UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Edith Ramirez, Chairwoman 

Julie Brill 

Maureen K. Ohlhausen 

Terrell McSweeny

____________________________________ 

) 

In the Matter of )

)

ECM BioFilms, Inc., ) Docket No. 9358 

a corporation, also d/b/a ) 

Enviroplastics International ) PUBLIC

) 

) 

COMPLAINT COUNSEL’S OPPOSITION TO RESPONDENT’S

APPLICATION FOR A STAY PENDING JUDICIAL REVIEW

Pursuant to Commission Rule 3.56(d), 16 C.F.R. § 3.56(d), Complaint Counsel submit this 

memorandum in opposition to Respondent’s Motion for Stay Pending Judicial Review. 

I. INTRODUCTION

For over a decade Respondent, ECM Biofilms, Inc. (“ECM”), profited from disseminating 

deceptive biodegradable claims about its sole product, the ECM additive. For the past four 

years—through consent negotiations, administrative litigation, and appeal to the Commission—

ECM has knowingly continued to convey these deceptive claims. On October 12, 2015, the 

Commission issued its Opinion (“Comm’n Op.”) and a Final Order (“Order”) at last ending 

ECM’s deceptive advertising. 

On November 9, 2015, ECM filed its Application for a Stay (“Stay App.”). However, 

ECM has not satisfied any of the legal prerequisites for obtaining a stay. The Commission has 

considered and soundly rejected ECM’s constitutional arguments, and it cannot show serious 

arguments going to the merits. Even if it could, the equities do not justify a stay. For these 

11 18 2015

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reasons, and as more fully explained below, ECM’s request to stay the Commission’s Order 

should be denied. 

II. THE COMMISSION SHOULD DENY RESPONDENT’S REQUEST FOR STAY

A. The Applicable Legal Standard for Evaluating a Stay Application.

Under Commission Rule 3.56(c), the Commission evaluates four factors in determining 

whether to grant a stay: (1) the likelihood of the applicant’s success on appeal; (2) whether the 

applicant will suffer irreparable harm if a stay is not granted; (3) the degree of injury to other 

parties if a stay is granted; and (4) why the stay is in the public interest. 16 C.F.R § 3.56(c); Toys 

“R” Us, Inc., 126 F.T.C. 695, 696 (1998). In considering the stay factors, the probability of 

success is inversely proportional to the balancing of the equities (i.e., the remaining three 

factors). In the Matter of California Dental Ass’n, No. 9259, 1996 FTC LEXIS 277, at *10 (May 

22, 1996); see also N. Texas Specialty Physicians, 141 F.T.C. 456, 457-58 & n.2 (2006) (citing

Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153-54 (6th 

Cir. 1991)). But this inverse relationship is not without its limits. Id. To justify the granting of a 

stay, the movant is always required to demonstrate more than the mere “possibility” of success 

on the merits. Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 

153-54 (6th Cir. 1991); Mason County Medical Ass’n v. Knebel, 563 F.2d 256, 261 n. 4. (6th Cir. 

1977). Even if a movant demonstrates irreparable harm, the movant must still show, at a 

minimum, “serious questions going to the merits.” Michigan Coal., 945 F.2d at 154 (internal

citations and quotations omitted). Such serious questions arise when the case presents 

application of difficult legal questions to a complex factual record. See California Dental, 1996 

FTC LEXIS 277, at *9-10 (the Commission will stay its own order only when it has ruled on “an 

admittedly difficult legal question and when the equities of the case suggest that the status quo 
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should be maintained.”); Toys “R” Us, 126 F.T.C. at 697; N. Texas Specialty Physicians, 141 

F.T.C at 457-58. However, “renewal” of arguments alone, without more, is “insufficient to 

justify the grant of a stay.” Novartis Corp., 128 F.T.C. 233, 234 (1999); Toys “R” Us, Inc., 126 

F.T.C. at 697; Detroit Auto Dealers, 1995 FTC LEXIS 256, at *4 (Aug. 23, 1995). 

