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UNITED STATES OF AMERICA

BEFORE THE FEDERA TRADE COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

Washington, D.C.

In the Matter of

Docket No. 9358

ECM BioFilms, Inc.,

a corporation, also d/b/a

Enviroplastics International,

PUBLIC DOCUMENT

Respondent.

RESPONDENT'S SUPPLEMENTAL ANSWERS TO

COMPLAINT COUNSEL'S FIRST REQUEST FOR ADMISSIONS

Pursuant to the Federal Trade Commission's Rules of Practice ("Rules"), 16

C.F.R. 3.32, and on agreement of the Parties, Respondent ECM BioFilms, Inc. ("ECM")

supplements its Answers and Objections to Complaint Counsel's First Request for

Admissions ("Requests"). All statements, objections, answers, admission, denials, and/or

qualifications not discussed in this supplement remain unchanged.

SPECIFIC OBJECTIONS AND RESPONSES

REQUEST FOR ADMISSION NO.4

"Exhibit CX-OOOO 1, "Certificate of Biodegradability of Plastics" is representative

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

SUPPLEMENTAl, RESPONSE NO.4:

Answer: Admitted in part, denied in part. ECM objects to the request as

argumentative, prejudicial, improper, incorrect, vague, and/or ambiguous, paricularly

with respect to the terms "rcprcsentative," "some," and "customers." ECM objects to and

denies this Request to the extent that it assumes that ECM insinuated, implied, marketed,

1

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or advertised any undefined message, meaning, and/or particular advertisement through

use of Exhibit CX-OOOOI.

Without waiving any and all general and specific objections in ECM's

"Respondent's Answers to Complaint Counsel's First Request for Admissions," ECM

admits that the document contained in Exhibit CX-OOOOI was conveyed to certain of

ECM customers before October 2012, after which time, ECM exclusively used the

document contained in Attachment A for its U.S. customers.

REQUEST FOR ADMISSION NO.5

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

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

SUPPLEMENTAL RESPONSE NO.5:

Answer: Admitted in part, denied in part. ECM objects to the request as

argumentative, prejudicial, improper, incorrect, vague, and/or ambiguous, particularly

with respect to the terms "representative," "some," and "customers." ECM objects to and

denies this Request to the extent that it assumes that ECM insinuated, implied, marketed,

or advertised any undefined message, meaning, and/or particular advertisement through

use of Exhibit CX-00002.

Without waiving any and all general and specific objections in ECM's

"Respondent's Answers to Complaint Counsel's First Request for Admissions," ECM

admits that the document contained in Exhibit CX-00002 was conveyed to certain of

ECM customers before October 2012, after which time, ECM exclusively used the

document contained in Attachment B for its U.S. customers.

2

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----:--
REQUEST FOR ADMISSION NO.6

"The documents that ECM submitted to Federal Trade Commission staff, with

Bates numbers between ECM-FTC-OOOOOI and ECM-FTC-000241, constitute all of the

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

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

Substantiation Materials").

SUPPLEMENTAL RESPONSE NO.6:

Answer: Admitted in part, denied in part. ECM admits that, pursuant to the

FTC's Access Letter of Aug. 30,2011, it provided the Commission staff with the

documents identified in this request. ECM also provided the FTC with scientific

correspondence, brochures, and advertising claims which qualify or add to the scientific

documents referenced in the above request. Accordingly, ECM denies that the

documents referenced in this Request NO.6 constitute the entire universe of responsive

information on this point, or that ECM's substantiation is limited to that specific subset of

information, notwithstanding the net impression or totality of the facts and material

available on that point.

SPECIFIC OBJECTIONS AND RESPONSES TO ADDITIONAL REQUESTS

FOR ADMISSION FOR THE PURPOSES OF AUTHENTICITY AND

ADMISSIBILITY OF EXIDBITS

ECM reserves the right to object to the admission or use of any document at

hearing if, in context, its admission or use would be o~iectionable on grounds of hearsay,

relevance, materiality, prejudice, or any other cognizable objection under Rule § 3.43 of

3

~',.i --:i';i - -- -_._--~----- .t'i I" pi
the Commission's Rules of Practice for Adjudicative Proceedings. Subject to those

reserved objections, ECM responds as follows:

REQUEST FOR ADMISSION NO.3

"Exhibit CX-00003 attached hereto is authentic, genuine, and a true and correct copy

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

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

Rule 3.43(b).

SUPPLEMENTAL RESPONSE NO.3:

Answer: Admitted in part, denied in part. ECM objects to the request as

argumentative, prejudicial, improper, incorrect, vague, and/or ambiguous, particularly

with respect to the terms "promotional materials" and "made available." ECM admits that

CX -00003 is admissible into evidence as a true and correct copy of web material that

ECM made available on its Website from at least August 2010 until October 2012; ECM

denies, however, that CX00003 is "promotionaL."

