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 AMENDED POST-TRIAL BRIEF1

 1

 The Amended Post-Trial Brief reflects only non-substantive changes, e.g., 

typographical errors, pagination and internal citations that were inadvertently omitted.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... v

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

STATEMENT OF FACTS ............................................................................................................. 2

I. PLASTICS AND THE ENVIRONMENT .............................................................................. 2

A. Conventional Plastics Do Not Biodegrade. ......................................................................... 2

B. Persistence of Plastic in the Environment. ........................................................................... 3

II. ECM MARKETS ITS “REVOLUTIONARY” ADDITIVE ................................................... 4

A. ECM’s Express Biodegradable Claims: Complete Biodegradation in 9 months to 5 years 

in a Landfill. ................................................................................................................................ 5

B. ECM’s Modified Qualified Claims: “Some Period Greater than a Year.” ......................... 7

C. ECM’s Unqualified Claims: “Biodegradable” Advertising. ............................................... 9

D. ECM’s Testing Claim: Proven to Work............................................................................ 12

1. ECM’s Testing. .............................................................................................................. 13

2. The Ecological Assessment is Unreliable and Irrelevant. .............................................. 14

a. ASTM D5511 Testing ................................................................................................ 16

3. ECM “Certifies” Performance. ...................................................................................... 17

III. ECM SELLS THE RIGHT TO ADVERTISE THAT ECM PLASTICS ARE 

BIODEGRADABLE..................................................................................................................... 19

IV. NEITHER ECM NOR ITS CUSTOMERS ARE BIODEGRADATION EXPERTS. ..... 21

A. ECM Lacks Biodegradation Expertise.............................................................................. 22

B. ECM’S Customers Lack Sophistication to Meaningfully Evaluate ECM’s Purported 

Substantiation. ........................................................................................................................... 23

V. ECM REPEATEDLY IGNORED EVIDENCE THAT ITS ADDITIVE DOES NOT 

WORK. ......................................................................................................................................... 26

ARGUMENT ................................................................................................................................ 26

I. ECM MADE DECEPTIVE ADVERTISING CLAIMS. ...................................................... 26

A. ECM Disseminated Advertisements Conveying The Claims Alleged In The Complaint. 27

1. ECM Made Express Biodegradable Claims. .................................................................. 28

2. ECM Also Made Implied Biodegradable Claims. ......................................................... 29

a. The Evidence Establishes That Substantial Numbers of Consumers Understand 

“Biodegradable” Claims to Imply Within One Year. ....................................................... 30

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i. The Number of Deceived Consumers Vastly Exceeds The Threshold For A 

“Substantial Minority.” ................................................................................................. 30

ii. The Convergence of All Four Studies Provides Overwhelming Evidence That 

Substantial Numbers of Consumers Understand “Biodegradable” Claims to Imply 

Within One Year. .......................................................................................................... 31

iii. Standing Alone, Professor Frederick’s Research Establishes That Substantial 

Numbers of Consumers Understand “Biodegradable” Claims To Imply Within One 

Year. .............................................................................................................................. 32

(a) Survey Research Need Not Be Perfect—Only Reasonably Reliable and 

Probative. .................................................................................................................. 33

(b) Professor Frederick’s Research Is Reasonably Reliable and Probative. ......... 34

(1) Background Regarding Professor Frederick’s GCS Surveys. ......................... 34

(2) Undisputed Evidence Establishes That GCS Is Reasonably Representative of 

American Consumers. ........................................................................................... 35

(3) Both Parties’ Experts’ Testimony Establishes That Demographic Information 

About Survey Respondents Is Unnecessary if the Overall Sample Is 

Representative. ...................................................................................................... 39

(4) ECM Does Not Challenge Professor Frederick’s Questions. ......................... 40

(c) Substantial Numbers of Consumers Understand “Biodegradable” To Mean 

Within One Year. ...................................................................................................... 41

(d) ECM’s “Some Period Greater Than a Year” Implies Faster Biodegradation to 

Many Consumers. ..................................................................................................... 42

(e) ECM’s Critiques Are Baseless. ....................................................................... 42

(1) Professor Frederick Correctly Employed a Bright-Line Rule. ........................ 42

(2) ECM’s Other Challenges To Professor Frederick’s Coding Are Baseless. .... 44

(3) A Tiny Number of “Protest” Responses Among 20,000 Responses To OpenEnded Questions Is Irrelevant. .............................................................................. 45

(4) There Is No Credible Evidence of “Disinterest Bias.” .................................... 46

(5) The Absence of “Screening Questions” Is Irrelevant. .................................... 47

iv. Standing Alone, Professor Stewart’s Research Is Sufficient To Establish That 

Substantial Numbers of Consumers Understand “Biodegradable” To Imply Within One 

Year. .............................................................................................................................. 48

(a) Dr. Stewart’s Data Establishes That Substantial Numbers of Consumers 

Understand “Biodegradable” To Mean Within One Year. ....................................... 48

(b) Dr. Stewart’s Data Establishes That Substantial Numbers of Consumers 

Understand ECM’s “Some Period Greater Than a Year” Qualifier To Mean Within 

One Year. .................................................................................................................. 49

v. Viewed Together, the APCO and Synovate Studies Establish That Substantial 

Numbers of Consumers Understand “Biodegradable” To Imply Within One Year. .... 49

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vi. ECM Offers No Reasonably Reliable and Probative Contrary Evidence. ............ 51

(a) Dr. Stewart Never Asked the Most Important Question. ................................ 51

(b) Dr. Stewart’s Studies Are Grossly Flawed. ..................................................... 51

(1) Dr. Stewart Designed His Landline Consumer Study To Create Confusion. . 51

(2) Dr. Stewart’s Anachronistic Landline Study Was Psychographically and 

Demographically Unrepresentative. ..................................................................... 53

(3) Dr. Stewart Readily Admitted That His Ten-Customer Survey Is Useless 

(Otherwise, It Would Support Complaint Counsel). ............................................ 54

II. ECM’S CLAIMS ARE FALSE AND UNSUBSTANTIATED. ........................................... 54

A. ECM’s Express and Implied Claims are False. ................................................................ 55

1. ECM’s Experts Concede ECM’s Biodegradation Claims Are False. ........................... 55

2. Physical Blends Do Not Affect Plastic Recalcitrance. ................................................. 56

3. Tests Show No Biodegradation of ECM Plastic. .......................................................... 59

B. ECM Lacks a Reasonable Basis for its Claims. ................................................................ 61

1. Competent and Reliable Scientific Evidence is the Appropriate Standard of 

Substantiation for Green Claims. ........................................................................................... 62

a. Pfizer Factors Analysis ............................................................................................. 62

i. The Type of Claim and Products at Issue Demand Biodegradability Claims be 

Supported by a High Level of Substantiation. .............................................................. 62

ii. The Potential Harm to Consumers of Allowing False Claims is Significant. ...... 63

iii. ECM Does Not Face Substantial Hardship in Substantiating Claims with a High 

Level of Substantiation or in Qualifying its Claims Appropriately. ............................. 64

b. Scientists in the Relevant Fields Demand a High Level of Substantiation for These 

Claims. .............................................................................................................................. 65

2. ECM’s “Substantiation” Has Severe Methodological Flaws........................................ 66

i. ECM’s Substantiation Does Not Support Claims of “Complete” Biodegradation 

of ECM Plastics in “Landfills.” .................................................................................... 70

(a) No Evidence of Complete Biodegradation. ..................................................... 71

(b) No Evidence of Biodegradation in Landfills. .................................................. 73

(c) No Evidence of Biodegradation above the Priming Effect. ............................ 74

III. ECM’S CLAIMS ARE MATERIAL. .............................................................................. 76

A. ECM’s Claims Are Presumptively Material Because They Address the Additive’s Central 

Characteristic. ............................................................................................................................ 76

B. ECM Failed To Rebut the Materiality Presumption. ........................................................ 77

C. Regardless of the Presumption, the Evidence Proves Materiality. ................................... 81

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IV. ECM PROVIDED CUSTOMERS THE MEANS AND INSTRUMENTALITIES TO 

DECEIVE END-USE CONSUMERS .......................................................................................... 83

V. ECM’S CONTENTION THAT IT NEVER MADE THE EXPRESS AND IMPLIED 

CLAIMS SET FORTH ABOVE IS BASELESS. ........................................................................ 86

A. ECM’s Purportedly “Sophisticated Customers” Had the Same Understanding of ECM’s 

Claims as End-Use Consumers. ................................................................................................ 86

B. ECM’s “Qualifications” Do Not Change the Meaning of its Deceptive Claims. ............. 88

VI. ENTRY OF THE NOTICE ORDER IS APPROPRIATE AND NECESSARY. ............. 90

A. The FTC Has Wide Latitude in Crafting Relief................................................................ 91

1. The Notice Order is Clear, Precise, and Easy to Understand. ...................................... 92

2. The Proposed Relief Is Needed To Stop Ongoing Deception. ..................................... 94

B. ECM’s Arguments that the Notice Order Violates Its First Amendment Rights and 

Federal Environmental Policy Have No Merit. ......................................................................... 97

VII. CONCLUSION ............................................................................................................... 100

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TABLE OF AUTHORITIES

Cases

American Enviro Products, Inc., 115 F.T.C. 399 (1992) .............................................................. 65 

Archer Daniels Midland Co., 117 F.T.C. 403 (1994) ................................................................... 65 

Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ..................................................................... 99 

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983) ........................................................... 98 

Brake Guard Prods., Inc., 125 F.T.C. 138 (1998) ........................................................................ 66 

Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980) .................. 98, 99 

Chicago Bridge & Iron Co N.V. v. FTC, 534 F.3d 410 (5th Cir. 2008) ....................................... 91 

Clear Choices Housewares, Inc., File No. 122 3288 (2013) ........................................................ 65 

Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984).............................................................................. 27 

Continental Wax Co. v. FTC, 330 F.2d 475 (1964) ...................................................................... 91 

Down to Earth Designs, Inc., Docket No. C-4443 (2014) ............................................................ 65 

Dyna-E Int’l Inc., File No. 082-3187 (2009) ................................................................................ 65 

FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1964) ............................................................. 91, 92 

FTC v. Cruz, No. 08-1877 (JP), 2008 U.S. Dist. LEXIS 103103, at *4-5 (D.P.R. Dec. 18, 2008)

................................................................................................................................................... 83 

FTC v. Cyberspy Software, LLC, No. 6:08-cv-1872-ORL-31GJK, 2010 U.S. Dist. LEXIS 

145969, (M.D. Fla. April 22, 2010) .......................................................................................... 83 

FTC v. Direct Marketing Concepts, 624 F.3d 1, 24 (1st Cir. 2010) ............................................. 89 

FTC v. Five-Star Auto Club, 97 F. Supp. 2d 502 (S.D.N.Y. 2000) .............................................. 83 

FTC v. Magui Publishers, Inc., No. 91-55474, 1993 U.S. App. LEXIS 28684, at *10 (9th Cir. 

Oct. 6, 1993) ............................................................................................................................. 83 

FTC v. National Lead Co., 352 U.S. 419 (1957) .......................................................................... 91 

FTC v. Norvergence, Inc., No. 04-5414 (DRD), U.S. Dist. LEXIS 40699, at *7-8 (D.N.J. July 18, 

2005) ......................................................................................................................................... 83 

FTC v. Pantron I Corp., 33 F.3d 1088 (9th Cir. 1994) ..................................................... 28, 29, 86 

FTC v. Ruberoid Co., 343 U.S. 470 (1952) .................................................................................. 91 

FTC v. USA Beverages, Inc., No. 05-61682-CIV, 2005 U.S. Dist. LEXIS 39075, at *16-17 (S.D. 

Fla. Dec. 5, 2005);..................................................................................................................... 28 

FTC v. Winstead Hosiery Co., 258 U.S. 483 (1922) .................................................................... 83 

In re Chrysler Corp., 87 F.T.C. 719, 1976 FTC LEXIS 397, *59 (Apr. 13, 1976) ...................... 88 

In re Daniel Chapter One, No. 9329, Initial Decision, at *99 (F.T.C. Aug. 5, 2009) ............ 54, 61 

In re Litton Indus., Inc., 97 F.T.C. 1 (1981) ................................................................................. 83 

In re N.E.W. Plastics Corp., 2014 FTC LEXIS 71, at *8 (Apr. 3, 2014) ..................................... 83 

In re Nonprofit Mgmt. LLC, 151 F.T.C. 144 (2011) ..................................................................... 83 

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

In re R. M. J., 455 U.S. 191 (1982)............................................................................................... 98 

In re Raymond Lee Organization, Inc., 92 F.T.C. 489, 618-19 (1978) ........................................ 88 

In re Schering Plough Corp., 118 F.T.C. 1030, 1121 (Oct. 21, 1994) ......................................... 95 

In re Shell Oil Co., 128 F.T.C. 749 (1999) ................................................................................... 83 

In re Stouffer Foods Corp., 118 F.T.C. 746 (1994) ...................................................................... 95 

In re Telebrands Corp., 140 F.T.C. 278 (2005), aff'd, 457 F.3d 354 (4th Cir. 2006) .................. 30 

In the Matter of Am. Home Prods., 98 F.T.C. 136,....................................................................... 33 

In the Matter of Bristol-Myers Co., 85 F.T.C. 688, 744 n.2 (1975) ............................................. 33 

Jacob Siegel Co. v. FTC, 327 U.S. 608 (1946) ............................................................................. 92 

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Kmart Corp., File No. 0823186 (2009) ........................................................................................ 65 

Kraft, Inc. v. FTC, 970 F.2d 311 (7th Cir. 1992) ........................................................ 27, 30, 76, 95 

Mobil Oil Corp., 116 F.T.C. 113 (1993) ....................................................................................... 65 

Niresk Indus. Inc. v. FTC, 278 F.2d 337 (7th Cir. 1960) .............................................................. 90 

North Texas Specialty Physicians v. FTC, 528 F.3d 346 (5th Cir. 2008) ..................................... 91 

Pearson v. Shalala, 165 F.3d 650, 658 (D.C. Cir. 1999) ...................................................... 97, 99 

Porter & Dietsch, Inc. v. FTC, 605 F.2d 294, 307 (1979) ............................................................ 91 

Regina Corp. v. FTC, 322 F.2d 765 (3d Cir. 1963) ...................................................................... 83 

Removatron Int’l Corp., 111 F.T.C. 206, 884 F.2d 1489 (1st Cir. 1989) ................... 63, 66, 88, 89 

Sears, Roebuck & Co. v. FTC, 676 F.2d 385 (9th Cir. 1982) ....................................................... 91 

Telebrands Corp. v. FTC, 457 F.3d 354 (4th Cir. 2006) .................................................. 76, 91, 92 

Tender Corp., File No. 082-3188 (2009) ...................................................................................... 65 

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) ................................................................................. 27, 33, 76, 91 

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) .. 98 

Statutes

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

16 C.F.R. Part 260........................................................................................................................... 7 

Other Authorities

FTC Policy Statement on Deception, 103 F.T.C. 174 (1984) ................................................. 27, 47 

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STATEMENT OF THE CASE

This is a straightforward deceptive advertising case. ECM Biofilms, Inc. (“ECM”) sells 

an additive that it contends makes conventional plastic biodegradable. For almost a decade, 

ECM has claimed that mixing 1% of its additive with any conventional, non-degradable plastic 

will make it completely biodegrade in nine months to five years in a landfill. Since the FTC

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

additive enables plastic to completely biodegrade in a landfill “in some period greater than a 

year.”

ECM’s claims are false and unsubstantiated. ECM’s own experts concede that ECM’s 

nine-month-to-five-year claim is false. ECM’s expert opines that it would take at minimum 30 

years for the thinnest of treated plastics to completely biodegrade—nowhere near the five years 

claimed by ECM. Another ECM expert acknowledges that complete biodegradation “within one 

or even five years of disposal is not consistent with even the highest rates of biodegradation” 

expected in landfills. Additionally, a plastics expert, a landfill expert, and an expert in 

biochemistry all explained that most conventional plastics do not biodegrade at all, let alone in 

landfills, and mixing the ECM additive with conventional plastic does nothing to change this 

scientific fact. The minimal biodegradation that results from using ECM’s additive (which ECM 

peddles as “proof”) happens for a very simple reason: the ECM additive is itself biodegradable. 

Unable to meaningfully dispute the science or defend its “testing,” ECM offers a number 

of specious defenses about consumer perception of biodegradable claims, the purported 

sophistication of its customers, the alleged bias of Complaint Counsel’s experts, and the 

supposed impropriety of FTC regulation of deceptive speech for environmental marketing 

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claims. Each defense is no more than a distraction from the fundamental issue: ECM’s claims 

are false and unsubstantiated.

STATEMENT OF FACTS2

I. PLASTICS AND THE ENVIRONMENT

Plastic is a generic term used to describe a class of high-molecular weight polymers. 

FOF ¶ 1. There are various plastics, but synthetic (laboratory-made), petroleum-based plastics 

are by far the most common. FOF ¶ 2. Plastics derived from petrochemicals are strong, durable, 

and inexpensive to manufacture, which make them ideally suited for commercial applications. 

These petroleum-based plastics (“conventional plastics”) represent over 90% of the commercial 

plastic market. FOF ¶ 3. 

The most common types of conventional plastic are high-molecular weight polyethylene 

(PE), used to manufacture plastic bags, packaging material, and bottles; and polyurethane (PUR), 

used in medical and industrial applications such as adhesives and paint. Also common is 

polypropylene (PP), used for disposable cups, clothing, storage containers, and DVD covers; and 

polystyrene (PS), which is used to make disposable cutlery and cups, foam packing peanuts, 

insulation, and fast food containers. FOF ¶ 4. 

Unfortunately, the characteristics that make these plastics commercially useful—strength 

and durability—make them highly resistant to biological attack. FOF ¶ 5. 

A. Conventional Plastics Do Not Biodegrade. 

Generally, biodegradation is the chemical process by which microorganisms such as 

bacteria and fungi use the carbon found in organic materials as a food source. FOF ¶ 6. 

 

2 Attached hereto is Complaint Counsel’s Findings of Facts (“FOF”), which includes 

citations to exhibits (denoted as “CCX” or “RX”) admitted as evidence at the evidentiary hearing

and citations to the trial record. 

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Microorganisms cannot metabolize all organics, however. Conventional plastics are a prime 

example—they are organic (i.e., carbon-based), but not biodegradable.3 FOF ¶ 7. The highmolecular weight and chemical structure of most conventional plastics4

 prevent naturallyoccurring microorganisms from using them as food. FOF ¶ 9. Petroleum-based conventional 

plastics have only existed for a hundred years or so, not long enough for microorganisms to have 

evolved to degrade them. FOF ¶ 10. 

B. Persistence of Plastic in the Environment. 

Americans generate about 32 million tons of plastic waste every year, more than half of 

which ends up in landfills. FOF ¶ 11-12. Due to their recalcitrant nature, plastics pose a 

growing disposal and environmental pollution problem. FOF ¶ 13. Many consumers are 

concerned about such environmental harms: in a relatively recent survey, 62% of consumers 

said that they would be willing to pay a higher price for a product that is less burdensome on the 

environment. FOF ¶ 14; see also FOF ¶ 387 (Dr. Stewart, ECM’s consumer perception expert 

reported results showing that whether a package or product is biodegradable is important to 71% 

of respondents). In response to this consumer demand, marketers have introduced various 

materials they claim improve the biodegradability of plastics. These include conventional 

plastics amended with additives meant to enhance biodegradability (e.g., photodegradable, 

 

3

 Given enough time, all things are “biodegradable.” FOF ¶ 7. However, conventional 

plastics are not considered susceptible to biological attack. This process could take hundreds, if 

not thousands, of years. FOF ¶ 7. 

4 There are some plastics that are susceptible to biological attack. FOF ¶ 8. However 

these generally do not have the same durability and low-cost of conventional plastics. Moreover, 

these are not the “non-degradable” plastics that are the subject of ECM’s advertising. CCX-892 

¶ 9. Accordingly, these are not discussed here. 

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oxodegradable, and biodegradable additives), bio-based plastics, and natural fiber composites. 

FOF ¶ 15. 

II. ECM MARKETS ITS “REVOLUTIONARY” ADDITIVE

ECM Biofilms, Inc. is making false and unsubstantiated claims to exploit this 

environmental consciousness. FOF ¶16-17. Claiming to have a “revolutionary additive 

technology” that “renders . . . plastic products biodegradable,” ECM sells its additive (the ECM 

MasterBatch Pellet, or “ECM Additive”) to plastic manufacturers.5

 FOF ¶ 18. ECM advises its 

customers that mixing 1% ECM Additive to non-degradable plastic, i.e., conventional plastic, 

“transforms” it into a biodegradable plastic (“ECM Plastic”). FOF ¶ 18. According to ECM, the 

presence of the ECM Additive triggers a “mechanism” that allows bacteria to consume the ECM 

Plastic once it has been disposed. FOF ¶ 18.

6

 

Although, as explained below, the precise language ECM has used to market its product 

has morphed over time, ECM’s marketing materials have remained consistent. Its website, 

brochure, flyers, logos, certificate, and presentations have conveyed that ECM Plastics will 

completely biodegrade in less than five years in a landfill, and that scientific testing proves it. 

 

5 ECM actually licenses its technology from another company, called Microtech Research 

Inc. FOF ¶ 20. 

6

 Some of ECM’s customers use the ECM Additive to make “biodegradable” products for 

purchase by retailers or end-use consumers. FOF ¶ 21. Others simply make plastic (such as 

plastic “film”) that they sell to product and package manufacturers, who in turn sell to packagers, 

retailers, or end-use consumers. In the parlance of the plastics industry, the plastic manufacturer 

is an “extruder”; the product manufacturer is a “converter.” FOF ¶ 21. 

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A. ECM’s Express Biodegradable Claims: Complete Biodegradation in 9 months 

to 5 years in a Landfill. 

As early as 2005 until at least October 2012, ECM prominently and expressly claimed

that its additive enables conventional, non-degradable plastic to fully biodegrade in nine months 

to five years in a landfill. FOF ¶ 182. 

CCX-3. ECM’s express claim—100% biodegradation in landfills in less than 5 years—has 

pervaded ECM’s marketing materials and customer communications. FOF ¶ 32. In fact, ECM 

has touted these features as the principal distinction from its competitors in the market. FOF

¶ 31-34. These claims matter to ECM’s customers, who pass on the claims in their own 

advertising: 

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CCX-961; see also FOF ¶¶ 35-36. 

 

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B. ECM’s Modified Qualified Claims: “Some Period Greater than a Year.” 

The FTC revised its Guides for the Use of Environmental Marketing Claims (“Green 

Guides”) in October 2012.7 The Green Guides explained that consumers perceive unqualified 

biodegradable marketing claims to mean that a “biodegradable” product or package will 

completely biodegrade in a reasonably short period of time (one year or less) after customary 

disposal (landfill).8 Purportedly in response to the changes in the Green Guides, ECM 

marginally modified its claim. See generally FOF ¶ 37-44.9 ECM removed many of the 

prominent nine-month-to-five-years qualifications and instead replaced it with the following 

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

environments (including most landfills) in some period greater than a year.” FOF ¶ 37. 

 

7

 16 C.F.R. Part 260 (2012). 

8

 16 C.F.R. § 260.8. 

9

 Notably, ECM did not make this nominal revision until October 2012 at the earliest, 

even though ECM’s claims had been the subject of an FTC investigation since August 2011. 

FOF ¶ 38. 

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See, e.g., CCX-15. 

Despite adopting this disclaimer in late 2012, ECM continued to make the nine-month-tofive-year and landfill claims on its website, FOF ¶ 39, in marketing materials it distributed to 

customers, FOF ¶ 40, and in emails to customers, FOF ¶ 41, for another fourteen months.

10 

ECM’s customers explain they viewed it as merely a “change in the rules” rather than a change 

in the performance of the product, which they still understood to mean complete biodegradation 

in nine months to five years. FOF ¶ 43. 

