an indication of their 

reliability and probative value. See Bristol-Myers Co., 85 F.T.C. 688, 744 n.2 (1975) (noting the 

fact that different “surveys are from independent sources and tend to confirm one another” is 

relevant to whether surveys are reasonably reliable and valid); Thompson Med. Co., 104 F.T.C. 

648, 836 n.82 (1984) (“The consistency of this finding across both studies should have been a 

warning signal to Thompson that potential consumers might be confused about the ingredients of 

Aspercreme.”); Am. Home Prods., Corp., 98 F.T.C. 136, 252 (1981) (noting that “[t]he fact that 

these studies generated consistent results over a relatively short period of time (three to four 

years) enhances their reliability”) (ALJ op.). Indeed, as one FTC ALJ made clear, a factfinder 

can draw valid conclusions from several studies even when each study “could not, standing 

alone, serve as the basis for any conclusion.” Am. Home, 98 F.T.C. at 253.

2. The APCO and Synovate Studies, Taken Together, Establish that Consumers 

Infer Short Biodegradation Times.

Contrary to the ALJ’s finding that the APCO and Synovate studies, which the 

Commission evaluated in issuing the Green Guides, had little probative value, (ID 207-208), the 

studies provide reasonably reliable and valid evidence of significant consumer inference of short 

biodegradation timeframes.

The APCO study, a 1000-respondent telephone survey, focused primarily on plastic 

products. (CCFF ¶¶ 194-195.) Sixty percent of respondents stated that packages labeled 

“biodegradable” should biodegrade within one year or less and 65% believed such packages 

assessment, which was based on expert’s breadth of knowledge rather than his courtroom 

demeanor).
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should biodegrade within four years. (CCFF ¶¶ 195, 209.) Additionally, EcoLogic, a 

manufacturer of an additive similar to ECM’s, engaged a survey firm (Synovate) to conduct a 

2000-respondent Internet panel survey. (CCFF ¶ 196.) In that study, 25% of respondents stated 

that “less than one year” was a reasonable amount of time for a “biodegradable” package to 

decompose in a landfill, and 45% thought “less than five years” was a reasonable time. (CCFF 

¶¶ 197, 211.)

Neither the APCO nor the Synovate study is perfect (as, the experts in this case agree, no

study is). (Tr. 2766; CCFF ¶ 215.)9 For example, both Dr. Frederick and Dr. Stewart explained 

that APCO’s answer choices suggested to respondents shorter biodegradation times, and

Synovate’s choices suggested longer ones. (CCFF ¶ 372.) However, Dr. Frederick explained 

that, notwithstanding these imperfections, the APCO and Synovate studies are reasonably 

reliable and valid because of their sample size and use of accepted methodologies. (CCX-890 at 

7-11; Tr. 1180.) Dr. Stewart agreed that they “appear to have been well designed and executed 

on a number of dimensions.” (RX-856 at 6.) Importantly, the studies’ opposing biases confirm 

the convergent validity of their similar conclusions. (CCFF ¶¶ 371-374.) In other words, it is 

significant that the studies led respondents in opposite directions but both found the same results 

(i.e., that large percentages of consumers take away a five-year or less timeframe from an 

unqualified biodegradable claim). (Id.) As Dr. Frederick explained, taken together, the studies

reliably establish that it is more likely than not that substantial percentages of consumers believe 

plastic products labeled “biodegradable” will biodegrade within a short period of time (five years 

or less). (CCFF ¶ 370.)

9 Accord ID 190 (quoting Stouffer Foods, 118 F.T.C. 746, 808 n.27 (1994) (“No survey is 

perfect.”)).
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3. Dr. Frederick’s Methodologically-Sound Study Convincingly Demonstrates

Significant Consumer Inference of Short Biodegradation Times and Bolsters

APCO and Synovate’s Similar Conclusions.

The ALJ not only erred in discounting Dr. Frederick’s testimony about the convergent 

validity of the APCO and Synovate studies, but also in impugning and ignoring Dr. Frederick’s

methodologically-sound Google Consumer Survey (GCS) study. Dr. Frederick’s study, on its 

own, more than meets the legal standard, demonstrating that it is more likely than not that 

reasonable consumers think an unqualified biodegradable claim means a product will completely 

biodegrade in a landfill in five years or less. Combined with the APCO and Synovate studies, 

Dr. Frederick’s study presents overwhelming evidence that ECM made the Implied Claim.

Like the APCO and Synovate surveys, Dr. Frederick’s survey demonstrates that 

consumers infer short timeframes from an unqualified biodegradable claim:

 For nine of the twelve open-ended questions, more than 50% of respondents 

understood that a plastic product labeled “biodegradable” would biodegrade 

within five years. (CCFF ¶ 213.) For the remaining three, at least 40% shared 

this understanding. (CCX-860, App. at 30-32.)

 For nine of the twelve open-ended questions asking consumers to estimate 

biodegradation times for plastic labeled “biodegradable,” at least 30% of 

respondents estimated the product would biodegrade within one year. For the 

remaining three questions, at least 20% gave a one-year estimate. (CCFF ¶ 298.)

 Depending on the question’s phrasing, majorities ranging from 53%-68% would 

consider it misleading if a plastic product labeled “biodegradable” did not 

biodegrade within one year. (CCFF ¶ 299.) For instance, when asked: “A 

company should be allowed to label its plastic packaging material as 

‘biodegradable’ if it biodegrades within what amount of time,” 68% responded 

with one year or less, and 91% said within five years. (CCFF ¶ 300.)

 Dr. Frederick compared ECM’s prior claim of biodegradation in “nine months to 

five years” to its current claim of biodegradation in “some period greater than a 

year”. Significantly, nearly half, between 40 and 50%, of consumers construe 

“some period greater than a year” as implying faster biodegradation than “nine 

months to five years.” (CCFF ¶ 304.)
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When evaluating consumer perception evidence, the Commission weighs “reliable results 

from methodologically sound consumer surveys.” POM, No. 9344, 2013 FTC LEXIS 6, at *45,

quoting Kraft, 114 F.T.C. at 121. In other words, “[t]he Commission does not require 

methodological perfection . . . but looks to whether such evidence is reasonably reliable and 

probative.” Id. at *49. 

The ALJ’s conclusion that Dr. Frederick’s survey was not methodologically sound is

grossly flawed. (ID 191, 201.) To the contrary, Dr. Frederick’s GCS study is “reasonably 

reliable and probative evidence” that is entitled to significant evidentiary weight because it drew

valid samples from the appropriate population, asked appropriate questions, minimized bias, and 

correctly analyzed results. (ID 189, citing POM, No. 9344, 2013 FTC LEXIS 6, at *49).

a. Dr. Frederick’s Study Drew Representative Samples from the

Appropriate Population: American Consumers.

The first step in evaluating a consumer survey is to consider whether it drew valid 

samples from an appropriate population. (Id.) The evidence demonstrates that Dr. Frederick’s 

GCS study drew valid, psychographically10 and demographically representative samples from 

the appropriate population, American consumers. The ALJ’s contrary findings—based largely 

on speculation—are irreconcilable with the evidence.

i. End-Use Consumers Are the Appropriate Population.

Dr. Frederick’s GCS study was directed at members of the general public who would see

ECM’s “biodegradable” claims on a variety of plastics products. (ID 197.) The ALJ suggested

that end-use consumers were the wrong study population, believing ECM’s business customers 

10 “Psychographic representativeness” means the sample reflects a population’s 

psychological characteristics. (CCFF ¶ 221.) A sample may match consumers’ demographics 

without necessarily matching their beliefs and attitudes. (CCFF ¶ 222.) 
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were the correct group. (ID 197.) This is wrong, for two reasons. First, ECM made its Implied 

Claim to end-use consumers by providing its business customers with marketing materials to 

pass deceptive claims to other companies and end-use consumers. (ID 292; CCFF ¶¶ 59-70.)

Second, as the ALJ correctly found, ECM’s customers are no more sophisticated in their 

understanding of biodegradation than ordinary consumers. (ID 290.) The population of direct 

customers is, therefore, identical to the end-use consumer population.

ii. The GCS Study Drew Representative Samples.

The ALJ ignored (or did not understand) clear evidence that Dr. Frederick’s GCS study 

drew a representative sample of end-use consumers. (ID 197-200.) Dr. Frederick—by far the 

more qualified expert on the subject11—explained that the data collected through GCS is “highly 

representative both demographically and psychographically.” (CCFF ¶ 260.) He explained that 

GCS pays approximately 340 mainstream Internet content providers to present survey questions 

to Internet users who otherwise must pay to receive the content. (CCFF ¶ 218.)12 GCS uses 

dynamic imputation algorithms to ensure demographic representativeness of each survey sample 

based on five data points gleaned from two pieces of functionality: IP addresses provide

information about geographic region and urban density; and browsing history provides 

information about gender, age, and income. (CCFF ¶¶ 218, 273-275.) GCS reports this 

demographic information, with the survey’s results, to the researcher. (Id.)

11 Dr. Frederick, unlike Dr. Stewart, not only uses traditional survey methodologies, but 

also uses GCS and similar methodologies in his research, including in a recently published, peerreviewed article. (CCFF ¶¶ 263-265.) 

12 Data collector interviews are a standard method of assessing reliability of datagathering techniques. (CCFF ¶ 253.) Dr. Frederick used this technique, via telephonic 

interviews with Google representatives, to assess GCS’s methodology. (Id.) ECM’s expert, Dr. 

Stewart, agreed that it is customary in the survey research field to rely “on the belief that a 

survey research firm is operating as you would expect them to.” (CCFF ¶ 254.)
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Dr. Frederick explained that although GCS’s demographic inferences are highly reliable

in the aggregate, demographic information for individual respondents may be unknown or 

inaccurate. (CCFF ¶¶ 276-277.) For example, if the user has disabled “cookies,” GCS cannot 

use browsing history to infer gender or age. (CCFF ¶ 277.) Alternatively, as the ALJ noted,

GCS’s inferences about gender, age, or income could be incorrect if one family member used 

another’s computer. (ID 198.) The ALJ seized on Dr. Frederick’s acknowledgment of these 

imperfections, (id.), but ignored his testimony that imperfections with respect to individual 

respondents do not compromise the reasonable representativeness of the enormous 29,000-

respondent sample. (CCFF ¶¶ 271-272, 287.) Tellingly, when Dr. Stewart, ECM’s own expert, 

acknowledged the demographic gaps in his own sample, see note 14, he also opined that

individual imperfections do not matter if the overall sample is representative. (CCFF ¶ 286.)

iii. GCS’s Sampling Is More Representative Than Traditional 

Methodologies Like Telephone Surveys.

Significantly, Dr. Frederick explained that GCS is more demographically and 

psychographically representative of American consumers than traditional survey methods,

including litigation mainstays such as telephone landline surveys (like Dr. Stewart’s), “mall 

intercept” interviews, or Internet panels. (CCFF ¶ 224.) Dr. Frederick testified that given the 

choice of using GCS or a landline survey to achieve valid results, he would choose GCS. (Tr. 

