UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

____________________________________ 

 ) 

In the Matter of ) 

 ) 

ECM BioFilms, Inc., ) Docket No. 9358 

a corporation, also d/b/a ) 

Enviroplastics International ) 

 ) 

COMPLAINT COUNSEL’S POST-TRIAL REPLY BRIEF

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10 16 2014
ii

TABLE OF CONTENTS

I. INTRODUCTION .................................................................................................................. 4

II. ARGUMENT .......................................................................................................................... 6

A. Complaint Counsel Met its Burden of Production. ............................................................. 6

B. ECM’s Claims, Including the Comparative Claim, Are Deceptive. ................................... 7

1. Complaint Counsel Met its Burden to Show ECM’s Claims are Both False and 

Unsubstantiated. ...................................................................................................................... 8

2. ECM Violated the FTC Act Irrespective of the Comparative Claim. ........................... 12

3. ECM’s Comparative Claim is False and Unsubstantiated. ........................................... 13

a. ECM’s comparative claim is false because there is no known mechanism that allows 

biological organisms to break down large, molecular weight plastic. .............................. 14

b. ECM’s comparative claim is unsubstantiated. .......................................................... 15

i. There is no competent and reliable scientific evidence that the conventional plastic 

biodegraded. .................................................................................................................. 15

ii. There is No Evidence that ECM Plastic Would Continue to Biodegrade 

(Assuming it Biodegraded At All). ............................................................................... 15

iii. ECM’s post-hoc rationalizations for lack of biodegradation do not substantiate 

ECM’s claims. ............................................................................................................... 17

C. Dr. McCarthy Does Not Have a Financial Interest in the Outcome of this Case that 

Affected His Opinion. ............................................................................................................... 19

D. ECM’s Policy Arguments are Meritless. .......................................................................... 21

1. This Proceeding is in the Public Interest....................................................................... 21

a. ECM Deceived Customers and End-Use Consumers. .............................................. 22

b. Effect on Environmental Issues is Not Relevant to Whether this Case is in the Public 

Interest............................................................................................................................... 23

2. The Action Against ECM is Not Ultra Vires or Unlawful Trade Regulation. ............. 24

3. This Action Does Not Violate Due Process. ................................................................. 25

a. The FTC Proceeding Does Not Violate the Separation of Functions Doctrine. ....... 25

b. Complaint Counsel Did Not Engage in Abusive Discovery Practices. .................... 27

c. There Was No Unfair Surprise. ................................................................................ 28

III. CONCLUSION ................................................................................................................. 28

IV. TEST INDEX.......................................................................................30 

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TABLE OF AUTHORITIES 

Cases

Arnold Stone Co. v. FTC, 49 F.2d 1017 (5th Cir. 1941) ......................................................... 22, 23 

Country Tweeds, Inc. v. FTC, 326 F.2d 144 (2d Cir. 1964) ......................................................... 13 

FTC v. Algoma Lumber Co., 291 U.S. 67 (1934) ................................................................... 24, 25 

FTC v. Bronson Partners, LLC, 564 F. Supp. 2d 119 (D. Conn. 2008) ....................................... 13 

FTC v. Cinderella Career & Finishing Schools, Inc., 404 F.2d 1308 (D.C. Cir. 1968) .............. 26 

FTC v. Direct Mktg Concepts, 624 F.3d 1, 8 (1st Cir. 2010) ......................................................... 9 

FTC v. Garvey, 383 F.3d 891 (9th Cir. 2004)................................................................................. 9 

FTC v. Irwin, 36 FTC 626 (1944) ................................................................................................. 23 

FTC v. Owens-Corning Fiberglas Corp., 626 F.2d 966 (D.C. Cir. 1980) .................................... 26 

FTC v. Pantron I Corp., 33 F.3d 1088 (9th Cir.1994) ............................................................ 12, 25 

FTC v. QT, 448 F.Supp.2d 908 (N.D. Ill. 2006) ........................................................................... 12 

FTC v. Tashman, 318 F.3d 1273 (11th Cir 2003) ........................................................................... 7 

In re Telebrands Corp., 140 F.T.C. 278 (2005), aff'd, 457 F.3d 354 (4th Cir. 2006) .................. 13 

In the Matter of Harad, 50 FTC 300 (1953) ........................................................................... 22, 23 

Kennecott Copper Corp. v. FTC, 467 F.2d 67 (10th Cir. 1972) ................................................... 25 

Leer Elec., Inc. v. Penn. Dep’t of Labor and Indus., 597 F. Supp. 2d 470 (M.D. Pa. 2009) ........ 26 

Removatron Int’l Corp. v. FTC, 884 F.2d 1489 (1st Cir. 1989) ..................................................... 9 

Slough v. F.T.C., 396 F.2d 870 (5th Cir. 1968) ............................................................................ 26 

Thompson Medical Co., 104 F.T.C. 648 (1984), aff’d, 791 F.2d 189 (D.C. Cir. 1986), cert. 

denied, 479 U.S. 1086 (1987) ................................................................................................... 13 

United States v. An Article . . .Acu–Dot . . ., 483 F.Supp. 1311 (N.D. Ohio 1980) ..................... 12 

Rules

Commision Rule 3.52, 16 C.F.R. 3.52 .......................................................................................... 26 

Commision Rule 3.55, 16 C.F.R. 3.55 .......................................................................................... 26 

Commission Rule 3.43, 16 C.F.R 3.43 ........................................................................................... 6 

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I. INTRODUCTION

Respondent’s two hundred twenty page brief and more than three thousand findings of 

fact tellingly failed to cite to any credible evidence to contest the key facts in this case. 

Specifically, that ECM made false and unsubstantiated claims; these claims—about the product’s 

sole attribute—are material to its customers and to end-use consumers; and ECM provided the 

means and instrumentalities to pass these deceptive claims to end-use consumers. Instead, 

Respondent’s lengthy brief raises several specious arguments in an unsuccessful attempt to cloud 

the relevant issues in this case. 

ECM offers four spurious arguments that Complaint Counsel’s Post-Trial Brief did not 

squarely address.1

 First, ECM argues that Complaint Counsel was required to put forward 

testifying fact witnesses. But Complaint Counsel satisfied its burden of production through the 

introduction of sworn deposition testimony of numerous fact witnesses, live testimony from its 

experts, and tens of thousands of pages of ECM’s business records. 

Second, ECM attempts to evade liability by making two arguments to obscure its lack of 

competent and reliable scientific evidence for its express and implied claims, both of which are 

meritless. ECM first argues that Complaint Counsel failed to demonstrate it lacked

 

1

 ECM’s other arguments that: 

• Consumer perception evidence is methodologically flawed (Resp. Post-Tr. Br. at 

43-49) is addressed in Complaint Counsel’s Amended Post-Trial Brief at 26-54. 

• ECM’s marketing claims are immaterial to customers and end-use consumers 

(Resp. Post-Tr. Br. at 77, 167) is addressed in Complaint Counsel’s Amended Post-Trial Brief at 

76-83. 

• Its claims are protected by the First Amendment (Resp. Post-Tr. Br. at 195) are 

addressed at Complaint Counsel’s Amended Post-Trial Brief at 97-100. 

• The proposed remedy is unlawful (Resp. Post-Tr. Br. at 201) is addressed at 

Complaint Counsel’s Amended Post-Trial Brief at 90-97. 

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substantiation for its claims because we did not explore why tests showed zero biodegradation 

(which ECM generically refers to as “negative results”). It is not Complaint Counsel’s burden to 

explore the cause for negative results, but ECM’s burden to show that it has substantiation for its 

express and implied claims. 

ECM also asserts its testing substantiates a claim not alleged in this case, i.e., that ECM 

Plastics will biodegrade faster than untreated conventional plastics because some test results

purportedly show more biodegradation than untreated plastic or that attributable to load rate of 

the Additive.2 Even assuming, for the sake of argument, that some valid tests of ECM-treated 

plastic show methane generation exceeding the untreated plastic or the Additive load rate, this

fact alone substantiates neither the claims challenged by Complaint Counsel nor the claim that 

ECM now alleges it made. 

Third, ECM personally attacks Complaint Counsel’s experts. But the record shows that 

leading experts in the relevant fields of degradable polymers and solid waste management 

evaluated ECM’s purported substantiation and rejected it solely because it is unreliable and does 

not support ECM’s express and implied claims. ECM has offered no evidence that demonstrates 

otherwise. 

Fourth, unable to mount factual or legal arguments, ECM makes various policy 

arguments, all of which are meritless. This case is squarely within the public interest, it is not 

ultra vires or an unfair trade regulation, and Complaint Counsel has not violated ECM’s due 

process. ECM has had a fair opportunity to conduct discovery, fully brief and argue its 

positions, and present evidence at the hearing. 

 

2

 Although not an allegation in our Complaint, the evidence clearly shows that ECM has 

no substantiation even for a claim that ECM-treated plastics will biodegrade in a landfill in 30 to 

100 years, as now estimated by Dr. Sahu, the only of ECM’s experts willing to estimate any time 

period to complete biodegradation. (FOF ¶ 132; 188.) 

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II. ARGUMENT

A. Complaint Counsel Met its Burden of Production. 

ECM argues that Complaint Counsel failed to meet its burden of production because it 

did not present live fact witnesses at trial. (Resp.’s Post-Tr. Br. at 36-37.) This argument is 

meritless. While Complaint Counsel indeed has the burden of production for its Complaint 

allegations,3 the Commission’s Rules make clear that Complaint Counsel was not obligated to 

call fact witnesses at trial. See Rule 3.43(d) (“A party is entitled to present its case or defense by 

sworn oral testimony and documentary evidence . . . .”). Cf. Rule 3.43(b) (“If otherwise meeting 

the standards for admissibility described in this paragraph, depositions . . . shall be admissible 

and shall not be excluded solely on the ground that they are or contain hearsay.”). Complaint 

Counsel presented substantial deposition testimony from fact witnesses that the parties expressly 

stipulated to admit in evidence during trial.4

 Complaint Counsel also introduced abundant 

evidence establishing ECM’s liability through live expert testimony and thousands of pages of 

ECM’s business records and third-party documents.5

 Indeed, the record has abundant, 

uncontested evidence of the widespread representations that ECM made to its customers, and the 

claims that were passed to end-use consumers.6

 Thus, Complaint Counsel has vastly exceeded 

its burden of production. 