Even assuming a movant raises serious questions going to the merits, the balance of the 

remaining three equitable factors—harm to the movant, the harm to the other party, and the 

public interest—must be strongly in the movant’s favor. N. Texas Specialty Physicians, 141 

F.T.C. at 457-58 & n.2 (citing California Dental, 1996 FTC LEXIS 277, at *10). To show it will 

be harmed, the movant must demonstrate that denial of a stay would cause it irreparable harm. 

Id. Conclusory or unsupported assertions of harm do not suffice. Novartis Corp., 128 F.T.C. at

235 (citing Sampson v. Murray, 415 U.S. 61, 90 (1974) (internal quotation marks omitted)). 

Finally, the Commission considers the last two factors—harm to consumers and the public 

interest—together. For the reasons more fully explained below, ECM has failed to meet its legal 

burden to justify a stay. It cannot demonstrate a serious question going to the merits, or that the 

balancing of the equities requires maintaining the status quo. 

B. ECM Fails to Meet Even the Minimum Requirement for Showing a Serious 

Question On the Merits.

ECM bases its argument that this case presents serious questions on the merits on two 

unsustainable, constitutional arguments: that the Commission’s Opinion and Order violate its 

First Amendment and its Due Process Rights. Neither argument, however, raises serious 

questions going to the merits.
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1. ECM’s First Amendment Argument Fails Both Legally and Factually.

ECM first complains that the Commission’s Opinion and Order violate its First 

Amendment rights. (Stay App. 13-26.) The First Amendment, however, does not protect 

deceptive and misleading speech. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 

447 U.S. 557, 566 (1980). Thus, for ECM to have a colorable First Amendment argument, it 

must show that its claims are not deceptive or misleading. Therefore, ECM appears to premise 

its First Amendment argument entirely upon the contention that its unqualified biodegradable 

claims are not deceptive. However, appellate courts review the underlying findings for 

constitutional issues under the same deferential standard as other factual findings. POM 

Wonderful v. FTC, 777 F.3d 478, 499-500 (D.C. Cir. 2015).

Specifically, a circuit court will only set aside the Commission’s factual findings if 

substantial evidence does not support them. Id. at 490 (“the findings of the Commission as to the 

facts, if supported by evidence, shall be conclusive.”) That standard is “essentially identical” to 

the familiar “substantial evidence” test under the Administrative Procedure Act. Id. (internal 

citations omitted). This standard applies equally to constitutional questions. Id. at 499-500 (“In 

imposing liability against petitioners, the Commission found that POM’s ads are entitled to no 

First Amendment protection because they are ‘deceptive and misleading. Petitioners ask us to 

review that finding de novo in light of the First Amendment context, and to overturn the 

Commission’s decision to impose liability. Our precedents, however, call for reviewing the 

Commission’s factual finding of a deceptive claim under the ordinary (and deferential) 

substantial-evidence standard, even in the First Amendment context.’”) (citing Novartis Corp. v. 

FTC, 223 F.3d 783, 787 n.4 (D.C. Cir. 2000); FTC v. Brown & Williamson Tobacco Corp., 778 

F.2d 35, 41 n.3 (D.C. Cir. 1985)); see also Kraft, Inc. v. FTC, 970 F.2d 311, 316 (7th Cir. 1992)

(cited in Novartis Corp., 223 F.3d at 787 n.4)).
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Under the substantial evidence test, a reviewing court will not set aside the Commission’s 

decision unless, considering the record as a whole, it could not reach the same conclusion. See 

Schering-Plough v. FTC, 402 F.3d 1056, 1063 (11th Cir. 2005) (citing Universal Camera Corp. 

v. NLRB, 340 U.S. 474 (1951)); FTC v. Indiana Fed’n of Dentists, 476 U.S. 447, 454 (1986)

(substantial evidence means, “such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.”). This standard is deferential to the Commission’s expertise 

in claim interpretation and findings of deception. See FTC v. Colgate-Palmolvie Co., 380 U.S. 

374, 385 (1965); Thompson Med. Co. v. FTC, 791 F.2d 189, 194 (D.C. Cir. 1986); Removatron 

Int’l Corp. v. FTC, 884 F.2d 1489, 1496 (1st Cir. 1989). Addressing this issue, the Supreme 

Court has frequently stated that reviewing courts must give the Commission’s judgment great 

weight, particularly with respect to determinations of allegedly deceptive advertising. FTC v. 