1104.)13

13 The ALJ disregarded this testimony to reach the incorrect and insulting conclusion that 

Dr. Fredrick “was motivated to use a Google survey for this litigation” because he was paid a flat 

fee and “the less [he] had to pay for a survey...the more money he would net as compensation 

for his work in this case.” (ID 201.) Dr. Frederick received $40,000 for his work (including the 

GCS study). (Tr. 1102.) After costs for GCS and research assistants, he earned approximately 

$32,000—for 300-400 hours of work. (Tr. 1102-03, 1203) In other words, he received between 

$80 and $110 per hour. By contrast, Dr. Stewart, whom the ALJ described as making “a living 

as an expert,” was paid $750 per hour, in addition to the costs of his study. (Tr. 2632, 2627-28.) 
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Dr. Frederick explained that there are three reasons why GCS is more representative than 

landline surveys. First, GCS gathers five types of demographic information about respondents

(age, geographic region, gender, income, and urban density). Landline surveys like Dr.

Stewart’s only gather two (age and gender).14 (CCFF ¶¶ 279-280.) This difference is 

particularly significant because geographic region and urban density can be very useful proxies 

for respondents’ beliefs on many subjects. (CCFF ¶ 278.) Second, GCS’s study mechanism is 

less intrusive. (CCFF ¶ 225.) Dr. Frederick’s study involved typing an answer to a single 

question; Dr. Stewart’s involved, on average, a twelve-minute phone call (with times ranging 

from five to 20 minutes). (CCFF ¶ 223.) The level of intrusiveness influences the 

psychographic profile of respondents. (Id.) As Dr. Frederick explained, people willing to 

answer a landline call and participate in lengthy surveys (such as Dr. Stewart’s) likely have 

different beliefs and attitudes than the population at large. (CCFF ¶¶ 223, 390-391.) In addition, 

the level of intrusiveness affects the response rate, i.e., the willingness of respondents to answer 

(rather than close the web page or hang up the phone). (Tr. 1120.) Most response rates to Dr.

Frederick’s questions were over 20%.15 Dr. Stewart’s callers spoke to more than 4,000 people

If Dr. Frederick had been as motivated by money as the ALJ found, he simply would have done 

less analysis (or charged an hourly rate, like Dr. Stewart). Further proof of Dr. Frederick’s 

confidence in GCS is the fact that he uses GCS in his research, including in a recently published, 

peer-reviewed article in a prestigious academic journal. (CCFF ¶¶ 263-265.) 

14 The ALJ speculated about potential flaws in GCS’s inferred data, ignoring evidence 

that demographic information—no matter the type of survey—is never perfect, and 

imperfections about individual respondents do not compromise the sample overall. For example, 

landline surveys like Dr. Stewart’s rely on self-reports regarding age; lying about age would 

obviously affect the data. (CCFF ¶ 285.) Callers in landline surveys typically assess gender 

based on the respondent’s voice, and are supposed to ask about gender only if it is unclear. 

(CCFF ¶ 282-284.) But the error rate in collecting gender data can be as much as 5%. (CCFF ¶ 

283.) Nevertheless, as Dr. Stewart explained, despite these imperfections, telephone surveys can 

obtain reasonably representative samples. (CCFF ¶ 286.)

15 Response rates ranged from 15% to 48%, with most over 20%. (Tr. 1322-23.)
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(after making more than 17,000 calls) to obtain a sample of just 400 respondents. (CCFF ¶ 390;

Tr. 2701.) Finally, GCS is more representative than other survey media because it has access to 

the enormous percentage of the population that uses the Internet (85% in 2013). (CCFF ¶¶ 224-

225.) In contrast, only 60% of the American population has a landline, (CCFF ¶ 226), and this 

group tends to be older and disproportionately white. (CCFF ¶¶ 392, 395.)

And, in fact, Dr. Stewart’s survey had precisely this over-representation problem. Fiftyeight percent of Dr. Stewart’s respondents were age 50 and older, (CCFF ¶ 393), even though 

only 40% of persons age 15 and above are 50 and older. (CCFF ¶ 394, citing 2010 census data.)

This means that Dr. Stewart oversampled older Americans and under-sampled minorities. 

(CCFF ¶ 395.) Tellingly, Dr. Stewart explained that the lack of perfect representativeness in his 

sample (the lack of any information about income, geography, urban density; potential flaws in 

gender and age, see note 14) did not negate the reasonable representativeness of his study. 

(CCFF ¶ 286.)

iv. Other Undisputed Evidence Further Demonstrates the Validity

of GCS’s Demographic Information.

The ALJ disregarded three pieces of evidence that further support the validity of the GCS 

sample. First, Google’s undisputed diligence confirmed the representativeness of GCS samples.

Google compared GCS and Internet panel results to benchmarks, i.e., results from clearly 

representative samples of the American public. (CCFF ¶ 249.) As benchmarks, Google used 

media usage data from a 200,000-respondent survey and health data from a Center for Disease 

Control survey with an 80% response rate. (Id.) It then administered questions 13 times through 

GCS, and engaged two survey research firms to administer the same questions to Internet panels 

designed to be representative of American adults. (CCFF ¶¶ 248-249.) The comparisons were 

striking. Most significantly, the GCS studies performed as well as—or even better than—the 
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Internet panel surveys, deviating from the benchmarks by only about 4%. (CCFF ¶ 250.) The 

ALJ discounted this compelling evidence because of what he called “Google’s obvious economic 

interest in the results.” (ID 200.) This conclusion is nonsensical. The fact that Google has 

incentives to develop an effective survey tool and to infer demographics accurately (not only for 

GCS but also for its advertising business) only bolsters the credibility of GCS.

Second, a comparison of GCS with telephone surveys further supports GCS’s ability to 

match the representativeness of more traditional methodologies. Dr. Frederick gave undisputed 

testimony that, shortly after Google introduced GCS in 2012, the independent Pew Research 

Center (“PEW”) compared the results of its own telephone survey of Internet users with GCS 

respondents. (CCFF ¶ 227.) PEW found little difference. For 43 results, the median difference

was only three percentage points and the mean was six points. (CCFF ¶ 232.)

Third, Dr. Frederick gave undisputed testimony regarding Nate Silver’s study of GCS’s 

performance relative to traditional pollsters in predicting the 2012 presidential election results. 

(CCFF ¶¶ 241, 247.) Mr. Silver compared the accuracy of 23 polling entities that conducted at 

least five polls before the 2012 election. (CCFF ¶ 242.) GCS tied for second place (ahead of 

CNN, Reuters, and Gallup), conducting 12 pre-election polls with an average error (relative to 

the actual results) of only 1.6%. (CCFF ¶¶ 243-244.) As Dr. Frederick explained, it is truly 

remarkable that GCS outperformed venerable pollsters like Gallup. (CCFF ¶ 246.) The ALJ 

disregarded this evidence because the election concerned “a binary question on a matter of public 

debate,” which is “not comparable to the type of open-ended questions that are appropriate to 

determine consumers’ interpretation of the term ‘biodegradable.’” (ID 199.) The ALJ did not 

explain how GCS provided a reasonably representative sample for a “binary question on a matter 
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of public debate” but allegedly did not provide such a reasonably representative sample for the 

questions at issue here. Indeed, this conclusion makes no sense.

Each of these pieces of evidence further supports the reasonable representativeness of Dr. 

Frederick’s GCS study. Disregarding this evidence, as the ALJ did, improperly holds GCS to a 

standard of methodological perfection that no survey could meet and the law does not require. 

See POM, 2013 FTC LEXIS 6, at *49.16 Accordingly, the Commission should set aside the 

ALJ’s unsupported findings, and consider the evidence actually presented, which indisputably 

demonstrates the validity of Dr. Frederick’s GCS sample.17

b. Dr. Frederick’s Study Asked Appropriate Questions—Including 

the Central Question in this Case.

The second step in assessing survey methodology is analyzing the appropriateness of the 

survey’s questions. (ID 189, citing POM, No. 9344, 2013 FTC LEXIS 6, at *49). To ensure the 

16 See also Stouffer, 118 F.T.C. at 807 (“A study may be flawed, that is, harbor one or 

more sources of potential error or bias, and still be probative.”); Kraft, 114 F.T.C. at 126-27 n.13

(“Although we agree with respondent that the design of the MOR survey questionnaire is not 

without flaws, and that alternative or additional means could have been used to better minimize 

the potential for yea-saying bias inherent in using a closed-ended question format, on balance, 

we find the MOR survey results to be of some probative value.”); Thompson, 104 F.T.C. at 796-

97 (survey that has “several potential sources of bias” nonetheless deemed to be “reasonably 

reliable extrinsic evidence”).

17 Substantial evidence establishes GCS’s representativeness. But, to the extent that the 

Commission requires additional evidence, it should reverse the ALJ’s improper denial of 

Complaint Counsel’s Motion For Leave To Call Rebuttal Fact Witness Paul McDonald, GCS 

Product Manager. Under the Commission’s Rules of Practice, a party may submit rebuttal 

evidence “as, in the discretion of the Commission or the Administrative Law Judge, may be 

required for a full and true disclosure of the facts.” 16 C.F.R. § 3.43(d)(1). During trial, ECM, 

for the first time, challenged GCS based on new theories that GCS respondents employ various 

IP address and cookie “masking” techniques, and that Google fails to reach respondents on 

mobile devices and appropriately-distributed websites. Complaint Counsel offered Mr. 

McDonald’s testimony (one hour of rebuttal testimony) to ensure a full and true disclosure of the 

facts (not speculation) about GCS. The ALJ incorrectly rejected the proffer. See Order Denying 

Complaint Counsel’s Motion for Leave to Call Rebuttal Fact Witnesses and Respondent’s

Request to Bar Rebuttal Witness, entered September 5, 2014.
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propriety of his questions, Dr. Frederick asked the relevant question—how much time does it 

take a plastic product labeled biodegradable to biodegrade—dozens of different ways. (CCFF ¶

218; CCX-890, App. at 27-37.) The ALJ disregarded this evidence and incorrectly found that 

the question “design” was not appropriate. (ID 193.) As explained below, the ALJ findings are 

irreconcilable with the actual evidence.

According to the ALJ, Dr. Frederick should have asked what biodegradation means,

rather than “assum[ing]” the relevance of time by asking questions such as “how much time” it 

will take for a plastic product labeled biodegradable to biodegrade. (ID 194, 218.) This 

conclusion, however, is nonsensical because rate is embedded in the concept biodegradation, a

process that, by definition, occurs over time. Indeed, the Merriam-Webster dictionary definition 

the ALJ cited as evidence that time is not an element of biodegradation expressly incorporates 

time. See ID 184 (citing Merriam-Webster.com dictionary defining “biodegradable” as “capable 

of being slowly destroyed or broken down into very small parts by natural processes, bacteria, 

etc.) (emphasis added). 