 

3 See Rule 3.43 (“[T]he proponent of any factual proposition shall be required to sustain 

the burden of proof with respect thereto.”). 

4 See JX-1-A (including all deposition transcripts in this matter).

5

 (See generally Compl. Counsel’s Post-Tr. Proposed Findings of Fact and Conclusions 

of Law.) 

6 By contrast, ECM promised to demonstrate that its customers were sophisticated, and 

that the totality of ECM’s communications with them created a “net impression” other than the 

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Notably, in an attempt to bolster its unfounded argument, ECM grossly mis-cites FTC v. 

Tashman, 318 F.3d 1273 (11th Cir 2003), by citing the dissenting opinion as the holding in the 

case. (See Resp.’s Post-Tr. Br. at 37.) The actual holding in Tashman concluded that ample 

evidence supported the Commission’s allegations against the defendant. Tashman, 318 F.3d at 

1278 (“[T]he record contains overwhelming evidence that misrepresentations were made and 

that reasonable consumers were likely to (and, in fact, did) rely on those statements.”). 

B. ECM’s Claims, Including the Comparative Claim, Are Deceptive.

ECM raises two new arguments to evade liability for its deceptive claims. First, it argues 

that it is Complaint Counsel’s burden to show that the Additive does not work at all, and because 

some tests show methane production at levels that exceed untreated plastic and the 1% load rate 

of the Additive, that alone substantiates ECM’s marketing claims. 

Second, ECM urges the Court to accept its assertion that it did not make the “implied rate 

claim,” i.e., the unqualified biodegradability claim. ECM concedes that it made the express 

nine-month-to-five-year rate claim, but ECM argues that it merely conveyed the claim that ECM 

Plastics are “intrinsically biodegradable.”7

 (Resp. Post-Tr. Br. at 6-7.) ECM contends that it has 

substantiated this claim. (Resp. Post-Tr. Br. at 79.) 

These arguments have no merit for three reasons. First, ECM is wrong that Complaint 

Counsel is required to explain negative results to establish ECM’s lack of substantiation. 

Complaint Counsel proved ECM’s express and implied claims that ECM Plastic will biodegrade 

completely in a landfill within five years are false. And Complaint Counsel has shown these 

 

express claims in their marketing materials. (See Initial Prehearing Conf. Tr., at 19, 23.) 

However, ECM produced no live testimony from its customers, or any other evidence, to support 

this theory.

7 ECM defines “intrinsically biodegradable” as ECM Plastics that “will biodegrade in a 

reasonably short period of time compared with conventional plastic, provided the environmental 

conditions are suitable for biodegradation.” (Resp. Post-Tr. Br. at 88.) 

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claims to be unsubstantiated—the relevant scientific community demands a high level of 

substantiation for ECM’s unorthodox claims, and ECM’s proffered substantiation is inadequate. 

Second, even if ECM’s advertisements also conveyed a different, truthful claim, 

Complaint Counsel need only prove one reasonable interpretation of the advertisement is false or 

unsubstantiated to establish liability for deception under the FTC Act. 

Third, even accepting ECM’s proposition that the testing shows methane generation 

beyond the negative controls (the untreated plastic and the inoculum blank) or the load rate, this 

substantiates neither the claims challenged by Complaint Counsel nor the comparative claim that 

ECM now insists it made.

1. Complaint Counsel Met its Burden to Show ECM’s Claims are Both 

False and Unsubstantiated.

ECM concedes that nothing biodegrades completely in a landfill within five years, thus 

ECM’s express and implied claims that ECM Plastics will completely biodegrade in less than 

five years in landfills are false. (Compl. Counsel’s Amended Post-Tr. Br. at 29-54, 86-88; see

Resp. Post-Tr. Br. at 56-58 (admitting that it made the claim); FOF ¶ 188 (Dr. Sahu stating it 

could take 30-100 years for ECM Plastic to completely biodegrade); see also Compl. Counsel’s 

Amended Post-Tr. Br. at 55-61.) In addition, well-documented anaerobic tests, including one 

study published in a peer-reviewed scientific journal (CCX-880), show zero biodegradation, 

further proving ECM’s express and implied claims are false. (FOF ¶¶ 453; 454.) 

Even though the evidence establishes that ECM’s claims are false, ECM now asserts, 

without any authority, that Complaint Counsel must rule out various explanations it has proffered 

for the so-called negative test results to establish ECM lacks substantiation. (Resp. Post-Tr. Br. 

at 11.) In reality, once ECM satisfies its burden to show that it “possessed and relied” on some 

purported substantiation, Complaint Counsel must do only two things: (1) establish what 

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evidence the relevant scientific community would consider adequate to substantiate ECM’s 

challenged claims; and (2) demonstrate that ECM’s substantiation does not meet the standard 

laid out by the relevant scientific community. FTC v. Direct Mktg Concepts, 624 F.3d 1, 8 (1st 

Cir. 2010) (citing Removatron Int’l Corp. v. FTC, 884 F.2d 1489, 1498 (1st Cir. 1989)) (internal 

citations omitted) (“When the FTC brings an action based on the theory that advertising is 

deceptive because the advertisers lacked a reasonable basis for their claims, the FTC must: 

(1) demonstrate what evidence would in fact establish such a claim in the relevant scientific 

community; and (2) compare [ ] the advertisers’ substantiation evidence to that required by the 

scientific community to see if the claims have been established.”) (emphasis added); see also 

FTC v. Garvey, 383 F.3d 891, 901 (9th Cir. 2004) (applying the same test). 

Unlike ECM, which offered the testimony of consultants who are “not polymer 

scientists,”8

 have never run gas evolution tests,9 and do not know how the ECM Additive effects

plastic on a molecular level,10 Complaint Counsel put forth the reports and testimony of experts 

qualified in relevant areas: a landfill expert and two biodegradable polymer experts (one from the 

plastic polymer perspective and the other from the microbiological perspective). ECM does not 

contend or cite to any evidence that these pre-eminent experts are not qualified in appropriate 

fields to evaluate ECM’s biodegradability claims. 

Collectively, Drs. McCarthy, Tolaymat, and Michel explain the scientific community 

requires appropriately-analyzed results of independent, well-designed, well-conducted, well-

 

8

 (FOF ¶ 176; Sahu, Tr. 1949.) 

9

 (Sahu, Tr. 1952; Burnette, Tr. at 2449.) 

10 (Sahu, Tr. 1952; Burnette, Tr. at 2449.) 

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controlled testing to support ECM’s claims.

11 The testing should use the appropriate plastic 

application, load rate, inoculum, test conditions, and sample weight, over an appropriate duration 

of time.12 And tests must simulate the claimed disposal conditions.13 (Compl. Counsel’s 

Amended Post-Tr. Br. at 65.) Drs. McCarthy and Tolaymat reviewed all of ECM’s 

substantiation and explained that ECM’s tests are fatally lacking in one or all of these respects. 

(See generally Compl. Counsel’s Post-Tr. Br. at 61-76.) For instance, they explained that 

ECM’s tests are insufficient to demonstrate that the plastic, and not just the additive and 

inoculum, biodegraded. (CCX-891 ¶¶ 19, 44, 83.) And the results also do not necessarily reflect

biodegradation of the high-molecular weight carbon backbone as opposed to the small

percentage of low-molecular weight monomers. (FOF ¶¶ 135-144; 437-445; COL ¶ 42.) Many 

tests also do not reflect the recommended load rates, or were conducted under aerobic rather than 

anaerobic conditions. (See generally at Test Index.) Moreover, Drs. McCarthy and Tolaymat 

explain that biodegradation rates cannot be extrapolated beyond the test results, a fact not in 

dispute. (FOF ¶ 150; Barlaz, Tr. 2244-2245; RX-855 at 50.) Thus, the evidence unequivocally 

shows that ECM’s tests cannot substantiate its claims. (See generally Compl. Counsel’s Post-Tr. 

Br. at 61-76.) 

Importantly, ECM’s experts concede the inadequacy of ECM’s substantiation: 

 

11 (FOF ¶ 138.) ECM asserts that gas evolution tests can constitute competent and 

reliable scientific evidence to support biodegradability claims. However, ECM offers no specific 

evidence to rebut the testimony of Drs. McCarthy and Tolaymat that the specific tests conducted 

on ECM Plastic do not substantiate the claims at issue in this case. It merely argues that the type 

of scientific evidence demanded by our experts is too high. However, as explained, the level of 

substantiation they outlined is consistent with the reality that ECM’s claims run contrary to wellaccepted scientific consensus.

12 (FOF ¶ 138.) 

13 (FOF ¶ 136.) 