Additionally, ECM left its claims that ECM Plastics will completely biodegrade in a 

landfill largely untouched. For instance, the disclaimer itself continued to claim biodegradation 

in “most landfills.” See, e.g., CCX-15; CCX-17. And its marketing materials still touted that 

ECM Plastic was “fully” biodegradable. See, e.g., CCX-15; CCX-25. 

C. ECM’s Unqualified Claims: “Biodegradable” Advertising.

ECM claims that ECM Plastic is “biodegradable”—with no qualification—in a variety of 

advertising media. Every page of ECM’s website, www.ecmbiofilms.com, displayed the tagline, 

“Additives for Manufacturing Biodegradable Plastic Packaging and Products,” with a description 

of ECM’s allegedly groundbreaking technology for biodegradable plastic. FOF ¶ 26. 

 

10 FOF ¶ 38. Mr. Sinclair testified that ECM stopped using the nine month to five year 

claim three years ago. (Sinclair Tr., 769.) This is contrary to Sinclair’s own admission at his 

deposition in February 2014, that ECM had only removed the claim at the end of 2013. CCX819 at 54 (discussing pulling the 9 months to 5 year claim “within the last three months or so”). 

And directly contradicts evidence showing that the claim still appears at least on the current 

brochure. RX-138 at 9. 

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CCX-19 (homepage www.ecmbiofilms.com). ECM distributed brochures aimed at “green 

business” promising that its technology yields “biodegradable plastic products” that are “priced 

competitively with, and have the same mechanical characteristics as, traditional non-degradable 

products.” FOF ¶ 27. Its flyers describe plastics made with the ECM Additive “Biodegradable” 

or “100% Biodegradable,” and its logos, letters, and certificates of biodegradability further 

endorse the biodegradability of ECM Plastic. FOF ¶ 28-39. 

CCX-8 (“Logo”). 

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CCX-18 (“Certificate”). Even ECM’s technical data and pricing sheets contained the claim. 

FOF ¶¶ 184-185. 

ECM’s emails to customers echoed and expanded on these claims. FOF ¶ 30. For 

instance, ECM explained:

[u]sing a green tint is always a good way to distinguish your product from others to stand 

out. I would also recommend printing on the trash liner something like “Biodegradable” 

or “This Liner Is Totally Biodegradable”. I attached our logo that can be used if you want 

but does not have to be. 

CCX-317. Similarly, Robert Sinclair, ECM’s President and CEO, suggested that customers use 

the claim: “While this bag is fully biodegradable, it is also still recyclable. Please recycle where 

possible.” Further explaining that: “Most use our logo with the word ‘biodegradable’ or simply 

have ‘biodegradable’ with our company name and website but I like a statement like above to go 

as well.” CCX-308. 

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ECM encouraged its customers to use the unqualified biodegradable claim, FOF ¶ 68, 

and they did: 

CCX-50 at 2; see also FOF ¶ 186. 

D. ECM’s Testing Claim: Proven to Work. 

Throughout its time selling the ECM Additive, ECM has made another claim of central 

importance to its business: hundreds of thousands of dollars spent on independent testing to 

nationally-recognized standards proves that the ECM Additive makes plastic biodegradable. The 

evidence shows that ECM repeatedly made this claim in its marketing materials and its customer 

communications. FOF ¶¶ 44-45. 

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1. ECM’s Testing. 

ECM has touted the “hundreds of thousands of dollars” it spent on “independent” testing 

at “renowned” labs. See CCX-19-20; CCX-332-CCX-340. In truth, until 2006,11 ECM had only 

three purportedly independent tests:12 (1) “Ecological Assessment of ECM Plastic” (“Ecological 

Assessment”)13; (2) “Final Report: Biodegradation Testing, Aerobic Biodegradation Under 

Controlled Composting Conditions for 40-gal trash bags”; and (3) AMC: Environmental, 

Material and Product Evaluations – Laboratory Report.14 None shows complete biodegradation 

(in any timeframe) or biodegradation in landfills. For instance, only one of these studies pertains 

to anaerobic (without oxygen) environments, but that test has fatal flaws—it was not conducted 

for a sufficient duration, at the right temperature and moisture conditions, or with proper 

controls. See supra at 16. The remaining tests are composting tests, i.e., aerobic tests (with 

oxygen), which ECM’s landfill expert concedes are irrelevant to claims of biodegradation in 

 

11 Between 2006 and 2012, there were an additional twelve (12) tests, but only two were 

actually conducted for ECM at its direction and one was conducted by Dr. Barber. See FOF 

¶ 449. ECM’s customers commissioned the remaining tests by small labs such as Northeast 

Laboratories, Inc. and Eden Research Laboratories. FOF ¶ 449 (identifying all of the tests of 

ECM Plastic). For reasons explained in Section , none of the tests ECM identifies support its 

claims.

12 Sinclair testified that there were a number of informal, undocumented “tests” that he 

and the founder of the technology, Patrick Reily, had conducted. (Sinclair Tr. 748-749; 755-

756.) 

13 The “Ecological Assessment of ECM Plastic,” Prepared by ChemRisk, A Service of 

McLaren/Hart Inc., Feb. 16, 1999, was often referred to by ECM as the “McLaren/Hart” or 

“ChemRisk” assessment. FOF ¶ 50. 

14 See FOF ¶ 449 (identifying all of the tests of ECM Plastic). ECM never appears to 

have relied on the AMC report (CCX-160); it did not provide it as part of its substantiation 

materials and never circulated it to its customers as a basis for its claims. See FOF ¶ 50. 

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landfills. FOF ¶ 182 (“To begin, for purposes of biodegradability under landfill conditions, only 

anaerobic biodegradability is of relevance.”).

15 

2. The Ecological Assessment is Unreliable and Irrelevant. 

Although the Ecological Assessment purports to be a test conducted by McClaren/Hart, it 

is not a test at all—rather it is a summary of tests without any supporting documentation.16 The 

Ecological Assessment, on which ECM has principally relied over the years, FOF ¶ 50, 

summarizes several tests that purport to show biodegradation. During the hearing, Dr. Timothy 

Barber (an oceanographer), whose name appears on the test, explained that his job was merely to 

summarize test results provided to him. (Barber, Tr. 2014-2018.) Dr. Barber testified that he 

summarized several tests, some of which, but not all, he believed had been conducted by O.W.S. 

(Barber, Tr. 2014-2018.) During his examination, he was asked about the tests that he had 

summarized, which supposedly had been appended to the original report. (Barber, Tr. 2014-

2018.) Dr. Barber was asked to review two tests (RX-264 and RX-265) during his examination. 

Dr. Barber identified RX-264 as the test he purportedly summarized in Section 2.1 and RX-265 

as the test he purportedly summarized in Section 2.3 of the Ecological Assessment. (Barber, Tr. 

2014-2015.) 

 

15 Remarkably, ECM’s experts cannot agree on whether aerobic testing is relevant to 

biodegradation in landfills. Dr. Sahu testified that anaerobic testing is of some relevance (Sahu, 

Tr. 1839-1840), which is directly contrary to Dr. Barlaz’s report and deposition testimony, FOF 

¶ 182. But the landfill experts on both sides agree that landfills are predominantly, if not almost 

exclusively anaerobic environments. FOF ¶ 182. 

16 Complaint Counsel moved to exclude the McLaren report because it is patently 

unreliable. Complaint Counsel’s Motion In Limine to Exclude the 1999 McLaren Hart Report 

(filed July 14, 2014). Although the Court ruled that the McLaren report is admissible, it should 

not be given much weight. It is unclear who conducted these “tests” or how. 

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Despite ECM’s efforts to bolster the reliability of the ECM Assessment by providing 

some supporting documentation for the tests Dr. Barber summarized in the Assessment, these 

efforts fail for at least three reasons. First, Dr. Barber identified only two of at least five

different tests summarized in the report—meaning more than half of the underlying data is 

missing. (See Barber, Tr. 2014-2018 (identifying tests for Sections 2.1 and 2.3, but no tests for 

Section 2.2, 3.0, and 4.0).) Second, the two reports Dr. Barber did identify (RX-264 and RX265) cannot be correct. One of the tests he supposedly summarized (RX-265) was dated after

the ECM Assessment was written. Barber Tr. 2071-2072. The second O.W.S. report, RX-264, 

describes an anaerobic biodegradation study of the ECM Additive, not a study of a 50% ECM 

film as described in Section 2.3 of the Ecological Assessment. Compare CCX-266E with RX264. 

Moreover, Dr. Barber admitted that none of the supporting tests were in his files or had 

been produced by him. Barber Tr. 2072. Finally, neither test is signed by O.W.S., further 

calling into question whether these are the correct tests or had even been performed by O.W.S. at 

all. See RX-264 at 61 (“The sponsor gets 3 copies of the final report, signed by the study 

director and the quality assurance manager of O.W.S.”); compare RX-264 and RX-265 (no 

signatures) with CCX-170 and CCX-171 (O.W.S. final reports with signatures). 

Third, most, if not all, of the tests summarized in the ECM Assessment are irrelevant to 

ECM’s claims at issue in this case. Section 2.1 summarizes the results of a short-term aerobic 

test (with oxygen test) and Section 2.2 summarizes a long-term aerobic test, which, as discussed 

supra, are not appropriate measures for biodegradation in landfills (oxygen-less environments). 

Additionally, Sections 3 and 4 summarize tests evaluating whether the ECM Additive and ECM 

Plastic are environmentally safe, not whether the plastic is biodegradable. 

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a. ASTM D5511 Testing

The only section of the test addressing anaerobic biodegradation of ECM Plastic (which 

is the only test condition that is relevant to ECM’s claims at issue in this case) is Section 2.3, 

which summarizes an anaerobic (oxygen-less) test conducted under ASTM D5511: “Standard 

Test Method for Determining the Anaerobic Biodegradation of Plastic Materials Under HighSolids Anaerobic-Digestion Conditions.”17 However, the ASTM D5511 test does not support 

ECM’s claims any more than the composting tests do. 

The ASTM D5511 is a screening-level test designed to evaluate whether the test 

specimen is capable of biodegrading under optimal anaerobic conditions. FOF ¶ 187. It is a

“gas evolution test,” in which the test specimen is exposed to a source of bacteria (inoculum), 

and the end-products of biodegradation (biogases) are observed and measured. CCX-891 ¶ 52. 

This short-term test is designed to run for 15-30 days, and is intended to replicate anaerobic 

digesters. CCX-891 ¶ 52. There are no anaerobic digesters treating household waste in the 

United States. CCX-891 ¶ 52. Rather, in the U.S., anaerobic digesters are primarily used at 

farms to treat animal waste, although there are also some applications for wastewater treatment. 

CCX-891 ¶ 52. This anaerobic sludge from wastewater (sewage) treatment plants is what many 

of the labs used to conduct this test. FOF ¶ 470. 

 

17 ASTM D5511 not only does not substantiate ECM’s claims, but ECM repeatedly 

mislead its customers as to its purpose and use. ECM routinely conveyed to its customers that 

ECM Plastics were “certified to”; “passed”; or “met” this standard. See, e.g., CCX-288. But the 

ASTM D5511 is not a “pass/fail” test. Rather, it is a test method that describes a set of 

procedures and processes for conducting a test. See CCX-891 ¶¶ 44-53. Unlike pass/fail tests 

e.g., ASTM D6400, in which one can state that the treated item is “compostable” at the 

conclusion of the test, ASTM D5511 only allows the results of the test to be reported, for 

example 4% biodegradation of the test sample was observed over 30 days under anaerobic 

digestion conditions. CCX-83. And ECM knew this all along. CCX-963 

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When properly conducted, ASTM D5511 can be used as a screening-level test. CCX-891 

¶ 53. It cannot, however, be used to support a scientific conclusion that a biodegradable plastic 

will biodegrade to completion in a landfill—it is not conducted under the correct temperature or 

moisture conditions—and has numerous other fatal flaws (e.g., test is conducted for insufficient 

duration and without all necessary proper controls for this type of plastic additive). See infra at 

61-76; see also FOF ¶¶ 139-140. Importantly, as explained above, the underlying data for this 

test is missing from the record.

3. ECM “Certifies” Performance. 

Microtech Research, Inc. (the owner of the ECM Additive) commissioned the ECM 

Assessment, not ECM. FOF ¶ 49. However, ECM often provides the ECM Assessment to its 

customers as its own independent testing, FOF ¶¶ 44, 45, and 50, to convince customers to 

purchase the Additive without doing their own testing. Below is a typical exchange between 

ECM and its customers regarding the need for testing: 

CCX-301; see also FOF ¶ 57. 

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The testing claim is essential to ECM’s business: it gives ECM credibility with its target 

audience, plastic producers and other businesses who lack sophistication about biodegradation. 

FOF ¶ 51. ECM’s customers also rely on ECM’s testing claims as their basis to pass 

biodegradable claims on to their customers and to end-use consumers. FOF ¶ 52. 

ECM’s “Certificate of Biodegradability of Plastic Products Made by [Customer] that 

Incorporate the ECM MasterBatch Pellet Technology” (“Certificate”) is also central to its testing 

claim. FOF ¶ 51. The Certificate claims to “certify that numerous plastic samples, submitted by 

ECM Biofilms, Inc., have been tested by independent laboratories in accordance with standard 

test methods approved by ASTM, ISO and other such standardization bodies . . . .” FOF ¶ 47. 

The Certificate states that the tests “certifies [sic] that plastic products manufactured with ECM 

additives can be marketed as biodegradable” and the certificate itself can be “used by [customer] 

to validate its claims to the biodegradability” of ECM Plastic. FOF ¶ 48. 

ECM frequently provides its customers with the Certificate of Biodegradability. FOF

¶¶ 53, 56. As ECM routinely told customers, ECM has “proof,” FOF ¶ 54; ECM stands behind 

its claims, FOF ¶55; and the Certificate was a means of “assuring you and your customers” 

that ECM’s additive worked as advertised , FOF ¶ 56. ECM also used the certificate to convince 

customers to purchase the additive without doing their own testing. FOF ¶ 57. ECM repeatedly 

told customers that testing was unnecessary thanks to ECM’s assurances in the certificate; testing 

would only create unnecessary costs and delay. FOF ¶ 57. For example, in one typical 

exchange, a prospective customer asked: 

Does ECM test, or recommend testing, the end-users’ products to ensure that they 

biodegrade in less than 5 years? If the burden is split between the two parties 

(ECM & Williams) or if it rests solely on Williams, can you tell me what test is 

run, the expected cost, and timeframe? If that’s not part of ECM’s procedure, let 

me know. 

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ECM Director of Sales, Tom Nealis promptly responded: 

We have independent third party test results that prove our claims. ECM will 

issue to Williams Industries our Certificate of Biodegradability. With our 

information our customers don’t find a need to incur the expense of duplicating 

our test results.

 

CCX-300. Similarly, although Mr. Sinclair testified that ECM “encouraged” customers to test, 

(Sinclair, Tr. 772-773), the evidence clearly shows the contrary. For instance, one of ECM’s 

customers, Fabritrak, asked ECM to recommend a lab for biodegradation testing because the lab 

it contacted was too expensive. Mr. Sinclair’s response was to discourage the testing:

Concerning testing, yes it is very expensive which is why most all customers rely 

on our certification from our hundreds of thousands of dollars of testing over the 

years rather than going through the expense themselves; especially if they are 

concerned about their costs as you have indicated that you are. I have attached a 

certificate for your company hereto if you would like to use it.

CCX-305. 

Many of ECM’s customers are relatively small companies without the resources to test 

the ECM additive themselves. FOF ¶ 86. Thanks to ECM’s assurances and insistence that its 

testing proves its claims, these customers rely on ECM’s representations about its proof. FOF

¶ 58. And, in turn, customers passed the testing and ECM’s testing claims, or the Certificate, on 

to their customers by posting the Certificate on their websites, sending it to downstream 

customers, and copying the language verbatim as proof that their plastic is biodegradable. FOF

¶¶ 59-61. 

III. ECM SELLS THE RIGHT TO ADVERTISE THAT ECM PLASTICS ARE 

BIODEGRADABLE.

Customers buy the ECM additive because they want biodegradable plastic—and they 

want to be able to advertise their plastic as biodegradable. FOF ¶ 22. ECM has sold its product 

to about 300 customers, FOF ¶ 23, who passed ECM’s “biodegradable plastic” claims to millions 

of end-use consumers, FOF ¶ 24. ECM’s customers use these claims to sell a host of products 

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and packages—ranging from grocery bags to shampoo bottles, Frisbees, golf tees, highlighters, 

storage cases, shoe soles, mailers, zippers, plastic cutlery, straws, and more. FOF ¶ 25.18

ECM does not simply sell an additive; more importantly, it sells the purported ability to 

make a “biodegradable” advertising claim. FOF ¶ 62. To that end, ECM provides its customers 

with the tools to pass ECM’s biodegradable claims to downstream and end-use consumers. 

Chief among them are the Certificate and the ECM “biodegradable” logo. ECM provides the 

logo, a picture of a green tree with the words “ECM” and “Biodegradable,” to its customers to 

place on their products, packaging, and advertisements. FOF ¶¶ 62-63. Many customers use the 

logo, especially on plastic bags. FOF ¶ 64. Customers have used the Certificate on their 

websites. FOF ¶ 59. 

In addition to the Certificate and logo, ECM provides its customers with marketing 

materials to use when selling ECM “biodegradable” plastic. FOF ¶ 65. Tom Nealis specifically 

advised customers to refer consumers to the ECM website, and suggested that they use ECM’s 

flyer for marketing. FOF ¶¶ 66-67. 

ECM not only provided its customers with tangible items to pass on biodegradable 

claims, it was also actively involved in reviewing, revising, and approving downstream 

biodegradable advertising claims. Frequently, ECM simply instructed customers to make 

unqualified biodegradable claims. FOF ¶ 68. Other times, ECM provided detailed guidance on a 

customer’s specific ad copy. FOF ¶ 69. For example, ECM was integrally involved in 

developing and approving the following marketing claim for “biodegradable” grocery bags used 

 

18 ECM tried to suggest at trial that its customers only make thin films and foam 

packaging. (Sahu, Tr. 1953-1954.) The host of products containing the Additive is not so 

limited, nor is ECM’s advertising directed solely to one segment of the market. See, e.g., CCX25 (website stating “The potential uses of this technology are limited only by the imagination.”). 

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by a Hawaiian grocery store chain called Down to Earth All Natural and Organic (“Down to 

Earth”), which contains express claims of complete biodegradation in a landfill in nine months to 

five years:

19

CCX-44-45. 

IV. NEITHER ECM NOR ITS CUSTOMERS ARE BIODEGRADATION EXPERTS.

Expertise in making plastic does not entail expertise in biodegradability. In fact, neither 

ECM nor its customers have the breadth of knowledge and expertise necessary to evaluate and 

understand the science behind the alleged biodegradability of ECM’s claims. 

 

19 From mid-2008 through early 2014, Down to Earth purchased “biodegradable” grocery 

bags from a distributor who bought bags from an ECM customer, Island Plastic Bags. (CCX803 (DTE, Dep. at 19)).

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A. ECM Lacks Biodegradation Expertise.

ECM’s business is selling a purportedly “revolutionary,” complex technology, but no 

ECM employee has any degree in chemistry, biochemistry, polymer science, or environmental 

science. Robert Sinclair, the President of ECM, is the point person for all things related to ECM. 

Mr. Sinclair is ECM’s “main sales contact” and advises customers on both marketing and the 

“science” behind ECM’s technology. FOF ¶¶ 71-73. A lawyer by training, Mr. Sinclair does not 

have any formal science training beyond a smattering of high school and undergraduate science 

classes, some time teaching science in the Cleveland Public Schools, and reading Scientific 

American. FOF ¶¶ 74-75. 

ECM’s Director of Sales is Tom Nealis. FOF ¶ 76. Though his title and frequent 

customer interactions suggest heavy involvement in the sales process, Mr. Nealis disavows 

knowledge about most aspects of ECM’s business and customer relationships. FOF ¶¶ 77-80. 

Indeed, he claimed that he did not know how many customers ECM had, why they wanted to 

buy the ECM additive, or the size of customers. FOF ¶¶ 77-80. Mr. Nealis does not have a 

college degree. FOF ¶ 81.

In fact, the only employee to have any science-related degree is Alan Poje, and he left the 

company in 2013. FOF ¶ 82. Mr. Poje is an engineer by training, not an expert in 

biodegradation, and lacks the requisite background or training to advise customers regarding 

biodegradation of plastics. Nor did he. His role was to advise customers on plastics extrusion 

(the mechanics of adjusting the manufacturing process to incorporate the ECM additive), not to 

advise customers regarding biodegradation times. FOF ¶¶ 83-84. 

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B. ECM’S Customers Lack Sophistication to Meaningfully Evaluate ECM’s 

Purported Substantiation. 

Many of ECM’s customers and downstream users are equally untrained in the areas of 

biodegradation. ECM itself describes some of its customers as “mom and pop”-type businesses. 

FOF ¶ 86. Mr. Sinclair further testified that his customers are sophisticated in various plastic 

manufacturing processes—with no mention of biodegradation: 

Q. Are your customers, in your view, sophisticated? 

A. Absolutely they’re sophisticated.

Q. What makes you think they’re sophisticated? 

A. When you’re making a plastic product, there’s so much that -- or, again, really, 

pretty much any product but especially a plastic product, you have to understand 

the various resin choices that you have, the plastic materials. You may want to use 

low-density polyethylene on one thing and you want to use linear low-density 

polyethylene on something else. Or you need high density to strengthen this up or 

you need to use something of polypropylene. Or you know, if I look at this screen 

in front of me, it’s polycarbonate most likely. And then there’s hundreds of 

different polycarbonates, and so they have to find the exact, right one that's going 

to give them the strength, the lightness, the various other factors, so they’re in --

whether they have their own scientists in-house or not, they’re in consultation 

with scientists all the time. These are very -- and again, this -- they may not have 

book learning at some point, but to function in the marketplace and to get a 

competitive product out there is a very sophisticated process, and so these people, 

they have to understand how their machinery works, how to get the right releases, 

what additives to use, how to get the right color, how to get the right release from 

a mold, all these things. There’s slippage and there’s antiblocks for people that 

are extruding films. There are all these various things that they have to have 

worked through to get the finished product out the other end and consistently out 

the other end without a lot of waste. So it’s a very sophisticated process, and 

these people are very good at it. Obviously they make their money doing so. 

(Sinclair, Tr. 773-774.) 

Indeed, deposition testimony from a number of ECM’s customers shows that they did not 

have the resources or know-how to evaluate ECM’s biodegradability claims (beyond seeking 

information from ECM itself) or conduct their own biodegradability testing. FOF ¶ 87. For 

example, one of ECM’s customers, Island Plastic Bags, is very sophisticated when it comes to 

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manufacturing customized plastic bags. But it is still a small company—only about 16 

employees—and, as such, does not employ anyone with any expertise related to 

biodegradability. FOF ¶ 88. Island Plastic Bags reviewed ECM’s testing (the Ecological 

Assessment), but had no way to evaluate whether the testing had been properly conducted and 

could reliably support its conclusions. FOF ¶ 89. Despite its sophistication in manufacturing, 

Island Plastic Bags had to rely on ECM when it came to understanding biodegradability. FOF

¶ 90. 

Other customers had the resources to conduct or commission their own testing, but not 

the expertise to meaningfully evaluate the results. FOF ¶¶ 91, 95-97. These companies turned to 

Mr. Sinclair for guidance in understanding results, including negative results. FOF ¶¶ 91, 95-97. 

Correspondence with these customers shows that Mr. Sinclair is adept at explaining away 

negative test results by assuming testing flaws or by accusing the tester of bias. FOF ¶ 97. 

Indeed, Mr. Sinclair also learned to steer potential customers away from testing labs that 

provided negative results and towards labs whose dubious testing protocols could produce the 

semblance of positive results. FOF ¶ 99.