To illustrate this point further, an analogy is useful. It is likely that few consumers would 

mention time when defining “aspirin,” but the vast majority likely understand that aspirin will 

relieve a headache within a certain amount of time. The fact that consumers may not initially 

define “aspirin” in terms of time does not mean that consumers do not believe that, to be 

effective, aspirin should relieve a headache within a reasonably short period of time (e.g., half an 

hour). It is highly likely that consumers would be deceived by “aspirin” that took days to work.

Similarly, the fact that some consumers may not immediately define biodegradation in terms of 

time does not mean that they do not believe that a “biodegradable” plastic product will 

biodegrade within a certain timeframe. Indeed, it is unlikely that consumers think a 
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biodegradable advertising claim means that the product will biodegrade in 100 million years. It

is essential to ask about time precisely because it is not necessarily the first thing that pops into 

consumers’ minds.

The ALJ also inexplicably faulted Dr. Frederick’s surveys because of their “‘singlequestion’ design” and alleged lack of open-ended questions. (ID 193-195.) These critiques 

grossly mischaracterize the actual questions. As his expert report clearly shows, Dr. Frederick 

asked more than sixty different questions, most of which were open-ended. Compare CCX-890

at 27-36 (open-ended questions) with 37-41 (binary questions). Some questions involved the 

“ECM Biodegradable” logo, some involved other “biodegradable” logos, and some involved 

only words. (CCFF ¶ 294.) Significantly, ECM’s expert did not challenge the wording or 

structure of any question Dr. Frederick asked. (CCFF ¶ 288.)

Asking similar questions in different ways to multiple groups of respondents yielded 

three distinct benefits. First, asking each group a single question enabled Dr. Frederick to avoid 

influencing respondents’ answers to later questions with the phrasing of earlier questions. As 

discussed infra at 29-30, Dr. Stewart’s “multiple-question design” study suffered from precisely 

this flaw, with early questions suggesting variability in biodegradation and priming respondents 

to be vague when answering questions about ECM’s claims. (CCFF ¶¶ 379-386.) Indeed, Dr. 

Stewart admitted that “information conveyed to respondents earlier in a survey can affect their 

answers to later questions[.]” (CCFF ¶ 472.)

Second, Dr. Frederick’s questioning mimicked the varying ways ECM’s “biodegradable” 

claims reach consumers—e.g., via a biodegradable label, an eco-friendly label that mentions 

“biodegradable,” or the “ECM biodegradable” logo. Compare CCX-890, App. at 27-30

(“biodegradable” label) with App. at 30-31 (eco- label) with App. at 31, 36, 38, 40, 41, 43, 44
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(ECM logo). By contrast, Dr. Stewart’s study did not ask respondents about the “ECM 

Biodegradable” logo, any other biodegradable logo—or any biodegradable labeling at all. 

(CCFF ¶ 353.)

Third, asking each question in different ways to different groups enabled Dr. Frederick to 

have confidence in the results. As Dr. Frederick explained, arriving at “the same result despite 

asking questions in different ways” is a good indication of the “robustness” or “convergent 

validity” of the results. (CCFF ¶¶ 291-92.)18

c. There Is No Credible Evidence of “Disinterest Bias.”

When courts and the Commission assess survey questions, they consider whether 

questions were asked to minimize bias. (ID 189, citing POM, No. 9344, 2013 FTC LEXIS 6, at

*49.) Completely misunderstanding the evidence, the ALJ found that the GCS study was tainted 

with a “disinterest bias.” (ID 192.)

Dr. Frederick explained that any “disinterest bias”—Dr. Stewart’s notion, borrowed from 

a Google competitor’s blog post, not any academic literature (CCFF ¶¶ 329-330)—did not 

materially affect the reliability of the survey results, for several reasons. First, the number of 

obviously disinterested “protest” responses (e.g., “go away”) was de minimis—less than 1% of an 

enormous sample (N>20,000). (CCFF ¶ 324.) Second, there is no reason to believe that this one

18 Contrary to the ALJ’s findings, the absence of “screening questions” did not undermine 

the reliability of Dr. Frederick’s study. (IDFF 47-48.) The ALJ disregarded evidence that 

screening questions can do as much harm as good, so it is reasonable not to use them. For 

example, screening respondents, as Dr. Stewart did, by asking if they are over 18 years of age 

and if they are knowledgeable about plastics, skews the population; the relevant population is all

consumers, including consumers who are only 17 or knowledgeable about plastics. (CCFF 

¶¶ 348-350, 406, 409.) Moreover, the absence of a screening question to exclude respondents 

who do not have a base knowledge about biodegradation is not significant, because, as part of 

Dr. Frederick’s bright-line coding rules, see infra at 26, he “screened” “I don’t know” answers 

after the fact. (CCFF ¶ 315.) 
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percent’s views are different from the remaining 99%. (Id.) Tellingly, Dr. Stewart did not 

contradict this point. (CCFF ¶ 325.) Third, there is no greater reason to disbelieve the 

genuineness of the 99% of facially meaningful answers simply because respondents wanted

access to Internet content than there is in a telephone survey, where respondents may answer in 

order to conclude the conversation, to have someone to talk to, or for any other reason. (CCX890 at 5.) Finally, Google takes steps to validate respondents’ willingness to provide meaningful 

answers by periodically asking questions with obvious answers (e.g., how many states are there 

in the United States?), and ensuring that persons who respond incorrectly do not receive future 

surveys. (CCFF ¶ 326.)

In fact, Dr. Frederick explained that the 1% of “protest” answers provides evidence of the 

validity of the remaining 99% of answers. (CCFF ¶ 331.) Obviously, “protest” was an option—

but an option that 99% of respondents did not elect. Id. The fact that average response times 

were generally above 20 seconds suggests that the 99% gave thoughtful answers. (CCFF ¶ 332.)

In fact, as Dr. Frederick testified, and Dr. Stewart conceded, a question in which the consumer 

gives a response after 20 seconds much better replicates the actual consumer experience when 

confronted with a “biodegradable” claim on a store shelf than a telephone interview taking 

twelve minutes. (CCFF ¶ 336.) Finally, even if some respondents took 20 seconds or more 

because they were distracted by another activity (as the ALJ posited (ID 193)), as Dr. Frederick 

explained, with respect to most respondents, “[i]t wouldn’t make any sense . . . for someone to 

see a question, to sit there and do nothing, and then key in a nonsense response [after] 22 

seconds” when he or she could do so immediately. (CCFF ¶ 333.)
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d. Dr. Frederick Correctly Analyzed the Results of His Study in BiasMinimizing Ways.

The final step in assessing the soundness of survey methodology is considering whether 

the survey results are analyzed correctly. (ID 189, citing POM, No. 9344, 2013 FTC LEXIS 6, 

at *49.) The evidence unambiguously establishes that Dr. Frederick’s analysis of the results was 

correct. The ALJ, however, either misunderstood or ignored each piece of evidence, concluding 

that Dr. Frederick “‘force-fit’” data into preconceived categories. (ID 195.) This erroneous 

finding mistakes the evidence, in two ways. First, the ALJ simply misunderstood Dr. Frederick’s

“bright-line” coding rules, incorrectly believing them to introduce coding bias, when, in fact, 

they minimize it. Second, the ALJ improperly disregarded Dr. Frederick’s testimony that his 

exclusions do not meaningfully affect the results.

As explained supra at 22, Dr. Frederick asked dozens of variants of the question “how 

much time would it take a plastic product labeled biodegradable to biodegrade?” (CCX-890,

App. at 27-37.) Dr. Frederick explained that he applied a “bright line” coding rule to the 

responses. (CCFF ¶ 313.) According to this rule, “any response containing both a numeric 

specification and an accompanying temporal unit” (e.g., “6 months”) was coded and, thereby, 

included in his analysis of GCS’s results. (CCFF ¶ 314.) Other responses were not coded (and, 

therefore, not included in the study’s results), because there was no way to translate them into a 

specific amount of biodegradation time. (CCFF ¶¶ 316.) Specifically, Dr. Frederick excluded 

five types of responses: 

x numeric responses lacking a temporal unit (e.g., “1”); 

x responses lacking a specification of quantity (e.g., “months”); 

x responses indicating unwillingness to answer without further clarification (e.g., “it 

depends”); 

x responses indicating an unwillingness to respond because of reported uncertainty 

(e.g., “I don’t know”); and 

x “protest” responses intended to circumvent the survey (e.g., “go away”).
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(CCFF ¶ 315.) Dr. Frederick explained that he used this “bright line” rule to avoid any “value 

judgments [by the coders] about which responses are ‘too inaccurate’ to count.” (CCFF ¶ 313.)

For example, without the rule, a coder would have to make a value judgment about whether to 

include an answer such as “10 days,” which could be either an absurd or a genuine response. 

With the rule, such problematic value judgments are not necessary. (Id.; see also CCFF ¶ 341

(ECM cannot explain why such value judgments are appropriate—even though Dr. Stewart’s 

opinions reflect such judgments)).

The ALJ misunderstood this concept, believing that any valid survey must have “blind 

coders” to minimize bias. (IDFF ¶ 408; ID 196 n. 30.) Dr. Frederick’s bright-line coding rules,

however, rendered any rule-following coder virtually bias-free. The ALJ appears to have 

conflated coding bias with the notion of a “double-blind” study, and, therefore, found that 

because Dr. Frederick and his graduate student participated in the coding, the study was not 

“double blind.” (Id.) In fact, the coding was not biased (“blind” in the ALJ’s parlance) because 

of the bright-line rule, and the GCS study was “double blind,” because neither GCS respondents 

(who provided data) nor GCS itself (which collected the data) knew who sponsored Dr. 

Frederick’s study. (CCFF ¶ 344.)

Dr. Frederick explained that omitting the responses identified above was entirely 

appropriate and did not skew the data. (CCFF ¶ 317.) In fact, omitting the responses would only 

have affected the results if respondents who gave them, as a group, hold different views 

concerning biodegradation time than the rest of the population. (Id.) As Dr. Frederick 

explained, there is no reason to believe there is any such difference. (CCFF ¶¶ 317, 322-323.)

The academic literature on “I don’t know” responses (which ECM’s own expert

acknowledged) supports this point. (CCFF ¶ 319.) Survey respondents who answer “I don’t 
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know” often do have a view on the subject; their “I don’t know” response simply denotes an 

unwillingness to guess on the survey. (CCFF ¶¶ 318-319.) As Dr. Frederick explained, there is

no reason to believe that these respondents, as a group, hold different views than those who are 

sufficiently confident in their opinion to venture a guess. (CCFF ¶ 317.) Dr. Stewart admitted 

that “by preventing people from saying ‘I don’t know,’” “generally . . . you don’t change the 

distribution of responses.” (CCFF ¶ 319.)19

In short, the evidence demonstrates that Dr. Frederick correctly analyzed the results. 

Therefore, the Commission should set aside the ALJ’s erroneous findings, and consider the 

evidence presented, which demonstrates that the GCS study and Dr. Frederick’s testimony are 

not only reliable and probative but also convincing—either alone or in conjunction with the other 

three studies.

4. ECM’s Own Study Further Demonstrates that Consumers Infer a Short 

Timeframe for Biodegradation.