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• Drs. Sahu and Burnette testified that the ASTM D5511 test does not simulate all 

landfills;

14 

• Drs. Burnette, and Barlaz testified that gas evolution tests like the BMP and 

ASTM D5511 are not appropriate tests for “slowly degrading” materials like 

ECM Plastic;15 

• Dr. Baralz testified that aerobic tests are inapplicable to biodegradation in 

landfills, thus making almost half of the gas evolution tests irrelevant;16 

• Dr. Burnette testified the ASTM D5511 test does not have the microbial diversity 

that would be expected in a landfill; 

• Dr. Sahu and Barlaz testified that biodegradation rates cannot be extrapolated 

from a short-term test;17

• Dr. Sahu testified that necessary information that should have been reported was 

not in many of the reports;18 and 

• All of ECM’s experts concede that at least some tests are “inconclusive” and 

showed “no biodegradation.”19 

ECM nonetheless argues that if methane generation exceeds the amount of the untreated 

plastic and the load rate of the Additive then it must be that the plastic biodegraded (the “more 

 

14 (Sahu, Tr. 1928-1929; Burnette, Tr. 2373; 2439.) 

15 (Burnette Tr. 2372-73; 2388; Barlaz, Tr. 2230, 2267-68.) 

16 (FOF ¶ 182; see FOF ¶ 470.)

17 (Sahu, Tr. 1795-1796; Barlaz, Tr. 2244-2245.) 

18 (Sahu, Tr. 1932-1933; 1940, 1961.) 

19 (Sahu, Tr. 1937; Barlaz, Tr. 2272-2274; Burnette, Tr. 2440.) 

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out than in” hypothesis). However, as our experts have explained, there are other possible 

explanations for these results, and the various tests did not adequately control for them, such as 

the priming effect.20 Moreover, given ECM’s “unorthodox” contention that conventional 

plastics can be rendered biodegradable through the addition of 1% biodegradable additive, which 

is unsupported by any peer-reviewed literature, there is a higher level of substantiation required

than just a “more out than in” hypothesis. (CCX-892); FTC v. Pantron I Corp., 33 F.3d 1088, 

1097 (9th Cir.1994) (“the standards to which you are held when one is testing an unorthodox 

theory really have to be quite rigid.”). 

ECM’s conclusory analysis is more suspect because the only labs whose anaerobic results 

purport to show “more out than in” are Northeast Laboratories and Eden Research Laboratories. 

But long-term studies conducted by these two labs should be given little weight. Their 

undocumented, unorthodox modifications to the test utilizing methods such as re-inoculation 

make their results unreliable.

21 The fact that some tests showed “positive” results does not 

overcome the fact that the test themselves were flawed. See FTC v. Pantron I Corp., 33 F.3d at 

1097; see also FTC v. QT, 448 F.Supp.2d 908, 959 (N.D. Ill. 2006); United States v. An Article . 

. .Acu–Dot . . ., 483 F.Supp. 1311, 1315 (N.D. Ohio 1980). 

2. ECM Violated the FTC Act Irrespective of the 

Comparative Claim.

ECM argues that it conveyed a claim that ECM Plastic biodegrades faster than 

conventional plastic (hereinafter referred to as the “comparative claim”). ECM does not cite to 

any extrinsic evidence to support the comparative claim. However, even if ECM made this 

 

20 (CCX-891 ¶¶ 19, 44, 83; 84; 90.) 

21 (FOF ¶¶ 142-143.) 

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claim, merely arguing that its advertisement is susceptible to another interpretation (even if such 

claim were truthful) does not absolve ECM for its liability for its deceptive claims. 

It is well-settled FTC law that an ad may have more than one reasonable interpretation. 

See, e.g., In re Telebrands Corp., 140 F.T.C. 278, 290 (2005), aff'd, 457 F.3d 354 (4th Cir. 2006) 

(citing Kraft, 114 F.T.C. at 120-21 n.8)); Thompson Medical Co., 104 F.T.C. 648, 787 n.7 

(1984), aff’d, 791 F.2d 189 (D.C. Cir. 1986), cert. denied, 479 U.S. 1086 (1987) (An 

advertisement may have more than one reasonable interpretation). A marketer must substantiate 

all reasonable claims, and that an advertisement that is susceptible to both a misleading and a 

truthful interpretation will be construed against the advertiser. FTC v. Bronson Partners, LLC, 

564 F. Supp. 2d 119, 127 n.6 (D. Conn. 2008) (quoting Country Tweeds, Inc. v. FTC, 326 F.2d 

144, 148 (2d Cir. 1964) (“Statements susceptible of both a misleading and a truthful 

interpretation will be construed against the advertiser.”)). The evidence establishes that ECM’s 

advertisements conveyed false and unsubstantiated claims that ECM Plastics will completely 

break down and return to nature within five years in a landfill. Accordingly, ECM’s claims 

violate the FTC Act. 

3. ECM’s Comparative Claim is False and Unsubstantiated.

While Complaint Counsel does not need to prove the comparative claim is untruthful or 

unsubstantiated to prevail, the evidence nevertheless establishes that this claim is false and 

unsubstantiated.22 

 

22 ECM concedes that the comparative claim is material to its customers. (Resp. Post-Tr. 

Br. at 10.) 

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a. ECM’s comparative claim is false because there is no 

known mechanism that allows biological organisms to 

break down large, molecular weight plastic.

ECM’s comparative claim is false. First, as explained by Dr. McCarthy and Dr. Michel, 

two pre-eminent experts in the field of biodegradable polymers, untreated conventional plastics 

are not susceptible to breakdown by biological organisms. (FOF ¶ 5, 9; Michel Tr. 2097-2098.) 

A fact that Dr. Barlaz concedes is true. Dr. Barlaz (Barlaz, Tr. 2292 (traditional plastics in 

general do not biodegrade at all). Dr. McCarthy and Dr. Michel further explained that adding 1% 

of a known biodegradable polymer to a conventional polymer does nothing to change the 

underlying molecular structure of conventional plastics to increase their susceptibility to 

biodegradation. 

In order for ECM’s comparative claim to be true, the ECM Additive would have to 

change the largely undisputed scientific fact that conventional plastics cannot be broken down by 

biological means. But as outlined in Complaint Counsel’s Post-trial brief, there is no evidence to 

support ECM’s contentions that the additive “weakens” the carbon-carbon bonds on the main 

chain of the polymer, or that Additive acts as an attractant. (Compl. Counsel’s Amended PostTr. Br. at 56-59; 72-73.) 

ECM offered the testimony of two purported experts that have no relevant expertise (see

FOF ¶ 176), who opine that conventional plastics are biodegradable based entirely on a literature 

search. However, the “opinions” offered by Drs. Sahu and Burnette are not credible. Their 

opinions are directly contradicted by the scientific literature on which they purportedly rely. 

(See, e.g., (CCX-892 ¶¶ 10-16 (explaining why the articles cited by Dr. Sahu are irrelevant to 

ECM’s claims); CCX-895 at 12; Michel, Tr. 2874 (explaining that the cited literature 

demonstrates that only pre-treated polyethylene is susceptible to biodegradation).) 

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b. ECM’s comparative claim is unsubstantiated.

ECM’s comparative claim is also unsubstantiated for two reasons: (1) there is no credible 

evidence in any of the tests that the any of the conventional plastic biodegraded; and 

(2) assuming biodegradation exceeded the negative controls and the load rate, the testimony of 

all the experts is unanimous biodegradation rates cannot be extrapolated. Finally, ECM’s posthoc rationalizations for why the more reliable tests showed negative and inconclusive results are 

meritless. Specifically, its explanations—manufacturing and testing issues—for the lack of 

results in some tests are illogical and contrary to the evidence. 

i. There is no competent and reliable scientific 

evidence that the conventional plastic biodegraded. 

Although ECM claims it has several positive results, there is no reliable evidence that any 

of the purported “positive” results show that the underlying conventional, non-degradable plastic 

biodegraded at all. (Compl. Counsel’s Amended Post-Tr. Br. at 59-61.) Without competent and 

reliable scientific evidence that the conventional plastic biodegraded, ECM cannot substantiate a 

claim that an ECM Plastic will biodegrade comparatively faster than untreated plastic. 

ii. There is No Evidence that ECM Plastic Would 

Continue to Biodegrade (Assuming it Biodegraded 

At All). 

Even assuming that some of the tests showed more methane generation in the treated 

samples than the untreated samples (which they do not), that assumption does not provide 

substantiation for ECM’s comparative claim. ECM’s experts state that determining 

biodegradation rates is difficult, if not impossible. (Resp. Post-Tr. Br. at 87-91.) Nevertheless, 

they conclude that ECM Plastic will biodegrade faster than untreated plastic. This conclusion 

rests on the unsound hypothesis that the “rate” of biodegradation observed in the various tests 

can be extrapolated to conclusion. (FOF ¶ 149.) However, this proposition is contrary to 

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generally accepted scientific consensus that prohibits extrapolation of biodegradation rates 

beyond the four corners of the test. (FOF ¶ 150.) 

Dr. McCarthy explains that even if the tests show some biodegradation above the 

negative controls and load rate, there is no scientific basis to conclude that the entire treated 

plastic will completely biodegrade faster than untreated plastic. (FOF ¶ 132; see also CCX-892 

¶¶ 22-23 (citing M. Parikh, R. Gross, and S. McCarthy, The Influence of Injection Molding 

Conditions on Biodegradable Polymers, Journal Of Injection Molding Technology, Vol. 2, No. 1, 

pp. 30-36, March (1998).) This is due to the recalcitrance of the underlying plastic. (FOF ¶ 

133.) As Dr. McCarthy explained:

The first material to biodegrade is the amorphous region of a polymer, 

which biodegrades at a fast rate. If the material were 50% crystalline, then 

the biodegradation rate would be very rapid until it reached 50% 

biodegradation. Once the amorphous region was degraded, the crystalline 

region would be left. The biodegradation rate would severely decrease (or 

even stop altogether) since the crystalline region is very difficult to 

biodegrade, as even Dr. Sahu concedes Sahu Report at 30. Therefore, 

during a biodegradation test, if the biodegradation rate calculated from the 

first 50% were to be extrapolated to 100%, an unrealistic (or impossible) 

rate of complete biodegradation would be the result. 