DATED this 19th day of December 2013

Respectfully submitted,

/s/ fJ ~

Jonathan W. Emord

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937

Facsimile: 202-466-6938

Email: jemord@emord.com

4

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CERTIFICATE OF SERVICE AND ELECTRONIC FILING

I hereby certify that on December 19,2013, I caused a true and correct copy of

the paper original ofthe foregoing RESPONDENT'S SUPPLEMENTAL ANSWERS

TO COMPLAINT COUNSEL'S FIRST REQUEST FOR ADMISSIONS to be fied

and served as follows:

One hard copy via UPS and one electronic copy via email to the Offce of the Secretary:

Donald S. Clark, Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Room H-159

Washington, D.C. 20580

Email: secretary@ftc.gov

One electronic courtesy copy via email to the Offce of the Administrative Law Judge:

The Honorable D. Michael Chappell

Administrative Law Judge

600 Pennsylvania Ave., NW, Room H-110

Washington, D.C. 20580

One electronic copy to Counsel for Complainant:

Katherine Johnson

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: kj ohnson3@ftc.gov

Jonathan Cohen

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: jcohen2@ftc.gov

,t" t'l

Elisa Jilson

Division of Enforcement

Bureau of Consumer Protection

Federal Trade Commission

600 Pennsylvania Avenue, NW

Mail stop M-8102B

Washington, D.C. 20580

Email: ejillson(äftc.gov

5

i', -f!' .~------~
I further certify that I retain a paper copy of the signed original of the foregoing

document that is available for review by the parties and adjudicator consistent with the Commission's Rules. ~ ~,~

lsi Z/i.

Jonathan W. Emord

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937

Facsimile: 202-466-6938

Email: jemord@emord.com

6

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VERIFICATION

I, Robert Sinclair, declare as follows:

I have read to the foregoing document entitled Respondent's Supplemental

Answers to Complaint Counsel's First Request for Admissions and know its contents.

I am the President of ECM BioFilms, Inc., a party to this action, and am

authorized to make this verification for and on its behalf, and I make this verification for

that reason. I am informed and believe that the matters stated herein are true and correct

to the best of my knowledge.

I declare under penalty of perjury under the laws of the United States of America

and the State of Ohio.

Executed on December 19,2013,

Robert Sinclair

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,t'i ,f'l .t'l ,f'i
~ CERTIFlCA 1E

whch Incorprate the ECM Mateatc Pelet Tedology

This is to certif that numerous platic samples, submitted by ECM Bio Film s, Inc., have been tested by independent laboratories in accordance with

sttJdard test methods approved by.AM, ISO and other such standardizatin bodies to determine the rate and extent of biodegradation of platic

11 ate rial.

~ A Degradable Plastic is defined (A D883-12) as a platic that is designed to undergo a significant change in its c hem ical struc ture unde r specific

efivironmental conditions resulting in a loss of s"me properts that mir var as measured by standard test methods approprite to the platic and the

appliation in aperiod of time that determinei its clti.sification.ABiodegradable Platic is defined as a degrtable platic in Ji'hich the degradation results

j.-om the actin of naturallY occurrng microorganisms such as bacteri,fungi and algae.

The biodegradation of the submitted platic samples were tested using.AM D5209-91, "Standard Test Methodfor Determining the .Arobic

Biodegradation of Plastic Materils in the Presence of Municipal Sewage Sludge ",.AM D5338-98, "Standard Test Methodfor Determining .Arobic

Biodegradation of Plastic Materials under Co ntroUed Composting Condjfons'~ which is equivalent to CEprEN WI 261085, and the ISO 14855 method,

"Ealuaton of the Ultimate .Arobic Biodegradability and Disintegraton of Plastics under Controlled Composting Conditions'~.AM D5511, "Standard

Test Method for Determining .Aaerobic Biodegradation of Platic Materils Under High-Solids .Aaerobic Digestion Conditions." The results of these tests

and the related biodegradation and ecological impact experiments in various environments are contained in the BcologicalAssessment of ECM Plasticreport dated February 16, 1999, IIJhich certfies thatplatic products matiufactured with ECM additives can be marketed as biodegradable * and safe for thee!vironment. ~

This Certificate and the EcologicalAssessment of ECM Platic report along with Scanning Elctron Microscope and other studies that have been

conducted since the publication of the Ecological Arsessment, allo which use a one ereent loading rate for the ECM MasterBatch Pellets rather than thehigher additive lei'els used earlier, have been presenhd to and mir be used by it to validate its claims to thebiodegradability and environmental safety of platic products that it manufactures that are m~ co nsistent with the manufacturing guidelines for Nses of

ECM MasterBatch Pellets presented to it by ECM BioFilms, Inc.

Dated: Januar 26, 2013

Certfied by:

~

Robert Sincla, Presid..ECM BioFilins, Inc.
I"