For example, in ECM’s Summary Database, which reflects its communications with its 

customers, there is a telling exchange between Robert (“Bob”) Sinclair and Scott McGregor at 

Shields Bag and Printing Company (a long-time ECM customer). In December of 2012, Mr. 

McGregor asks about the lack of biodegradation after 75 days in a test run by O.W.S.: 

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CCX-422. Mr. Sinclair ultimately claims that O.W.S. lacks integrity, and refers Shields Bag to 

another lab (Eden Research Laboratories): 

CCX-422. 

Tellingly, prospective customers that have both the resources to conduct tests and the 

expertise to evaluate the results do not use ECM’s product. A prime example is 3M Company, a 

global manufacturer with approximately $30 billion in sales (employing 75-80,000 people). FOF 

¶ 92. 3M was initially interested in the purported biodegradability of ECM Plastic. CCX-821 

(3M, Tr. 31.) 3M has its own environmental laboratory, with ready capacity to conduct its own 

testing of ECM’s additive. FOF ¶ 92-93. And 3M did in fact conduct its own test—which 

showed no biodegradation of plastic containing the ECM additive. FOF ¶ 94. Needless to say, 

3M did not become a customer of ECM.20

 

20 3M is not unique. Other companies with enough sophistication and resources to 

evaluate biodegradation tests also rejected ECM’s technology. FOF ¶ 94. For example, 

Covidien identified the potential issues related to the additive, see CCX-230; CCX-254-CCX256, and sent plastic with the ECM additive to an independent laboratory, O.W.S., for testing—

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V. ECM REPEATEDLY IGNORED EVIDENCE THAT ITS ADDITIVE DOES NOT

WORK.

ECM’s spurious claims have not gone unnoticed. For years, ECM customers have 

expressed concerns to Mr. Sinclair and ECM about the validity of its biodegradability claims. 

Repeatedly, they informed ECM that its testing did not substantiate its claims. FOF ¶ 102. In 

fact, Mr. Sinclair knew that the National Advertising Division of the Better Business Bureau and 

at least three foreign tribunals had found that several ECM customers had made false and 

unsubstantiated biodegradability marketing claims (that used the very language that ECM 

assured its customers was backed by testing) concerning products containing the ECM additive. 

FOF ¶ 103. 

Despite this scrutiny, ECM continued making its claims and routinely dismissed 

criticisms as nothing more than bias against the company. FOF ¶ 104. For example, in rejecting 

criticisms about ECM from Michigan State University Professor and ASTM Plastics Committee 

Head Dr. Ramani Narayan, Mr. Sinclair referred to Professor Narayan as, among other things, 

“very biased” and a “paid proselytizer.” FOF ¶ 105. Mr. Sinclair has also accused entities such 

as the Biodegradable Products Institute (“BPI”) and OWS of being biased opponents of ECM. 

FOF ¶ 106. 

ARGUMENT

I. ECM MADE DECEPTIVE ADVERTISING CLAIMS.

An advertisement is deceptive if it contains a representation or omission of fact that is 

likely to mislead a consumer acting reasonably under the circumstances, and that representation 

or omission is material to a consumer’s purchasing decision. In re POM Wonderful LLC, No. 

 

which showed no biodegradation of ECM plastic, see CCX-157 (test); CCX-158 (presentation 

summarizing test).

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9344, 2013 FTC LEXIS 6 at *17-18 (FTC Jan. 10, 2013) (citing FTC Policy Statement on 

Deception, 103 F.T.C. 174, 175 (1984) (appended to Cliffdale Assocs., Inc., 103 F.T.C. 110 

(1984)) (“Deception Statement”)). To evaluate whether an advertisement is deceptive, the 

Commission applies a three-part inquiry: “(1) what claims are conveyed in the advertisement; 

(2) are those claims false or misleading; and (3) are those claims material to prospective 

consumers.” Kraft, Inc. v. FTC, 970 F.2d 311, 314 (7th Cir. 1992). 

ECM violated Section 5 of the FTC Act because: (1) it disseminated advertisements 

conveying the claims alleged in the Complaint; (2) ECM’s claims were false or misleading; and 

(3) the claims are material to consumers. 

A. ECM Disseminated Advertisements Conveying The Claims Alleged In The 

Complaint.

Advertising claims may be express or implied. “Express claims directly represent the 

fact at issue while implied claims do so in an oblique or indirect way.” Kraft, 970 F.2d at 318 

(citing Thompson Medical, 104 F.T.C. 648,788 (1984)). ECM made both express and implied 

biodegradable claims for plastics containing its Additive. ECM’s customers received the claims 

through ECM’s website and myriad promotion materials, e.g., brochure, flyers, technical data 

sheets, technology summaries, Certificate, testing, and presentations. FOF ¶¶ 46, 63, 65-66. 

End-use consumers received these claims both directly through ECM’s website and 

through the means and instrumentalities ECM provided to its customers. FOF ¶¶ 107-108, 24-

25. 

Through all of these means, ECM repeatedly made four express claims: (1) ECM 

Plastics will biodegrade completely; (2) in nine months to five years; (3) in a landfill; and 

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(4) scientific testing proves these claims.21 While under investigation by the FTC, ECM changed 

its primary advertising claim to “biodegradable in some time greater than a year.”22 ECM also 

continued to claim prominently that ECM Plastic was “biodegradable” both on its website and in 

its brochure.23 This advertising made three implied claims: (1) ECM Plastics will completely 

biodegrade; (2) after customary disposal (i.e., in a landfill); (3) in a period close to one year, or at 

least within 5 years. Finally, one ECM expert opined regarding a fourth implied claim: that 

ECM Plastic biodegrades more rapidly than conventional plastic. (Sahu, Tr. 1753-1754). In 

addition to making these claims, ECM provided others with the means and instrumentalities to 

disseminate them. 

1. ECM Made Express Biodegradable Claims.

When claims are express, one can “infer that reasonable consumers interpret them to 

mean what they say.” FTC v. USA Beverages, Inc., No. 05-61682-CIV, 2005 U.S. Dist. LEXIS 

39075, at *16-17 (S.D. Fla. Dec. 5, 2005); accord FTC v. Pantron I Corp., 33 F.3d 1088, 1096 n. 

21 (9th Cir. 1994). 

ECM repeatedly made four express claims: (1) ECM Plastics will biodegrade 

completely; (2) in nine months to five years; (3) in a landfill; and (4) scientific testing proves 

these claims.24 While under investigation by the FTC, ECM changed its primary advertising 

 

21 FOF ¶¶ 18, 26-29, 31-33, 44-48, 50. 

22 FOF ¶ 38. 

23 FOF ¶¶ 39-43. 

24 FOF ¶¶ 18, 26-29, 31-33, 44-48, 50. 

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claim to “biodegradable in some time greater than a year.”25 Specifically, on its website, in its

brochures, and in its presentations, as well as in its letters, emails, and verbal communications, 

ECM repeatedly claimed that plastic containing the ECM Additive would completely biodegrade 

in nine months to five years in a landfill—and that testing proved it.26 These express claims are 

clear on their face. The law is plain that “[e]xtrinsic evidence is unnecessary to establish the 

impression that consumers would take away from an ad if the claims are reasonably clear from 

the face of the advertisement.” In re POM Wonderful LLC, 2013 FTC LEXIS 6 (Jan. 10, 2013);

Pantron I at 1088. Accordingly, no further analysis is necessary to determine that ECM made 

these claims and that its customers and consumers reasonably understood them to mean what 

they said. 

Notably, ECM’s own consumer perception expert, Dr. David Stewart, agreed that 

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

have scientific support. FOF ¶ 191. Thus, where—like here—there is no competent and reliable 

scientific evidence for ECM’s claims, the Court should prohibit them. 

2. ECM Also Made Implied Biodegradable Claims.

“The courts and the FTC have consistently recognized that implied claims fall along a 

continuum from those which are so conspicuous as to be virtually synonymous with express 

claims to those which are barely discernible. It is only at the latter end of the continuum that 

extrinsic evidence is necessary.” FTC v. QT, Inc., 448 F. Supp. 2d 908, 958 (N.D. Ill. 2006) 

(quotation omitted), aff'd, 128 F.3d 530 (7th Cir. 1997). ECM’s implied claims that ECM 

Plastics will completely biodegrade after customary disposal (i.e., in a landfill) are so clearly 

 

25 FOF ¶ 38. 

26 FOF ¶¶ 31-33, 44, 45, 54. 

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implied that they need no interpretation. Thus, consumer perception evidence is unnecessary for 

such claims because they “are reasonably clear from the face of the advertisement.” Kraft, Inc. 

v. FTC, 970 F.2d at 319. 

Additionally, when necessary, extrinsic evidence such as consumer surveys, copy tests, 

or expert witness testimony may be used to interpret claims. In re Telebrands Corp., 140 F.T.C. 

278, 291 (2005), aff'd, 457 F.3d 354 (4th Cir. 2006). With respect to ECM’s implied rate claims, 

there is strong extrinsic evidence demonstrating that consumers understood ECM’s 

“biodegradable” and “biodegradable in some period greater than a year” claims to mean ECM

Plastics will completely biodegrade in a landfill within a year. 

a. The Evidence Establishes That Substantial Numbers of Consumers 

Understand “Biodegradable” Claims to Imply Within One Year. 

Significantly, as explained below, the lowest of the four relevant studies still estimates 

the percentage of consumers who believe “biodegradable” means “biodegradable within one year 

or less” is 25%. Put differently, each of four different studies, conducted with four different 

methodologies, at four different times, by four different sets of researchers, concludes that 

between 25% and 60% of consumers believe that “biodegradable” means “biodegradable within 

one year or less.” Although ECM nitpicks the studies in various (largely baseless) respects, Yale 

Professor Shane Frederick testified regarding their “convergent validity,” i.e., despite their 

different alleged flaws, the probability that they are all materially incorrect is essentially nil.

i. The Number of Deceived Consumers Vastly Exceeds The 

Threshold For A “Substantial Minority.” 

Although the Commission has never determined a minimum number of affected 

consumers necessary to satisfy the “substantial minority” threshold, courts and the Commission 

have found repeatedly that percentages ranging from 10% to 22% are sufficient. See, e.g., 

Firestone Tire & Rubber Co. v. FTC, 481 F.2d 246, 249 (6th Cir. 1973); In the Matter of 

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Telebrands Corp., 140 F.T.C. 278, 325 (2005). As discussed below, in the four studies before 

the Court, the percentage of consumers who believe that “biodegradable” products will 

biodegrade within one year or less generally ranges from 25% to 60% of consumers. Thus, this 

is not a borderline case.27

ii. The Convergence of All Four Studies Provides Overwhelming 

Evidence That Substantial Numbers of Consumers Understand 

“Biodegradable” Claims to Imply Within One Year. 

Professor Frederick testified extensively regarding “convergent validity.” FOF ¶¶ 192, 

193, 208, 291, 371, 373, 374. “Convergent validity” refers to the degree that studies employing 

different methodologies yield similar results. FOF ¶ 192. Although not using the technical term 

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

of results from different consumer perception studies confirms that they are “reasonably reliable 

and probative.” See, e.g., In the Matter of Bristol-Myers, 85 F.T.C. 688, 744 n.2 (1975); In the 

Matter of Am. Home Prods., 98 F.T.C. 136, 252 (1981). Indeed, as one FTC ALJ made clear, a 

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

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

 As discussed below, there is more than adequate evidence that: (1) standing alone, 

Professor Frederick’s research establishes that substantial numbers of consumers understand 

“biodegradable” to mean biodegradable within one year; (2) the two studies the Commission 

 27 An already overwhelming argument becomes even stronger if one moves the 

benchmark to five years. In APCO, 65% of respondents believe that packages labelled 

“biodegradable” should biodegrade within four years. Of 204 respondents in Dr. Stewart’s 

survey who gave specific estimates about how long an unspecified material would take to 

biodegrade, 58% estimated within five years. According to Synovate, 45% of consumers believe 

that “less than five years” is a reasonable amount of time for a “biodegradable” package to 

decompose in a landfill. In Professor Frederick’s GCS research, depending on the type of 

question and the wording, 40% to 76% of respondents understood that a plastic product labelled 

“biodegradable” would biodegrade within five years. Of the twelve questions Professor 

Frederick asked directly addressing this subject, more than 50% of respondents understood that a 

plastic product labelled “biodegradable” would biodegrade within five years in nine of twelve 

cases. FOF ¶¶ 209-13 

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originally considered (APCO and Synovate), when taken together, establish the same fact; and 

(3) standing alone, Dr. Stewart’s data establishes the same fact. However, the Court need not 

consider whether any study alone suffices. Instead, the combined power of all four studies 

makes the conclusion beyond reasonable dispute: 

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

focused on plastic products, and found that 60% of respondents believe that 

packages labelled “biodegradable” should biodegrade within one year. FOF 

¶¶ 194, 195.  In 2010, Synovate conducted an internet panel survey, and reported that 25% of 

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

“biodegradable” package to decompose in a landfill. FOF ¶¶ 196, 197.  In 2014, Professor Frederick used Google Consumer Surveys (“GCS”) to assess 

how much time consumers believe plastic products labelled “biodegradable” will 

take to biodegrade. He estimated that 35% believe such products will biodegrade 

within one year. FOF ¶¶ 198-200.  In 2014, Dr. Stewart supervised a 400-person landline survey. Of 204 

respondents who gave specific estimates about how long an unspecified material 

would take to biodegrade, 33% estimated within one year. He also asked 

respondents what ECM’s disclaimer “some period greater than a year” meant, and 

of the 150 respondents who gave specific biodegradation time estimates, 50% 

estimated within one year. FOF ¶¶ 201-7. 

Professor Frederick explained that the convergent validity between these different studies 

establishes that at least 35% of consumers believe that plastic products labelled “biodegradable” 

will biodegrade within one year. FOF ¶ 208. 

Significantly, ECM’s response to “convergent validity” misunderstands the concept. 

“Convergent validity” refers to the convergent results of different surveys with different flaws. 

ECM’s expert, Dr. Stewart, rejected the convergence between the four studies in this case 

because, according to him, the similarity of their results “may simply reflect the fact that they 

share the same flaw.” FOF ¶ 214. This is an attack on a straw man. In fact, these surveys do not 

share the same flaw, nor does Dr. Stewart allege that they do. Each employs significantly 

different methodologies, giving validity to the overall conclusion that significant numbers of 

consumers understand that products labelled “biodegradable” will biodegrade within one year. 

iii. Standing Alone, Professor Frederick’s Research Establishes 

That Substantial Numbers of Consumers Understand

“Biodegradable” Claims To Imply Within One Year. 

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(a) Survey Research Need Not Be Perfect—Only Reasonably 

Reliable and Probative. 

Survey evidence need not be perfect, as long as it is “reasonably reliable and probative.” 

See, e.g., POM Wonderful LLC, 2013 FTC LEXIS 6 at 49. FOF ¶ 215. In two respects, ECM 

suggests that Professor Frederick misunderstood this standard. First, ECM highlights the fact 

that Professor Frederick—who is an academic, not an attorney—was unfamiliar with the 

standards the Commission uses to evaluate survey research. FOF ¶ 216. However, when asked, 

on cross-examination, “[w]hat do you consider to be the generally accepted survey principles 

that define a valid survey,” Professor Frederick responded: “A valid survey is one which 

produces accurate results.” FOF ¶ 217. This is functionally identical to the Commission’s 

standard that looks to whether a survey is reasonably reliable and probative. See In the Matter of 

Bristol-Myers Co., 85 F.T.C. 688, 744 n.2 (1975) (noting the fact that different “surveys are from 

independent sources and tend to confirm one another” is relevant to whether surveys are 

reasonably reliable and valid); In the Matter of Thompson Med. Co., 104 F.T.C. 648, 836 n.82 

(“The consistency of this finding across both studies should have been a warning signal to 

Thompson that potential consumers might be confused about the ingredients of Aspercreme.”); 

In the Matter of Am. Home Prods., 98 F.T.C. 136, 252 (noting that “[t]he fact that these studies 

generated consistent results over a relatively short period of time (three to four years) enhances 

their reliability”) (ALJ op.).

Second, ECM points to The Manual for Complex Litigation as purportedly defining 

validity, a legal treatise with which Professor Frederick was also unfamiliar. Notably, however, 

that treatise merely points to various indicia of a probative survey (for instance, whether the 

questions are clear, and whether the data gathered were accurately reported). The Commission 

has never employed this Manual to analyze surveys, although the various considerations it 

references are consistent with an inquiry into whether a survey is reasonably reliable and 

probative. Indeed, under Commission authority, any consideration relevant to whether a survey 

is reasonably reliable and probative is relevant. Despite ECM’s implication, the fact that 

Professor Frederick (a prominent marketing academic and survey research expert) is unfamiliar 

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with the Commission’s legal standard for survey research is irrelevant to whether his research 

conformed to that standard (which it did). 

(b) Professor Frederick’s Research Is Reasonably Reliable 

and Probative. 

(1) Background Regarding Professor Frederick’s 

GCS Surveys.

GCS pays approximately 340 mainstream internet content providers to present survey 

questions to internet users who would otherwise need to pay to receive the content. FOF ¶ 218. 

Put differently, GCS gives internet users the opportunity to obtain content from behind a paywall 

in exchange for answering a survey question. FOF ¶ 218. When possible, GCS infers five 

important demographic features of survey participants (gender, approximate age, geographic 

region, income range, and urban density (whether the respondent resides in an urban, suburban, 

or rural area)). FOF ¶ 218. With respect to age and gender, Google infers demographic 

information based on the respondent’s browsing history as recorded in a DoubleClick advertising 

cookie. FOF ¶ 273. GCS infers the respondent’s location based on the computer’s IP address, 

and infers the respondent’s income and urban density “by mapping the location to census tracts 

and using the census data to infer income and urban density.” 28 FOF ¶ 274. GCS then uses this 

information “to ensure each survey receives a representative sample.” FOF ¶ 275. Finally, GCS 

reports demographic information, along with the survey’s exact results, back to the researcher (in 

this case, Professor Frederick). FOF ¶ 218. 

 

28 “For approximately 30-40% of [GCS] users, demographic information is not 

available—either because their cookies are turned off but more often because the [GCS] 

algorithm cannot determine a trend from the websites visited as recorded in their DoubleClick 

advertising cookie that would suggest what gender or age they are.” FOF ¶ 277. In Professor 

Frederick’s data, when GCS lacked sufficient information about a particular respondent to infer a 

given demographic characteristic, GCS (and Professor Frederick) reported that characteristic as 

“unknown.” FOF ¶ 276. However, the absence of demographic information is irrelevant as long 

as the GCS sample is reasonably representative, which it is. See infra at 35-39 (discussing lines 

of evidence establishing that the GCS samples is reasonably representative). 

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Professor Frederick designed more than sixty different questions and collected 

approximately 29,000 responses to those surveys. FOF ¶ 218. His research included twelve 

different surveys assessing how much time consumers believe plastic products labelled 

“biodegradable” will take to biodegrade. FOF ¶ 290. Based on this data, Professor Frederick 

concluded that 35% of consumers believe that a plastic product labelled “biodegradable” will 

biodegrade within a year. FOF ¶ 200. 

(2) Undisputed Evidence Establishes That GCS Is 

Reasonably Representative of American 

Consumers. 

Significantly, Professor Frederick testified that the population of American internet users 

is more demographically and psychographically29 representative of the population of American 

consumers than other potential survey media, such as internet panels, landline surveys, or “mall 

intercept”-style face-to-face interviews. FOF ¶ 224. This is partly because the GCS survey 

mechanism is much less intrusive than other types of surveys, and partly because the percentage 

of the population that uses the internet is enormous (85% in 2013).30 FOF ¶ 225. Importantly, 

five largely undisputed31 lines of evidence establish that GCS respondents are both reasonably 

representative of internet users and American consumers: (1) an independent Pew Research 

 

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

psychological characteristics (such as beliefs or opinions). FOF ¶ 221. Although demographic 

representativeness is correlated with psychographic representativeness, the differences between 

these measures are important because a sample may match consumers’ demographics perfectly, 

yet come nowhere close to matching their beliefs and attitudes. FOF ¶ 222. This is pertinent 

because internet users willing to respond to a single GCS question are more likely to be 

psychographically representative than people with landlines who are willing, without 

compensation, to take an approximately twelve-minute survey. FOF ¶ 223. 

30 In contrast, 40% of Americans do not have a landline. FOF ¶ 226. 

31 As discussed below, ECM disputes Professor Frederick’s opinion that GCS is 

representative. However, ECM did not challenge any of the specific facts upon which Professor 

Frederick based his conclusion, nor did Dr. Stewart testify contrary to these specific facts. 

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study; (2) Nate Silver’s analysis; (3) Google’s validation efforts; (4) Professor Frederick’s 

investigation; and (5) Google’s incentives. 

 First, as Professor Frederick explained, shortly after Google introduced GCS in 2012, the 

independent Pew Research Center (“PEW”) compared the results of its own telephone survey of 

internet users with GCS respondents. FOF ¶ 227. As PEW concluded: “A comparison of 

several demographic questions asked by Pew Research indicates that the Google Consumer 

Surveys sample appears to conform closely to the demographic composition of the overall 

internet population.” FOF ¶ 228. Specifically, PEW compared the demographics of its survey of 

internet users with GCS respondents according to six metrics (gender, age, race, marital status, 

home ownership, and church attendance). FOF ¶ 229 (reproducing entire chart). As Professor 

Frederick testified, “for all intents and purposes, they’re identical.” FOF ¶ 230. Furthermore, 

PEW compared its telephone survey respondents with GCS respondents along dozens of 

different measures of opinions and attitudes. FOF ¶ 231. Although PEW noticed differences 

depending on the precise question, “the median difference between 43 results obtained from Pew 

Research surveys and using [GCS] was 3 percentage points,” and mean difference was six 

points. FOF ¶ 232. Noteworthy findings include (1) similar percentages reported owning 

particular devices and engaging in various online activities, (2) similar views about the size and 

role of government, and (3) comparable views about a variety of foreign policy issues. FOF 

¶¶ 233-38. Significantly, ECM’s expert, Dr. Stewart, never questioned PEW’s significant 

findings. FOF ¶ 239. 

 Second, Professor Frederick noted Nate Silver’s study detailing GCS’s impressive 

performance in predicting the 2012 presidential election results.32 FOF ¶ 241. In his wellknown New York Times blog, Mr. Silver compared the accuracy of twenty-three polling entities 

 

32 Regarding the 2012 presidential election, PEW noted: “In a series of tests after each 

presidential debate, the Pew Research surveys and [GCS] produced similar reactions.” FOF ¶ 240. 

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that conducted at least five polls in advance of the 2012 election. FOF ¶ 242. GCS tied for 

second place, conducting twelve pre-election polls with an average error relative to the actual 

results of only 1.6%. FOF ¶ 243. GCS finished ahead of better-known entities including CNN, 

Reuters, and Gallup. FOF ¶ 244. As Mr. Silver wrote: “The final poll conducted by [GCS] had 

Mr. Obama ahead in the national popular vote by 2.3 percentage points—very close to his actual 

margin, which was 2.6 percentage points.” FOF ¶ 245. At trial, Professor Frederick explained 

that “[t]he fact that [GCS] is doing so well [compared] with all these other opinion polling firms . 

. . suggests to me . . . that the population is both psychographically and demographically 

representative. Otherwise, I don’t think they’d be able to accurately predict who people are 

going to vote for.” FOF ¶ 246. Notably, Dr. Stewart offered no testimony regarding Mr. 

Silver’s conclusions, or Professor Frederick’s evaluation of them. FOF ¶ 247. 

 Third, Google engaged two survey research firms to administer identical questionnaires 

to internet panels representative of American adults. FOF ¶ 248. Google also administered the 

same survey thirteen times through GCS. FOF ¶ 248. The results of the three surveys were 

compared to established benchmarks related to media usage and health data. FOF ¶ 249. 