(CCX-892 ¶ 23.) 

This testimony is uncontroverted. Dr. Sahu concedes in his expert report that 

extrapolation is inappropriate. (RX-855 at 50 (“I agree trend extrapolation from shorter duration 

tests is not meaningful.”). And both Drs. Barlaz and Sahu testified to the same at trial: 

Or if you wanted to detect in a slowly degradable material [using C-14 

testing] what happens over the first month or two and then shut the test 

down and extrapolate, I suppose one could construct an argument. I 

wouldn’t agree with it. Yeah, I would rather measure it than extrapolate. 

(Barlaz, Tr. 2244-2245);

Q. In the publicly available peer-reviewed literature and in your 

experience, have scientists ever extrapolated data from gas evolution tests 

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that were conducted for less than a year to conclude that plastics will 

continue to biodegrade in a natural environment? 

A. I have not seen any kind of extrapolation to complete biodegradation, 

you know, in other words, taking a rate derived from a test and then 

extrapolating that and holding that that rate would remain constant and 

therefore trying to attempt a time period for complete biodegradation. That 

would be unusual. 

(Sahu, Tr. 1795-1796.) 

iii. ECM’s post-hoc rationalizations for lack of 

biodegradation do not substantiate ECM’s claims. 

To overcome the fact that the most reliable tests reported that ECM Plastic is not 

biodegradable, ECM offers two post-hoc rationalizations. First, it asserts the Additive’s efficacy 

requires strict adherence to ECM’s manufacturing instructions. (Resp. Post-Tr. Br. at 82-86.) 

ECM cites to testimony by Dr. Sahu about a variety of manufacturing problems, such as 

scorching, that could negatively affect the efficacy of the Additive. (See, e.g., Sahu, Tr. 1814-

1815; 1942-1943.) ECM’s suggestion that the ECM Additive could have been rendered 

inefficacious due to “scorching” or “burning” of the Additive during processing is a red herring. 

The argument is nothing more than unsupported conjecture; no expert evaluated the inoculum

used for the tests or any ECM-containing plastic. Furthermore, no expert evaluated the extrusion 

procedures of the companies that prepared the samples. 

ECM’s explanation also runs contrary to its other assertions in this case. Specifically, 

ECM testified that its customers are “sophisticated plastics’ manufacturers” who engage in a 

lengthy evaluation of the effect of the ECM Additive on the extrusion or injection processes. 

(Resp. Post-Tr. Br. at 177-182.) According to ECM, it also requires that its customers certify

that they will comply with the minimum loading requirements. (Sinclair, Tr. at 783.) Finally, 

these customers are voluntarily sending these samples for testing to confirm biodegradability. 

PUBLIC DOCUMENT
18 

To suggest that these sophisticated plastics’ manufacturers did not prevent scorching or other 

manufacturing mishaps that could negatively affect a biodegradation test makes little sense. And 

in the thousands of pages of business records, ECM has not identified one communication in 

which it notified a customer that a negative test result could be attributed to scorching or burning 

of the Additive during processing. 

Second, ECM argues tests may be inconclusive due to a variety of factors resulting from 

the test design, as opposed to the Additive’s efficacy. (Resp. Post-Tr. Br. at 138-139.) Drs. 

Sahu, Barlaz, and Burnette testified that closed-system tests, run for long durations, could lead to 

inhibitory conditions, such as high pH (acidity), that affect the viability of the inoculum. (Sahu 

Tr. 1928-1931; Burnette, Tr. 2374-75.) 

ECM’s “closed-system” inhibitory effect explanation is also unsupported. Notably, Dr. 

Barlaz testified that of the three potential causes of loss of microbial viability: (1) lack of 

sufficient substrate to support growth; (2) accumulation of inhibitory intermediates; and (3) 

nutrient depletion, the lack of sufficient substrate would be the most relevant to slowly 

degradable materials. (RX-943 (Barlaz, Dep. Tr. at 21).) Dr. Barlaz explained that the ratio of 

test material to inoculum makes accumulation of inhibitory intermediates unlikely. And the 

inoculum itself is nutrient rich, so he would be “pretty surprised if that is an issue.” (RX-943 

(Barlaz, Dep. Tr. at 21).) At trial, Dr. Barlaz admitted that inhibitory effects are just 

“theoretical”—he does not know whether any of the tests actually had these problems. (Barlaz, 

Tr. 2336-37.) 

Dr. Michel’s testimony and report further rebut ECM’s flimsy conjecture that closedsystem tests are inhibitory. Dr. Michel explains that there is incredible bacterial diversity in the 

inoculant. (Michel, Tr. 2852-2853; see also CCX-895 at 5-6.) And closed systems can be 

PUBLIC DOCUMENT
19 

maintained indefinitely. (Michel, Tr. 2958.) This is consistent with other evidence. For 

instance, Dr. Barlaz testified that he has been running a BMP test for “well over a year.” (CCX943 (Barlaz, Dep. Tr. at 63).) And the ASTM D5526 (a closed-system gas evolution test) has 

been validated to run for as long as 300 days. (CCX-86.) Finally, no lab identified “death of the 

microbes” as a possible cause for the lack of results (and in fact, most acknowledge that the 

positive control conclusively demonstrates a valid test). Dr. Michel’s testimony regarding the 

diversity of microorganisms is unrebutted. (Burnette, Tr. 2470-71.) 

C. Dr. McCarthy Does Not Have a Financial Interest in the Outcome of this 

Case that Affected His Opinion. 

ECM’s attempt to paint Dr. McCarthy as the hand of the so-called corn lobby is absurd. 

First, ECM’s contention is not backed by any credible evidence that Dr. McCarthy considered 

anything other than the scientific evidence squarely before him, and rendered an opinion based 

on his considerable expertise. (See McCarthy, Tr. 688 (“Q: Can you tell us whether your 

opinions in this case have been affected by the -- your university’s connection to Metabolix? A. 

No. Not at all.”).) In fact, Dr. McCarthy’s testimony is not rooted in a conspiracy to exclude 

ECM’s “revolutionary technology” from the marketplace, but in the simple fact that the ECM 

Additive does not work as advertised. Indeed, the testimony and tests run by Dr. Barlaz, who 

presumably would not have been retained by ECM if he were in the pocket of the “nefarious” 

corn lobby, establishes as much. (FOF ¶¶ 166-169.) 

Second, despite going to great lengths to paint Dr. McCarthy as a direct competitor of 

ECM, he is not. During his deposition, Dr. McCarthy testified that: 

PUBLIC DOCUMENT
20 

• He is the inventor on only one patent related to biodegradable plastics that 

generates any income at all, the so-called ‘199 Patent licensed to Metabolix;23

• He had no contact with Steve Mojo of BPI at least in the past year;24 

• He has not worked for BPI for at least two years;25

• He has no other contact with BPI members;26

• He has no knowledge that either BPI27 or Metabolix28 had any contact with the 

FTC;

• His earnings related to BPI and Metabolix are limited;29

• He has no knowledge of the specific products made by Metabolix under the 

licensed patent, he has never seen a finished product, nor any marketing;30 

• Prior to his involvement in this case, Dr. McCarthy had seen no document related 

to ECM;31 and 

 

23 (McCarthy Tr. 534-536.) 

24 (RX-841 (McCarthy, Dep. Tr. at 96).) 

25 (RX-841 (McCarthy, Dep. Tr. at 97).) 

26 (RX-841 (McCarthy, Dep. Tr. at 96).) 

27 (RX-841 (McCarthy, Dep. Tr. at 100).) 

28 (RX-841 (McCarthy, Dep. Tr. at 67-68).). 

29 Dr. McCarthy testified that the only income he presently earns from biodegradable 

plastics is through the Metabolix patent, for which he has only earned approximately $28,000 

total over the lifetime of the patent (RX-841 (McCarthy, Dep. Tr. at 60); see also McCarthy Tr. 

612) since the patent was issued in 1997 (see RX-362 (‘199 Patent).). Moreover, he testified that 

his income through his certification work at BPI was only about $30,000 over 10 years, (RX-841 

(McCarthy, Dep. Tr. at 97)). He also identified another approximately $5,000 as an expert 

witness for Metabolix in two patent infringement cases (in 2002 and 2005). (RX-841 

(McCarthy, Dep. Tr. at 62).) 

30 (RX-841 (McCarthy, Dep. Tr. at 66).) 

31 (RX-841 (McCarthy, Dep. Tr. at 66).) 

PUBLIC DOCUMENT
21 

• Over 20 years, Metabolix has funded about $1.7 million in research at UMass—

an annual rate of about $85,000;32 but Dr. McCarthy does not receive any 

personal financial remuneration from project funding accounts where he is 

principal investigator.

33

ECM’s contention that Dr. McCarthy may benefit financially from the outcome of this 

case is simply untrue. In fact, Dr. McCarthy testified in detail regarding the nature of 

Metabolix’s relationship with the University of Massachusettes, including testimony that 

Metabolix has suffered a financial setback (loss of its single source resin supplier) that has 

severely reduced the financial arrangements between the University and Metabolix. As Dr. 

McCarthy described it, Metabolix is “going out of business.” (McCarthy, Tr. 603-606.) And 

because the ‘199 patent is “timing out soon,” the University of Mass Lowell (who owns the 

patent) will likely be unable to license it to another entity. (McCarthy, Tr. 605.) 

D. ECM’s Policy Arguments are Meritless. 

Left without viable legal or factual arguments, Respondent resorts to challenging the 

Administrative process. Specifically, ECM argues that this case is not in the public interest and 

violates its due process. For the reasons explained below, these arguments are meritless.