The APCO, Synovate, and GCS studies are not the only surveys in the record that 

establish significant consumer inference of a short timeframe from biodegradable claims. The 

survey that ECM commissioned for litigation, and which its expert testified was valid, also

shows that a significant minority of consumers infer a short timeframe from unqualified 

biodegradable claims. 

ECM’s expert, Dr. Stewart, supervised a 400-participant telephone landline survey on

ECM’s behalf. (CCFF ¶ 352.) Tellingly, Dr. Stewart did not ask respondents how much time it

would take plastic products labeled “biodegradable” to biodegrade—the central question in this 

19 The ALJ misunderstood the expert testimony, and, therefore, incorrectly found that 

“[i]t defies logic to assert that, as a group, those asserting no knowledge of how long a 

‘biodegradable item takes to biodegrade have the same views as those expressing a specific 

time.” (ID 196.)
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case. (CCFF ¶ 353.) Instead, he asked: “If something is biodegradable, how long do you think 

it would take for it to decompose or decay?” (CCFF ¶ 354.) In other words, ECM avoided 

eliciting consumers’ understanding about how quickly a plastic product advertised as 

“biodegradable” would biodegrade.

Nonetheless, over half (206) responded with a number and unit of time. (CCFF ¶ 355.)

Of these 206, 33% gave estimates of one year or less and 58% gave estimates of five years or 

less. (CCFF ¶¶ 210, 355.) The ALJ faulted Complaint Counsel for considering 206 of the 400 

responses. (ID 214-215.) However, responses without a number and unit of time are irrelevant. 

See supra at 25. Nevertheless, even improperly considering all 400 responses, ECM’s survey 

still supports Complaint Counsel’s point. Seventeen percent of respondents estimated less than a 

year and nearly 30% estimated five years or less. (Tr. 2790-91.) In other words, Dr. Stewart’s 

results, like the results of APCO, Synovate, and GCS, show that significant minorities (and 

probably majorities) of consumers believe that biodegradation occurs within a reasonably short 

period of time of five years or less.

Dr. Stewart’s callers tested ECM’s “biodegradable in some period greater than a year” 

disclaimer. Specifically, they asked: “In your own words, what does this claim mean to you?” 

(CCFF ¶ 206.) Even though the question did not ask respondents to estimate biodegradation 

time, over a third (150 of the 400) responded with a number and unit of time. (CCFF ¶ 207.) Of 

those respondents, at least 50% (75 or more)20 gave estimates of a year or less. (Id.) Thus, Dr.

Stewart’s data, unsurprisingly, is consistent with all the other studies demonstrating that at least a

20 Although Dr. Stewart’s coders reported 95 responses as falling within the category 

“gone/decomposed/biodegrade in one year,” Complaint Counsel could only locate 75 such 

responses. (CCFF ¶¶ 360-361.) Dr. Stewart refused to admit that his coders were wrong, (CCFF 

¶ 362), but we adopt the lower number (which favors ECM) because that is what the record 

reflects. 
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significant minority of consumers believe plastic labeled “biodegradable” will biodegrade in one 

year or less—even when they hear a disclaimer of a year or more.

The ALJ disregarded this compelling evidence (as well as Dr. Frederick’s similar results)

because he found it “absurd to suggest that reasonable consumers would infer that a claim that a 

product is ‘biodegradable in some period greater than one year,’ means that a product will 

completely biodegrade . . . in less than one year.” (ID 220 n.37.) In fact, the evidence he 

ignored explains why this result was not “absurd” and, in fact, was predictable. Dr. Frederick, an 

expert in the heavily-studied area of cognitive bias known as “anchoring,” explained, “[t]he 

specified minimum value (‘one year’) likely functioned as a numeric referent towards which 

some respondents’ subsequent estimates assimilate.”21 (CCFF ¶ 308.) In other words, when 

consumers see (or hear) “one year,” many of them rely heavily on that piece of information (i.e.,

that “anchor”) when making subsequent judgments or interpretations. (CCFF ¶ 309.)

Significantly, Dr. Stewart did not contradict this testimony. (CCFF ¶ 310.) It was an obvious

error for the ALJ to use his own “facial analysis” in the face of undisputed scientific evidence. 

The fact that Dr. Stewart’s research supports Complaint Counsel’s position is especially 

significant because his study was designed to maximize respondents’ uncertainty about time for 

biodegradation—and, thereby, lead them away from estimating short times. Specifically, the 

order of Dr. Stewart’s questions prompted respondents to think about variability in 

biodegradation time for different items—immediately before they were asked what ECM’s 

21 Dr. Frederick is a leading expert in this field, having recently published a number of 

papers in leading journals on anchoring, including Elaborating a Simpler Theory of Anchoring in 

JOURNAL OF CONSUMER PSYCHOLOGY, A Scale Distortion Theory of Anchoring in JOURNAL OF 

EXPERIMENTAL PSYCHOLOGY: GENERAL, Anchoring in Sequential Judgments in 

ORGANIZATIONAL BEHAVIOR & HUMAN DECISION PROCESSES, and The Role of Inference in 

Anchoring Effects (working paper).
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“biodegradable in some period greater than a year” claim means.22 After respondents had 

already answered several questions about biodegradation, Dr. Stewart’s researchers asked a final 

series of questions. (CCFF ¶ 379.) First, they were asked: “Do you think that there are 

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

decay?” (CCFF ¶ 380.) Unsurprisingly, almost everyone (98%) answered affirmatively. (CCFF 

¶ 381.) Next, those 98% were asked to expound on those differences: “What differences exist in 

the time for different types of products to biodegrade, decompose, or decay?” (CCFF ¶ 382.)

Immediately after, respondents were asked to give their impressions of claims similar to ECM’s. 

(CCFF ¶ 383.)

It was entirely predictable, given the order of the questions, that a high percentage of 

respondents would answer “it depends” rather than giving a timeframe.23 Thus, the fact that 

such high percentages of respondents gave the same answers as respondents in the other three 

studies is particularly significant. In short, ECM’s own study supports the conclusion that a 

significant minority (and likely majorities) of consumers believe that biodegradation happens 

within a reasonably short period of time.

5. Evidence that ECM Intended to Make the Implied Claim Further Supports 

the Conclusion that ECM Made the Claim.

In addition to ignoring this compelling survey evidence, the ALJ disregarded clear 

evidence of ECM’s intent to make the Implied Claim. “[I]t is . . . well established that a 

22 Dr. Stewart admitted that “information conveyed to respondents earlier in a survey can 

affect their answers to later questions[.]” (CCFF ¶ 472; see also CCX-874 at 2 (PEW analysis 

observing that “earlier questions may influence those asked later in the survey”).)

23 In his deposition (but not at trial), Dr. Stewart admitted: “Well, I hope we did put that 

in their minds because we’re asking them whether or not they think there are those differences, 

yes or no.” (CCFF ¶ 386, emphasis added.)
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showing that an advertiser intended to make particular claims can help demonstrate that the 

alleged claim was in fact conveyed to consumers.” POM, No. 9344, 2013 FTC LEXIS 6, at 

*51. Accord Novartis Corp., 127 F.T.C. 580, 683 (1999) (“[E]vidence of intent to make a

claim may support a finding that the claims were indeed made.”); Telebrands, 140 F.T.C. at 

304 (finding support that claims were made in “ample evidence that respondents intended to 

convey the challenged claims”); Thompson, 104 F.T.C. at 791 (“Thompson intended to make 

these claims . . . [and] [t]herefore, it is reasonable to interpret the ads as making them[.]”).

There is overwhelming evidence that in making unqualified “biodegradable” claims, 

ECM intended to imply that its additive would make plastic completely break down into 

elements found in nature in a landfill in a reasonably short period. Repeatedly, ECM defined 

“biodegradable” for its customers: ECM’s standard sales pitch—presented in a host of 

marketing materials and customer communications—stated that its additive made plastic 

“fully biodegrade” (or “break down”) “in landfills” in “nine months to five years.” (ID 175-

177.) Even when ECM began using the “some period of time” disclaimer, it continued to tell 

customers to expect complete landfill biodegradation in nine months to five years. (CCFF 

¶¶ 37-41.)

In short, ECM intended to make the Implied Claim—and a significant minority (if not 

a majority) of consumers in fact perceived that claim.

B. The ALJ Erred in Not Finding Liability for ECM’s Implied Claims. 

The ALJ incorrectly found that ECM substantiated its unqualified “biodegradable” claim. 

He determined that, according to scientists, “biodegradable” means a process not cabined by any 

timeframe—an interpretation that would render ECM’s claims meaningless because all things 

(including conventional plastics) biodegrade eventually. This definition is legally irrelevant and 

scientifically inaccurate. Although not entirely clear, the ALJ then appears to hold that ECM 
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substantiated its claim by demonstrating ECM Plastic to be more susceptible to the 

biodegradation process. In reaching this result, however, the ALJ grossly misunderstood the 

scientific testimony. Substantial evidence shows that ECM’s claim that ECM Plastic 

biodegrades in any meaningful way is both false and unsubstantiated. 

1. The ALJ’s Interpretation of Biodegradable Renders ECM’s Implied Claims 

Meaningless.

The ALJ found that an unqualified biodegradability claim does not convey that the 

product will biodegrade “completely” or in any specific time period. Instead, he contends, based 

on his interpretation of the “scientific” meaning of the term, ECM’s Implied Claims conveyed 

nothing more than the ability of ECM Plastic to undergo a biodegradation process that has no 

clearly defined end-point. (ID 247-248.) 

This interpretation is absurd. Because all things biodegrade eventually (given hundreds 

of millions of years), this definition would permit marketers to advertise every product as

“biodegradable,” including conventional plastic. If ECM’s customers had this understanding, 

they would have no reason to buy the Additive; they could simply label their conventional plastic 

“biodegradable” without the extra expense. Of course, neither consumers (as explained supra at 

6-30) nor scientists share this understanding. At a minimum, ECM’s unqualified claim must 

convey something more than the inherent ability of all things to eventually biodegrade. It must 

convey at least a fundamental change in the biodegradable properties of conventional plastic that 

is meaningful and relevant to consumers. Although the ALJ never makes a specific finding that 

ECM Plastic is less resistant to biodegradation than conventional, untreated plastic, including in 

a landfill, he appears to implicitly recognize this point by finding ECM substantiated the legally 

irrelevant scientific definition. As discussed below, incontrovertible scientific evidence 

contradicts this finding.
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2. ECM Plastic Cannot Be Biodegradable.

ECM’s claim that the ECM Additive can change the fundamental non-biodegradable 

nature of conventional plastic is completely at odds with overwhelming, well-established 

scientific opinion. In finding otherwise, the ALJ incorrectly failed to evaluate the type of 

substantiation the relevant scientific community would consider appropriate. Instead, he relied 

heavily on the opinions of scientists who are not experts in relevant fields of study. However, 

the evidence demonstrates a strong scientific consensus that conventional plastics are not

biodegradable. Accordingly, the scientific community requires a high level of substantiation to 

support ECM’s radical claims, consisting of reliable, confirmatory tests demonstrating either 

some minimal threshold of biodegradation or biodegradation of the high-molecular weight 

plastic in the relevant disposal conditions. ECM’s testing satisfies none of these requirements. 