Significantly, the GCS surveys performed as well, or better than, the internet panel surveys, 

and—perhaps most important—the GCS surveys deviated from the established benchmarks by 

only approximately 4%. FOF ¶ 250. Dr. Stewart did not testify regarding this study. FOF 

¶ 252. 

 Fourth, through direct communications with Google, Professor Frederick verified GCS’ 

bona fides himself. FOF ¶ 253. Specifically, he conferred telephonically with Google’s 

representatives twice to confirm the mechanics and methodology GCS employs. FOF ¶ 253. 

As Professor Frederick explained, “[s]uch interviews with data collectors are regularly conducted 

in my field to ascertain the reliability of data-gathering techniques.” FOF ¶ 253. Furthermore, 

although relying on GCS is relatively new, relying on a third party to ask questions and gather 

data from a representative sample is not. As ECM’s expert agreed, “[i]t is typical in survey 

research” to rely “on the belief that a survey research firm is operating as you would expect them 

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to operate with respect to the gathering of data.” FOF ¶ 254. Significantly, through his 

conversations with Google, Professor Frederick concluded that, “[b]ased on Internet protocol 

(IP) address and browsing history, GCS uses dynamic imputation algorithms to help ensure [the] 

demographic representativeness of [its] sample data.” FOF ¶ 255. In contrast, Dr. Stewart: (1) 

never communicated with GCS, and (2) never testified that, as a survey research expert, it was 

somehow inappropriate for Professor Frederick to rely on communications with Google 

regarding GCS’ methodology. FOF ¶¶ 256, 257. 

 Fifth, Professor Frederick testified that, because Google delivers advertising to users 

partly based on their demographics, it has “high incentives” to get that information reasonably 

correct. FOF ¶ 258. As Professor Frederick explained, “[a]dvertisers value online advertising 

only to the extent that it works, which gives Google strong incentives to accurately ascertain the 

demographic characteristics of respondents advertisers target.” FOF ¶ 259. Overall, he 

concluded that GCS is “highly representative both demographically and psychographically.” 

FOF ¶ 260. 

In an attempt to refute the five lines of mutually-reinforcing evidence, ECM provides 

little more than ad hominem attacks, blog posts, and—in one case—a tweet. Much of Dr. 

Stewart’s opinion related to GCS is more name-calling than substance: for instance, his report 

repeatedly uses scare quotes when discussing Professor Frederick’s GCS research (referring to it 

as a “survey”). FOF ¶ 262. Dr. Stewart also broadly pronounced that no “serious scholar” 

would conclude that GCS is “in the legitimate market research business.” FOF ¶ 266. On crossexamination, however, Dr. Stewart reluctantly admitted that Professor Frederick published an 

article relying partly on GCS data in THE JOURNAL OF MARKETING RESEARCH, a well-respected 

peer-reviewed journal. FOF ¶¶ 264, 265. 

 Next, Dr. Stewart’s report alluded to alleged instances in which GCS “has been far off 

the mark,” but—as he admitted at trial—his source for this claim is an unverified and 

unexplained tweet. FOF ¶¶ 268, 269. Indeed, he admitted that he never performed “any type of 

systematic analysis” to determine GCS’ accuracy. FOF ¶ 270. Although shortly before trial, 

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ECM’s counsel compiled 19 blog posts criticizing GCS and added them to the exhibit list, Dr. 

Stewart never testified regarding these posts. FOF ¶ 267. Indeed, most are from other survey 

researchers (i.e., competitors) and have nothing to do with whether GCS is reasonably 

representative. FOF ¶ 267. In short, all of the competent evidence submitted supports Professor 

Frederick’s conclusion that GCS is sufficiently representative to support valid conclusions from 

the data he collected. 

(3) Both Parties’ Experts’ Testimony Establishes 

That Demographic Information About Survey 

Respondents Is Unnecessary if the Overall 

Sample Is Representative. 

Professor Frederick testified—consistent with elementary survey research principles—

that demographic data about each individual survey respondent is unnecessary if the overall 

sample is representative. FOF ¶ 271. As he explained, as long as the sample represents the 

population the researcher is attempting to measure, “it makes no difference whatsoever” whether 

particular respondents’ demographics are known. FOF ¶ 272. Indeed, Professor Frederick 

characterized the irrelevance of respondents’ individual demographic characteristics as “the 

essence of random sampling.” FOF ¶ 272. This is why, with respect to GCS, it makes no 

difference if certain inferred demographics are missing or arguably unreliable for particular 

respondents. FOF ¶ 272. 

 Significantly, Dr. Stewart’s own study proves Professor Frederick’s point. The record is 

clear that Professor Frederick’s GCS survey collected considerably more demographic 

information about respondents than Dr. Stewart’s 400-person landline survey. In fact, Dr. 

Stewart’s vastly smaller landline survey collected no data at all regarding income, geography, or 

urban density.33 FOF ¶ 279. Put differently, each of those three demographic characteristics is 

unknown for 100% of Dr. Stewart’s respondents. FOF ¶ 280. Even with respect to gender and 

 

33 Geographic information is potentially significant because—as Dr. Stewart conceded— “beliefs regarding the importance of purchasing environmentally-friendly products might vary” 

between “people living in cities and people living in rural environments,” or between people 

living in different regions of the country. FOF93. 

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age, Dr. Stewart conceded that the data his researchers collected was almost certainly incorrect in 

at least some instances, and that he did nothing to verify it. FOF ¶¶ 282, 284, 285. 

 Significantly, notwithstanding the absence of complete or perfectly reliable demographic 

information, Dr. Stewart had no difficulty concluding that his study was valid. 

FOF ¶ 286. This is because, as discussed above, respondents’ individual demographic traits are 

irrelevant as long as the overall pool is reasonably representative. FOF ¶ 287. Simply put, the 

fact that GCS lacks complete and perfect demographic data about its respondents is a red herring. 

(4) ECM Does Not Challenge Professor Frederick’s 

Questions. 

Notably, ECM did not challenge the wording or structure of any question Professor 

Frederick asked. FOF ¶ 288. Specifically, he asked more than sixty different questions, 

including twelve asking consumers to estimate, in an open-ended format, the time needed for a 

plastic product labelled “biodegradable” to biodegrade. FOF ¶¶ 289-90. The many different 

questions enabled Professor Frederick to test what effect, if any, the wording of particular 

questions has. FOF ¶ 291. For instance, some questions involved the “ECM Biodegradable 

logo,” some involved other “biodegradable” logos, and some involved only words.34 FOF ¶ 294. 

As Professor Frederick explained, “if it’s the case that you get the same result despite asking 

questions in different ways,” it increases the “robustness” or convergent validity of the results. 

FOF ¶¶ 291-92. As discussed below, substantial numbers estimated that plastic products labelled 

“biodegradable” would biodegrade within one year—no matter how the question was presented. 

FOF ¶ 293. 

 

34 As discussed supra, ECM’s “biodegradable” claims reach end-use consumers in 

different ways. Sometimes, the “ECM biodegradable” logo itself reaches consumers (and ECM 

encourages this). Sometimes, end-use products are labelled “biodegradable” along with an “ecofriendly” label unique to the particular end-use seller. Sometimes, products containing the ECM 

Additive are simply labelled “biodegradable.” See supra, (discussing the different ways in 

which ECM Plastic is labelled when sold to end-use consumers). 

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(c) Substantial Numbers of Consumers Understand 

“Biodegradable” To Mean Within One Year. 

For nine of the twelve questions asking consumers to estimate biodegradation times for 

plastic labelled “biodegradable,” at least 30% estimated the product would biodegrade within 

one year—and in no case did fewer than 20% give such an estimate.35 FOF ¶ 298. Furthermore, 

depending on the question’s phrasing, majorities ranging from 53%-68% would consider it 

misleading if a plastic product labelled “biodegradable” did not biodegrade within one year. 

FOF ¶ 299. For instance, when asked: “A company should be allowed to label its plastic 

packaging material as ‘biodegradable’ if it biodegrades within what amount of time,” 68%

responded with one year or less, and only 9% of consumers gave numbers greater than five 

years.36 FOF ¶ 300. Additionally, consistent with the Green Guides, a substantial number of 

consumers believe that generic “products” (as opposed to plastic products) labelled 

“biodegradable” will biodegrade within one year. FOF ¶ 302. Again, Professor Frederick asked 

the question many different ways, and “one year or less” responses ranged from 42%-74%.37 

FOF ¶ 302.38 

 35 Notably, from 40% to 76% of respondents understood that a plastic product labelled 

“biodegradable” would biodegrade within five years. In response to nine of the twelve surveys, 

more than 50% of respondents understood that a plastic product labelled “biodegradable” would 

biodegrade within five years. FOF ¶ 212. 

36 Indeed, as discussed supra, even ECM’s witnesses estimated that ECM Plastic would 

take thirty years to more than one hundred years to biodegrade. Assuming that this is true, few 

consumers believe it is appropriate to label a product “biodegradable” if it takes that long to 

biodegrade. Specifically, if the responses to Questions 4A-4E are aggregated, less than 5% of 

consumers believe companies should be allowed to label as “biodegradable” products that take 

longer than twenty-five years to biodegrade. FOF ¶ 301. 

37 This range excludes two questions (1I and 1J) that were intended to test the effect of 

using the word “years” in the question, which suggests a longer process. FOF ¶ 303. Notably, 

even when consumers were asked: “If a package is labelled ‘biodegradable,’ how many years

will it take to biodegrade,” 25% still estimated one year or less. FOF ¶ 303 (emphasis added). 

38 ECM did not dispute other facts that “biodegradable” implies. Professor Frederick’s 

study, APCO, and Synovate establish that most consumers believe plastic products labelled 

“biodegradable” will biodegrade in landfills. FOF ¶ 311. Additionally, across eight GCS 

surveys with varied wording and question type, 37%-50% of consumers understood that a plastic 

product labelled “biodegradable” will biodegrade completely into elements found in nature. 

FOF ¶ 312. 

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(d) ECM’s “Some Period Greater Than a Year” 

Implies Faster Biodegradation to Many Consumers. 

Professor Frederick also compared ECM’s prior qualifier (“nine months to five years”) 

with its new attempt to qualify its “biodegradable” claim (“some period greater than a year”). 

Significantly, “nearly half, between 40 and 50 percent, of consumers construe the qualifier ‘some 

period greater than a year’ as implying faster biodegradation than the qualifier ‘nine months to 

five years.’”39 FOF ¶ 304. Dr. Stewart did not challenge (or even address) Professor Frederick’s 

conclusion that ECM’s “some period greater than a year” language did not materially increase 

consumers’ estimated biodegradation times. FOF ¶ 310. 

(e) ECM’s Critiques Are Baseless. 

(1) Professor Frederick Correctly Employed a 

Bright-Line Rule. 

ECM contends that Professor Frederick improperly excluded various responses from his 

data, but this assertion ignores both his rationale and the fact that his coding decisions did not 

affect his conclusions. As he explained, Professor Frederick employed a “bright line” coding 

rule designed to avoid any “value judgments about which responses are ‘too inaccurate’ to 

count.” FOF ¶ 313. His bright-line rule was that “any response containing both a numeric 

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

were not. FOF ¶ 314. Accordingly, Professor Frederick excluded five types of responses: (1) 

numeric responses lacking a temporal unit (for instance, “1”); (2) responses lacking a 

specification of quantity (for instance, “months”); (3) responses indicating unwillingness to 

 

39 Notably, Professor Frederick is an anchoring expert, and he attributed the failure of 

ECM’s new qualifier to produce meaningfully longer estimated biodegradation times in part to 

the fact that “[t]he specified minimum value (‘one year’) likely functioned as a numeric referent 

towards which some respondents’ subsequent estimates assimilate.” Specifically, although the 

new qualifier increases the number of longer estimates, it also increases the percentage who 

believe the product will biodegrade within two years from (17% to 29%). FOF ¶¶ 306-309. 

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answer without further clarification (“it depends”); (4) responses indicating an unwillingness to 

respond because of reported uncertainty (“I don’t know”); and (5) “bypass” or “protest” 

responses intended to circumvent the survey (“e.g., “go away”).40 FOF ¶ 315. Critically, 

omitting these responses would only affect the results if respondents who gave them hold 

different views concerning biodegradation than the rest of the population. FOF ¶ 317. However, 

“there is no reason to believe that any of the people whose responses [Professor Frederick] did 

not code hold a view of biodegradation that differs from the rest of the population[.]” FOF 

¶ 317. 

To provide one illustration, Dr. Stewart reluctantly explained that survey respondents 

with views regarding the correct answer sometimes state “I don’t know” because they lack 

sufficient confidence in their view, or because they fear embarrassment if they respond 

incorrectly. FOF ¶ 318. Dr. Stewart conceded it was “generally true” that “there’s a literature on 

the ‘I don’t know’ response [in survey research], and that literature generally finds that you don’t 

change the distribution of responses substantially by preventing people from saying ‘I don’t 

know.’” FOF ¶ 319. Similarly, Professor Frederick testified there was no reason to conclude 

“that as a group, people who give ‘I don’t know’ responses to questions asking for beliefs 

regarding biodegradation time have different beliefs than people who gave [specific estimates].” 

Accordingly, omitting “I don’t know” responses does not “affect the conclusions of the 

research.” FOF ¶ 320. 

To provide a second example, Professor Frederick compared the distribution of 

(uncodeable) numeric responses that did not have an accompanying unit (for instance, “1”) with 

the distribution of (coded) responses that had an accompanying unit (“for instance, “1 year”). 

FOF ¶ 321. Because the distribution of responses was “very similar,” there is “every reason to 

believe that these people [who gave uncodeable responses] have the same distribution of beliefs 

 

40 As Professor Frederick testified, he did not code these responses because there is no 

way to translate them into a specific estimate of biodegradation time. FOF ¶ 316. 

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as the people who provided a unit.” FOF ¶ 322. In short, because the people whose responses 

Professor Frederick excluded likely have the same distribution of beliefs regarding 

biodegradation time than those who gave codeable responses, excluding them does not “affect 

the inferences drawn from the data.” FOF ¶ 323. 

(2) ECM’s Other Challenges To Professor 

Frederick’s Coding Are Baseless. 

ECM makes myriad other challenges to Professor Frederick’s coding, all of which are 

baseless and only a few of which even warrant mention. For instance, ECM characterizes 

consumers’ short biodegradation time estimates (including days and weeks) as “absurd” and 

“ludicrous,” FOF ¶ 337, and implies that Professor Frederick should have excluded these 

responses.

41 ECM’s critique ignores that “biodegradation” is a technical concept, and most 

consumers are not polymer chemists or environmental engineers. Although a claim is not 

deceptive if it is “unreasonably misunderstood by an insignificant and unrepresentative 

segment” of consumers,” Deception Statement, 103 F.T.C. at 178 (quoting In re Kirchner, 63 

F.T.C. 1282, 1290 (1963), aff’d, 337 F.2d 751 (9th Cir. 1964)) (emphasis added), there is no 

evidence that consumers who believe a product labelled “biodegradable” will biodegrade within 

days or weeks have an unreasonable misunderstanding.” Given that ECM’s own expert testified 

that ECM Plastic will not biodegrade in anaerobic conditions within even five years, there is no 

legally valid basis to conclude that one set of mistaken estimates (days, weeks) should be 

 

41 ECM also points to extremely short estimates, for instance, “a nanosecond.” In reality, 

out of approximately 20,000 responses to open-ended questions, only two consumers responded 

with “a nanosecond.” FOF ¶ 338. During his cross-examination, ECM confirmed that Professor 

Frederick coded approximately 26 responses of seconds, minutes, or hours, but this represents 

less than .001% of the data collected. FOF ¶ 339. These 26 responses might represent people 

who mistook “biodegradation” for dissolution, people who misunderstood the question as asking 

when the biodegradation process begins, or people who did not take the question seriously. 

Regardless, the number of these responses is too small to affect the data. FOF ¶ 340. 

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excluded as unreasonable or “absurd,” whereas another set of mistaken beliefs (months, one 

year) is close enough to count.42 

Additionally, ECM falsely asserts that Professor Frederick’s study was not “doubleblind.” However, neither GCS respondents (who provided data) nor GCS itself (which collected 

the data) knew who sponsored Professor Frederick’s study. FOF ¶ 344. Finally, any implication 

that Professor Frederick or his coders somehow handled the data improperly is false. The coding 

of numeric responses generally does not have any significant subjective component, nor is there 

any evidence that the very few arguably subjective judgments Professor Frederick made were 

mistaken and somehow affected his results. 

(3) A Tiny Number of “Protest” Responses Among 

20,000 Responses To Open-Ended Questions Is 

Irrelevant. 

At trial, ECM tried to make much of the unsurprising and irrelevant fact that, out of 

approximately 20,000 responses Professor Frederick collected to open-ended questions, a very 

small fraction (less than 1%) gave “protest” responses intended solely to bypass the GCS survey 

wall.

43 FOF ¶ 324. There are two problems with ECM’s position. First, Professor Frederick 

testified that excluding such responses had no material effect because there is “no reason to 

believe people who [give protest responses] actually have different views about biodegradation 

times than the people who g[a]ve responses which are codeable.”44 FOF ¶ 324. Dr. Stewart did 

 

42 ECM’s critique also (1) fails to acknowledge that, like Professor Frederick, Dr. Stewart 

also coded very short estimates and included them in his data, and (2) fails to note that Professor 

Frederick coded both extremely long responses as well as extremely short ones—again, he 

implemented a “bright line” rule intended to avoid value judgments. FOF ¶¶ 313, 314, 343. 

43 Professor Frederick also testified that GCS takes steps to ensure that people who 

respond randomly do not receive future surveys by periodically asking questions with obvious 

answers (for instance, how many states are there in the United States?), and ensuring that persons 

who respond incorrectly do not receive future surveys. FOF ¶ 326. 

44 Indeed, logically, there is no reason to think that the less than 1% of respondents who 

react to a survey with a bypass response (random typing) or a protest response (a snide remark) 

are psychographically different from the population at large in any respect relevant here. If, for 

example, the GCS question asked for views about paywalls limiting access to online content, 

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not challenge this conclusion either. FOF ¶ 325. Second, ECM offered no evidence through Dr. 

Stewart or otherwise that including this tiny number of protest responses (less than 1%) would 

have changed the results, even assuming (inexplicably) that people inclined to protest GCS 

surveys are also disproportionately inclined to estimate very long biodegradation times. 

(4) There Is No Credible Evidence of “Disinterest 

Bias.” 

In his report, Professor Stewart briefly alleged that a “disinterest bias” exists. 

Specifically, ECM alleges that GCS respondents give random answers to bypass the survey wall. 

FOF ¶ 328. For several reasons, this critique fails. First, Dr. Stewart’s report references only a 

blog post from a GCS competitor alleging “disinterest bias.” FOF ¶ 329. Indeed, Professor 

Frederick testified that alleged “disinterest bias” has not been studied in academic literature (and 

his search for the term produced no results). FOF ¶ 330. Second, the fact that less than 1% of 

respondents gave protest responses provides additional evidence that the overwhelming majority 

of respondents gave thoughtful answers. FOF ¶ 331. Third, the fact that average response times 

for GCS respondents were generally above 20 seconds (meaning that the average respondent 

took more than 20 seconds before responding) provides additional “evidence that people are 

thinking about the question.”45 FOF ¶ 332. As Professor Frederick explained, “[i]t wouldn’t 

make any sense . . .for someone to see a question, to sit there and do nothing, and then key in a 

nonsense response [after] 22 seconds”46 to bypass the survey wall when he or she could do so 

 

then excluding bypass/protest responses from the data might be problematic. In this context, 

however, there is no reason to think that bypass/protest responders, as a group, would give 

different biodegradation time estimates than people who give sincere responses. FOF ¶ 327. 

45 In fact, as Professor Frederick testified, and Dr. Stewart ultimately conceded, a 

question in which the consumer gives a response after twenty seconds much better replicates the 

actual consumer experience when confronted with a “biodegradable” claim on a store shelf than 

a telephone interview taking ten minutes or more. FOF ¶ 336. Ultimately, how consumers 

behave in the real world is what is important, not how they respond after discussing 

biodegradation on their landline for ten minutes. 

46 ECM attempts to account for the response time by suggesting that respondents might 

have become distracted between when GCS presented the question stem and when they 

responded. FOF ¶ 334. As Professor Frederick testified, “obviously [this] does happen 

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immediately. FOF ¶ 333. Finally, the fact that less than 1% of respondents gave protest 

responses (that could reflect “disinterest”) is irrelevant because there is no reason to believe that 

such respondents, as a group, hold different beliefs regarding biodegradation time. FOF ¶ 327. 

(5) The Absence of “Screening Questions” Is 

Irrelevant. 

Although ECM criticized Professor Frederick for not screening out people who denied 

knowing the scientific definition of “biodegradation,” it would have been inappropriate to do 

so.

47 Initially, as Dr. Stewart admitted, screening can remove people who do understand what 

“biodegradation” means, but who are not confident in their understanding, or who have decided 

that they no longer want to participate in the survey.48 FOF ¶ 348. Additionally, the 

Commission evaluates claims “in light of the sophistication and understanding” of the audience 

(in this case, American consumers generally). See, e.g., Deception Statement, 103 F.T.C. at 178-

79. As Professor 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. 

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 

 

sometimes,” but “I don’t think it’s common that people would be interrupted between reading 

the question stem and answering[.]” FOF ¶ 335. In short, atypical distractions might account for 

a few response times of twenty seconds or more, but not hundreds or thousands. 

47 ECM also criticized Professor Frederick for not screening out respondents who 

reported not purchasing anything plastic within the past month, or who work in the plastics 

industry. Even assuming some minuscule number of the 29,000 GCS respondents fall within 

these categories, the presence of few outliers would not affect the data. FOF ¶ 351. 

48 Furthermore, the evidence at trial was clear that screening questions such as the one 

Dr. Stewart employed are ineffective. Dr. Stewart still included dozens of respondents who 

understood that “biodegradable” meant that the product was recyclable, that it would not

degrade, that it would “self-destruct,” and even that it was digestible. FOF ¶ 347. 

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biodegrade as he or she understands the term[.]” FOF ¶ 350. Simply put, Professor Frederick 

properly sampled the legally relevant population of consumers, including the many who are 

uncertain of their understanding of “biodegradation” as a concept even if “biodegradable” claims 

affect their purchasing decisions. 

iv. Standing Alone, Professor Stewart’s Research Is Sufficient To 

Establish That Substantial Numbers of Consumers 

Understand “Biodegradable” To Imply Within One Year. 

(a) Dr. Stewart’s Data Establishes That Substantial 

Numbers of Consumers Understand “Biodegradable” To 

Mean Within One Year. 

Dr. Stewart supervised a 400-participant landline survey. FOF ¶ 352. Although he 

(tellingly) never asked respondents to estimate how long it would take plastic products labeled 

“biodegradable” to biodegrade, see infra, he did collect data bearing upon this key issue. FOF ¶ 

353. First, Dr. Stewart’s landline callers asked (without specifying a material or that the product 

was labeled “biodegradable”): “If something is biodegradable, how long do you think it would 

take for it to decompose or decay?” FOF ¶ 354. Of the 400 respondents, a majority (206) gave 

codeable estimates,49 and of those respondents, 33% gave estimates of one year or less.50 FOF ¶ 

355. This is sufficient to support the relief requested even without considering the GCS, APCO, 

and Synovate results. 

Obviously, ECM contests that Dr. Stewart’s opinion supports its liability, and ECM 

asserts that his study merely establishes that consumers hold many different views regarding 

biodegradation (which is true). However, the fact that there is no universal “shared 

understanding” of a term is legally irrelevant to whether ECM deceived substantial numbers of 

consumers. For instance, although consumers may have hundreds of different views, those 

views may (and do) include a substantial minority that understand that plastic labelled 

 

49 As with the GCS surveys, many respondents gave responses such as “I don’t know,” 

“it depends,” or other responses not quantifiable as a specific time estimate. FOF ¶ 356. 