1. This Proceeding is in the Public Interest. 

ECM makes two supposed “public interest” arguments. First, it argues that it did not 

market directly to consumers, but rather to sophisticated customers, who could not have been 

misled.34 Second, ECM argues that Complaint Counsel has not shown injury to the public, and, 

 

32 (RX-841 (McCarthy, Dep. Tr. at 66.) 

33 (RX-841 (McCarthy, Dep. Tr. at 54.) Dr. McCarthy also explained that, until this year, 

the research funding he brings into UMass had no bearing on his ability to get an increase in pay. 

(RX-841 (McCarthy, Dep. Tr. at 55).) And, now, at most, he could obtain a 1⁄2% increase in his 

salary for merit. Id. 55:13-22. 

34 Although this is a legal argument, we address it here because ECM raised this as a 

public interest argument. 

PUBLIC DOCUMENT
22 

in fact, the action is against the public interest because it will result in bad environmental policy. 

(Resp. Post-Tr. Br. at 195-200.) Neither position has merit.

a. ECM Deceived Customers and End-Use Consumers.

ECM’s “sophisticated customer” argument is meritless for two reasons. First, there is no 

evidence that ECM’s customers are more sophisticated than end-use consumers regarding the 

relevant topic: biodegradability of plastics. (Compl. Counsel’s Post-Tr. Br. at 23; 29-54; 86.) 

Second, ECM misapprehends the law and relies on inapposite cases. ECM relies on 

Harad35 and Arnold Stone36 for the proposition that there is no public interest where the 

representation is between a sophisticated buyer and purchaser. However, ECM misstates the 

holdings of these cases. In both Harad and Arnold Stone, the courts held that the public interest 

is not served where there is no deception, or potential for deception, of the intended audience. In 

the Matter of Harad, 50 FTC 300, 315 (1953); Arnold Stone Co. v. FTC, 49 F.2d 1017, 1018 (5th 

Cir. 1941). In both cases, the evidence failed to show that respondent’s customers and 

consumers were deceived could have been deceived. Harad, 50 FTC at 315; Arnold Stone Co. v. 

FTC, 49 F.2d at 1018. 

Here, there is substantial evidence that (1) ECM’s customers and end-use consumers 

understand ECM’s unqualified biodegradable marketing term to mean complete breakdown 

within one year in a landfill;37 (2) ECM’s customers and end-use consumers understood the 

express nine month to five year claim to mean precisely what it said;38 and (3) ECM’s customers 

 35 In the Matter of Harad, 50 FTC 300, 315 (1953). 

36 Arnold Stone Co. v. FTC, 49 F.2d 1017, 1018 (5th Cir. 1941). 

37 (FOF ¶¶ 191-413.) 

38 (FOF ¶ 35; FOF ¶ 43.) 

PUBLIC DOCUMENT
23 

and end-use consumers were, or could be deceived, by ECM’s marketing claims.39 Finally,

unlike Harad and Arnold Stone, the “existence of a public interest here rests on the deception 

practiced upon the public . . . . The author of false, misleading and deceptive advertising may 

not furnish customers with the means of misleading the public and thereby insulate himself 

against responsibility for its deception.” FTC v. Irwin, 36 FTC 626, 635 (1944). ECM provided 

the means and instrumentalities to pass the deceptive claims to downstream to end-use 

consumers. (Compl. Counsel’s Post-Tr. Br. at 83-86.) Therefore, Harad and Arnold Stone are

inapposite. 

b. Effect on Environmental Issues is Not Relevant to Whether this Case 

is in the Public Interest.

ECM also argues that the consuming public has an understanding of the word 

biodegradable that, if enforced, will lead to more methane emission into the atmosphere. First, 

ECM has no evidence that allowing ECM to deceptively market its product has an environmental 

benefit. Moreover, Dr. David Stewart, ECM’s consumer perception expert agreed that 

prohibiting claims like “nine months to five years” would serve the public interest unless they 

have scientific support. (FOF ¶ 191.) 

Third, this argument assumes that the product works, and in a manner that could reduce 

methane emissions, but the evidence shows it does not. Additionally, assuming ECM can 

substantiate any efficacy, it could qualify its claim in a number of ways to make it nondeceptive.40 

 

39 (FOF ¶ 25.) 

40 (See Compl. Counsel’s Amended Post-Tr. Br. at 92, 93 (discussing scope of Notice 

Order provisions).) 

PUBLIC DOCUMENT
24 

Finally, even assuming the proposed order caused some negative environmental impact, 

the Supreme Court has previously rejected the argument that environmental impact is a license to 

deceive: 

Finally, the argument is made that the restraining orders are not necessary 

to protect the public interest (see Federal Trade Commission v. Royal 

Milling Co., supra), but to the contrary that the public interest will be 

promoted by increasing the demand for pinus ponderosa, though it be sold 

with a misleading label, and thus abating the destruction of the pine forests 

of the east. 

The conservation of our forests is a good of large importance, but the end 

will have to be attained by methods other than a license to do business 

unfairly. 

FTC v. Algoma Lumber Co., 291 U.S. 67, 81 (1934). Preventing methane from being emitted 

into the atmosphere is a laudable goal. But that does not mean ECM can deceive its customers 

and end-use consumers to achieve it.

2. The Action Against ECM is Not Ultra Vires or Unlawful Trade 

Regulation. 

ECM argues that this action is ultra vires because it is, in effect, setting nationwide 

environmental policy, a power delegated to the EPA.41 ECM also criticizes consumers’ 

understanding of biodegradable because, it says, that understanding is at odds with the well 

accepted “scientific” definition of biodegradable. Both of these arguments misapprehend the 

relevant law. 

First, ECM misleadingly characterizes this case as “setting” a definition of 

biodegradable. However, the actual issued presented, and the only relevant issue on this front, is

whether consumers’ understanding of ECM’s unqualified biodegradability claim is reasonable 

even if inconsistent with the scientific definition. See, e.g., Pantron, 33 F.3d at 1099-1100; 

 

41 To the extent that ECM asserts that the effect of the injunction will be to prevent ECM 

from marketing its product, this argument is addressed elsewhere in our Reply. 

PUBLIC DOCUMENT
25 

Algoma Lumber, 291 U.S. at 74-76. On this issue, Dr. Frederick explained, the population of 

American consumers whom a false biodegradable claim might deceive includes many consumers 

whose understanding of “biodegradation” is mistaken or incomplete according to scientists, and 

consumers who believe “biodegradability” is a positive attribute even if they do not know 

precisely why. (FOF ¶ 349; Compl. Counsel’s Amended Post-Tr. Br. at 46-47.) Indeed, Dr. 

Stewart reluctantly concurred that a consumer might purchase a product “because he or she 

thinks biodegradation is a positive attribute even if his or her understanding of the term is 

scientifically incorrect,” and such a consumer “can still be misled if the product doesn’t 

biodegrade as he or she understands the term[.]” (FOF ¶ 350.) Any alleged conflict with either 

environmental policy or the scientific definition is irrelevant to the question of whether the 

interpretation is reasonable. See generally FTC v. Algoma Lumber Co., 291 U.S. at 77-81 

(holding that marketing of lower grade pine as “California White Pine” where consumers and 

retailers understood white pine to refer to a more durable wood was deceptive, despite that the 

Bureau of Standards used the term “California White Pine”). 

3. This Action Does Not Violate Due Process. 

 

a. The FTC Proceeding Does Not Violate the Separation of 

Functions Doctrine.

Respondent contends that Part III administrative proceedings violate the separation of 

functions doctrine and, therefore, deprive Respondent of due process. (Resp. Post-Tr. Br. at 211-

213.) Not so. This argument ignores decades of established law that the Commission’s

combined investigative and judicial functions do not violate due process. See, e.g., Kennecott 

Copper Corp. v. FTC, 467 F.2d 67, 79 (10th Cir. 1972) (“[C]ourts have uniformly held that [the 

Commission’s combination of the investigator, prosecutor, and judge functions] does not make 

out an infringement of the due process clause of the Fifth Amendment.”); FTC v. Cinderella 

PUBLIC DOCUMENT
26 

Career & Finishing Schools, Inc., 404 F.2d 1308, 1315 (D.C. Cir. 1968) (noting the 

Commission’s practice of reviewing the recommendations of subordinate investigative 

employees of the Commission and then making the decision to initiate a complaint is clearly 

excepted from the Administrative Procedure Act) (emphasis added). Moreover, the Commission 

is entitled to a presumption of regularity and good faith in the exercise of its administrative 

duties. FTC v. Owens-Corning Fiberglas Corp., 626 F.2d 966, 975 (D.C. Cir. 1980) (citations 

omitted). 

ECM’s due process argument also fails factually for at least three reasons. First, 

Respondent has not presented (and could not present) any evidence that the Commission or its 

staff acted in bad faith or engaged in impropriety at any point in these proceedings. Second, 

Respondent has had a full opportunity to defend itself throughout each stage of this litigation and 

will continue to receive such an opportunity during any post-trial proceeding that may arise. See, 

e.g., Rule 3.52 (providing procedures for parties to appeal the initial decision); Rule 3.55 

(providing procedures for parties to petition the Commission for reconsideration of its decision). 

Finally, as explained in Complaint Counsel’s post-trial brief, Complaint Counsel’s proposed 

relief would still permit Respondent to make truthful unqualified or qualified biodegradability 

claims as long as the claims were truthful and supported by a reasonable basis.42 For these 

reasons, Respondent’s separation of function argument fails.43

 

42 (See Compl. Counsel’s Amended Post-Trial Brief at 92-94.) Even if the effect of the 

order might be to put ECM out of business, its due process violation argument fails. Slough v. 