1. The ALJ Erred By Not Considering The Amount Of Substantiation 

Experts In The Field Believe Is Reasonable.

Claims are deceptive if they are false or lack a reasonable basis. Daniel Chapter One,

No. 9329, 2009 FTC LEXIS 157, at *99 (F.T.C. Aug. 5, 2009); see also ID 234. “To determine 

what constitutes a reasonable basis, the Commission considers the ‘Pfizer factors.’” POM, No. 

9344, 2013 FTC LEXIS 6, at *17-18 (2014) (citing Pfizer Inc., 81 F.T.C. 23 (1972)); FTC Policy 

Statement Regarding Advertising Substantiation, 104 F.T.C. 839, 840 (1984) (appended to 

Thompson, 104 F.T.C. 648) (“Substantiation Statement”). The Pfizer factors require evaluation 

of “the type of claim, the product, the consequences of a false claim, the benefits of a truthful 

claim, the cost of developing substantiation for the claim, and the amount of substantiation 

experts in the field believe is reasonable.” Substantiation Statement, 104 F.T.C. at 840 

(emphasis added). Implicitly considering the first several factors, the ALJ correctly found that 

ECM must substantiate its biodegradability claims with competent and reliable scientific 
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evidence.24 However, he critically failed to determine “the amount of substantiation experts in 

the field believe is reasonable.” 

The ALJ relied heavily on the testimony of two ECM experts, Drs. Sahu and Burnette, 

neither of whom has relevant expertise, and rejected the testimony of extremely qualified 

relevant experts and the consensus of the relevant scientific community. (Compare IDFF 122-

130 (Sahu) and 140-143 (Burnette) with IDFF 107-111 (McCarthy) and IDFF 117-121(Michel).) 

Dr. Sahu is a general-purpose environmental law consultant, without experience, training, 

or knowledge in the relevant fields of polymer science or plastics engineering. (See, e.g., Tr. 

1738-41 (no experience with polymers other than fuel and fuel containment systems); Tr. 1747 

(appeared as expert only for “air quality” environmental matters).) Dr. Sahu has not performed 

an ASTM D5511 test (the type of tests upon which ECM relies). Nor does he understand how 

the ECM Additive affects plastic on a molecular level. (Tr. 1949-52.) His review of “hundreds 

of papers” about plastic biodegradability formed the basis of his opinions. (See Tr., 1754-55; 

1791; 1849.) However, in his report and testimony, Dr. Sahu simply pulled large block quotes, 

out of context, from scientific articles. Each of these articles is either inapposite or directly 

24 The type of claim and product at issue weigh in favor of requiring “a high level of 

substantiation.” Thompson, 104 F.T.C. at 822 . The potential harm to consumers in allowing 

false claims also weighs in favor of requiring competent and reliable scientific evidence.

Environmentally conscious consumers are likely to pay higher prices for the perceived 

environmental benefit of “biodegradable” plastics. (CCFF ¶ 14); see Thompson, 104 F.T.C. at

824 (significant economic harm “result[s] from the repeated purchase of an ineffective product 

by consumers who are unable to evaluate” the efficacy claims”); FTC v. Pantron I Corp., 33 

F.3d 1088, 1102 (9th Cir. 1994) (“[A] major purpose of the Federal Trade Commission Act is to 

prevent consumers from economic injuries.”).
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contradicts Dr. Sahu’s position. (CCX-892 at 4-8.) If anything, his mis-citation of these articles 

demonstrates his lack of expertise in the relevant field.25

Dr. Burnette’s expertise as a microbiologist has focused not on biodegradation, anaerobic 

biodegradation, or even degradable plastics, but on environmental remediation and “biosafety.”

(See RX-840, Dep. 142; and IDFF 142-143). Beyond a general knowledge of “polymers,” Dr. 

Burnette’s knowledge about plastics in general and degradable plastics in particular is extremely 

limited. Admittedly, ECM did not offer Dr. Burnette as an expert in polymer science or plastics 

chemistry, or as a polymer engineer (RX-840 at 204-205.) Like Dr. Sahu, Dr. Burnette has not 

performed an ASTM D5511 test and does not know how the ECM Additive affects plastic on a 

molecular level. (CCFF ¶ 176; Tr. 2449.) Tellingly, neither could identify a single peerreviewed paper to support the radical notion that mixing one percent of biodegradable plastic 

with conventional plastic enhances biodegradability. (See CCX-892 at 8.) 

In marked contrast, Drs. McCarthy and Michel are highly qualified scientists with 

expertise directly relevant to the biodegradability of plastics. Dr. McCarthy has a master’s 

degree in chemical engineering from Princeton University, and a Ph.D. in polymer engineering 

from Case Western Reserve University. (IDFF ¶ 107.) He has been a professor of plastics 

engineering at the University of Massachusetts Lowell for 30 years, where he teaches graduate 

level courses in plastics engineering, including the mechanical behavior of polymers, and 

polymers and the environment. (IDFF ¶ 108.) He is the inventor on seven patents related to 

polymers or plastics engineering and is the editor of the Journal of Polymers and the 

25 Dr. Sahu is, basically, a gun for hire. (RX-855 at 63-71(identifying “expert litigation 

support” entries spanning from (a) to (iiiii)). He consults for Kelley, Drye & Warren, LLP, 

which represented ECM during the investigation and settlement discussions. 

http://www.kelleydrye.com/attorneys/ron_sahu
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Environment. (IDFF ¶ 109.) Moreover, he has authored or co-authored more than a hundred 

publications about polymer or plastics engineering, including peer-reviewed articles on 

biodegradable blends. (IDFF ¶ 110.) Not surprisingly, a number of the papers cited by ECM’s 

so-called experts relied on materials written or co-authored by Dr. McCarthy. (See, e.g., RX-360

at 9; RX-365 at 1; RX-581 at 14; RX-584 at 12.)

Dr. Michel explained that his whole career has involved polymer conversion in compost 

systems and anaerobic digesters. (Tr. 2836.) He has a Ph.D. and M.S. in Chemical Engineering 

from Michigan State University. (IDFF ¶ 119.) For the past 25 years, Dr. Michel has conducted 

research on the biodegradation of plastics, bioplastics, biofoams, and natural fiber materials in 

anaerobic digesters, composting systems and in soils. (IDFF ¶ 119.) Dr. Michel has authored 

over 40 peer-reviewed publications in the areas of composting and anaerobic biodegradation of 

polymers. (IDFF ¶ 119.) Since 2007, he has served as the Editor of Compost Science and 

Utilization Journal, an international peer reviewed scientific journal, and as an Associate Editor 

for the Biological Engineering division of the American Society of Agricultural and Biological 

Engineers. (IDFF 120.) Importantly, Dr. Michel is author of the only published, peer-reviewed 

scientific literature evaluating whether ECM Plastic is biodegradable. (CCX-880.) Notably, this 

peer-reviewed paper found that ECM Plastic does not biodegrade in any environment. (CCX880.)

The ALJ made no findings that either Dr. McCarthy or Dr. Michel based their opinions 

on anything other than their scientific knowledge. Nor did he explain why he failed to give 

adequate weight to their testimony. Instead the ALJ adopted the uninformed opinions of ECM’s 

far less qualified consultants who opine without any scientific support that conventional plastic is 
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biodegradable, mixing 1% biodegradable additive can weaken the plastic and increase 

susceptibility to biodegradation, and that ECM’s ASTM D5511 tests prove as much. 

2. ECM Must Substantiate Its Radical Claims with a High Level of

Substantiation.

Experts in the relevant scientific community—degradable polymer scientists—explain 

that they require a high level of proof to substantiate ECM’s claims. These experts explain that 

conventional plastics are highly resistant to biological attack (mostly due to their high average 

molecular weight), and neither the mechanism (formation of a biofilm) nor the technology (1% 

biodegradable additive blend) can alter this immutable scientific fact. Thus, to prove radical 

claims not otherwise supported by the relevant scientific community, ECM must present

confirmatory tests, not screening tests such as ASTM D5511.

a. The Relevant Scientific Community Considers Conventional 

Plastics Non-Biodegradable.

Drs. Barlaz (ECM’s expert), Michel, Tolaymat, and McCarthy all testified that 

conventional plastics are not biodegradable, as the relevant scientific community uses the term 

(CCFF ¶ 6.). The scientific literature supports this position, including many of the sources cited 

by Drs. Sahu and Burnette. See, e.g., RX-581 at 2 (“Plastics are resistant against microbial 

attack. . . . .”); RX-586 at 3 ([conventional plastics] are generally “inert” and “not susceptible to 

microbial attack”); RX-764 at 1 (“Traditional plastics are very stable and not readily degraded in 

the ambient environment.”); RX-766 at 1 (polyethylene popular due in part to its “biological 

inertness”); CCX-1002 at 1-2 (“most conventional plastics . . . are non biodegradable”); CCX945 at 64 (“synthetic polymers historically have been classified as nondegradable and

recalcitrant.”); CCX-880 at 2 (“most plastics are xenobiotic” meaning “the evolution of 

metabolic pathways necessary for their biodegradation, a process that takes millions of years., 
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has yet to occur.”). Conventional plastic polymers are composed primarily of polymer chains 

with molecular weights typically ranging from the hundreds of thousands to millions. (CCX-891

¶ 30.) Their enormous average molecular weight makes them inherently extremely difficult to 

break down. (CCFF ¶ 9.)

Microorganisms secrete enzymes that adhere to the surface of organic materials and 

cause fissures in the molecular chain (also called hydrolysis). (CCX-891 ¶ 22.) These cleavages 

make long-chain molecules shorter, resulting in the release of carbon and energy (heat). (CCX891 ¶ 22; see also RX-584 at 4-5.) It is widely accepted that known microorganisms do not 

secrete enzymes that can bind to commercial conventional plastics.26 (See CCX 891 ¶ 22, ¶¶ 32-

35 and ¶ 74; RX-581 at 1 (“Plastics are resistant against microbial attack, since during their short 

time of presence in nature evolution could not design new enzyme structures capable of 

degrading synthetic polymers.”); RX-584 at 4 (same).)

Existing microorganisms can ingest polymers with a molecular weight below 500, where 

they can be “depolymerized” and used for energy (also known as mineralization). (CCX-891

¶ 86; CCX-892 ¶ 12; RX-584 at 4.) Over time (perhaps millennia), new microorganisms may 

evolve that can either secrete enzymes that break down high molecular weight plastic or perhaps 

even ingest conventional plastics—but such an event is speculative and far distant. Until then, 

conventional plastic must be broken into much shorter chains through abiotic processes before it 

will biodegrade. Unaided by chemical or mechanical means, this process could span tens of 

thousands of years. (See CCX-895 at 12 (“without these abiotic and chemical and physical 

modifications, the extent of PE biodegradation is essentially nil.”).) Even chemical and 

26 Some microorganisms secrete enzymes that can break down naturally occurring 

polymers, like starch and cellulose, and some synthetic polymers that closely resemble them.