50 Additionally, of the 206 respondents who gave codeable estimates, 58% gave estimates 

of five years or less. FOF ¶ 210. 

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“biodegradable” will biodegrade within one year. This is true even if the “year or less” group 

itself has no “shared understanding,” for example, some consumers might estimate weeks, some 

months, and some one year. In short, the “no shared understanding” hypothesis is irrelevant, and 

Dr. Stewart’s data is what it is, even if it does not support ECM’s position. 

(b) Dr. Stewart’s Data Establishes That Substantial 

Numbers of Consumers Understand ECM’s “Some 

Period Greater Than a Year” Qualifier To Mean Within 

One Year. 

Dr. Stewart’s landline callers also read ECM’s “biodegradable in some period greater 

than a year” disclaimer to respondents, and asked: “In your own words, what does this claim 

mean to you?” FOF16. Although Dr. Stewart notably did not ask respondents to estimate 

biodegradation times, 150 respondents still gave estimates. Of those respondents—and 

notwithstanding ECM’s disclaimer—50% (75 respondents) gave estimates of a year or less. 

FOF ¶ 207.51 Thus, even standing alone (without the benefit of Professor Frederick’s research), 

Dr. Stewart’s data establishes that the “some period greater than a year” does not meaningfully 

reduce the percentage of consumers who believe plastic labelled “biodegradable” will 

biodegrade in one year or less. Indeed, Dr. Stewart’s data establishes that “some period greater 

than a year” actually increases that percentage. 

v. Viewed Together, the APCO and Synovate Studies Establish 

That Substantial Numbers of Consumers Understand 

“Biodegradable” To Imply Within One Year. 

The Green Guides state that “[i]t is deceptive to make an unqualified degradable claim 

for items entering the solid waste stream if the items do not completely decompose within one 

year after customary disposal.” 16 C.F.R. § 260.8(c). Before issuing the Green Guides, the 

 

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

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

responses. FOF ¶¶ 360-363. Accordingly, we adopt the more conservative estimate. FOF

¶ 364. 

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Commission evaluated two studies concerning estimates of biodegradation time: APCO and 

Synovate. FOF ¶ 365. The APCO study involved an approximately 1000-respondent telephone 

survey that focused primarily on plastic products. FOF ¶ 366. Sixty percent of respondents 

stated that packages labeled “biodegradable” should biodegrade within one year or less.52 FOF

¶ 367. Additionally, EcoLogic, a manufacturer of a plastic additive similar to ECM’s, engaged a 

survey firm (Synovate) to conduct a 2000-respondent internet panel survey. FOF ¶ 368. In the 

Ecologic/Synovate study, 25% stated that “less than one year” was a reasonable amount of time 

for a “biodegradable” package to decompose in a landfill.53 FOF ¶ 369. 

Notably, Professor Frederick testified that APCO and Synovate/Ecologic, taken together, 

provide reasonably reliable and valid evidence that substantial percentages of consumers believe 

plastic products labelled “biodegradable” will biodegrade in one year or less. FOF ¶ 370. 

Professor Frederick explained that APCO and Synovate have opposing biases. FOF ¶ 371. 

Specifically, APCO’s response options suggested shorter biodegradation times, whereas 

Synovate’s response options suggested longer ones. FOF ¶ 372. Indeed, with respect to the 

presence of opposing biases, Dr. Stewart gave essentially identical testimony. FOF ¶ 372. 

Importantly, as Professor Frederick explained, the presence of opposing biases helps 

confirm the existence of convergent validity with respect to the conclusion that at least a 

substantial minority of consumers believe plastic products labelled “biodegradable” will 

biodegrade within one year. FOF ¶ 373. Thus, based on convergent validity, and viewed 

together (but without the benefit of either Professor Frederick’s research or Professor Stewart’s 

research), APCO and Ecologic/Synovate are sufficiently reliable and probative to establish that 

substantial percentages believe plastic labeled “biodegradable” will biodegrade within one year. 

FOF ¶ 374. 

 52 Sixty-five percent (65%) said four years or less. FOF ¶ 209. 

53 Forty-five percent (45%) said five years or less. FOF ¶ 211. 

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vi. ECM Offers No Reasonably Reliable and Probative Contrary 

Evidence. 

(a) Dr. Stewart Never Asked the Most Important 

Question. 

Although the data Dr. Stewart produced supports the allegations in the Complaint,54 he 

designed his study to minimize the number of consumers who would give relevant estimates of 

biodegradation time. Most glaringly, Dr. Stewart never asked the central consumer perception 

question in this case: how much time will it take for plastic labeled “biodegradable” to 

biodegrade?55 FOF ¶ 376. At trial, Dr. Stewart stated that he “was not interested in that specific 

issue.” FOF ¶ 377. He also denied (at trial) that this question was probative of consumer 

perception in this case, although when asked in his deposition whether this question was 

“probative of the consumer perception question at issue in this case,” Dr. Stewart responded: “It 

certainly is.” FOF ¶ 378. 

(b) Dr. Stewart’s Studies Are Grossly Flawed. 

(1) Dr. Stewart Designed His Landline Consumer 

Study To Create Confusion. 

In two ways, wording and order of Dr. Stewart’s survey questions, increased the number 

of immaterial or imprecise responses, and reduced the number of biodegradation time estimates. 

First, the order of his questions prompted respondents to think about uncertainty in 

biodegradation time immediately before they were asked about ECM’s claims in particular. 

 

54 Dr. Stewart worked hard to put a positive spin on data adverse to ECM. For instance, 

his results show that whether a package or product is biodegradable is important to 71% of 

respondents. Dr. Stewart interpreted this fact as establishing “that while consumers have a 

conceptual understanding of what biodegradability is, it is not material to a sizeable minority of 

consumers.” FOF ¶ 387. Of course, it is material to a sizeable majority. As an aside, the correct 

number from Dr. Stewart’s data is 75%, not 71%. FOF ¶ 388. 

55 Dr. Stewart also did not ask consumers any relevant variant, such as how much time 

would it take for plastic labeled “ECM biodegradable” to biodegrade? FOF ¶ 376. 

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Specifically, after respondents were on the phone for a considerable period answering questions 

about biodegradation, Dr. Stewart’s researchers asked a final series of questions. At the 

beginning of this series, they were asked: “Do you think that there are differences in the amount 

of time it takes for different products to biodegrade, decompose, or decay?” FOF ¶ 380. 

Unsurprisingly, almost everyone (98%) answered affirmatively. FOF ¶ 381. Next, those 98% 

who answered “yes” were asked to expound upon those differences: “What differences exist in 

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

Immediately thereafter, respondents were asked to give their impressions of claims 

similar to ECM’s.56 FOF ¶ 383. Thus, their impressions of claims similar to ECM’s followed 

two invitations to consider variability in biodegradation time. Although, at trial, Dr. Stewart 

denied that this question series “put in the mind of survey respondents that there are differences 

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

decay,” in his deposition, Dr. Stewart offered this more candid response: “Well, I hope we did 

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

differences, yes or no.”57 FOF ¶ 386. 

Second, respondents were not asked to estimate biodegradation times of products labeled 

“ECM biodegradable”; rather, they were merely asked: “In your own words, what does this 

claim mean to you?” FOF ¶ 384; see also FOF ¶¶353; 357. Logically, many respondents did 

not give specific estimates of biodegradation times, many gave answers with no direct bearing on 

this case (for instance, that ECM seems like a great product, or that they would be interested in 

learning more about ECM), and many gave “it depends”-type answers. FOF ¶ 385. Put simply, 

 

56 Dr. Stewart also increased consumer confusion by asking end-use consumers to 

interpret “biodegradable” claims that included technical language such as “one percent load” and 

“plastic resins.” FOF ¶ 473((RX-602) (Stewart, Tr. 2775-76).) He agreed that most consumers 

would not know what these terms meant, and that such claims never reached end use consumers. 

FOF ¶ 474 (Stewart, Tr. 2775-76). 

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

affect their answers to later questions[.]” FOF ¶ 472. 

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Dr. Stewart’s questions reveal that his goal was to maximize the number of respondents who 

gave “I don’t know” or “it depends”-type responses (thereby enabling him to report that 

consumers’ understanding of “biodegradation” is varied and nuanced). 

(2) Dr. Stewart’s Anachronistic Landline Study Was 

Psychographically and Demographically 

Unrepresentative. 

Dr. Stewart conducted an anachronistic landline survey, thereby excluding 40% of the 

population who no longer have landlines. FOF ¶ 404. His survey was neither psychographically 

nor demographically representative. From a psychographic perspective, relatively few 

consumers are willing to take a survey lasting as long as twenty minutes without compensation; 

indeed, although Dr. Stewart’s callers eventually located 400 participants, more than 4,000 hung 

up the phone when the callers introduced themselves (before they could even ask whether the 

potential respondent was willing to participate). FOF ¶ 400. Because people willing to 

participate in lengthy surveys likely have different beliefs and attitudes than the population at 

large, Professor Frederick testified that landline surveys are less psychographically 

representative than GCS and other methods. FOF ¶ 401. 

Regarding demographics, Dr. Stewart admitted that “landline surveys tend to

overrepresent older Americans[.]” FOF ¶ 402. In fact, 58% of Dr. Stewart’s respondents were 

age 50 and older, which deviates markedly from the population at large. FOF ¶ 403. Based on 

2010 census data that ECM offered into evidence, only 40% (of persons age 15 and above) are 

fifty and older. FOF ¶ 404. Thus, he oversampled older Americans, which—as he admitted—

means undersampling Hispanics and other minorities because older Americans are 

disproportionately white. FOF ¶ 405. 

Dr. Stewart also inexplicably excluded consumers below age 18, although he conceded 

that someone as young as junior high school-age “might walk into a convenience store and 

purchase a bottle of water,” and “that purchasing decision could be influenced by the word 

‘biodegradable’ on some of the bottles, but not [] others.” FOF ¶ 406. Dr. Stewart testified only 

that he “[wasn’t] interested” in researching such consumers’ opinions. FOF ¶ 407. The Court 

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can reasonably infer that the nature of a landline survey influenced this decision (landline 

surveys are a terrible way to reach teenage consumers). Omitting these consumers is significant 

because—as Dr. Stewart also conceded—such consumers may have different opinions about the 

importance of purchasing environmentally-friendly products than older Americans and different 

understandings of what “biodegradable” means. FOF ¶ 409. Thus, Dr. Stewart’s study is less 

representative in material ways. 

(3) Dr. Stewart Readily Admitted That His TenCustomer Survey Is Useless (Otherwise, It 

Would Support Complaint Counsel). 

Dr. Stewart also conducted a 10-respondent pilot survey of ECM’s customers, but ECM 

elected not to conduct a full-scale study, and (on direct examination) Dr. Stewart emphasized 

that no one should “make any statistical inferences” based on his pilot study. FOF ¶ 410. Two 

brief points about the study warrant mention. First, ECM defined the pool of companies (and the 

particular persons at those companies) whom Dr. Stewart’s researchers could contact. FOF

¶ 411. Second, notwithstanding the fact that Dr. Stewart’s researchers spoke only with ten 

people from a pool that ECM chose, 3 of the 10 respondents gave either responses that they 

understood biodegradation as something that happens in less than a year or referenced tests 

(ASTM D5511 and D6400) that are run for less than a year.58 FOF ¶ 412. This result adds to 

the evidence that even allegedly “sophisticated” customers often understand that biodegradation 

happens within a year. 

II. ECM’S CLAIMS ARE FALSE AND UNSUBSTANTIATED.

Claims are deceptive if they are false or lack a reasonable basis. In re Daniel Chapter 

One, No. 9329, Initial Decision, at *99 (F.T.C. Aug. 5, 2009). ECM’s claims both are false and 

lack a reasonable basis. 

 

58 A fourth respondent said “1-3 years.” RX-849 at 5. 

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A. ECM’s Express and Implied Claims are False.

ECM’s experts concede ECM’s claims are false. ECM’s expert, Dr. Sahu, estimates that 

at minimum it would take 30 years for ECM Plastic to completely biodegrade. Another of 

ECM’s experts, Dr. Barlaz, concurs with Complaint Counsel’s expert, Dr. Tolaymat, that landfill 

conditions do not support the biodegradation times claimed by ECM. In addition to these 

concessions, ECM’s express and implied claims are false based on indisputable science. A 

physical blend of 1% ECM Additive and 99% conventional plastic cannot change the underlying 

recalcitrance of the remaining 99% plastic—and ECM offers no reliable expert opinion the 

contrary. This fact is backed by a number of biodegradation studies that show ECM’s claims are 

false.

1. ECM’s Experts Concede ECM’s Biodegradation Claims Are False. 

ECM offered the opinions of four different experts. Only one of the four, Dr. Sahu, 

offers any opinion regarding biodegradation times for ECM Plastic. Compare RX-855 with RX853, RX-854 and RX-856. Dr. Sahu’s report and testimony estimate biodegradation times 

anywhere from 30 years to as long as 100 years for plastic films containing ECM Additive. FOF

¶ 188.59 

Moreover, both parties’ landfill experts agree that landfill conditions do not support the 

biodegradation times ECM claims.60 As both parties’ landfill experts explain, landfills continue 

to be the dominant method for managing discarded municipal solid waste (“MSW”) in the 

 

59 Although not an expert in this case, Dr. Barber also testified that ECM Plastics could 

take as much as 50 years to biodegrade. (Barber Tr., 2129.) 

60 FOF ¶ 170. 

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United States.61 Dr. Tolaymat, an environmental engineer at the EPA with expertise in solid 

waste management, further explained that biodegradation in landfills is slow because typical 

U.S. landfills are primarily anaerobic environments with low-moisture, i.e., so-called “dry 

tombs.”62 These conditions are engineered (and largely mandated by federal law) to facilitate 

containment rather than biodegradation.63 Even in landfills that are the most conducive to 

biodegradation (so-called “bioreactors”), Dr. Barlaz reports a range of degradation times for 

MSW anywhere from 24 (for rapidly biodegrading food waste) to over 200 years (for slowly

degrading wastes).

64 And conventional plastics would have “[l]onger if not infinite” half-lives in 

landfills. (Barlaz, Tr. 2295.) Thus, ECM’s express and implied claims that ECM Plastics will 

completely biodegrade in landfills within five years are tantamount to claiming that ECM 

Plastics will biodegrade five times faster than food waste. As stated by Dr. Barlaz: “that a waste

must be completely degraded within 12 months or even 5 years . . . is inconsistent with what 

happens in landfills.” RX-853 at 12 (emphasis in original). Accordingly, ECM’s claims are

simply false. 

2. Physical Blends Do Not Affect Plastic Recalcitrance. 

Similarly, there is no real disagreement that conventional plastics—high molecular 

weight, synthetic polymers derived from petrochemicals—are not biodegradable.65 Dr. 

 

61 FOF ¶ 12. 

62 FOF ¶ 12. 

63 FOF ¶ 12. 

64 See FOF ¶ 166 (half-lives of 4 and 34.7 years multiplied by 5).

65 FOF ¶ 5, 9. Although Drs. Sahu and Burnette stated in their reports that plastics are 

biodegradable, at trial they both conceded that conventional plastics are considered stable and 

would take a “very long time” to biodegrade. See FOF ¶ 7. Moreover, all of the authorities cited 

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McCarthy is a professor of Plastics Engineering at the University of Massachusetts Lowell with 

more than 30 years’ experience studying both the chemical and mechanical behavior of 

polymers, including their biodegradability.66 Dr. McCarthy opines that the overwhelming 

scientific consensus is that conventional plastics are not biodegradable.67 The reasons are wellunderstood: the high-molecular weight and chemical structure of most conventional plastics 

prevent naturally-occurring microorganisms from using it as food source.68 Petroleum-based 

conventional plastics have not been around long enough for microorganisms to develop the 

ability to digest them.

69 Even ECM concedes that conventional plastics are not biodegradable. 

FOF ¶ 189; CCX-818 (Sinclair Dep. Tr. at 56 (admitting that he has “never seen any evidence 

that [polyethylenes and polypropylenes] will ever biodegrade.”).) 

 

to by Drs. Sahu and Burnette for the proposition that conventional plastics are biodegradable 

address the biodegradability of pre-treated or low-molecular weight PE. See CCX 892 ¶ 11; 

(Michel, Tr. 2872-2875). As explained by Dr. Michel: 

Only when PE is modified through UV irradiation for long periods of time so that 

carbonyl bonds are formed, or when hydrolysable linkages or unsaturated sites are 

introduced into the polymer does it display a very limited ability to biodegrade 

(Prasun et al., 2011). Pretreatment by incubating PE at high temperatures can also 

modify PE by reducing the molecular weight of the polymer which improves 

biodegradation. However without these abiotic and chemical and physical 

modifications, the extent of PE biodegradation is essentially nil. 

CCX-895 at 12. Other papers relied on by these experts for this proposition pertain to the 

“extremely limited subset of high-molecular weight, commercial-grade synthetic plastics 

that are similar enough to naturally occurring polymers to be susceptible to enzymatic 

attack.” CCX-892 at n.4. But as explained by Dr. McCarthy, the biodegradability of 

these plastics is irrelevant to the claims at issue in this case. CCX-892 at n.4. 

66 FOF ¶ 128. 

67 FOF ¶ 9. 

68 FOF ¶ 9. 

69 FOF ¶ 10. 

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The ECM Additive is mostly a synthetic biodegradable polymer like polycaprolactone 

(PCL).70 ECM recommends that a small concentration, about 1%, of its Additive be melt-batch 

blended with a non-biodegradable conventional plastic, such as polyethylene.71 This type of 

physical blend does not alter the chemical structure of the plastics.72 Therefore, the Additive 

does not alter the chemical characteristics that make conventional plastics resistant to 

biodegradation and the non-biodegradable plastic component is no more susceptible to 

biodegradation after blending than it was before.73 This view is resoundingly supported by the 

literature cited by ECM’s own experts.

74 

Even making the false assumption that the addition of 1% ECM Additive (biodegradable 

component) would allow the ECM Plastic to degrade faster (e.g., by breaking the plastic into 

smaller pieces), the amount of time it would take for the conventional plastic to completely 

biodegrade would not be reduced to five years or even decades in any environment.75 This fact 

 

70 FOF ¶ 171. 

71 FOF ¶ 130-131. 

72 FOF ¶¶ 130-131; see also CCX-895 at 13 (“Addition of additives into conventional 

plastics does not increase the carbonyl content of the plastic nor does it reduce the molecular 

weight of the high molecular weight polymers or add hydrolysable linkages or unsaturated 

carbon bonds.”). ECM offered testimony that Dr. McCarthy used a physical blend in his patent 

to make a biodegradable polymer. (Sahu, Tr. 892-893.) However, as Dr. McCarthy explained, 

his patent covered a physical blend of two known biodegradable polymers—completely unlike 

ECM Plastic. (McCarthy, Tr. 405-406.) In fact, Dr. McCarthy testified in his own early 

research, he evaluated blends of biodegradable with non-biodegradable polymers to determine 

the effect of the non-degradable component on the biodegradable component. He never 

considered that entire treated plastic would be rendered biodegradable – because there has “never 

been any scientific proof that polyethylene is biodegradable.” (McCarthy, Tr. 406.) 

73 FOF ¶¶ 130-131. 

74 FOF ¶ 131. 

75 FOF ¶ 132. 

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is conceded by Dr. Sahu, who (incorrectly) estimates ECM Plastic to biodegrade in 30-100 years. 

FOF ¶ 132. However, as Dr. McCarthy explained, ECM Plastic could take as long as 

conventional plastic to biodegrade (because it still consists of 99% conventional, nonbiodegradable plastic), or even longer (if the fragmented pieces become recalcitrant to 

biodegradation).76 Thus, claims that ECM Plastic will completely biodegrade in periods of time 

as short as five years cannot be true.77

3. Tests Show No Biodegradation of ECM Plastic. 

ECM provides the Court with a number of studies, some of which were part of ECM’s 

original substantiation materials and others that have been produced in this litigation. See FOF 

¶ 449. None of these materials supports ECM claims. FOF ¶ 454. Importantly, several actually 

disprove them. FOF ¶ 450; 454. 

Perhaps most significantly, Dr. Barlaz conducted at least four (and perhaps more) 

biodegradation tests of ECM Plastics under the Biochemical Methane Potential test (“BMP”).78 

The BMP, like other biodegradation tests, evaluates the amount of methane gas released after the 

sample is exposed to bacteria. These so-called gas evolution tests are the “only true indicator of 

biodegradation.” RX-855 at 41. Unlike the ASTM D5511, the BMP evaluates ultimate methane 

yield. It is run in 160 milliliter glass vials in a liquid phase. (Barlaz, Tr. 2220-2221.) The test is 

traditionally run for 60 days. (Barlaz, Tr. 2230.) BMP tests are also conducted in the mesophilic 

range, i.e., at 37oC. See FOF ¶ 167. 

 

76 FOF ¶ 133. 

77 Dr. McCarthy concludes that any claim that ECM Plastic biodegrades more rapidly 

than conventional plastic is, in his professional opinion, false. 

78 FOF ¶ 167. 

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According to Dr. Barlaz, the “BMP is an appropriate screening tool for biodegradability 

in landfills although the actual volume of methane generated in a landfill may well be less than 

that measured by a BMP test.”79 As Dr. Barlaz explained at trial, the BMP, like the ASTM, is 

optimized for accelerated biodegradation.

In the lab, you know, I look at the BMP test as a first-level screening test because 

it’s cheaper and easier to set up. And I look at a reactor test as one step up in 

complexity. It’s a high-solids environment. It’s still wet, but it's a high-solids 

environment. And it’s more representative of a high-solids matrix as we see in a 

landfill. But a reactor is similarly optimized for anaerobic biodegradation. 

(Barlaz, Tr. 2224.) Yet, Dr. Barlaz’s BMP results showed no80 or negligible amounts of methane 

production81 and, in no case, an amount of methane exceeding the amount of gas attributable to 

the additive alone.82 Not surprisingly, Dr. Barlaz’s report offers no opinion on the 

biodegradability of ECM Plastics.83

Dr. Barlaz’s findings are by no means unique. Similar results were reached under the 

only published, peer-reviewed study to address whether ECM Plastic is biodegradable. (See 

CCX-164 (E. Gomez & F. Michel, Biodegradability of conventional plastics and natural fiber 

composites during composting, anaerobic digestion and long term soil incubation, 98 

JOURNAL OF POLYMER DEGRADATION & STABILITY 2583-91 (2013).) This study, 

which ran a soil test lasting over two years and an ASTM D5511 test on PP and PE treated with 

the ECM Additive, concludes that “plastics containing additives that supposedly confer 

 

79 FOF ¶ 175. 

80 FOF ¶ 168. 

81 FOF ¶ 169. 

82 FOF ¶ 172. 

83 FOF ¶ 173. 

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biodegradability to polymers such as polyethylene and polypropylene did not improve the 

biodegradability of these recalcitrant polymers.” (emphasis added) (CCX-164). 

These results are consistent with several other studies also concluding that no 

biodegradation was observed at the conclusion of the test. For instance, Stevens Ecology, an 

independent lab in Oregon ran several anaerobic tests, each finding no biodegradation under 

anaerobic conditions. CCX-174-CCX-176. Two tests conducted by Advance Material Center, 

Inc. showed no biodegradation under both aerobic and anaerobic conditions. CCX-173; see infra

at 11. O.W.S. also conducted several composting studies (whose composting environment 

presents far better conditions for biodegradation than landfill conditions) and several anaerobic 

tests that likewise report no biodegradation. CCX-156; CCX-157; CCX-163; CCX-169-CCX171. All of these studies show unequivocally that ECM Plastic is not “biodegradable” even 

under accelerated, optimized conditions. 