F.T.C., 396 F.2d 870 (5th Cir. 1968) (5th Circuit held that operator of collection service was not 

denied due process of law even though effect of Commission's order might be to put operator out 

of business), 

43 Citing Leer Elec., Inc. v. Penn. Dep’t of Labor and Indus., 597 F. Supp. 2d 470 (M.D. 

Pa. 2009), Respondent claims that the Commission has an interest in the outcome of the 

litigation sufficient to violate the separation of functions doctrine. But Leer Elec., Inc. addressed 

PUBLIC DOCUMENT
27 

b. Complaint Counsel Did Not Engage in Abusive Discovery 

Practices.

Respondent asserts that Complaint Counsel engaged in multiple instances of discovery 

abuse that denied it due process. (Resp. Post-Trial Brief at 213-217.) These arguments are 

baseless. In the two resolved discovery disputes Respondent refers to (and for one of the 

disputes, attempts to relitigate), Respondent was given meaningful opportunities to fully brief 

and argue its positions, and as it notes, even received a favorable ruling on one of the issues.44 

Thus, Respondent cannot persuasively contend that it was denied sufficient due process during 

those matters. Furthermore, although Respondent bewails the number of depositions taken by 

Complaint Counsel in this case, the associated costs of those depositions, and the evidentiary 

value of deposition testimony, those arguments are likewise unconvincing for at least two 

reasons. First, Respondent has offered no evidence (and could not offer any evidence) that 

Complaint Counsel scheduled and conducted the depositions in bad faith.45 Second, Respondent 

participated in each of the depositions, including making objections and cross-examining 

deponents as it saw fit, and stipulated to the admissibility in the evidentiary record of all 

 

whether the plaintiffs in the case sufficiently pled due process violations under a civil rights 

statute and did not concern a Commission enforcement action. Accordingly, Leer Elec., Inc. is 

unavailing to Respondent. 

44 In re ECM Biofilms, Dkt. No. 9358, Order Granting In Part And Denying In Part 

Respondent’s Motion for Sanctions (March 21, 2014), available at 

http://www.ftc.gov/system/files/documents/cases/140321orderrespsanctions.pdf; In re ECM 

Biofilms, Dkt. No. 9358, Order Denying Respondent’s Motion for Sanctions for Unauthorized 

Dissuasion of Response to Subpoena Duces Tecum (April 9, 2014), available at 

http://www.ftc.gov/system/files/documents/cases/140409orderdenysanctions.pdf. 

45 Indeed, Complaint Counsel scheduled all depositions in this case in coordination with 

Respondent. 

PUBLIC DOCUMENT
28 

deposition testimony.46 Thus, Respondent’s discovery abuse argument falls flat and the Court 

should reject it outright.

c. There Was No Unfair Surprise.

Respondent claims that it was denied due process through unfair surprise based on the 

participation of Complaint Counsel’s rebuttal expert, Dr. Frederick Michel, and the denial of its 

request to call Dr. Steven Grossman as a surrebuttal witness. (Resp. Post-Tr. Br. at 217-220.) 

Respondent is merely attempting to relitigate discovery disputes that the Court has already 

resolved and in which Respondent had the full opportunity to argue and present evidence.47

Moreover, because Respondent was permitted to depose Dr. Michel before trial (which it did) 

and cross-examine him at trial (which it did), and make an offer of proof as to Dr. Grossman’s 

expected testimony (which it made), it can hardly claim that it was not afforded adequate due 

process to challenge Dr. Michel’s opinions and defend itself. Respondent’s argument is 

therefore groundless. 

III. CONCLUSION

For the reasons stated above, Respondent’s practices, as alleged in the Complaint, 

constitute unfair or deceptive acts or practices, in or affecting commerce, in violation of Sections 

 

46 See JX-1-A (including all deposition transcripts in this matter).

47 See In re ECM Biofilms, Dkt. No. 9358, Order Denying Complaint Counsel’s Motion 

for Leave to Call Rebuttal Fact Witnesses and Respondent’s Request to Bar Rebuttal Expert 

Witness (Sept. 5, 2014) at 5, available at

http://www.ftc.gov/system/files/documents/cases/571791.pdf (“As to whether Dr. Michel’s 

testimony constitutes fair rebuttal to the opinions of Respondent’s proffered experts, it has 

already been held in this case that Dr. Michel’s report constitutes fair rebuttal.”); In re ECM 

Biofilms, Dkt. No. 9358, Order on Respondent’s Combined Motion for Sanctions, to Exclude 

Expert Witness and for Leave (June 23, 2014) at 4, available at

http://www.ftc.gov/system/files/documents/cases/571095.pdf (denying Respondent’s request for 

leave to offer surrebuttal expert testimony as unjustified and untimely). 

PUBLIC DOCUMENT
29 

5(a) and 12 of the FTC Act. Complaint Counsel respectfully requests that the Court enter the 

relief proposed in the Commission’s Notice Order.

Dated: October 16, 2014 Respectfully submitted,

 /s/ Katherine Johnson 

Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov) 

Artie Decastro (adecastro@ftc.gov)

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission

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

Washington, DC 20580 

Phone: 202-326-2185; -2551; -2747; -3001 

Fax: 202-326-2551 

PUBLIC DOCUMENT
TEST INDEX

30 

Test Year Method Duration Plastic/ECM % Biodeg. Issues

1

OWS PFR-1 

(CCX 161) 1998

Aerobic Biodegradation under 

controlled composting 

conditions (ISO 14855 and 

ASTM D5338)

45 days 5% black film

5% natural film

4.5%± 9.6%

2.6%±4.4%

• Aerobic tests irrelevant to 

Anaerobic biodegradation 

(RX-853 at 7 (Barlaz, Tr. 2299-

2300)). 

• Load rate exceeds 

recommended load rate 

(CCX-891 at 14).

• Well-documented, “Wellconducted scientific testing” 

(CCX-891 at 13); (McCarthy, 

Tr. 465-470); (Sahu, Tr. 1932-

1933; 1940, 1961); See also

Complaint Counsel’s FOF 453.

• Conclusion stated in test: 

“No biodegradation 

significantly different than 

zero.” (CCX-161 at 3.)

2

OWS PFR-2 

(CCX-162) 1998

Aerobic Biodegradation under 

controlled composting 

conditions (ISO 14855 and 

ASTM D5338)

45 days

50% Load Film 

(60 days)

5% Load ECM 

film 

10% Load ECM 

Film

19.1%±4.3%

0%±2.7%

1.1± 1.1%

• Cellulose achieved 120% 

biodegradation which “can 

result if a ‘priming effect’ has 

occurred.” (CCX-162 at 28; 

see also CCX-891 at 8).

• Aerobic tests irrelevant to 

Anaerobic biodegradation 

PUBLIC DOCUMENT
TEST INDEX

31 

Test Year Method Duration Plastic/ECM % Biodeg. Issues

(RX-853 at 7 (Barlaz, Tr. 2299-

2300)). 

• Load Rate exceeds 

recommended load rate 

(CCX-891 at 14).

• Well-documented, “Wellconducted scientific testing” 

(CCX-891 at 13); (McCarthy, 

Tr. 465-470); (Sahu, Tr. 1932-

1933; 1940, 1961); See also

Complaint Counsel’s FOF 453.

• Conclusion stated in test: 

“biodegradation for two film 

samples [5% and 10% Load 

films] were biodegradation 

significantly different from 

zero.” (CCX-162 at 3.)

3

McLaren/Hart 

(RX 269) 1999

Scientific Evaluation and 

Review of existing study data 

(anaerobic/aerobic report)

15 days

22 months

ECM Pellet

5% ECM Film

24% (pellet)

Qualitative 

evidence of 

biodegradati

on (film)

• Summary of faulty tests. Does 

not independently evaluate 

ECM Plastic (CCX-891, 13-16).

• Unclear where the underlying 

tests are (RX-269).

• Load Rate exceeds 

recommended load rate 

(CCX-891 at 14).

Qualitative tests (CCX-891, 

33-34) See also (CCX-891 at 

PUBLIC DOCUMENT
TEST INDEX

32 

Test Year Method Duration Plastic/ECM % Biodeg. Issues

13).

4

OWS PFR-4 

(RX 265) 1999 High Solids Anaerobic Digestion (HSAD) concept test 15 days ECM pellet 24.0%

• Load Rate exceeds 

recommended load rate 

“ECM Pellet 100%” (CCX-891 

at 14).

• Wrong temperature (CCX-891 

at 15).

• 15-day test too short (CCX891, 15-16).

5

OWS PFR-5 

(CCX-159) 2000

Aerobic Biodegradation Under 

Controlled Composting 

Conditions (40 Gal Trash Bag)

45 days Treated bag 5.2%±8.3%

• Aerobic tests irrelevant to 

Anaerobic biodegradation 

(RX-853 at 7 (Barlaz, Tr. 2299-

2300)). 

• Load rate unreported (CCX891 at 14).

• Plastic type unreported (CCX891, 13-14).

• Conclusion stated in test: 

“biodegradation 

measurement does not 

indicate whether or not any 

other breakdown of the 

sample has taken place” 

(CCX-159 at 21).

PUBLIC DOCUMENT
TEST INDEX

33 

Test Year Method Duration Plastic/ECM % Biodeg. Issues

6

AMC 

Environmental, 

Material, and 

Product 

Evaluation

(CCX-160) 

2000

ASTM D5338 for Robert 

Sinclair Unreported

PP Meshing 1%

Resin Tape 1%

PE Pallet Wrap 

1%

Weight loss 

test

• Aerobic tests Irrelevant to 

Anaerobic biodegradation 

(RX-853 at 7 (Barlaz, Tr. 2299-

2300)). 

• Conclusion stated in test: “In 

our opinion, based on the 

weight loss values from all 

samples, this test indicated 

all the samples had poor 

aerobic compostability” (CCX160 at 3). 

