Docket No. 9358 PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISIONERS: 

In the Matter of 

ECM BioFilms, Inc., 

Edith Ramirez, Chainvoman 

Julie Brill 

Maureen K. Ohlhausen 

Joshua D. Wright 

Terrell McSweeny 

Docket No. 9358 

a corporation, also d/b/a 

Enviroplastics International, PUBLIC DOCUMENT 

Respondent. 

OR\G\NAL 

RESPONDENT'S OPPOSITION TO COMPLAINT COUNSEL'S CORRECTION 

REGARDING STATEMENTS MADE DURING ORAL ARGUMENT 

On May 14, 2015, the Commission held oral argument in the above-captioned case. On 

May 19, 2015, Complaint Counsel filed a purported "Correction Regarding Statements Made 

During Oral Argument" (the "Correction"). Respondent ECM BioFilms, Inc. ("ECM") hereby 

responds to that Correction. It is neither authorized nor accurate. 

Complaint Counsel's post-hoc Correction is not authorized under the Commission's rules 

ofprocedure. Complaint Counsel cited Commission Rule 3.54as authority for its "Correction," 

but Rule 3.54 does not apply. See 16 C.F.R. § 3.54. Complaint Counsel's Correction is thus 

procedurally infirm, an improper attempt to re-argue matters presented at oral argument. See In 

the Matter of LabMD, Inc., 2014 WL 6984161, at *3 (F.T.C. Nov. 19, 2014) (explaining that 

because a document was "improperly filed, the assertions and documents included therein will be 

disregarded and will not be considered for any purpose"). Moreover, because the "Correction" is 

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Docket No. 9358 PUBLIC DOCUMENT 

not authorized, at a minimum Complaint Counsel should have sought leave from the 

Commission before making a substantive submission. 

Even if we presume the "Correction" without leave to be permissible, its substance 

misleads. 1 A minority of Dr. Frederick's survey respondents are recorded as reciting that a plain 

plastic bag without biodegradable claims would biodegrade within one year (13% of 

respondents). When shown that same plastic bag with ECM's biodegradable claim, 20% of 

respondents Gust 7% more) are recorded as reciting that the product would biodegrade within 

one year.

2 

Apparently realizing that such data undercuts their prima facie case, Complaint Counsel 

now wishes to manipulate that data further and apply a post-hoc rationalization. See Correction 

at 1 n. 1 (referencing Question 31 of Dr. Frederick's survey). The survey question (Question 3J) 

upon which Complaint Counsel rely was overtly suggestive, however, because Dr. Frederick 

repeated the "biodegradable" claim within the text of that question, thus placing unnatural and 

undue significance on the claim through the repetition. CCX 860 (Frederick, Rep.) at 32. 

Question 3J was different from the "control" question posed to respondents in Question 30. 

Consequently, the proper comparison remains the one Commissioners Ohlhausen and Wright 

1 ECM has explained in its briefs before the ALJ and the Commission in detail why Dr. 

Frederick's survey evidence is incompetent, as the ALJ so found. ALJID at 200-02. We here 

address Complaint Counsel's substantive argument, which operates on the false supposition that 

Complaint Counsel has met its burden of establishing the Frederick study to be competent 

evidence. 

2 To be sure, Complaint Counsel argued consistently that ECM's unqualified 

"biodegradable" claim is equivalent to a claim that the product will disappear within one year. 

The "one year" claim appears in Complaint Counsel's requested Order, in their Complaint, and 

in the Conunission's Green Guides. In their Correction, Complaint Counsel's discussion of 

survey respondents "who believed plastic containers and bags would decompose within five 

years" is irrelevant. Complaint Counsel had the burden to prove the existence of an implied 

claim and whether that claim was material to purchasing decisions. F. T C. v. Bronson Partners, 

LLC, 564 F. Supp. 2d 119, 124 (D. Conn. 2008). On this record Complaint Counsel cannot meet 

that burden. 

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Docket No. 9358 PUBLIC DOCUMENT 

posed between questions 31 and 3P. No record evidence (other than Dr. Frederick's unsupported 

speculation) suggests that survey respondents could not read the ECM logo in question 31. 

Frederick, Tr. 1153-54; see also ALJID at 193-94. 

Complaint Counsel's post-hoc rationalization endeavors to obfuscate the issue raised by 

Commissioners Ohlhausen and Wright concerning Frederick's control questions. Dr. Frederick's 

questions revealed that his survey respondents had an inherently flawed understanding of plastics 

biodegradation, even for conventional plastics not held out as "biodegradable." See Oral 

Argument Tr. at 67:4-71:4. Dr. Frederick's survey cannot reveal whether consumers were 

influenced by ECM' s biodegradable claims because he asked just one question of every survey 

respondent. Therefore, no data properly compared each survey respondent's understanding of 

both conventional and treated plastics. Dr. Stewart's survey did not include "control" questions 

concerning the conventional plastics.3 No reliable evidence exists from which the Commission 

can assess Complaint Counsel's alleged implied claim. 

Respectfully submitted, 

Jo an W. Emord 

Peter A. Arhangelsky 

Bethany R. Kennedy 

Eric J. Awerbuch 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

3 Dr. Stewart's survey did reveal, however, that "consumers interpret the term, 

' biodegradable,' to mean the process by which a product breaks down or decays; and consumers 

understand that the time for this process varies depending on the materials involved and that the 

process ofbiodegradability is not always, or even often, a rapid process." ALJFF, 554. 

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Docket No. 9358 

DATED: May 20, 2015 

4 

PUBLIC DOCUMENT 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 
Docket No. 9358 PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on May 20, 2015, I caused a true and correct copy of the foregoing to 

be served as follows: 

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

Office of the Secretary: 

Donald Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

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

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW 

Suite II 0 

Washington, DC, 20580 

One electronic copy to Counsel for the Federal Trade Commission: 

Katherine Johnson 

Complaint Counsel 

Federal Trade Commission 

kjohnson@ftc.gov 

Elisa Jillson 

Complaint Counsel 

Federal Trade Commission 

ejillson@ftc.gov 

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: May 20, 2015 

Eric Awerbuch 

Attorney 

5 
Notice Of Electronic Service 

I hereby certify that on May 21,2015, I filed an electronic copy ofthe foregoing ECM Opp. to CC 

Correction, 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 May 21, 2015, I served viaE-Service an electronic copy of the foregoing ECM 

Opp. to CC Correction, upon: 

Jon a than Emard 

Emord & Associates, P .C. 

jemord@emord.com 

Respondent 

Peter Arhangelsky 

Emard & 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 A werbuch 

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 

Eric A werbuch 

Attorney