B. ECM Lacks a Reasonable Basis for its Claims. 

To prevail under the “reasonable basis” theory, Complaint Counsel must prove that the 

advertiser did not have a reasonable basis substantiating its claims at the time it made the claims. 

Daniel Chapter One, No. 9329, Initial Decision, at *99 (citing Thompson Med. Co., 104 F.T.C. 

at 813). ECM’s express and implied claims of complete biodegradation in landfills in five years 

or less lack a reasonable basis for two reasons. First, as explained below, the appropriate level of 

substantiation is competent and reliable scientific evidence. This standard requires wellcontrolled, well-conducted studies, and ECM’s evidence falls far short of this standard. 

Second, even assuming that some of the tests show some biodegradation, they fail to 

reach levels of biodegradation beyond that attributable to the additive, much less enough to 

support ECM’s claims of complete biodegradation. Nor were they conducted under conditions 

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that come close to approximating the conditions claimed in ECM’s advertisement. Accordingly, 

ECM’s claims are unsubstantiated.

1. Competent and Reliable Scientific Evidence is the Appropriate 

Standard of Substantiation for Green Claims.

a. Pfizer Factors Analysis

“To determine what constitutes a reasonable basis, the Commission considers the ‘Pfizer 

factors,’ which are factors relevant to the benefits and costs of developing substantiation for the 

claim.” See POM Wonderful, Docket No. 9344, at 17-18 (citing In re Pfizer Inc., 81 F.T.C. 23 

(1972)); Substantiation Statement, 104 F.T.C. at 840. The Pfizer factors include: 

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

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

of substantiation experts in the field believe is reasonable. 

104 F.T.C. at 840. Application of the Pfizer factors here demonstrates that ECM’s substantiation 

is insufficient to support its claims for three reasons. 

i. The Type of Claim and Products at Issue Demand 

Biodegradability Claims be Supported by a High Level of 

Substantiation.

The first and second Pfizer factors (the type of claim and product) weigh in favor of 

requiring “a high level of substantiation.” Thompson Med., 104 F.T.C. at 822. Plastics, which 

consumers use in huge volume and which comprise a significant proportion of municipal solid 

waste,84 are of obvious importance to consumers who are concerned about the environment. 

But, as the Commission has acknowledged, environmental claims are particularly difficult for 

consumers to evaluate: consumers are not in a position to access, let alone evaluate, scientific 

evidence of biodegradability nor see for themselves whether a product actually degrades as 

 

84 FOF ¶¶ 11, 14. 

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promised. 16 C.F.R. § 260.4(b); POM Wonderful at 35 (citations omitted) (citing Removatron 

Int’l Corp., 111 F.T.C. 206, 306 n.20, 884 F.2d 1489, 1496-97 (1st Cir. 1989)) (competent and 

reliable scientific evidence required for “claims whose truth or falsity would be difficult or 

impossible for consumers to evaluate by themselves”).85 Therefore, biodegradable claims such 

as ECM’s must be supported with a high level of substantiation. 

ii. The Potential Harm to Consumers of Allowing False Claims is 

Significant.

The third and fourth factors (the benefits of a truthful claim and the consequences of a 

false claim) also militate in favor of requiring a high level of substantiation. Truly biodegradable 

plastics86 would have significant appeal to consumers who care about the size of landfills and 

environmental pollution caused by plastics. 

False claims are detrimental to consumers who care about the environment for several 

reasons. First, environmentally-conscious consumers (a large segment of the consumer 

population) are likely to purchase “biodegradable” plastics in lieu of traditional plastics—and 

pay higher prices for the perceived environmental benefit. FOF ¶ 14. Second, consumers are 

likely to replace environmentally-beneficial practices such as recycling with disposal of 

“biodegradable” plastic in a landfill. Third, false claims of biodegradability (when exposed as 

false) undercut faith in truthful claims. 

 

85 When asked whether plastic is accumulating in landfills and causing plastic pollution, 

Dr. Burnette stated that he “didn’t have a peep hole into a landfill,” so he didn’t know whether or 

not they are accumulating. (RX-840 (Burnette, Dep. at 110-111.) 

86 The few plastics currently on the market that are capable of breaking down under 

certain conditions (e.g., cellulose or starch-based plastics) remain niche products that do not 

replace traditional plastics. FOF ¶ 8.

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iii. ECM Does Not Face Substantial Hardship in Substantiating 

Claims with a High Level of Substantiation or in Qualifying its 

Claims Appropriately. 

The fifth and sixth Pfizer factors (the cost of a reasonable amount of substantiation) 

further support requiring a high level of substantiation. If its product in fact worked, ECM 

would not face a substantial hardship in substantiating its claims because it could (1) modify the 

tests to correct for the flaws identified by our experts; (2) employ other testing methods, such as 

14C radio tags;87 or (3) qualify its claims. According to our experts, Drs. McCarthy and Michel, 

conducting a 14C test on ECM Plastic is feasible. Dr. Michel, an Associate Professor in the 

Department of Food, Agricultural and Biological Engineering at the Ohio State University with 

an adjunct appointment in the Department of Chemical and Biomolecular Engineering, who has 

previously conducted studies using 14C, estimated that such as test would have cost 

approximately $108, 000—significantly less than “hundreds of thousands of dollars” ECM 

claims to have spent to date substantiating its claims. CCX-895. 

 87 This method involves tagging radioisotopes of carbon,14C, of a high-molecular weight 

plastic, such as polyethylene (PE) before conducting a gas evolution test. During the gas 

evolution test, biogases are monitored for the radiolabeled 14C. If the radiolabeled carbon is 

detected, then the conventional plastic polymer is undergoing a material transformation through 

biodegradation. If the radiolabeled carbon is not detected in the biogases, then the observed 

biogases are likely due to other factors, such as biodegradation of the additive or the inoculum. 

CCX-891 ¶ 59. All the experts agree that using 14C radiolabeling would provide strong, if not 

definitive, evidence that the plastic, and not just the additive, is biodegrading. FOF ¶ 455. 

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b. Scientists in the Relevant Fields Demand a High Level of 

Substantiation for These Claims.

Dr. Stephen McCarthy, a pre-eminent expert in the area of degradable polymers explains 

that to satisfy scientists88 (who view claims of biodegradable conventional plastic with great 

skepticism89) that 1% additive will make conventional plastics biodegradable in a stated 

timeframe and disposal condition, the claimant must provide the results of appropriatelyanalyzed results of independent, well-designed, well-conducted, well-controlled testing.90 The 

testing should use the appropriate plastic application, load rate, inoculum, test conditions, and 

sample weight, over an appropriate duration of time.91 And tests must simulate the claimed

disposal conditions.92 

This standard is consistent with the level of substantiation demanded under the Pfizer 

factors and is consistent with the numerous consent orders that require environmental marketing 

claims be supported by competent and reliable scientific evidence (“CRSE”). See, e.g., Down to 

Earth Designs, Inc., Docket No. C-4443 (2014); Clear Choices Housewares, Inc., File No. 122 

3288 (2013); Kmart Corp., File No. 0823186 (2009); Tender Corp., File No. 082-3188 (2009); 

Dyna-E Int’l Inc., File No. 082-3187 (2009); Archer Daniels Midland Co., 117 F.T.C. 403, 415, 

 

88 Two of ECM’s science experts—Drs. Burnette and Sahu—concede that they are not 

polymer scientists and do not have the expertise to opine specifically on the biodegradability of 

plastics. FOF ¶ 176. 

89 FOF¶ 134. 

90 FOF ¶ 138. 

91 FOF ¶ 138. 

92 FOF ¶ 136. 

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410 (1994); Mobil Oil Corp., 116 F.T.C. 113, 120-121 (1993); American Enviro. Prods., Inc., 

115 F.T.C. 399, 408-09 (1992). 

“Competent and reliable scientific evidence” consists of “tests, analyses, research, 

studies, or other evidence based on the expertise of professionals in the relevant area, that has 

been conducted and evaluated in an objective manner by persons qualified to do so, using 

procedures generally accepted in the profession to yield accurate and reliable results.” See, e.g., 

Brake Guard Prods., Inc., 125 F.T.C. 138 (1998); see also, POM, 2013 FTC LEXIS 6, at 11. In 

addition, “where advertising expressly or impliedly represents that it is based on scientific 

evidence, the advertiser must have that level of substantiation, and, in particular, must satisfy the 

relevant scientific community that the claim is true.” Removatron, 111 F.T.C. at 299. 

As explained below, ECM’s purported substantiation fails to rise to the level of 

competent and reliable scientific evidence for two reasons: the tests ECM relies on are fatally

flawed; and cannot support claims of complete biodegradation in landfills. Moreover, ECM 

defense of its substantiation is little more than post-hoc rationalizations. 

2. ECM’s “Substantiation” Has Severe Methodological Flaws. 

Many of the studies, particularly those conducted by Dr. Timothy Barber, Eden Research 

Laboratories (ERL), and Northeast Labs (NEL), are so methodologically flawed that they are not 

reliable evidence. For example, the tests conducted by Dr. Barber rely on a “weight loss” 

methodology.93 Weight loss is inherently unreliable.94 As Dr. McCarthy explained: “[the] 

weight loss test method was abandoned, because people just realized it was a bad test.” 

(McCarthy, Tr. 432). 

 

93 FOF ¶ 137. 

94 FOF ¶ 138. 

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And those [weight loss] tests, as I mentioned, are problematic because all 

you need is disintegration to -- you know, just embrittlement, and then you miss a 

corner of the film and then you think that it’s degraded, but really all you did was 

lose a corner to the test method.

(McCarthy, Tr. 457.) Therefore, the scientific community has rejected these tests as a principal 

basis for determining biodegradation.95 At least one of the papers cited by ECM’s experts 

concurs that weight loss is not an accurate predictor of biodegradation.96

Dr. Barber’s test also looks to measurements of free chloride as an indicator of 

biodegradation.97 However, as explained by Dr. McCarthy, the loss of a chlorine side group 

does not indicate that the much more stable and difficult to break carbon-carbon bonds that form 

the polymer chain have been affected.98 Thus, the existence of the free chlorine does not 

indicate anything about the most difficult, i.e., strongest and most recalcitrant, bonds that need to 

be broken to truly result in biodegradation.99 Even Dr. Burnette admits that the loss of the 

chlorine side group does not “automatically” mean that the carbon-carbon backbone has been 

broken. (Burnette, Tr. 2417). Nor has any of ECM’s experts identified a source other than Dr. 

Barber that relies on this metric. 

Even if the presence of the free chloride were indicative of biodegradation, the results 

would only apply to PVC and not other treated plastics. (See, e.g., Barber Tr. 2081-2082 

(conceding that rates of biodegradation cannot be extrapolated beyond the precise environmental 

 

95 FOF ¶ 138. 

96 See, e.g., RX-584. 

97 FOF ¶ 177. 

98 CCX-891; (McCarthy Tr. 456-457.) 

99 CCX-891; (McCarthy Tr. 456-457.) 

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conditions or to other plastics).) Finally, Dr. Michel, a microbiologist and expert in enzymatic 

and microbial polymer conversion in composting, soil, and anaerobic digester systems, explains 

that there is a “major flaw in the scientific analysis and modeling of BioPVC biodegradation 

data.” CCX-895 at 17. He further explains that using the correct model for biodegradation of 

the ECM-treated BioPVC shows that it would never biodegrade. CCX-895 at 19 (“from the data 

presented, and using the logistic model used by Dr. Barber uses [sic], the time to completely 

biodegrade BioPVC would be infinite.”). 

The NEL and ERL tests are as fatally flawed as Dr. Barber’s, but for different reasons. 

These tests look to the ASTM D5511 method to support ECM’s biodegradation claims. 

Tellingly, ECM’s experts refer to ASTM D5511 as inconclusive, and even Dr. Barlaz cautioned 

he was skeptical of the test.

100 Notwithstanding the general shortcomings of ASTM D5511 to 

support claims of complete biodegradation or biodegradation in landfills (see supra at 16; 61-66 

for discussion), the tests conducted by these labs also fail to satisfy other indicia of reliability.101

For instance, during the trial, Alan Johnson, the current owner of NEL (Johnson, Tr. 

1554) testified that: 

• NEL does not undergo any audits, does not hold any certifications, and has never 

been evaluated (Johnson Tr, 1580-1581); 

• NEL did not maintain anaerobic conditions throughout the duration of the 

extended anaerobic ASTM D5511 tests (Johnson, Tr. 1574);102

 

100 FOF ¶¶ 140, 142, 143, 178. 

101 CCX-891, ¶¶ 87-89. 

102 FOF ¶¶ 142-143. 

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• ASTM D5511 does not allow for extension testing, i.e., testing beyond the 30-day 

period of the test (Johnson Tr., 1583); 

• The protocol for extended ASTM testing was set up by Dr. Bill Ullman (Johnson 

Tr. 1560) and has never been independently re-evaluated (Johnson Tr., 1583); 

• The system for gas monitoring involves using an inverted cylinder and metal paint 

cans. There would be no way to identify a small leak in the system from gas 

generation. (Johnson Tr. 1584); 

• They wait for a paint can to rust before swapping it out for a new one. (Johnson 

Tr. 1585 (when the paint can rusts during extension testing, replace it with a new 

one)); and only replace the one that has been rusted (Johnson, Tr. 1592-1593); 

• NEL did not consider whether the rusting test vessel affected results of 

biodegradation testing (Johnson, Tr. 1586); and

• The methane readings produced by the IR machine has a precision of plus or 

minus 20% (Johnson ,Tr. 1587). 

Similarly, Thomas Poth, the owner of ERL, testified that:

• ERL does not report statistical information, so it does not know if the test results 

are statistically significant (Poth, Tr. 1512-1513, 1538); 

• ERL provides primarily quick-and-dirty updates that are not given the same level 

of rigorous review as the reports (Poth, Tr. 1499-1500); and

• ERL adjusts biodegradability percentage of positive control to 100% even though 

ASTM D5511 does not provide for the adjustment and he is aware that cellulose 

will never reach 100% biodegradation (Poth, Tr. 1505-1507). 

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In his expert report, Dr. McCarthy highlights these and other deficiencies and explains 

why they call into question the reliability of the test results. For instance, Dr. McCarthy explains 

that replacing the inoculum would likely lead to overestimation of biodegradation, by exposing 

the inoculum to oxygen. CCX-891 ¶¶87-89. Similarly, deviating from the method and going 

beyond the validation period makes the data unreliable. CCX-891 ¶¶87-89. Similarly, these labs

did not report several categories of critical information required to be reported under the 

methodology, making it impossible to validate the data. CCX-891 ¶¶87-89. Even Dr. Sahu 

acknowledged that information such as load rates, plastic types, or other critical information are 

necessary to understand and evaluate the data. (Sahu, Tr. 1932-1933; 1940, 1961). 

Q. So it's important to understand what the error rate is in order to establish 

or understand the results that are being reported; correct?

A. Yeah. Unless you have the underlying data, in which case you can look at the 

error rates and make your assessment. If the author is not providing the 

underlying data, then yes, it will be good to see the analysis of error. But if the 

underlying data are presented, then of course one can make their own judgment. 

(Sahu, Tr. 1959.) 

These tests stand in stark contrast to the well-documented studies conducted by such labs 

as Stevens Ecology (CCX-573), O.W.S. (CCX-169-171), North Carolina State University (CCX946-948), and Ohio State University (CCX-164) that show no statistically relevant

biodegradation of ECM Plastics under a variety of conditions. Given the severe methodological 

flaws of the Barber, ERL, and NEL tests, they are exceedingly unreliable, and certainly not 

indicative of complete biodegradation in landfills under any time frame. 

i. ECM’s Substantiation Does Not Support Claims of 

“Complete” Biodegradation of ECM Plastics in “Landfills.” 

To support claims of “complete” biodegradation for ECM treated plastics, tests must be 

conducted for a sufficient length of time to demonstrate that the entire treated plastic, not just the 

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biodegradable additive, will be consumed.103 This means conducting a biodegradation study to 

show at least 60% biodegradation.104 There is no reliable study that has been conducted for 

sufficient duration to demonstrate that the ECM Plastic will completely biodegrade. Moreover, 

the test must also reflect the disposal conditions claimed, in this case “landfills.” There is no 

evidence of biodegradation of ECM Plastics under landfill conditions or that ECM Plastic has 

biodegraded above the “priming effect.” 

(a) No Evidence of Complete Biodegradation. 

ECM rests its claim of complete biodegradation on an incorrect assumption that has been 

resoundingly rejected by the scientific community: that once started, biodegradation will go to 

completion.105 There is no basis for ECM’s contention that the minute amounts of 

biodegradation (probably from the biodegradable additive) can be extrapolated to completion. 

As Dr. Sahu himself testified:

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 the rate would remain constant and therefore trying to attempt a 

time period for complete biodegradation. That would be unusual. 

(Sahu, Tr. 1796 (emphasis added).) In fact, ASTM D5511 explicitly prohibits extrapolation of 

test results: 

Claims of performance shall be limited to the numerical result obtained in the test 

and not be used for unqualified ‘biodegradable’ claims. Reports shall clearly state 

the percentage of net gaseous carbon generation for both the test and reference 

samples at the completion of the test. Furthermore, results shall not be 

extrapolated past the actual duration of the test.

 

103 FOF ¶ 147. 

104 FOF ¶ 148. See also RX-853 at 56 (“If biodegradable were defined as complete 

mineralization, then I want to see something close to the stoichiometric yield [of methane].”). 

105 FOF ¶ 150. 

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CCX-83. Thus, if a test shows 10% biodegradation in 300 days, the test cannot be used to 

support a claim of 100% biodegradation in 3000 days. The reason for the prohibition on 

extrapolation is simple: there is no evidence that biodegradation is a linear process (and, in fact, 

the rate of biodegradation is likely to slow because of recalcitrance). CCX-891 ¶ 69. 

In support of its remarkable claims, ECM drums up an equally fantastical mechanism of 

action to explain how ECM Plastics will biodegrade to completion. According to ECM’s 

marketing materials: 

The presence of at least one percent of our additives in a plastic product, which is 

in contact with other biodegrading organic materials, structures communities of 

such organisms as are there present on the surfaces of the plastic in such a way 

that their interaction produces the ability to break down the long hydrocarbon 

chains of the “non-biodegradable” petrochemical plastics. As most people are 

aware, an example of a biofilm would be the scum that can form on the surface of 

a pond or on teeth, for that matter. In the cases of most pond biofilms, the surface 

layers with chlorophyllic, aerobic organisms can support layers of anaerobic 

organisms in the deeper layers and the interaction of all of the organisms makes 

for an ecosystem that in some cases produce byproducts that would not be formed 

without the interaction. The same can be said of the biofilms formed by the 

interaction of our additive materials and the naturally existing biota. Importantly, 

this structuring of communities of microorganism [sic] proceeds in anaerobic as 

well as aerobic conditions. 

Once there are the structured communities of microorganisms interacting to 

produce schisms in the long hydrocarbon chains of the polymers the process 

continues until all the hydrocarbons are eventually transformed into the carbon 

dioxide and water (aerobic biodegradation) or carbon dioxide, methane and water 

(anaerobic biodegradation).106 

ECM has not submitted one shred of evidence to support the theory that the purported 

biofilm that forms on the surface of ECM Plastic operates in a fundamentally different way than 

the individual microorganisms. This purported mechanism “is contrary to the scientific literature 

that shows that biofilms can form equally well on hydrophilic and hydrophobic surfaces, and that 

 

106 CCX-4. 

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they can form on surfaces that are not biodegradable.”107 As further explained by Dr. Michel at 

trial, 

So in everyone’s bathroom there’s biofilms formed in the drain. In the drain, 

biofilms are formed so they can remain in a position where nutrients are flowing, 

which is down the drain. But they’re not breaking down the pipe itself. If they 

would be breaking down the pipe itself, then you wouldn’t be using those 

materials to make the pipe because the pipe would break down. So their 

understanding of biofilms, just because a biofilm forms that it’s biodegrading the 

material to which it’s attached, is incorrect.

(Michel, Tr. 2865.) ECM’s expert, Dr. Burnette, concedes that the presence of a biofilm does 

not indicate that the microorganisms are using the plastic as a food source.108 

Moreover, ECM’s experts cannot even agree on what the Additive actually does. For 

instance, Dr. Burnette claims that the Additive may serve as an attractant or “weaken” carboncarbon bonds in the plastic, or both. RX-854 ¶ 45. Dr. Sahu attributes the process to the 

synergistic effect of both degradation (non-biological mechanisms) and biodegradation (caused 

by the formation of a biofilm on the plastic). (RX-855 at 13; Sahu, Tr. 1870-1872.) But none of 

the experts know the proprietary formula for the ECM Additive and ECM’s experts are not 

plastics engineers with an understanding of how ECM Additive interacts with the plastic at a 

molecular level. (Sahu, Tr. 1949; Burnette, Tr. 2449.) Their opinions are nothing more than a 

hodgepodge of untested and unsupported hypotheses. 

(b) No Evidence of Biodegradation in Landfills.

To support claims of biodegradation in landfills, both sides agree that tests should be run 

at appropriate landfill temperatures with appropriate anaerobic bacteria.109 Of the few tests 

 

107 CCX-895 at 16-17. 

108 FOF ¶ 179. 

109 FOF ¶ 154. 

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purporting to show biodegradation, none mimics these conditions. FOF ¶ 136. For instance, the 

primary test used to evaluate biodegradability of plastics is ASTM D5511. This test, like other 

gas evolution tests, uses methane gas generation as a proxy for biodegradation. However, the 

test is typically conducted at 52oC. See CCX-83; FOF ¶ 154. Running tests at 52oC results in

two potentially serious flaws. First, the hot temperatures could cause non-biological degradation 

that would not occur at more typical landfill temperatures of 37oC.110 Second, the types of 

anaerobic bacteria that survive at the hotter temperatures are not the same types of anaerobic 

bacteria that operate at cooler landfill temperatures.111 Accordingly, one cannot conclude that 

because “some” biodegradation is observed under one set of conditions, it will be observed under 

all conditions. In fact, tests conducted under the appropriate temperature range showed no 

biodegradation at all.112

(c) No Evidence of Biodegradation above the Priming 

Effect.

Although no test supports ECM’s claims, some tests purport to show minimal levels of 

methane gas generation beyond that from the Additive. Drs. McCarthy and Michel, the only two 

degradable polymer experts in this case, both explain that biodegradation observed in these tests 

is likely the result of the priming effect.113 CCX-891 ¶ 44. The priming effect is the 

biodegradation of the additive (which contains organic compounds highly susceptible to 

 

110 FOF ¶ 155; see also Barlaz, Tr. 2279; 2324. 

111 FOF ¶ 156. 

112 FOF ¶ 157. 

113 “Many of the reports where ECM amended plastics have been observed to biodegrade 

greater than the negative control can be attributed to the biodegradation of the ECM additive, or 

to the priming effect (Shen and Bartha, 1996), and not the plastic to which it has been added.” 

CCX-895 at 10. 

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biodegradation) and the organic materials of the test medium (the bacteria used for testing) rather 

than the plastic.114 CCX-895 ¶ 19. Thus, the priming effect essentially increases the 

biodegradation of the inoculum. CCX-895 ¶ 19; see also CCX-162 at 3. 

Dr. Barlaz testified that he performed calculations for some of the tests conducted by NEL 

and ERL showing that the data was statistically significant as compared to the inoculum. 

However, these calculations prove nothing. The ECM Additive itself is highly biodegradable, as 

is the inoculum in which it is tested. Therefore, it is not surprising that a test of plastic treated 

with ECM’s highly biodegradable Additive shows more biodegradation than inoculum alone. 

The existence of the additive both increases the total amount of material available for 

biodegradation (compared to the test of the inoculum by itself), and stimulates increased 

biodegradation of the inoculum (the priming effect).115 Thus, even taking Dr. Barlaz’s 

calculations into account, these results are consistent with no biodegradation of the plastic. 