7

Univ. of NM 

Electron 

Microscopy

(RX-270)

2006

Scanning Electron Microscope 

(SEM) images of treated test 

samples

n/a Treated 

bubblewrap

Qualitative 

evidence of 

biodegradati

on

• Does not conclude item will 

completely biodegrade (RX270, 2-3). 

• Origin of sample is unknown 

(CCX-891, 13-14)

• Load rate is unknown (CCX891 at 14).

• Exposure time unknown 

(CCX-891, 15-16).

• Environmental conditions of 

test unknown (CCX-891 at 

15).

Qualitative tests (CCX-891, 

33-34) See also (CCX-891 at 

13).

• Conclusions are limited to 

observation of pitting on 

PUBLIC DOCUMENT
TEST INDEX

34 

Test Year Method Duration Plastic/ECM % Biodeg. Issues

surface and states that it is 

“probably” related to 

microbial breakdown, but 

compares it to pitting on 

rocks caused by microbial 

attachment (RX-270, 2-3).

8

Univ. of NM 

Electron 

Microscopy

(RX-271)

2006

Scanning Electron Microscope 

(SEM) images of treated test 

samples

n/a PET bottles Qualitative 

Analysis 

• Insufficient information: 

Origin of sample is unknown 

(CCX-891, 13-14).

• Load rate is unknown (CCX891 at 14)

• Exposure time unknown 

(CCX-891, 15-16).

• Environmental conditions of 

test unknown (CCX-891 at 

15).

Qualitative tests (CCX-891, 

33-34) See also (CCX-891 at 

13).

• Does not conclude item will 

completely biodegrade (RX270, 2-3). 

• Conclusions are limited to 

observation of pitting on 

surface and states that it is 

“probably” related to 

microbial breakdown, but 

compares it to pitting on 

rocks caused by microbial 

PUBLIC DOCUMENT
TEST INDEX

35 

Test Year Method Duration Plastic/ECM % Biodeg. Issues

attachment (RX-270, 2-3).

9 Univ. of NM 

Electron 

Microscopy

(RX-271)

2006

Scanning Electron Microscope 

(SEM) images of treated test 

samples

n/a PVC Foam Qualitative 

Analysis 

• Qualitative tests (CCX-891, 33-

34) See also (CCX-891 at 13).

10

Univ. of NM 

Electron 

Microscopy

(RX-271)

2007

Scanning Electron Microscope 

(SEM) images of treated test 

samples

n/a Treated PS foam Qualitative 

• Does not conclude item will 

completely biodegrade (RX-271 

at 2). 

• Origin of sample is unknown 

(CCX-891, 13-14).

• Load rate is unknown (CCX-891 

at 14).

• Exposure time unknown (CCX891, 15-16).

• Environmental conditions of test 

unknown (CCX-891 at 15).

Qualitative tests (CCX-891, 33-

34) See also (CCX-891 at 13).

• Conclusions are limited to 

observation of pitting on surface 

and states that it is “probably” 

related to microbial breakdown, 

but compares it to pitting on 

rocks caused by microbial 

attachment (RX-271 at 2).

11

Environ

(RX 254) 2008 Anaerobic study 9 months Amended PVC 2.7% weight loss 

• Weight loss studies are “not 

competent and reliable 

scientific evidence of 

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36 

Test Year Method Duration Plastic/ECM % Biodeg. Issues

biodegradation” (CCX-891 at 

18).

• Underlying data not reported

• No statistical data reported 

(CCX-891 at 13).

• Uses wrong kinetic model to 

determine a half-life (RX-853, 

9-13) See also (Barlaz, Tr. 

2293-2296).

• Load rate unreported (CCX891 at 14).

• No biodegradation after 

month 7 (plateau) (CCX-891 

at 28).

12

NCSU

(CCX-954) 2009 Anaerobic BMP for WMA 61

ECM - Additive 2

Cutlery 

Plates 

.17 ml 

CH4/gm 

.41 ml CH4 

/gm

Weight loss

• Conclusion stated in report: 

average methane production 

for both ECM samples are 

“not statistically different 

from negative control” (CCX954 at 2).

• Weight loss: ”no weight 

losses were different from 

the negative control” (CCX954) See also Weight loss 

studies are “not competent 

and reliable scientific 

evidence of biodegradation” 

(CCX-891 at 18). 

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37 

Test Year Method Duration Plastic/ECM % Biodeg. Issues

13

O.W.S.

(CCX-163) 2009

Anaerobic

ASTM D5511-02 for Masternet 15 days Unreported -3.7%±0.3%

• Wrong temperature (CCX-891 

at 15).

• 15-day test too short (CCX891, 15-16).

• Well-documented, “Wellconducted scientific testing” 

(CCX-891 at 13); (McCarthy, 

Tr. 465-470); (Sahu, Tr. 1932-

1933; 1940, 1961); See also

Complaint Counsel’s FOF 453.

• Conclusion states: “The test 

item plastic netting cannot be 

regarded biodegradable 

under dry anaerobic 

conditions” (CCX-163 at 6). 

14

NE Labs 

N0843980

(RX 399) 

2008 ASTM D5511 study for Bio-Tec 

Environmental LLLC 14 days PP Sheet 8.4% weight loss 

• Wrong temperature (CCX-891 

at 15).

Load rate unreported (CCX891 at 14).

• Weight loss test inaccurate, 

See Weight loss studies are 

“not competent and reliable 

scientific evidence of 

biodegradation” (CCX-891 at 

18).

• No underlying data; gas data 

collected but unreported 

(CCX-891 at 13).

• Gas data reported as 

“inconclusive” (RX-399 at 2)

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38 

Test Year Method Duration Plastic/ECM % Biodeg. Issues

15

NE Labs 

N0946510-01

(RX 398) 

2009 ASTM D5511 study for 

Masternet Ltd. 15 days PE/1% 4.91%

• Wrong temperature (CCX-891 

at 15).

15-day test too short (CCX891, 15-16).

• No statistical analysis (CCX891 at 13).

• Within the error margin of 

the analytical equipment 

((CCX-891 8, 16-17, 36) See 

also CCX-891 at 28)

16

SSCCP 

(RX 465) 2009

UNI EN 14043/2003, aerobic 

degradation test of Italcom 

product

91 days

PET

PVC

Film 

4.95% (PET)

50.09% (PVC)

4.80 (Film)

• Load rates unreported (CCX891 at 14).

• Underlying data unreported 

(CCX-891 at 13).

• Aerobic tests Irrelevant to 

Anaerobic biodegradation in 

landfill conditions (RX-853 at 

7 (Barlaz, Tr. 2299-2300)). 

17

Clemson Univ. 

Study

(RX 388-91)

2009

In situ testing of various 

treated samples for Dispozo

Products Inc.

477 days EcoPure

Qualitative 

evidence of 

biodegradati

on

• Qualitative study sponsored 

by Dispoz-o, Qualitative tests 

(CCX-891, 33-34) See also

(CCX-891 at 13).

18

NE Labs 1048742-

01

(RX 405) 

2010

ASTM D5511 study for Eco 

SmartPlastics 45 days LDPE/1.5% 7.37%

• Unclear whether contains 

ECM Additive (RX-405) See 

also CCX-891, 13-14.

• Wrong temperature (CCX-891 

at 15).

• No statistical analysis (CCX891 at 13).

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39 

Test Year Method Duration Plastic/ECM % Biodeg. Issues

19

NE Labs 1048819

(RX 396) 2010 ASTM D5511 study for Eco SmartPlastics 45 days PET 7.01%

• Unclear whether contains 

ECM Additive (RX-396) See 

also CCX-891, 13-14.

• Wrong temperature (CCX-891 

at 15).

• No statistical analysis (CCX891 at 13).

20

NE Labs 1048215

(RX 863) 2010 ASTM D5511 test for Dansko 15 days Rubber/2.5% 1.5%

• Wrong temperature (CCX-891 

at 15).

• No statistical analysis (CCX891 at 13).

21

Ecologia 

Applicata s.r.l.

(CCX-741) 

2010 UNI EN ISO 14855, aerobic 

degradation, for Co.ind. s.c. 180 days PP/1% 19.3%

• Aerobic tests Irrelevant to 

Anaerobic biodegradation 

(RX-853 at 7 (Barlaz, Tr. 2299-

2300)). 

• No underlying data; No 

statistical analysis (CCX-891 

at 13).

• Does not reach above 60% 

(CCX-891 15-16).

22

OWS BFI-1 

(RX 268) 2010

High Solids Anaerobic 

Digestion (HSAD) Test for 

Covidien 

15 days PP 3.9%

• Wrong temperature and 

moisture shows 3.9±1.1%

(CCX-891 at 15).

• Concludes that plateau was 

reached after 15 days and 

that “no further 

biodegradation is expected. It 

seems that only a minor 

component or some minor 

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Test Year Method Duration Plastic/ECM % Biodeg. Issues

residual chemicals 

(monomers) are degradable” 

(RX-268 at 7) See also CCX891 at 28.

23 Eden MicroTek

(RX-861/CCX-534) 2011 ASTM D5511 test for MicroTek 811 days PE 17.9%

•

24

Sondor

(RX 274) 2011 Sondor Biofoam degradation test 775 days Various/2%

Qualitative 

evidence of

biodegradati

on (mass loss, 

etc.)

• Qualitative analysis with 

limited data (CCX-891, 33-34) 

See also (CCX-891 at 13); not 

all data reported (CCX-891 at 

13).

Unclear what the underlying 

plastic is made of; conclusion 

by author that at least one of 

the plastics (SPX) was more 

degradable without the 

additive (CCX-891, 13-14).

26

Ecologia 

Applicata s.r.l.