(CCX-891 ¶¶ 33-34; CCFF ¶ 8.)
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mechanical processes may not enhance ultimate biodegradability. (CCX-891 ¶¶ 26-27

(“[A]lthough degradation (or disintegration) may change the plastic’s physical form, it does not 

involve microorganisms, nor does degradation necessarily mean that the plastic will degrade into 

natural elements.”); see also CCX-895 at 12.)

b. There Is No Scientific Basis to Believe ECM’s Purported 

Technology Could Possibly Work.

Dr. McCarthy explains that there is no reason to believe that ECM’s purported 

technology could possibly work. (CCX-891 ¶¶ 64-65; CCX-892 ¶¶ 15-16.) The ECM Additive 

is a pelletized, mostly synthetic biodegradable polymer that is added to the hopper when a plastic 

is melted down to be formed into sheets or molds. (CCFF ¶¶ 129, 171; see also Tr. 1813.) ECM 

recommends that its customers add a small concentration, about 1%, of its Additive to the nonbiodegradable conventional plastic, much as they would a colorant. (CCFF ¶ 129-131.) ECM 

contends that its Additive promotes the formation of a biofilm that can produce enzymes capable 

of biodegrading conventional plastic. (See CCX-4.)

As Drs. Michel and McCarthy explain, physically blending 1% additive to conventional 

plastic cannot accomplish the reduction of molecular weight necessary to enhance 

biodegradability. (CCX-891 ¶ 74; CCX-895 at 13.) Therefore, conventional plastic is no more 

susceptible to biodegradation after blending than it was before. (CCFF ¶¶ 130-131.)

Despite this clear evidence, the ALJ adopts Drs. Sahu and Burnette’s inapposite citations 

to the scientific literature about blends of non-conventional plastics, and mistakenly finds that 

ECM’s Additive could change the recalcitrance of conventional plastics. But none of the 

scientific literature demonstrates this. Rather, these articles clearly show that blending even 

large proportions—30 times the amount of ECM Additive—at best facilitates fragmentation.

(RX-925 at 13) (“[a] large amount of starch of the order of 30% by volume needs to be blended 
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for improving the accessibility of the whole system to degrading factors.”) (emphasis added);

CCX-895 at 13-14 (discussing studies in which as much as much as 80% starch blended with

polyethylene showed no improvement in biodegradation of the polyethylene).) In fact, these 

studies directly contradict the premise for which Drs. Sahu and Burnette cite them, finding that 

even at extremely high concentrations, only the lowest weight pieces (a tiny fraction of the 

overall conventional plastic)27 will biodegrade after fragmentation. (RX-360 at 14 (“despite all 

these attempts to enhance the biodegradation of PE blends, the biodegradability with 

microorganisms on the PE part of the blends is still very low.”).) The blending process does not 

and cannot change the ability of the conventional plastic to biodegrade and nothing relied on by 

the ALJ or in the record supports otherwise.28

ECM’s fantastical “mechanism of action” is similarly unsupported. There is no evidence 

to support ECM’s assertion that the biofilm that purportedly forms on the surface of ECM Plastic 

makes biodegradation more likely. (CCX-895 at 16 (“biofilms . . . can form on surfaces that are 

not biodegradable”).) As further illustrated by Dr. Michel, biofilms form inside bathroom 

27 The molecular weight of a conventional plastic represents an average molecular 

weight. (RX-855 at 15 (“there will be a distribution of chain lengths, including some very small 

chains (sometimes referred to as oligomers) and some longer chains. Thus, “[E]xcept for a few 

cases, the molecular weight represents an average; almost all polymers have a molecular weight 

distribution.”).) Given the massive average weight of the polymer chains, only a very small 

percentage will have a low enough molecular weight to be ingested or broken down by known 

biological agents. Indeed, even with a non-random distribution of polymer chain weights that 

maximized the number of low-weight chains, it is mathematically impossible for more than half 

of the total molecular weight of a conventional plastic to consist of chains small enough to be 

biodegraded. Of course, the distribution is random and much, much less than half of 

conventional plastic is susceptible to biodegradation.

28 Moreover, Dr. McCarthy’s patent is not evidence that a blend can affect the 

recalcitrance of conventional plastic. (See IDFF ¶¶ 659-664.) Dr. McCarthy’s research and 

patent studied how blending of two known biodegradable polymers affects brittleness and 

biodegradation rates. (Dep. 684-686.) Completely unlike this technology, ECM Plastic is a 

blend between a biodegradable polymer and an inert plastic. 
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drainpipes, “[b]ut they’re not breaking down the pipe itself. If they would be breaking down the 

pipe itself, then you wouldn’t be using those materials to make the pipe . . . . their understanding

of biofilms, just because a biofilm forms that it’s biodegrading the material to which it’s 

attached, is incorrect.” (Tr. 2865.) ECM’s own expert, Dr. Burnette, concedes that the presence 

of a biofilm does not indicate microorganisms are using the plastic as a food source. (CCFF ¶ 

179.)

In short, there is no known, or plausible theoretical, mechanism that could cause the 

ECM Additive to work. At best, and there is no evidence of this, it may help the plastic fragment 

and possibly expose some of the very small percentage of shorter chains of conventional plastic 

to biological agents. But even accepting this unsupported assumption, the Additive still does not 

alter biodegradability in any meaningful way. (CCFF ¶ 132.) The conventional plastic remains 

chemically unaltered. ECM Plastic still consists of 99% chemically unaltered conventional 

plastic, which could take as long, or longer to biodegrade. (CCFF ¶ 133.)

c. ECM Does Not Have Tests the Relevant Scientific Community 

Would Require to Support its Extraordinary Claim that ECM 

Plastic Is Biodegradable in a Landfill.

The ALJ improperly concluded that because the scientific community routinely uses “gas 

evolution tests” like ASTM D5511 to assess biodegradability, and some tests showed 

biodegradation rates above the 1% load rate of the ECM Additive, it must be efficacious. The 

scientific community demands more than minimal methane production in anaerobic conditions to 

support ECM’s unorthodox claim that the ECM Additive renders conventional plastic 

biodegradable after disposal. Instead, before concluding that a material (not already known to be 

biodegradable) is “biodegradable” in a waste stream, scientists would require both screening and 

confirmatory tests. ECM’s substantiation includes no confirmatory testing. (CCX-891 ¶¶ 44-45; 
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¶ 67.) Moreover, the ASTM D5511 screening tests of ECM Plastic were neither well-controlled 

nor well-designed studies. (See infra at 46-47.) Consequently, the data from ECM’s screening 

level tests does not support even a claim that ECM Plastic is “intrinsically” biodegradable, let 

alone a claim of complete, or even substantial, decomposition in a landfill.

i. Recalcitrant Non-Biodegradable Materials Require 

Confirmatory Testing to Establish Biodegradability in a Waste 

Stream.

Experts in the field require competent and reliable scientific evidence for ECM’s 

biodegradability claims in the form of appropriately-analyzed results of independent, welldesigned, well-conducted, well-controlled testing. (CCFF ¶ 135.) The testing should use the 

appropriate plastic application, load rate, inoculum, test conditions, and sample weight, over an 

appropriate duration of time. (CCFF ¶ 135.) 

The scientific community generally uses three tiers of tests to determine whether

biodegradation of plastic occurs. First, an initial screening test, such as ASTM D5511, can show 

whether any biodegradation is occurring (i.e., whether any component of the test material is 

biodegrading).29 Second, level-1 confirmatory tests can determine whether the conventional 

29 As further explained in the leading treatise on solid waste:

Screening-level evaluations of materials do not provide definitive 

evidence of biodegradation. [] The possibility of overestimation of biodegradation 

potential exists if the “priming effect” occurs [] If material transformations are 

due to microbial attack on additives [] rather than mineralization of a polymeric 

component of material, or if a material is exposes to microbial cultures that are 

not representative of the environment in which the material will be disposed. 

Alternative, the presence of pro-oxidants or starches in a material may facilitate 

major physical changes (i.e., disintegration) that could be misinterpreted as 

evidence of complete biodegradation []. Weight loss and tensile strength changes 

may be due to partial hydrolysis or abiotic hydrolysis caused by interaction of the 

polymer with the medium. Thus, more definitive biodegradations tests simulating 

the environment in which the polymer will ultimately reside are required to 
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plastic is in fact biodegrading and whether and to what extent it will biodegrade under specific 

(e.g., real-world) conditions. Third, level-2, field-scale tests that are in situ can be used to 

evaluate whether biodegradation has adverse environmental effects.30 (CCX-891 ¶ 43; see also

CCX-945 at 65-66 (Barlaz waste treatise discussing a three-tiered approach to assessing 

biodegradability of plastics); RX-767 (same).) 

Thus, screening tests, like the ASTM D5511, alone cannot establish the extent or rate of 

biodegradation in specific disposal conditions. (CCX-891 ¶ 44; CCFF ¶ 139; see also CCFF 

¶ 175.) To substantiate its claims regarding the purported biodegradability of ECM Plastics in 

landfills and the role of the ECM Additive, ECM must have both screening and confirmatory 

tests. (CCX-891 ¶ 45; see also CCX-945 at 72.) Confirmatory testing is essential to establish 

that the conventional plastic itself is biodegrading, and whether and to what extent it will 

biodegrade under real-world disposal conditions. (See CCFF ¶¶ 147-148; CCX-891 ¶¶ 44-45.) 

Two types of confirmatory tests are reliable: (1) a gas-evolution test that reaches a minimum 

threshold of biodegradation in a specified time under specified disposal conditions; or (2) a 

radiolabeling test using C14. (CCX-891 ¶¶ 58-59.) Both are available at several major testing 

labs and are not cost prohibitive. (Id.)

(1) Minimum Threshold Gas-Evolution Tests

The relevant scientific community would accept testing showing a material achieved a

minimum threshold of biodegradation under appropriate conditions in a specific time-period. 

determine the practical biodegradability of polymeric materials in MSW waste 

treatment and terrestrial environments.

(CCX-945 at 72, internal citations omitted.)

30 Although field-scale tests are required to determine whether there would be adverse 

environmental effects, Dr. McCarthy would not require such tests to substantiate ECM’s efficacy 

claims.
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For example, in a source cited by Dr. Sahu, the author explains, “[a] demonstrated potential of a 

material to biodegrade does not say anything about the time frame in which this occurs, nor the 

ultimate degree of degradation.” (RX-584 at 2-3.) If degradation rates are slow, or degradation is 

incomplete, the polymer will accumulate in the environment. (RX-584 at 2-3.) Therefore, 

scientists have adopted a definition of biodegradable that includes “specified periods of time, 

specific disposal pathways, and standard test methodologies.” (RX-584; see also RX-767

(describing same criteria); see also RX-787 at 1 (same); CCX-945 at 72 (same); RX-776 at 11 

(same).) 31 Dr. Michel reiterates this concept in both his peer-reviewed published paper and his 

expert report. (CCX-895 at 11; CCX-880 at 3.) Dr. McCarthy explained that the ASTM is 

currently implementing a standard specification for biodegradable plastics under anaerobic 

conditions, which would require treated plastics reach 60% biodegradation in 18 months. (CCX891 ¶ 56.) Thus, a minimum threshold of biodegradation in a specified time and disposal 

condition is one commonly accepted standard for assessing biodegradability.