Additionally, Dr. Barlaz acknowledges that the priming effect exists in anaerobic conditions, 

but does not explain how his calculations account for it. In fact, he concedes that he “can’t refute 

it without doing the experiment.” (Barlaz, Tr. 2279.) Therefore, Dr. Barlaz tries to explain away 

the impact of the priming effect on these tests by asserting that the Additive is not a “readily 

degradable” substance like glucose.116 However, Dr. Barlaz ignored his recent testing of the 

 114 “The phenomenon of more than 100% biodegradation sometimes happens with very 

easily biodegradable materials. The consumption of the easily degradable material stimulates the 

inoculum in those reactors to consume the background substrate at a slightly higher rate than the 

inoculum in the control reactors.” CCX-162 at 3.

115 “It is true that ECM amended plastics will biodegrade to a greater extent than 

unamended plastics, but only because the ECM additive itself apparently biodegrades at a much 

faster rate than the plastics to which it has been added.” CCX-895 at 13. 

116 Assuming the additive is PCL (ECM refused to provide the formula for its additive in 

response to Complaint Counsel’s discovery requests, or even to its own experts), Dr. Barlaz 

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ECM Additive that showed it is almost as biodegradable as paper. Compare CCX-946 (copy 

paper has a methane yield of 200 mL CH4/dry gram) with CCX-951 (reporting 151 mL CH4/ dry 

gram for ECM Additive). He also ignored other testing in the record that demonstrates that the 

ECM Additive alone is readily biodegradable. RX-269; RX-265; RX-264. 

Lastly, Dr. Barlaz acknowledged that his statistical analysis would not address irregularities 

in the test conduct, for instance, if the test were conducted under alternating aerobic–anaerobic 

conditions. (Barlaz, Tr. 2334.) As discussed above, because of the poor controls and test 

methods employed by NEL and ERL, oxygen likely was introduced into the testing environment, 

creating such alternating conditions during the test. 

III. ECM’S CLAIMS ARE MATERIAL. 

A. ECM’s Claims Are Presumptively Material Because They Address the 

Additive’s Central Characteristic. 

A claim is material if it “involves information that is important to consumers and, hence, 

likely to affect their choice of, or conduct regarding a product.” Kraft, Inc. v. FTC, 970 F.2d at 

322 (quotation omitted). Significantly, three types of claims are presumed material: (1) express 

claims; (2) implied claims the seller intended to make; and (3) claims involving health, safety, or 

“other areas with which reasonable consumers would be concerned, including a claim that 

concerns the purpose, safety [or] efficacy” of the product. Id. at 322-23 (emphasis added). 

Thus, any claim related to the product’s central characteristics is presumptively material, 

Telebrands, 140 F.T.C. at 292, including any implied claim, Thompson Med., 104 F.T.C. at 816-

17. 

 

relies on his past work evaluating the biodegradability of PCL at 37oC, but acknowledged that 

the biodegradation rate of PCL “could be faster at a higher temperature.” (Barlaz, Tr. 2324.) 

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Significantly, the additive’s central (and only) characteristic is that it purportedly makes 

plastic biodegradable.117 ECM’s consumer perception expert, Dr. David Stewart, was unaware 

of any reason why a manufacturer would purchase the additive other than to make its products 

biodegradable (Stewart, Tr. 2643), and his own consumer survey found that 71% of respondents 

believe that whether a product is biodegradable is important, RX-856 at 10. Yale Marketing 

Professor Shane Frederick concurred that biodegradable claims “affect consumer decisions.” 

CCX-865 at 15. ECM’s claims concern only biodegradability: (1) the express claim that ECM 

Plastic is completely biodegradable; (2) the express claim that the scientific testing establishes 

the additive’s efficacy; (3) the express claim that ECM Plastic will biodegrade in landfills; 

(4) the express claim that ECM Plastic will biodegrade in nine months to five years; and (5) 

implied claims concerning degradation speed, including that ECM Plastic will fully biodegrade 

in landfills within one year. Because ECM’s claims directly relate to the product’s central 

characteristic, they are presumptively material. 

B. ECM Failed To Rebut the Materiality Presumption. 

ECM’s attempt to rebut the presumed materiality associated with its product’s central 

characteristic falls short. Specifically, ECM focuses on the “nine months to five years” claim, 

and asserts its alleged irrelevance to both its customers and end-use consumers. ECM’s position 

fails for five reasons. First, ECM argues that it used the “nine months to five years” claim only 

to distinguish its product from faster-degrading compostable material. However, although Mr. 

Sinclair offered this dubious story when deposed, CCX-818 at 77-79, he never mentioned it at 

trial. In fact, there is no reliable evidence supporting this hypothesis at all (such as 

contemporaneous documents). Furthermore, even assuming ECM meant to distinguish its 

additive from slower-degrading material, why ECM conveyed “nine months to five years” is 

 117 Arguably, the Additive’s compatibility with plastic manufacturing equipment is 

another characteristic, albeit a secondary one to ECM’s customers and irrelevant to end-use 

consumers. 

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irrelevant to whether ECM intended to convey that claim (which is beyond dispute).118 

Likewise, why ECM conveyed the claim does not establish how its customers or end-use 

consumers understood it. 

Second, ECM contends that its allegedly “sophisticated” customers found the claim 

immaterial. Although there are a few instances in which a customer suggested that it did not 

consider biodegradation time, the overwhelming majority of the evidence supports the opposite. 

For example, in a candid moment, ECM CEO Robert Sinclair admitted to customer Westchem 

Group: “Lots of people get hung up on how long.” CCX-423 at 9 (emphasis added). 

Westchem had asked him whether “the complete biodegradation can be stated to happ[e]n by the 

5 years on the max end.” CCX-423 at 9. Indeed—as Mr. Sinclair complained—many customers 

inquired about “how long.”119 Other ECM customers demonstrated the importance the 

timeframe had to them by reiterating it to their prospective customers.120 For example, after 

 

118 Whatever the reason ECM elected to make the “nine months to five years” claim, it 

knew or should have known that the claim was false. See infra at 94-95 (discussing evidence 

relevant to the need for fencing-in relief). 

119 See, e.g., CCX-282 at 2 (asking various questions about “degradable timing,” 

including whether “adding more [additive]” would accelerate the “degradable effect”); CCX-281 

at 2 (requesting test results demonstrating the “progress of decomposition during a certain time 

span (a couple years)”); CCX-279 at 3 (expressing concern about “the ability to claim without 

exception the speeded up breakdown”); CCX-280 at 3 (“We do have some nagging concerns that 

we need to resolve. The first question is ‘how long does it take to degrade.’”); CCX-300 at 1 

(“Does ECM test, or recommend testing, the end-users’ products to ensure that they biodegrade 

in less than 5 years?”); CCX-269 at 1 (“What determines 9 months vs 5 years as it is such a 

variance?”); CCX-400 at 4 (asking ECM precisely how much additive it needed to use in its 

products use “to meet your stated degradation timeframe of 9 months to 5 years”). 

120 CCX-811 at 22 (agreeing that “[b]ecause the prospective customers were interested in 

purchasing biodegradable plastic, IPB thought that the fact that . . . plastic products made with 

ECM additives would fully biodegrade in nine months to five years would be important to 

them”); CCX-33 (Earthware Films; repeating “nine months to five years” in marketing 

literature); CCX-34 (Earthware Films; repeating “nine months to five years” in memorandum to 

its distributors); CCX-37 (BioPVC, repeating “nine months to five years” on website); CCX-53 

(Gilman Brothers; stating product would degrade in one to five years in marketing material); 

CCX-57 (Kappus Plastics; marketing materials stated in bold that its product “will break down 

in approximately 9 months to 5 years”) (emphasis in original); CCX-182 (BioMugs; “This 

BioMug is made of a unique plastic that renders it biodegradable in 1-5 years.”); CCX-105 

(Plascon Films; repeating “nine months to five years” in advertisement). 

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informing potential customers that its ECM Plastic allegedly would degrade in “9 months to 5 

years,” one customer’s marketing materials exclaimed: “We think you’ll agree that this is an 

environmental bargain. . . especially when compared to the unknown breakdown time of other 

modern plastic materials!” CCX-38 at 1 (ellipses in original). In short, despite ECM’s effort to 

cherry-pick stray remarks from the record, the overwhelming weight of the evidence is that 

customers cared about the timeframe. 

Third, ECM implies that, because the claim does not appear on some products reaching 

end-use consumers, it must have been immaterial to those consumers who did see the claim. 

This is a non-sequitur, the absence of the claim on certain products says nothing about how 

consumers understood it when it was present. ECM also offered no evidence bridging the gap in 

logic (i.e., evidence that manufacturers removed the claim because it was allegedly irrelevant to 

end-users). Furthermore, there are many reasons a manufacturer might not include a claim on a 

product, for instance, if the claim will not fit easily (for instance, on a straw wrapper, CCX-101), 

or the claim would require excessive text on packaging, CCX-803 (Santana, Tr. 42) (testimony 

from Down To Earth explaining that it was unusual for so much text to appear on a plastic bag). 

Finally, it is undisputed that the “nine to five” claim appeared on millions of end-use products. 

CCX-811 (Hong, Tr. 99). Companies including Down To Earth thought it important enough to 

end-use consumers to include it on the packaging they received.121 CCX-494. Indeed, Down To 

Earth’s supplier, Island Plastic Bags (“IPB”), manufactured ECM Plastic bags reflecting the 

“nine months to five years” claim for “50 to 100” different customers. CCX-811 (Hong, Tr. 57). 

In total, IPB alone manufactured “about 10 million” such bags. CCX-811 (Hong, Tr. 99). 

 

121 Down To Earth asked ECM about using language that included “nine months to five 

years” on its grocery bags. See CCX-307. ECM responded with general approval – not 

befuddlement or confusion as to why anyone would want to put that claim on packaging for enduse consumers. See CCX-307; see also CCX-1095 (approving the use of “nine months to five 

years” on another customer’s marketing). 

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Fourth, ECM contends that “nine months to five years” is immaterial to consumers 

because they often have understandings of “biodegradation” that scientists would consider 

inaccurate, or because they believe that biodegradation times can vary.122 These facts are 

irrelevant to whether “nine months to five years” was important to consumers. Although 

consumers probably do not care whether ECM Plastic biodegrades in “nine months to five years” 

as opposed to, for instance, “ten months to six years,” there is undisputed evidence that they do

care whether the product is biodegradable. . As discussed above, the consumer perception 

evidence is clear that substantial numbers of consumers believe that plastic products labelled 

“biodegradable” will biodegrade within one year, and a majority understand that such a product 

will biodegrade within five years. Thus, most consumers understand that biodegradation is a 

process that happens quickly. The “nine months to five years” claim thus reinforces the 

expectation that the product will function as advertised (an obviously material fact) by defining 

the biodegradation promised in a manner consistent with how most consumers understand 

biodegradation. 

The claim “nine months to five years” helps ensure that consumers believe the 

“biodegradable” claim. Indeed, as IPB explained, its bags contain the “nine months to five 

years” language because “we want people [consumers] to know” how the product biodegrades, 

“so that they feel like this is an actual technology . . . it’s for real.”123 CCX-811 (Hong, Tr. 54-

 

122 ECM also points to the fact that some consumers are skeptical of the “nine months to 

five years” claim. However, some consumers’ skepticism does not mean that others—even most 

others—do not accept it. (Stewart, Tr. 2662). 

123 Notably, as a manufacturer of end-use products, IPB’s intent in conveying the “nine 

months to five years” claim is “a predicate fact giving rise to the presumption of materiality.” 

Deception Statement, 103 F.T.C. at 182; See also Kraft, 970 F.2d at 311 (presumption of 

materiality applies “where there is evidence that the seller intended to make the claim”) (citation 

omitted); FTC v. QT, Inc., 448 F. Supp.2d 908, 960 (N.D. Ill. 2006). Other ECM customers gave 

testimony similar to IPB. For instance, packaging manufacturer FP International testified that it 

conveyed to its potential customers that its “CELL-O air cushions will decompose completely 

within 9 to 60 months in the presence of microorganisms whether they are sent to a landfill or 

end up as litter in the soil” because “[i]t was important to convey a message of biodegradability.” 

CCX-810 (Blood, Tr. 199). 

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55). Put differently, IPB wanted consumers to have details regarding the biodegradation process, 

including the timeframe, “so that they would understand that the bags would . . . work as 

advertised[.]”124 CCX-811 (Hong, Tr. 55). 

Finally, ECM argues that the claim is scientifically immaterial. Specifically, ECM cites 

landfill expert Dr. Barlaz, who testified that precise biodegradation times are irrelevant to him 

because “the material is in the landfill, in essence, forever.” RX-864 at 109-10. But whether 

“nine months to five years” is irrelevant to a landfill expert with a Ph.D. in environmental 

engineering says nothing about the claim’s relevance to ECM’s customers or consumers. In 

short, ECM failed to overcome the materiality presumption with respect to any of its claims, 

including the claim that ECM Plastic biodegrades in “nine months to five years.” 

C. Regardless of the Presumption, the Evidence Proves Materiality. 

Even ignoring the presumption, the evidence establishes that ECM’s claims are material 

to both its customers and end-use consumers. Each claim at issue directly concerns the 

additive’s performance with respect to its only advantage over conventional plastic: 

biodegradability. The claims are, in essence, that the additive works, that testing proves it works, 

that it works in landfills, and that it works quickly. Indeed, the fact that ECM Plastic 

biodegrades quickly was so important that ECM required its customers to sign a so-called 

“Certificate of Minimum Loading” (Sinclair, Tr. 765), in which the customer acknowledges that 

“ECM’s reputation can be materially and, perhaps, irreparably damaged when products claiming 

to use ECM MasterBatch Pellets fail to biodegrade within a reasonable time (CCX-832) 

 

124 There are many different ways an advertiser can convey the material message that its 

product’s central feature functions as advertised. See, e.g., Thompson Med., 104 F.T.C. at 818 

(“Evidence from the ads themselves confirms our conclusion that Thompson was making 

implied efficacy representations when it represented Aspercreme to be a new product.”); see also 

Sterling Drug, Inc. v. FTC, 741 F.2d 1146, 1151-52 (9th Cir. 1984) (upholding Commission 

finding that broad references to drug’s “quality” would be interpreted by consumers as 

encompassing “efficacy,” because, with respect to the product at issue, “effective pain relief” 

was “consumers’ primary concern”). 

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(emphasis added).125 ECM further required that its customers certify: “we are fully aware [of] 

the risk that a [] plastic product will not fully biodegrade within a reasonable period of time if it 

contains less than one percent” of ECM’s Additive. (CCX-832) (emphasis added). 

ECM’s own conduct is equally revealing with respect to the “nine months to five years” 

claim in particular. Most of ECM’s marketing materials emphasize the claim.126 ECM’s 

Director of Sales, Tom Nealis, explained that, prior to 2012, “[t]he fact that the process will not 

normally take longer than five years” was representative of the claims he made to ECM’s 

customers. CCX-813 (Nealis, Tr. 249). ECM even prepared a flyer explaining the “nine 

months to five years” claim in detail. See CCX-5 (entitled “Life Expectancy of Products 

Manufactured with ECM Masterbatch Pellets.”). 

In fact, both Messrs. Sinclair and Nealis made the “nine months to five years” claim to 

customers and prospective customers who specifically inquired about biodegradation time. As 

noted above, Mr. Sinclair complained that many of his customers “get hung up on how long.” 

CCX-423 at 9. Thus, the evidence establishes that ECM made the “nine months to five years” 

claim because its customers were interested in the timeframe, and the only reason its customers 

would care is that end-users care.127 

 

125 The “certificate of assurance of minimum loading” was a marketing ploy intended to 

underscore that the additive worked as advertised. However, the fact ECM prepared a 

“certificate” for its customers’ signature referencing the need to assure that ECM Plastic 

biodegrades “within a reasonable time” highlights the relevance of timing to ECM’s customers. 

126 See, e.g., CCX-3; CCX-6; CCX-7 at 6. 

127 See, e.g., CCX-865 at 14 (expert opinion of Professor Shane Frederick; “The 

purchasers of ECM’s additive presumably have the greatest incentive to determine whether 

consumers respond to such claims.”) (IPB testimony explaining that it placed the “nine months 

to five years” claim on bags so that consumers know the “biodegradable” claim is “for real”). 

Notably, although ECM generally did not communicate with end-use consumers, one consumer 

who received a “biodegradable shopping bag” tracked down ECM and asked: “[I]n a landfill 

situation, would the bag be 100% broken down in XX years, or 50% within XX months.” CCX- 326 at 2. Mr. Sinclair responded: “The timeframe for biodegradation is generally-speaking 9 

months to five years[.]” CCX-326 at 1. 

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IV. ECM PROVIDED CUSTOMERS THE MEANS AND INSTRUMENTALITIES 

TO DECEIVE END-USE CONSUMERS

“‘[I]t is well established that one who puts into the hands of others the means by which 

such others may deceive the public is equally as responsible for the resulting deception.’” FTC 

v. Magui Publishers, Inc., No. 91-55474, 1993 U.S. App. LEXIS 28684, at *10 (9th Cir. Oct. 6, 

1993)) (quoting In re Litton Indus., Inc., 97 F.T.C. 1, 48 (1981)). Specifically, under the doctrine 

of means and instrumentalities (“M&I”), a respondent is primarily liable for deceptive claims 

even when it does not convey the misrepresentations directly to end-use consumers. FTC v. 

Winstead Hosiery Co., 258 U.S. 483 (1922). The purpose of the M&I doctrine is simple: “it is in 

the public interest to stop any deception at its incipiency.” Regina Corp. v. FTC, 322 F.2d 765, 

768 (3d Cir. 1963).128 

ECM has unquestionably provided its customers with the means and instrumentalities to 

deceive consumers. Its product has no economic value unless it allows purchasers to make 

biodegradability claims about their products; without such a claim, a customer’s product would 

be indistinguishable from the products of its competitors who did not raise their costs by buying 

 

128 The doctrine applies in at least two circumstances: the passing on of deceptive 

tangible items and the passing on of specific deceptive claims from the tangible item. In re Shell 

Oil Co., 128 F.T.C. 749, 766 (1999) (Swindle, C., dissenting). M&I liability has been imposed 

to address a wide variety of deceptive claims. See, e.g., FTC v. Winsted Hosiery Co., 258 U.S. 

483, 494 (1922) (deceptive labels on knit goods sold to retailers); Magui Publishers, Inc., No. 

91-55474, 1993 U.S. App. LEXIS 28684, at *10-11 (certificates, brochures, and signed prints); 

FTC v. Cyberspy Software, LLC, No. 6:08-cv-1872-ORL-31GJK, 2010 U.S. Dist. LEXIS 

145969, (M.D. Fla. April 22, 2010) (computer spyware); FTC v. Cruz, No. 08-1877 (JP), 2008 

U.S. Dist. LEXIS 103103, at *4-5 (D.P.R. Dec. 18, 2008) (pamphlet containing instructions on 

how to perpetuate an envelope stuffing scheme, as well as sample advertisements and a script to 

carry out the scheme); FTC v. Norvergence, Inc., No. 04-5414 (DRD), U.S. Dist. LEXIS 40699, 

at *7-8 (D.N.J. July 18, 2005) (consumer rental agreements); FTC v. Five-Star Auto Club, 97 F. 

Supp. 2d 502, 539 (S.D.N.Y. 2000) (marketing materials to recruit other participants to “free 

dream vehicle” pyramid scheme); In re N.E.W. Plastics Corp., 2014 FTC LEXIS 71, at *8 (Apr. 

3, 2014) (plastic lumber marketing brochures); In re Nonprofit Mgmt. LLC, 151 F.T.C. 144, 154 

(2011) (“Tested Green” logo and “green” certification).

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ECM’s additive. The fact that some ECM customers sell to others in the production or 

distribution chain does not change this fact. Each purchaser in such a chain only makes money 

from purchasing the ECM Additive if the claims can eventually be passed to a retailer who can 

use those claims to sell to end-use consumers. Given this self-evident fact, ECM provides its 

customers with a multitude of marketing tools to help sell their products to end-use consumers, 

all of which feature ECM’s false and unsubstantiated claims: the ECM logo, the ECM 

Certificate of Biodegradability, and other marketing material such as the ECM flyer and ECM 

leaf.129 ECM’s customers, in turn, use the deceptive claims provided in these material to sell 

their products.130

First, ECM routinely provided its customers with its “biodegradable” logo—a green tree 

with the wording “ECM” and “Biodegradable”—and instructed customers to use the logo on 

consumer products to promote the products’ alleged biodegradability.131 As explained above, 

such a claim not only falsely conveys that products made with ECM’s Additive will biodegrade; 

it also falsely implies that the product will completely do so in about a year in landfills. Many 

customers followed ECM’s instructions, placing the ECM logo on products as varied as grocery 

bags, online golf tee ads, and shampoo containers.132 By providing its customers with the ECM 

logo (and encouraging them to use it on their products and advertising), ECM gave them the 

means to deceive customers and end-use consumers. 

 

129 FOF ¶¶ 39-41, 65-67. 

130 FOF ¶¶ 36, 52, 59, 60. 

131 FOF ¶¶ 62-64. 

132 FOF ¶ 25. 

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Second, ECM routinely provided its customers with a “Certificate of Biodegradability,” 

and instructed them to use the certificate to prove the veracity of biodegradable claims to 

downstream customers and end-use consumers.133 In fact, ECM expressly told its customers to 

“present” the certificate to downstream customers as a way of “assuring” them that ECM Plastic 

had been tested and proven to biodegrade.134 Unsurprisingly, many customers followed ECM’s 

instructions, passing the certificate to their distributors and customers, posting the certificate on 

their website, and creating their own certificates with precisely the same (or very similar) 

wording as the ECM certificate.135 ECM thus provided its customers with the means to fool 

downstream customers—and ultimately end-use consumers136—into believing that they were 

purchasing tested and proven biodegradable plastic. 

Finally, ECM provided its customers with dozens of “sales tools” and emails to help 

them market their products based on the ECM’s additives supposed efficacy.137 For example, 

ECM Sales Director Tom Nealis routinely sent emails to customers offering such “sales tools” 

for their use with customers.138 Not only did ECM provide the “tools” to make biodegradable 

claims, but ECM also actively helped customers to develop “biodegradable” claims tailored to 

their product. Numerous emails show ECM employees reviewing, tweaking, and approving 

 

133 FOF ¶¶ 46-48, 53, 56. 

134 FOF ¶ 56. 

135 FOF ¶¶ 59-61. 

136 Infra at n.90.

137 FOF ¶¶ 65-67, 69, 70. 

138 Id.

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advertising copy,139 and testimony from ECM employees and customers reveals ECM’s 

eagerness to funnel biodegradable claims into the market.140 By providing customers with “sales 

tools” and personalized help in developing biodegradable claims, ECM gave its customers the 

means to deceive downstream customers and end-use consumers. 

V. ECM’S CONTENTION THAT IT NEVER MADE THE EXPRESS AND 

IMPLIED CLAIMS SET FORTH ABOVE IS BASELESS.

ECM makes essentially two arguments in an attempt to avoid legal responsibility for the 

claims alleged in the Complaint. First, it argues that its customers are “highly sophisticated” 

plastic manufacturers who do not perceive biodegradable claims the same way as end-use 

consumers. Second, it argues that even if some of its direct and indirect customers were not 

sophisticated, ECM effectively qualified its biodegradable claims by delivering them as a 

package with verbal and written qualifiers. 

A. ECM’s Purportedly “Sophisticated Customers” Had the Same Understanding of 

ECM’s Claims as End-Use Consumers.

ECM’s “sophisticated customer” defense fails for two reasons. First, sophistication, or 

lack thereof, is irrelevant to interpretation of ECM’s express claims. As the Ninth Circuit 

explained in Pantron I, when a “case involves express objective product claims,” there is no 

need to consider whether they are “so far-fetched that reasonable consumer would not believe 

[them]” 33 F.3d 1088, 1096 n.21 (emphasis in original, quoting Thompson Medical, 104 FTC at 

788-89 n.6). 