(RX 276) 

2011 UNI EN ISO 14855, aerobic 

degradation, for Colplast S.r.l. 180 days

Polyammide & 

Nylon/% 

unknown

46.67%

• Aerobic tests Irrelevant to 

Anaerobic biodegradation in 

landfills (RX-853 at 7 (Barlaz, 

Tr. 2299-2300)). 

• Load Rate Unknown (CCX-891 

at 14).

• Positive control exceeds 

100% biodegradation; author 

concludes that it is a result of 

the “Priming Effect” See also

(CCX-891 at 8).

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41 

Test Year Method Duration Plastic/ECM % Biodeg. Issues

26

Eden 092511B

(RX 248) 2011 ASTM D5511, for FP International 120 days

Airbag film/1%

Samples 223-

224

11.5%

15.2%

• Wrong temperature (CCX-891 

at 15).

• Does not show complete 

biodegradation (CCX-891 at 

8).

• Does not have statistical 

analysis of data (CCX-891 at 

13).

• Does not control for priming 

effect (CCX-891 at 8).

27

Eden FPI

(CCX 1097) 2011

ASTM D5511 for FP 

International 977 days

Air bag 

(TKN)/1%

Air bag 

(HOP)/1%

Samples 223-

224

36.7%

39.8%

• States the test was 

conducted outside of ASTM 

D5511 protocol, but does not 

indicate what method was 

followed (RX-403 at 2).

• Wrong temperature (CCX-891 

at 15).

• Does not show complete 

biodegradation (CCX-891 at 

8).

• Does not have statistical 

analysis of data (CCX-891 at 

13).

• Does not control for priming 

effect (CCX-891 at 8).

28

NE Labs 1150851

(RX 395) 2011 ASTM D5511 study for Sweet Tape Enterprise (M) Sdn. Bhd. 45 days PP 4.54%

• Unclear whether contains ECM 

Additive (RX-395) See also CCX891, 13-14.

• Wrong temperature (CCX-891 at 

15).

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Test Year Method Duration Plastic/ECM % Biodeg. Issues

• Does not have statistical analysis 

of data (CCX-891 at 13).

29

NE Labs 1150851

(RX 394) 2011 ASTM D5511 study for Tycoplas Sdn Bhd 15 days PS foam 5.89%

• Wrong temperature (CCX-891 at 

15).

• Does not have statistical analysis 

of data (CCX-891 at 13).

• Load Rate unreported (CCX-891 

at 14).

30

NE Labs 1048036

(RX 392) 2011 ASTM D5511 study for Transilwrap Co. 233 days Film Laminate

7.85%

8.53%

• Unclear whether contains ECM 

Additive (RX-395) See also CCX891, 13-14.

• Wrong temperature (CCX-891 at 

15).

• Does not have statistical analysis 

of data (CCX-891 at 13).

31

NE Labs 1149980

(RX 838) 2011

ASTM D5511 & D6579 tests for 

Minigrip 365 days LDPE/LLDPE/1.5% 17.07%

• Wrong temperature (CCX-891 at 

15).

• Does not have statistical analysis 

of data (CCX-891 at 13).

• Load Rate exceeds 

recommended load rate (CCX891 at 14).

32

NE Labs 1253020

(RX 393) 2012 ASTM D5511 study for National Tree Co. 15 days PVCPE

9.89%

5.75%

• Eden tests unreliable. FOF ¶ 144.

• Unclear whether contains ECM 

Additive (RX-395) See also CCX891, 13-14.

• Wrong temperature (CCX-891 at 

15).

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Test Year Method Duration Plastic/ECM % Biodeg. Issues

• Does not have statistical analysis 

of data (CCX-891 at 13).

33

Eden 070312C

(RX 839) 2012 ASTM D5511, for Shields Bag & Printing

22 weeks Film/1% 7.9%

• Unclear whether contains ECM 

Additive (RX-395) See also CCX891, 13-14.

Wrong temperature (CCX-891 at 

15).

Does not have statistical analysis 

of data (CCX-891 at 13).

34

Eden Fellows

(RX 403) 2012 ASTM D5511 for Fellows 197 days Amended film/1% 

71.8%

16.1%

• Eden tests unreliable. FOF ¶ 

144.

• States the test was conducted 

outside of ASTM D5511 protocol, 

but does not indicate what 

method was followed (RX-403 at 

2).

• Biodegradable polymer tested, 

not a conventional untreated 

plastic (CCX-805 (Poth, Dep. at 

104, 148-149).

• Does not state temperature 

(CCX-891 at 15).

• No statistical analysis (CCX-891 

at 13).

35

Environ

(RX 275) 2012

Environ PS & PE testing for FP 

International (modeled after 

ASTM D5338 & D5511)

120 days PS & PE/1% >5%

• Wrong temperature (CCX-891 at 

15).

Weight loss studies are “not 

competent and reliable scientific 

evidence of biodegradation” 

(CCX-891 at 18).

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44 

Test Year Method Duration Plastic/ECM % Biodeg. Issues

36

Intertek India

(RX 277) 2012

D5511, ISOE Printpack 

Industries, PVT, LTD, sample 

sheet 

45 days Sample sheet 

unknown

Qualitative 

evidence of 

biodegradati

on; gas data; 

no negative 

control

• Unclear whether contains ECM 

Additive (RX-277) See also CCX891, 13-14.

• Qualitative tests (CCX-891, 33-

34) See also (CCX-891 at 13).

Wrong temperature (CCX-891 at 

15).

• Weight loss studies are “not 

competent and reliable scientific 

evidence of biodegradation” 

(CCX-891 at 18).

37

SSCCP 

(RX 467) 2013 ISO 14855, UNI EN 14046, aerobic degradation ,Colplast 91 days Unknown 11.9%

• Unclear whether contains ECM 

Additive (RX-277) See also CCX891, 13-14.

• Load rate not reported (CCX-891 

at 14).

• Wrong temperature (CCX-891 at 

15).

38

SSCCP 

(RX 468) 2013 ISO 14855, UNI EN 14046, aerobic degradation, Colplast 91 days Unknown 6.96%

• Unclear whether contains ECM 

Additive (RX-277) See also CCX891, 13-14.

Load rate not reported (CCX-891 

at 14).

Wrong temperature (CCX-891 at 

15).

39

Eden FPI

(CCX 548) 2013

Modified ASTM D5511 for FPI 

EPS Samples 291 days Expanded PS/1% 30.4%

• Eden tests unreliable. FOF ¶ 144.

• Temperature not reported (CCX891 at 15).

• Load rate exceeds that specified 

(CCX-891 at 14).

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Test Year Method Duration Plastic/ECM % Biodeg. Issues

• States the test was conducted 

outside of ASTM D5511 protocol, 

but does not indicate what 

method was followed (CCX-548 

2, 10, 12).

40

Eden Smithers

(RX 401) 2013

ASTM D5511 for Smithers 

Oasis 148 days Foam/1.1%Foam/3%

2.4%

5.8%

• Temperature not reported (CCX891 at 15).

Load rate exceeds that specified 

(CCX-891 at 14).

• States the test was conducted 

outside of ASTM D5511 protocol, 

but does not indicate what 

method was followed (CCX-548 

2, 10, 12).

41

NE Labs 

N1048340

(RX 836) 

2013 ASTM D5511 study for Pregis 

(PPC) 900 days PE Poly Bags 49.28%

• Positive control exceeded 

100% biodegradation.

• Load rate unreported.

• Does not show 60% 

biodegradation. (CCX 891 ¶ 83.)

• Wrong temperature (CCX-891 

at 15).

• Does not show complete 

biodegradation (CCX-891 at 

8).

• Does not control for priming 

effect (CCX-891 at 8).

42

Eden EcoLab

(RX-862) 2013 ASTM D5511 test for EcoLab 452 days Film 19.6%46.5%

• Eden tests unreliable. FOF ¶ 

144.

• Not well documented

• Load rate unreported.

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Test Year Method Duration Plastic/ECM % Biodeg. Issues

• Does not show 60% 

biodegradation. (CCX 891 ¶ 

83.)

• Wrong temperature (CCX-891 

at 15).

• Does not show complete 

biodegradation (CCX-891 at 

8).

• Does not control for priming 

effect (CCX-891 at 8).

43

Eden FPI

(RX 402) 2014 Updated ASTM D5511 standard for FP International 290 days 1% ECM film1.75% ECM film

5.5%

11.5%

• Eden tests unreliable. FOF ¶ 

144.

• CCX 891 ¶ 83 (“the results of 

these tests are dubious 

because of the poor 

methodologies (e.g., 

refreshing of inoculum, which 

reinvigorates the priming 

effect).” 

• Does not show 60% 

biodegradation. (CCX 891 ¶ 

83.)

• Wrong temperature (CCX-891 at 

15).

• Does not show complete 

biodegradation (CCX-891 at 8).

• Does not have statistical analysis 

of data (CCX-891 at 13).

• Does not control for priming 

effect (CCX-891 at 8).

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Test Year Method Duration Plastic/ECM % Biodeg. Issues

44

Case Western

(RX 278) n/a Prof. Morton Litt SEM Examination of ECM plastic in n/a/ n/a/

Qualitative 

evidence of 

biodegradati

on

• Qualitative tests (CCX-891, 

33-34) See also (CCX-891 at 

13).

PUBLIC DOCUMENT
500 

CERTIFICATE OF SERVICE 

 I hereby certify that on October 16, 2014, I caused a true and correct copy of the 

foregoing to be served as follows: 

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

FTC’s e-filing system:

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc.gov 

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

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-110 

Washington, DC 20580 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord

Emord & Associates, P.C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Peter Arhangelsky

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Eric J. Awerbuch 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: eawerbuch@emord.com 

Date: October 16, 2014 

 /s/Katherine Johnson 

 Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov) 

Arturo DeCastro (adecastro@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 20580 

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

Fax: 202-326-2558