(2) Radiolabeling

Alternatively, the relevant scientific community would accept radiolabeling (C14 tests). 

(CCFF ¶ 455.) Radiolabeling involves tagging radioisotopes of carbon, C14, to a high-molecular 

weight plastic, such as polyethylene, before conducting a gas evolution test. If the radiolabeled 

carbon is detected in biogas, then the conventional plastic polymer is undergoing a material 

transformation through biodegradation. If not, then other factors must explain any observed

biogases, e.g., biodegradation of the additive or the inoculum. (CCX-891 ¶ 59; see also CCX31 The compostability standard specification, ASTM D6400, also employs this 

requirement. A material must reach 90% biodegradation within 180 days in aerobic conditions 

to be deemed compostable in a municipal composting facility. (CCX-91.)
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945 at 72-73.) Radiolabeling is particularly useful for technologies where the observed 

biodegradation would happen over a period of years. (CCX-945 at 72-73; CCX-895 at 12.) 

Drs. Michel and Barlaz likewise explained that to “obtain accurate evidence of 

biodegradation” a C14 test is necessary. (See CCX-895 at 12; Tr. 2224.) Indeed, Dr. Barlaz has 

not only performed C14 tests, but wrote the ASTM specification on how to do so. (CCX-943

(Dep. 67).) In fact, Dr. Barlaz testified that C14 tests are “well-suited” to “very, very small 

amounts” of biodegradation, and for slowly degrading materials.32 (Tr. 2244.) 

The ALJ erroneously rejected C14 tests as “not the industry standard or reasonably 

required by any expert in the field.” (ID 244.) However, C14 is routinely used for unorthodox 

claims that conventional plastic can undergo biological transformation. (See, e.g., Eastman 

Study (Tr. 650-51; CCX-841, Dep. 149-151); and Albertsson Study (CCX-897-898). ECM 

conducted neither confirmatory test, despite ample opportunity and ability to do so.33

32 If a C14 test shows sufficient biodegradation of the high-weight conventional plastic 

component, it could substantiate a claim that the Additive increases a plastic’s susceptibility to 

biodegradation in a landfill. If it were to show 60% biodegradation of the plastic, it could 

substantiate a rate claim.

33 ECM has known for years that ASTM D5511 tests are insufficient to support its claims 

(see, e.g., CCX-963 at 5-6), and since at least 2009, that C14 tests would provide the requisite 

substantiation in the scientific community. (CCX-310 (email from American Radiolabeled 

Chemicals to A. Poje explaining how it would prepare C14 labeled polyethylene for a test of 

ECM Plastic conducted under ASTM D6776); CCX-311 (email from A.Poje to Dr. Barlaz 

discussing conducting a radiolabeled test under ASTM D6776);.CCX-314 (Email from Moravek 

Biochemicals to A.Poje providing a quote for the synthesis of radiolabeled polyethylene.) Dr. 

Michel (who has practical experience conducting C14 tests and whose university is licensed to 

conduct such tests) testified that “it would be a rather straightforward matter to mix ECM 

additive with 14C labeled polyethylene” and would not have been prohibitively expensive. 

(CCX-895 at 15, 23.)
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ii. ASTM D5511 Does Not Rise to the High Level of Substantiation 

Required by the Scientific Community.

The relevant scientific community does not consider ASTM D5511 adequate 

substantiation to support ECM’s unorthodox claims. 

(a) To Substantiate its Claims, ECM Must Test 

Under Typical Landfill Conditions.

The finding that ASTM D5511 simulates landfill conditions is simply wrong.34 The ALJ 

found that the ASTM represents a microcosm of conditions potentially found in some landfills. 

(IDFF 778.) However, ECM’s sales spanned the U.S., its promotional materials are available 

nationally through ECM’s website, and there was no limitation or qualification of the claim with 

respect to disposal conditions. (See IDFF ¶¶ 4, 9, 14, 23, 32, 37, 53, 78 (ECM’s customers’ 

locations); CCFF ¶¶ 24-25 (reached millions of consumers); IDFF ¶ 206 (advertises through 

website); IDFF ¶¶ 245-246, 258 (claims conveyed “landfill” generally’); CCFF ¶ 112.) ECM 

represented that ECM Plastic biodegrades in landfill conditions available to all consumers, and 

thus must substantiate efficacy in the landfills used by those consumers. ASTM D5511 does not 

replicate the temperatures and moisture levels typical of U.S. landfills.

Landfills are anaerobic, highly heterogeneous waste containment systems. (IDFF ¶ 570; 

CCX-893 ¶ 20.) Drs. Tolaymat and Barlaz, the only two experts in solid waste management, 

both testified that typical landfills operate in the mesophilic temperature range, i.e., 37oC. (CCX34 The ASTM D5511 test protocol clearly explains that “it is not intended to resemble any 

particular high-solid anaerobic digester” rather merely the anaerobic-digestion process under 

“optimum” conditions. (CCX-85.) Anaerobic digesters are not landfills. (CCX-891 ¶ 52; CCX893 ¶ 77.)
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943, Dep. 69.) In contrast, ASTM D5511 tests are conducted at 52odegrees.35 Altering the 

temperature changes the bacteria present, speeds rate of biodegradation, can promote abiotic 

changes in the material, and, most importantly does not represent temperatures landfill experts 

consider typical. Therefore, a test conducted at 52oC is not competent and reliable scientific 

evidence simulating typical landfill conditions. (CCFF ¶ 154-156; CCFF ¶ 138; see also CCFF ¶ 

136.)

The vast majority of landfills operate between 15-30% moisture. (CCFF ¶ 423.) The 

experts agree that conducting a test at higher moisture rates affects the rate of biodegradation.

Tests to substantiate landfill biodegradability claims must be conducted at less than 30% 

moisture, but ECM’s ASTM D5511 tests were conducted between 60-80% moisture.

(b) ECM’s ASTM Data Is Unreliable.

The ALJ erroneously disregarded Drs. McCarthy and Tolaymat’s criticisms regarding the 

reliability of the ECM’s test data. Significantly, both Drs. Tolaymat and McCarthy explain that

ASTM D5511 overestimates biodegradation of ECM Plastic. (CCX-891 ¶¶ 84, 90; CCX-893 ¶¶ 

80-81.) These “false positives” result from: high temperatures; lack of control for the priming 

effect36 (because no test ran a separate concurrent control for the ECM Additive); and the large 

inoculum to substrate ratio, among other things. Even Dr. Barlaz acknowledges that the priming 

effect and abiotic degradation can result in overestimation of biodegradability potential. (CCFF 

35 Four BMP tests of ECM Plastic run by Dr. Barlaz’s lab and one run by Dr. Michel’s 

lab, all conducted prior to their involvement in this case, were conducted at 37oC and show 

negligible to no biodegradation. (CCFF ¶¶ 157, 168-169, 172-173, 450; CCX-880.)

36 Dr. McCarthy explains the “priming effect” as biodegradation of the additive (which 

contains organic compounds highly susceptible to biodegradation) and the organic materials of 

the test medium (the bacteria used for testing) rather than the plastic. (CCX-891 ¶ 19; Dep. 412-

413.) The existence of the additive both increases the total amount of material available for 

biodegradation (compared to the test of the inoculum by itself), and stimulates increased 

biodegradation of the inoculum. (See CCX-162 at 3.)
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¶ 155; Tr. 2279.) Consequently, the test results cannot effectively correlate the result (positive 

methane production) with a particular cause (biodegradation of the conventional plastic versus 

other potential factors). (CCFF ¶¶ 139-140.) 

Additionally, Drs. McCarthy and Tolaymat identify several other flaws specific to the 

tests conducted that make the data inherently unreliable. The two most significant are the lack of 

statistical analyses and undocumented deviations from the protocol that likely invalidated the 

results. (CCFF ¶¶ 142-143.)

C. Substantial Record Evidence Supports a Stronger Remedy.

The ALJ’s proposed remedy eliminates those portions of the Order that would (1) require 

Respondent to substantiate unqualified biodegradability claims with competent and reliable 

scientific evidence that the product will completely decompose in a landfill within one year, and 

(2) exclude the ASTM D5511 test as adequate substantiation for unqualified claims. For the 

reasons explained in Sections III.A and B,37 eliminating either portion would in effect be a 

license to deceive.

Moreover, broad fencing-in relief is appropriate because ECM’s violations were serious, 

repeated, blatant, and knowing. POM, No. 9344, 2013 FTC LEXIS 6, at *153-54. The ALJ 

improperly ignored abundant, compelling evidence on each point. First, ECM’s claims exploited 

consumers’ environmental consciousness as well as their inability to assess the claims

themselves. (CCFF ¶¶ 14, 17, 87-90). See Stouffer, 118 F.T.C. at 812-13 (seriousness of 

violations “enhanced by the fact that consumers cannot readily judge for themselves the truth or 

falsity of [respondent’s] claim”). Second, ECM engaged in a widespread deceptive advertising 

37 In addition to the fact that ASTM D5511 does not replicate conditions in a landfill, the 

protocol itself prohibits extrapolating its results to calculate a biodegradation rate (i.e., a time to 

complete biodegradation). (CCFF ¶ 150.)
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campaign for nearly a decade, passing its claims to hundreds of business customers and millions 

of end-use consumers. (CCFF ¶¶ 23, 24, 52, 65, 183.) See Stouffer, 118 F.T.C. at 812-13

(“extensiveness” of deceptive ad campaign enhances seriousness of violations); Kraft, 114 

F.T.C. at 140 (“size and duration of [respondent’s] misleading advertising campaign” compound 

seriousness of violations). Third, ECM told customers that testing proved its claims (CCFF ¶¶

44-45), even though conventional plastics do not fully biodegrade in a period anywhere close to 

five years or less, and ECM’s “proof” had gross flaws, see supra at 32-49. See Schering Plough 

Corp., 118 F.T.C. 1030, 1121 (1994) (seriousness further enhanced where “claims were 

consciously made despite flaws in the studies relied upon by [the respondent]”). 