 

139 FOF ¶ 70. 

140 FOF ¶¶ 65-67, 69, 70. 

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Second, ECM’s customers may be sophisticated plastic manufacturers, but they are not 

biodegradation experts. Many ECM customers and downstream users were small businesses that 

had neither the resources nor the sophistication to meaningfully understand or evaluate the 

results of biodegradation tests.141 And, therefore, they relied solely upon ECM’s express claims 

and purported substantiation.142 

When ECM attempted to sell its additive to 3M Corporation, the results dramatically 

illustrate both the lack of sophistication of their actual customers and the difficulty ECM 

encountered when selling its product to a truly sophisticated customer. Unlike many customers 

who simply accepted ECM’s claims,143 Dr. Stephen Joseph, a 3M chemist, consulted with 

colleagues who were immediately suspicious of ECM’s claims.144 Based on their suspicions, 

3M conducted its own test to determine if ECM’s additive would make a plastic blend 

biodegrade to any extent.145 This testing provides a marked contrast with many of ECM’s 

customers who had no ability to test ECM’s product, and therefore relied upon ECM’s 

representations. The 3M test, conducted pursuant to ASTM standards, showed no measurable 

biodegradation of the plastic samples.146 Thus, 3M, an actual sophisticated “customer,” did not 

use ECM’s additive in its products, and never passed any of ECM’s false claims to consumers. 

 

141 FOF ¶¶ 87, 95. 

142 FOF ¶ 58. 

143 FOF ¶ 58. 

144 FOF ¶ 180. 

145 FOF ¶ 181. 

146 FOF ¶ 94. 

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This incident demonstrates why ECM’s entire business was dependent on unsophisticated 

buyers. 

A “pilot study” conducted by ECM’s own expert, Dr. Stewart, provides additional 

evidence of lack of “sophistication.” In that study, 37.5%147 of the customers questioned 

believed that biodegradation would happen within one year, making them essentially 

indistinguishable from end-use consumers. Defendants terminated the pilot study, perhaps 

because the results contradicted their sophisticated consumer defense; thus, the sample size is too 

small to support meaningful conclusions.148 Nonetheless, these results tend to corroborate the 

already overwhelming evidence that at least some, if not most, of its customers were 

unsophisticated. 

B. ECM’s “Qualifications” Do Not Change the Meaning of its Deceptive Claims.

ECM’s “qualification defense” fails for four reasons. First, to the extent that ECM’s 

argument rests upon oral and written “disclaimers” purportedly disseminated separately from the 

false claims, the argument fails as a matter of law. An advertiser cannot “cure the deception” in 

one advertisement with different statements in another. In re Chrysler Corp., 87 F.T.C. 719, 

1976 FTC LEXIS 397, *59 (Apr. 13, 1976); Removatron Int’l Corp. v. FTC, 884 F.2d 1489, 

1496-97 (1st Cir. 1989) .149

 

147 Three of ten respondents gave timeframes equivalent to one year or less (by stating so, 

or by referencing ASTM tests that take less than one year). A fourth gave a 1-3 year timeframe. 

148 CCX-865 (Frederick Rebuttal Report ¶ 17). 

149 “The public has a right to expect each of respondent's advertisements to be equally 

free of deception.” Id. See In re Raymond Lee Organization, Inc., 92 F.T.C. 489, 618-19 (1978) 

(“If an initial contact with a purchaser is deceptive, the fact that the truth may be subsequently 

revealed will not necessarily eliminate the initial wrong.”); Removatron, 884 F.2d at 1496-97 

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Second, “disclaimers or qualifications in any particular ad are not adequate to avoid 

liability unless they are sufficiently prominent and unambiguous to change the apparent meaning 

of the claims and to leave an accurate impression. Anything less is only likely to cause 

confusion.” FTC v. Direct Marketing Concepts, 624 F.3d 1, 24 (1st Cir. 2010) (quoting 

Removatron, 884 F.2d at 1497). ECM claims, without support, that it disclaimed the express 9-

month-to-five-year claim by stating that biodegradation times are “approximate.” Even if true, 

however, such a “disclaimer” poses just the type of confusion the cases warn about. One logical 

and facially reasonable interpretation of the claim given the “disclaimer” is that the nine month 

to five years is an approximation of the time it typically takes ECM Plastic to completely 

biodegrade in a landfill. However, Dr. Barlaz explains this range is off by decades if not 

centuries.150 Thus, even with ECM’s disclaimer, the claim is not even close to being an accurate 

approximation. 

Third, even if ECM qualified its claims to its purportedly “sophisticated customers,” 

ECM’s is still responsible for the claims as conveyed to end-use consumers because it intended 

(and insisted) that its customers use the “sales tools” it provided to pass claims down the 

distribution chain and ultimately to consumers.151 Thus the effectiveness of the qualifications 

must be viewed from the intended “relevant audience”—the end-use consumer, and not its 

customers. Removatron, 884 F.2d at 1497 (“We reject the contention that the relevant audience 

is only the beauty industry. While it is true that petitioners placed their ads in trade magazines, it 

 

(“Each advertisement must stand on its own merits; even if other advertisements contain 

accurate, non-deceptive claims, a violation may occur with respect to the deceptive ads.”). 

150 See supra n.45. 

151 See generally supra, Statement of Facts Section III. 

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is also true that their sales personnel provided brochures and other information to purchasers who 

were then instructed to provide these materials to potential clients. Furthermore, petitioners 

provided advertising to purchasers who would then place it in local print media. The relevant 

audience thus includes potential purchasers and customers of purchasers. The two qualifications 

made by petitioners are, as the Commission found, ineffective to dispel the overall message that 

the machine will remove hair permanently.”) (emphasis added). As discussed in prior sections, 

end-use consumers understand ECM’s biodegradable claims to mean rapid biodegradation times 

of around one year in a landfill. 

Finally, ECM’s own customers’ understanding of the claims further demonstrate the 

ineffectiveness of ECM’s supposed “qualifiers.” Many of these customers testified that they 

self-evidently understood ECM to be claiming complete biodegradability in nine months to five 

years in a landfill.152 Thus, any “qualifiers” were demonstrably ineffective. In addition to being 

ineffective, ECM’s qualifications were rare. Dozens of ECM emails and marketing documents 

uniformly reiterate ECM’s deceptive claims.153 Even if they could have been effective, which 

they clearly were not, such sparse qualifications do no rise to the prominent and unambiguous 

level required by the law.

VI. ENTRY OF THE NOTICE ORDER IS APPROPRIATE AND NECESSARY. 

Entering a cease and desist order to stop ECM’s deceptive advertising is appropriate 

because the findings of fact are “supported by substantial evidence upon the record as a whole.” 

Niresk Indus. Inc. v. FTC, 278 F.2d 337, 340 (7th Cir. 1960). Once a violation is found, the FTC 

has wide latitude in crafting the appropriate relief. 

 

152 See generally supra, Statement of Facts Section III. 

153 See generally supra, Statement of Facts Section III. 

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A. The FTC Has Wide Latitude in Crafting Relief.

In Ruberoid, the Supreme Court described the Commission’s authority to craft orders: 

In carrying out this function, the Commission is not limited to prohibiting the 

illegal practice in the precise form in which it is found to have existed in the past. 

If the Commission is to attain the objectives Congress envisioned, it cannot be 

required to confine its roadblock to the narrow lane the transgressor traveled; it 

must be allowed effectively to close all roads to the prohibited goal, so that its 

order may not be bypassed with impunity. Moreover, the Commission has wide 

discretion in its choice of a remedy deemed adequate to cope with the 

unlawful practices disclosed. (Emphasis added). 

FTC v. Ruberoid Co., 343 U.S. 470, 473 (1952). This “wide discretion” allows the Commission 

to issue orders with fencing-in provisions that are broader than the respondent’s unlawful 

conduct. Telebrands Corp. v. FTC, 457 F.3d 354, 357 n.5 (4th Cir. 2006). Pursuant to this 

discretion, courts have affirmed Commission orders requiring remedies as diverse as prohibitions 

on individual use of zone pricing,154 cancellation of existing contracts,155 mandated divestiture of 

assets to create a competitor,156 requirements for varying levels of substantiation for future 

claims,157 disclosure requirements,158 and trade name excision,159 just to name a few. The 

underlying inquiry in all these orders is the same: what is the necessary remedy to ensure that 

 

154 FTC v. National Lead Co., 352 U.S. 419 (1957). 

155 North Texas Specialty Physicians v. FTC, 528 F.3d 346 (5th Cir. 2008). 

156 Chicago Bridge & Iron Co N.V. v. FTC, 534 F.3d 410 (5th Cir. 2008). 

157 See, e.g., Sears, Roebuck & Co. v. FTC, 676 F.2d 385 (9th Cir. 1982) (requiring 

competent and reliable evidence for future performance claims for major household appliances); 

Thompson Medical Co. v. FTC, 791 F.2d 189 (1986) (requiring at least two adequate and wellcontrolled, double-blinded clinical studies for future efficacy claims for a topical analgesic).

158 Porter & Dietsch, Inc. v. FTC, 605 F.2d 294, 307 (1979). 

159 Continental Wax Co. v. FTC, 330 F.2d 475 (1964). 

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respondents do not again violate the FTC Act? See FTC v. Colgate-Palmolive Co., 380 U.S. 374 

(1964). 

The Commission’s “wide discretion” to craft that remedy is subject to only two 

constraints: (1) the order must bear a “reasonable relation” to the unlawful practices, Jacob 

Siegel Co. v. FTC, 327 U.S. 608, 612 (1946); and (2) it must be sufficiently clear and precise that 

its requirements can be understood, Colgate-Palmolive, 380 U.S. at 392. The Notice Order is 

clear, precise, and easy to understand. It also is carefully crafted to stop ECM’s ongoing, 

deceptive advertising of its only products core attribute.160 

1. The Notice Order is Clear, Precise, and Easy to Understand.

There is no ambiguity in the Notice Order. It prohibits deceptive and unsubstantiated 

biodegradation claims. Paragraph I.A.i. prohibits unqualified claims of degradability unless the 

defendants have competent and reliable scientific evidence of complete degradation within a year 

in a customary disposal facility.161 For unqualified biodegradable claims, competent and reliable 

scientific evidence “must assure complete decomposition within one year and replicate, i.e., 

 

160 The Commission may order “provisions that are broader than the conduct that is 

declared unlawful.” Telebrands Corp., 457 F.3d at 357 n.5; see also, e.g., Colgate-Palmolive 

Co., 380 U.S. at 394-95; FTC v. Ruberoid Co., 343 U.S. 470, 473 (1952); POM Wonderful, 2013 

FTC LEXIS 6, at *50. To the extent the proposed notice order goes beyond Respondent’s 

specific practices, such fencing in relief is appropriate in light of ECM’s willful and repeated 

misrepresentations about the core attributes of its sole product and its persistent, knowing 

misrepresentation of scientific evidence.

161 The Notice Order’s definition of “competent and reliable scientific evidence” requires 

that any scientific protocols used to substantiate biodegradability claims assure complete 

decomposition within the stated timeframe (or a reasonably short period of time) and simulate 

the physical conditions of the stated disposal environment. This provision will ensure that ECM 

no longer makes unqualified biodegradable claims without adequate support, and, in particular, 

will ensure that ECM no longer (1) extrapolates from minimal biodegradation to complete 

decomposition or (2) makes landfill claims based on tests like ASTM D5511 that do not simulate 

landfills.

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simulate, the physical conditions found in landfills, where most trash is disposed.” The order 

defines the terms “degradable” and “landfill” to provide additional precision and clarity. As 

discussed above, an unqualified claim of biodegradability is deceptive unless it meets these 

requirements. 

At the same time, sub-paragraph I.A.ii. of the Notice Order would allow ECM to make 

truthful, substantiated, qualified claims. First, pursuant to sub-paragraph I.A.ii.a(1), ECM can 

disclose the substantiated time to complete biodegradation.162 For example, in the unlikely event 

ECM were able to demonstrate with competent and reliable scientific evidence that its product 

causes ordinary plastic bottles to completely biodegrade in a landfill in 30 years, they could 

convey that fact in their marketing, so long as they clearly and conspicuously disclose the time 

frame, which exceeds most consumers’ reasonable understanding. If ECM cannot determine the 

time to complete degradation, it can make qualified claims about the rate and extent of 

biodegradation shown in valid, properly controlled and conducted, scientific tests. However, 

sub-paragraph I.A.ii.a(2) of the Notice Order requires additional disclosures to prevent a reported 

test result from conveying a deceptive, implied claim of continued biodegradation, or of a 

continuous rate of biodegradation. This disclosure is needed because a product will not 

necessarily biodegrade completely when there is partial biodegradation, let alone at the same rate 

demonstrated in a short term test.163 For example, if ECM had valid testing that demonstrates 

10% biodegradation in a landfill in a year, it could represent that result in their marketing but 

 

162 Sub-paragraph B of the definition of Competent and Reliable Scientific Evidence sets 

forth the scientific standards needed to substantiate qualified biodegradable claims. 

163 FOF ¶ 158 (showing that at least a significant minority of consumers extrapolate rate 

and extent information concerning biodegradation times). 

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must clearly and conspicuously disclose that there is no evidence that biodegradation continues 

beyond 10%. Finally, if ECM’s substantiation only applies to limited disposal environments, it 

can make claims based on such substantiation so long as it accurately,164 clearly, and 

conspicuously discloses that limitation. In short, the Notice Order would permit ECM to make 

truthful claims, while preventing it from using incomplete test data to deceive consumers.

2. The Proposed Relief Is Needed To Stop Ongoing Deception. 

ECM has been misusing incomplete test data to deceive consumers for years. In fact, 

ECM’s repeated and willful misrepresentations to its customers and end-users about the efficacy 

of its product, and about its purported scientific “proof” of that efficacy, justify strong injunctive 

relief. As the Commissioner recently noted in POM:

when determining whether an order is reasonably related to the unlawful practices, the 

Commission should consider “(1) the seriousness and deliberateness of the violation; 

(2) the ease with which the violative claim may be transferred to other products; and (3) 

whether the respondent has a history of prior violations.” Stouffer Foods Corp., 118 

F.T.C. at 811; see also Telebrands Corp., 457 F.3d 354, 358 (4th Cir. 2006); Kraft, Inc., 

970 F.2d at 326. “The reasonable relationship analysis operates on a sliding scale—any 

one factor’s importance varies depending on the extent to which the others are found. . . . 

All three factors need not be present for a reasonable relationship to exist.” Telebrands 

Corp., 457 F.3d at 358-59I. (Emphasis added.) 

POM Wonderful, 2013 FTC LEXIS 6, at *49. Here, ECM’s violations were serious, repeated, 

and blatant. 

 

164 ECM currently misrepresents the conditions represented by its testing by qualifying its 

biodegradability claim with “in biologically-active environments (including most landfills) . . .” 

See FOF ¶ 37 (“After the Green Guides were issued, ECM removed many of its nine-month-tofive-years claims, replacing them with a disclaimer stating that “Plastic products produced with 

our additives will biodegrade in biologically-active environments (including most landfills) in 

some period greater than a year.” ). In fact, the “biologically-active environment,” or bioreactor, 

replicated by ASTM D-5511 tests is rare. RX-853 at 5. Dr. Barlaz concedes that only about 

10% of all landfills are bioreactors. FOF ¶ 471. According to EPA estimates, only 2% of all 

landfills are bioreactors. FOF ¶ 434 

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The seriousness of ECM’s violations stems from at least three factors. ECM’s claims 

exploited consumers’ environmental consciousness.165 Second, ECM’s customers could not 

assess the validity of the claims.166 See In re Stouffer Foods Corp., 118 F.T.C. 746, 812-13 

(1994) (seriousness of the violations is “enhanced by the fact that consumers cannot readily 

judge for themselves the truth or falsity of [respondent’s] claim”). Third, violations also have 

been found to be “serious” where “claims were consciously made despite flaws in the studies 

relied upon by [the respondent].” In re Schering Plough Corp., 118 F.T.C. 1030, 1121 (Oct. 21, 

1994). ECM claimed that tests scientifically established its additives efficacy in a short, specified 

time period. It did so even though experts in the field believe that conventional plastics do not 

fully biodegrade in a period anywhere close to five years or less, and the fact that the tests ECM 

relied on had gross, methodological flaws and did not replicate typical landfill conditions.167 

The Commission can also consider the size and duration of the deceptive advertising 

campaign in evaluating the “seriousness . . . of the violations.” Stouffer Foods Corp., 118 F.T.C. 

at 812-13; Kraft, Inc., 114 F.T.C. at 140. Since at least 2005, ECM engaged in a deceptive 

marketing campaign, in multiple media (including its website, e-mails, and printed marketing 

materials) to promote its additive as capable of making plastics fully biodegradable.168 In the 

course of its marketing campaign, ECM repeatedly passed along its false and unsubstantiated 

 

165 See FOF ¶¶ 14, 17. 

166 See FOF ¶¶ 87-90. 

167 See FOF ¶¶ 127, 130-50, 153 -57, 166, 170, 178, 182. 

168 See FOF ¶¶ 18, 26-29, 31-33, 38-48, 50, 54, 63; 136-44. 

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biodegradability claims to its customers who, in turn, pass them along in commerce in their own 

advertising.169

Finally, Robert Sinclair, ECM’s President and CEO, “acted in blatant and utter disregard 

of the law.” See Standard Oil Co. v. FTC, 577 F.2d 653, 662 (9th Cir. 1978). Sinclair had 

complete control over every aspect of ECM’s marketing and testing.170 He was responsible for 

ECM’s prominent and express “9 months to 5 years” claim, even though he knew that the claim 

was unsubstantiated, and, at a minimum, acted with reckless disregard for its truth.171 He 

testified that he always qualified this claim during discussions with his customers, but there is 

overwhelming evidence, including dozens of emails and testimony from several customers, that 

this is patently untrue. Indeed, on August 13, 2007, Mr. Sinclair signed a sworn affidavit 

repeating the nine month to five year claim and stating, without qualification, that he possessed 

scientific tests proving that “most customers “should see biodegradation times shorter than five 

years” with much shorter time frames for bioreactors.172 Of course, at the time, he had no tests 

to substantiate that sworn claim.

Mr. Sinclair was also instrumental in the dissemination of the bogus and misleading 

McLaren-Hart study.173 He also knew about five different adverse adjudications regarding the 

 

169 See FOF ¶¶ 24, 25, 36, 52-65, 107-108. 

170 FOF ¶ 72. 

171 FOF ¶¶ 103, 104. 

172 CCX-1099. 

173 See supra Statement of Facts Section B.

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efficacy of ECM Plastics,174 and multiple bad test results,175 but concealed this information from 

his customers and continued to promulgate the same debunked claims about his product’s 

efficacy and the strength of supporting “independent” scientific evidence. In fact, he 

aggressively discouraged his customers from doing their own testing, insisting that existing tests 

were sufficient to prove ECM’s biodegradability claim.176 Finally, even after promulgation of 

the Green Guides, and during an FTC investigation, he directed ECM to switch its marketing to 

the facially misleading “some period greater than a year claim.”177 As in POM, ECM has a 

“demonstrated propensity to misrepresent to [its] advantage the strength and outcomes of 

scientific research.” POM at 51. 

B. ECM’s Arguments that the Notice Order Violates Its First Amendment Rights 

and Federal Environmental Policy Have No Merit. 

ECM’s argument that entry of the Notice Order would violate its First Amendment right 

to communicate truthful commercial speech about important environmental benefits has no 

merit. Specifically, ECM argues that that the government must use less restrictive alternatives 

under Pearson v. Shalala, 165 F.3d 650, 658 (D.C. Cir. 1999); and that the proposed injunction 

would prevent it from providing truthful information to its customers about important 

 

174 There is strong documentary evidence that Mr. Sinclair had contemporaneous 

knowledge of each of these proceedings, and communicated with his customers about them. 

FOF ¶ 103. Nonetheless, in his deposition, he flatly denied any knowledge. See CCX-819 at 

352 (“Q: Are you aware of any other lawsuits or challenges raised against any of your customers 

[besides Masternet]? A: No. Q: Anything outside the United States? A: No.”); CCX-819 at 

349 (denying knowledge of lawsuits or claims). 

175 See FOF ¶¶97, 99. 

176 Supra Statement of Facts, Section II.D-E 

177 Supra Statement of Facts Section II.A.

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environmental benefits of its products in conflict with federal environmental policy. See

Respondent’s Answer, 7th Affirmative Defense. 

These arguments fail for three reasons. First, ECM’s assertion that the Notice Order 

would require “complete elimination of plastic within one year as a condition precedent to use of 

the term ‘biodegradable,’” conveniently ignores the two permissible qualified claims. As 

discussed in detail above, ECM can make truthful claims about biodegradation, and about its test 

results, as long as it has competent and reliable scientific evidence to support those claims and 

makes disclosures needed to dispel deceptive implied claims. 

Second, Respondent’s commercial speech argument is legally flawed. Although the First 

Amendment protects commercial speech, the government can regulate deceptive commercial 

speech through adjudication. The Supreme Court has long held that “the Constitution accords 

less protection to commercial speech than to other constitutionally safeguarded forms of 

expression.” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 64 (1983). Commercial speech 

receives less protection than other forms of expression under the First Amendment because 

“commercial speech may be more durable than other kinds. Since advertising is the sine qua non

of commercial profits, there is little likelihood of its being chilled by proper regulation and 

foregone entirely.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 

U.S. 748, 772 (1976). 

Importantly, for commercial speech to receive the protections of the First Amendment, 

the commercial speech “at least must concern lawful activity and not be misleading.” Central 

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Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 566 (1980).178 In this case, 

ECM’s ongoing marketing is deceptive and misleading, and will continue to mislead consumers 

without appropriate injunctive relief. Furthermore, unlike its customers and end-use consumers 

of ECM Plastics, who lack the ability to independently verify the veracity of ECM’s claims, 

ECM has “extensive knowledge of both the market and of their products and are thus well 

situated to evaluate the accuracy of their messages and the lawfulness of the underlying activity.” 

Central Hudson at 564 (citing Bates v. State Bar of Arizona, 433 U.S. 350, 381 (1977)). 

Furthermore, ECM’s reliance on Pearson is misplaced. Pearson held that an FDA rule

effectively banning specific health claims was an unduly restrictive means to regulate potential

deceptive speech, and that the FDA needed to consider possible curative disclosures. Pearson v. 

Shalala, 165 F.3d at 659-660. In contrast, this case involves adjudication of actual deceptive 

claims in commerce. The Commission recently rejected this argument in POM, reasoning that: 

In addition, the Commission’s approach to address misleading advertising, 

which is a case-by-case adjudication after ads have been disseminated, 

differs from regulatory efforts that prohibit categories of speech or rely on 

prior approval of the language to be used. The latter serve as illustrations 

of “bars” on commercial speech and are inapplicable to the detailed ex post 

analysis we engage in here, based on a full record about the ads in 

question. [Internal citations omitted].

POM Wonderful, 2013 FTC LEXIS 6, at *44. 

Finally, Respondent’s federal environmental policy argument is ludicrous. The FTC need 

not permit deceptive commercial speech in furtherance of environmental policy. Indeed, the 

FTC’s role is to protect consumers in the marketplace from such unfair or deceptive acts or 

 

178 Moreover, the government may prohibit false or misleading commercial speech 

entirely. See In re R. M. J., 455 U.S. 191, 203 (1982) (“Misleading speech may be prohibited 

entirely”).

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practices. In this case, the instant action and proposed relief further that role. Furthermore, even 

if environmental policy were the FTC’s charge, ECM has not, and cannot, establish that lying to 

consumers about the efficacy of its product furthers any such policy. 

VII. 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 

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: September 25, 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 

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CERTIFICATE OF SERVICE 

 I hereby certify that on September 26, 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: September 26, 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 

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