Finally, Robert Sinclair, ECM’s President and CEO, “acted in blatant and utter disregard 

of the law.” See Standard Oil Co. v. FTC, 577 F.2d 653, 662 (9th Cir. 1978). Notwithstanding 

his contrary testimony, there is overwhelming evidence—dozens of emails and testimony from 

several customers—that Mr. Sinclair was the mouthpiece for ECM’s consistently unqualified, 

deceptive claims. (CCFF ¶ 32.) Significantly, Mr. Sinclair knew about five different adverse 

adjudications regarding the efficacy of ECM Plastics and multiple bad test results (CCFF ¶¶ 97, 

102-103), but concealed this information from customers (CCFF ¶ 99). In fact, he aggressively 

discouraged his customers from doing their own testing because, according to him, ECM’s 

“proof” was sufficient. (Id.) Finally, even after promulgation of the Green Guides, and during 

an FTC investigation, Mr. Sinclair directed ECM to switch its marketing to the misleading “some 

period greater than a year claim”—while continuing to communicate the deceptive nine-monthto-five-year claims to customers. (CCFF ¶¶ 37-41.) Given this history, and absent the requested 

fencing-in relief, ECM is likely to switch to deceptive, unsubstantiated environmental claims for 

its sole product.
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IV. PROPOSED ORDER

Based on the record evidence and the foregoing, Complaint Counsel submits the 

following proposed order:

ORDER

DEFINITIONS

For purposes of this order, the following definitions shall apply:

1. “Clearly and Prominently” shall mean as follows: 

A. In print communications, the disclosure shall be presented in a manner that stands 

out from the accompanying text, so that it is sufficiently prominent, because of its 

type size, contrast, location, or other characteristics, for an ordinary consumer to 

notice, read and comprehend it;

B. In communications made through an electronic medium (such as television, video, 

radio, and interactive media such as the Internet, online services, and software), 

the disclosure shall be presented simultaneously in both the audio and visual 

portions of the communication. In any communication presented solely through 

visual or audio means, the disclosure shall be made through the same means 

through which the communication is presented. In any communication 

disseminated by means of an interactive electronic medium such as software, the 

Internet, or online services, the disclosure must be unavoidable. Any audio 

disclosure shall be delivered in a volume and cadence sufficient for an ordinary 

consumer to hear and comprehend it. Any visual disclosure shall be presented in 

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

sufficiently prominent, due to its size and shade, contrast to the background 

against which it appears, the length of time it appears on the screen, and its 

location, for an ordinary consumer to notice, read and comprehend it; and

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

understandable language and syntax. Nothing contrary to, inconsistent with, or in 

mitigation of the disclosure shall be used in any communication.

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

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

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

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

15 U.S.C. § 44.
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4. “Competent and reliable scientific evidence” shall mean tests, analyses, research, or 

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

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

sufficient in quality and quantity based on standards generally accepted in the relevant scientific 

fields, when considered in light of the entire body of relevant and reliable scientific evidence, to 

substantiate that a representation is true. Specifically:

A. For unqualified biodegradability claims, any scientific technical protocol (or 

combination of protocols) substantiating such claims must assure complete 

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

conditions found in landfills, where most trash is disposed.

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

combination of protocols) substantiating such claims must both:

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

found in nature in the stated timeframe or, if not qualified by time, within 

one year; or (2) decompose into elements found in nature at the rate and to 

the extent stated in the representation; and

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

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

by disposal facility or method, the conditions found in landfills, where 

most trash is disposed.

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

D5511-12, Standard Test Method for Determining Anaerobic Biodegradation of Plastic 

Materials under High Solids Anaerobic Digestion Conditions, or any prior version thereof, are 

not competent and reliable scientific evidence supporting unqualified claims, or claims of 

outcomes beyond the parameters and results of the actual test performed.

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

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

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

photodegradable, or any variation thereof.

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

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

managed to enhance decomposition. 

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

limited to, any advertising, labeling, or promotional, sales training, or purported substantiation 

materials, for use by trade customers in their marketing of any product, package, or service, in or 

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

and its successors and assigns.

I.

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

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

in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale, or 

distribution of any product, package, or service, in or affecting commerce, shall not represent, in 

any manner, directly or indirectly, expressly or by implication:

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

service affects a product or package’s degradability, unless 

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

within one year after customary disposal; or 

ii. the representation is clearly and prominently and in close proximity 

qualified by: 

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

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

in nature, provided that such qualification must disclose that the stated 

rate and extent of decomposition does not mean that the product or 

package will continue to decompose; and

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

by a customary method of disposal, both (1) the type of non-customary 

disposal facility or method and (2) the availability of such disposal 

facility or method to consumers where the product or package is 

marketed or sold

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

respondent possesses and relies upon competent and reliable scientific evidence 

that substantiates the representation.

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

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

respondent possesses and relies upon competent and reliable evidence, which 

when appropriate must be competent and reliable scientific evidence, that 

substantiates the representation.

II.
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IT IS FURTHER ORDERED that respondent, and its officers, agents, representatives, 

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

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

sale, or distribution of any product, package, or service in or affecting commerce, shall not 

provide to others the means and instrumentalities with which to make, directly or indirectly, 

expressly or by implication, including through the use of endorsements or trade names, any false, 

unsubstantiated, or otherwise misleading representation of material fact regarding any 

environmental benefit.

III.

IT IS FURTHER ORDERED that respondent shall, for five (5) years after the last date 

of dissemination of any representation covered by this order, maintain and upon request make 

available to the Commission for inspection and copying:

A. All advertisements, labeling, packaging and promotional materials containing the 

representations specified in Parts I and II;

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

in Parts I and II;

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

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

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

complaints and other communications with consumers or with governmental or 

consumer protection organizations; and

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

IV.

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

current and future subsidiaries, current and future principals, officers, directors, and managers, 

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

relating to the subject matter of this order. Respondent shall secure from each such person a 

signed and dated statement acknowledging receipt of the order, with any electronic signatures 

complying with the requirements of the E-Sign Act, 15 U.S.C. § 7001 et seq. Respondent shall 

deliver this order to current personnel within thirty (30) days after the date of service of this 

order, and to future personnel within thirty (30) days after the person assumes such position or 

responsibilities.

V.

IT IS FURTHER ORDERED that respondent shall notify the Commission at least 

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

arising under this order, including, but not limited to, a dissolution, assignment, sale, merger, or 
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53

other action that would result in the emergence of a successor entity; the creation or dissolution 

of a subsidiary, parent, or affiliate that engages in any acts or practices subject to this order; the 

proposed filing of a bankruptcy petition; or a change in the business or corporate name or 

address. Provided, however, that, with respect to any proposed change in the corporation about 

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

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

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

required by this Part shall be emailed to Debrief@ftc.gov or sent by overnight courier (not the 

U.S. Postal Service) to: Associate Director for Enforcement, Bureau of Consumer Protection, 

Federal Trade Commission, 600 Pennsylvania Avenue NW, Mail Stop M-8102B, Washington, 

DC 20580. The subject line must begin: “ECM BioFilms, Inc., File No. ______.”

VI.

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

of service of this order file with the Commission a true and accurate report, in writing, setting 

forth in detail the manner and form in which respondent has complied with this order. Within 

ten (10) days of receipt of written notice from a representative of the Commission, respondent 

shall submit additional true and accurate written reports. Unless otherwise directed by a 

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

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

Director for Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 

Pennsylvania Avenue NW, Mail Stop 8102-B, Washington, DC 20580. The subject line must 

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

VII.

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

years from the most recent date that the United States or the Commission files a complaint (with 

or without an accompanying consent decree) in federal court alleging any violation of the order, 

whichever comes later; provided, however, that the filing of such a complaint will not affect the 

duration of:

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

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

such complaint; and

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

Part.

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

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

upheld on appeal, then the order will terminate according to this Part as though the complaint 

had never been filed, except that the order will not terminate between the date such complaint is 
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54

filed and the later of the deadline for appealing such dismissal or ruling and the date such 

dismissal or ruling is upheld on appeal.

IN WITNESS WHEREOF, the Federal Trade Commission has issued this complaint 

against respondent and has caused it to be signed by its Secretary and its official seal to be hereto 

affixed, at Washington, D.C. this _____________ day of ________, 2013. 

By the Commission.

Donald S. Clark

Secretary

SEAL
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55

Dated: February 27, 2015

Respectfully Submitted,

/s/ Katherine Johnson

Katherine Johnson

Elisa Jillson

Federal Trade Commission

Bureau of Consumer Protection

Division of Enforcement

600 Pennsylvania Ave., N.W., CC-9528

Washington, D.C. 20580

Telephone: (202) 326-2185; -3001

Facsimile: (202) 326-3259

Counsel Supporting the Complaint
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56

CERTIFICATE OF SERVICE

I hereby certify that on February 27, 2015, I caused a true and correct copy of the 

foregoing to be served as follows:

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

system:

Donald S. Clark, Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Room H-159

Washington, DC 20580

Email: secretary@ftc.gov

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

The Honorable D. Michael Chappell

Administrative Law Judge

600 Pennsylvania Ave., NW, Room H-110

Washington, DC 20580

One electronic copy to Counsel for the Respondent:

Jonathan W. Emord

Emord & Associates, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Email: jemord@emord.com 

Peter Arhangelsky

Emord & Associates, P.C.

3210 S. Gilbert Road, Suite 4

Chandler, AZ 85286

Email: parhangelsky@emord.com 

Eric J. Awerbuch

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: eawerbuch@emord.com

Bethany Kennedy

Emord & Associates, P.C.

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: bkennedy@emord.com

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

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

Date: February 27, 2015 /s/ Katherine Johnson

Katherine Johnson (kjohnson3@ftc.gov) 

Elisa Jillson (ejillson@ftc.gov)

Federal Trade Commission

600 Pennsylvania Ave., N.W. CC-9528

Washington, DC 20580

Phone: 202-326-2185;-3001

Fax: 202-326-3197
Notice of Electronic Service for Public Filings

I hereby certify that on February 27, 2015, I filed via hand a paper original and electronic copy of the foregoing

Complaint Counsel's Appeal Brief, with:

D. Michael Chappell

Chief Administrative Law Judge

600 Pennsylvania Ave., NW

Suite 110

Washington, DC, 20580

Donald Clark

600 Pennsylvania Ave., NW

Suite 172

Washington, DC, 20580

I hereby certify that on February 27, 2015, I filed via E-Service of the foregoing Complaint Counsel's Appeal

Brief, with:

Jonathan Emord

Emord & Associates, P.C.

jemord@emord.com

Respondent

Peter Arhangelsky

Emord & Associates, P.C.

parhangelsky@emord.com

Respondent

Lou Caputo

Emord & Associates, P.C.

lcaputo@emord.com

Respondent

Katherine Johnson

Complaint Counsel

Federal Trade Commission

kjohnson3@ftc.gov

Complaint

Elisa Jillson

Complaint Counsel

Federal Trade Commission

ejillson@ftc.gov

Complaint

Jonathan Cohen

Federal Trade Commission, Bureau of Consumer Protection, Enforcement Division

jcohen2@ftc.gov

Complaint

Joshua Millard

Attorney

Federal Trade Commission

jmillard@ftc.gov

Complaint

Benjamin Theisman

Attorney
Federal Trade Commission

btheisman@ftc.gov

Complaint

Eric Awerbuch

Emord & Associates

eawerbuch@emord.com

Respondent

Arturo DeCastro

Attorney

Federal Trade Commission

adecastro@ftc.gov

Complaint

Bethany Kennedy

Ms.

Emord & Associates, P.C.

bkennedy@emord.com

Respondent

Katherine Johnson

Attorney