Colgate-Palmolive Co., 380 U.S. at 385 (“finding of a Section 5 violation rests heavily on 

inference and pragmatic judgment”). Courts also give some deference to the Commission’s 

informed judgment on legal issues, e.g., the identification of governing legal standards and their 

application to the facts found. Indiana Fed’n of Dentists, 476 U.S. at 454. For these reasons, 

courts will not set aside the Commission’s decisions merely because, if trying the matter anew, it 

might reach a different result. Simeon Mgmt. Corp. v. FTC, 579 F.2d 1137, 1142 (9th Cir. 1978). 

“[A] court may [not] displace (an agency’s) choice between two fairly conflicting views, even 

though the court would justifiably have made a different choice had the matter been before it de 

novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

The Commission’s findings more than meet this test. The Commission found “ECM’s 

efficacy and establishment claims misleading because they were unsubstantiated using the 

science demanded by experts in the field.” (Comm’n Op. 56.) “Where the Commission finds 
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that claims disseminated through commercial speech lack proper substantiation, such findings 

establish as a matter of law that such claims are deceptive and thus not protected by the First 

Amendment.” POM Wonderful, LLC, 2013 WL 268926, at *60 n.35 (F.T.C. 2013), aff’d, POM 

Wonderful LLC v. FTC, 777 F.3d 478 (D.C. Cir. 2015) (citing Direct Mktg. Concepts, Inc., 624 

F.3d at 8 (“Where the advertisers lack adequate substantiation evidence, they necessarily lack 

any reasonable basis for their claims. [w]here the advertisers so lack a reasonable basis, their ads 

are deceptive as a matter of law.”).) 

ECM does not even argue it can substantiate its implied five-year claim (in fact, ECM’s 

own experts conceded they could not). Instead, ECM simply recycles its previously rejected 

argument that the record does not support the Commission’s finding that an unqualified 

biodegradable claim implies a product will completely break down in 5 years. (Stay App. 14.) 

The Commission’s finding, however, is unquestionably supported by substantial evidence. 

Specifically, the Commission relied on at least two consumer surveys—Dr. Frederick’s and Dr. 

Stewart’s (ECM’s expert)—as well as evidence of ECM’s intent to convey the five-year claim. 

(See generally Comm’n Op. 12-32.) 

Faced with this overwhelming evidence, ECM argues that, because the consumer 

perception evidence upon which the Commission relied is complex, it has met its burden of 

showing a likelihood of success on the merits. In support of this proposition, ECM cites the 

Commission’s decision granting a stay in Novartis. (Stay App. 10-11.) However, that decision

is easily distinguished. In Novartis, the Commission granted a stay only of Part IV of its Order, 

which required corrective advertising. Novartis Corp., 128 FTC at 234. In the underlying case, 

the Commission required corrective advertising after finding that “consumer beliefs caused or 

substantially reinforced by the deceptive advertising campaign are likely to linger.” Id. at 234-
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235. In granting the stay, the Commission determined that it based that finding on “a complex 

factual record.” Id. Due to the complexity of determining such lingering effects, the 

Commission determined that Novartis’ arguments on the merits were “adequate (if barely so) to 

warrant consideration of the remaining factors.” Id. at 235. By contrast, in this case, the 

Commission merely had to determine how consumers interpret a single, textual claim. As 

discussed above, this routine claim interpretation was well supported by three lines of evidence, 

and fits squarely within the Commission’s expertise. See N. Texas Specialty Physicians, 141 

F.T.C. at 459 (distinguishing complex lingering effects analysis in Novartis); Colgate-Palmolive 

Co., 380 U.S. at 385. Thus, it is not the type of complexity that will support a stay on its own. 

2. ECM’s Due Process Arguments Are Unsupported by The Record.

As with its First Amendment argument, ECM’s due process argument fails based on the 

facts of the record. ECM argues that it did not have the opportunity to rebut the five-year claim 

interpretation. (Stay App. 26-28.) The Commission explicitly rejected this contention. In doing 

so, the Commission cited to substantial evidence demonstrating that Complaint Counsel argued

the alternative five-year interpretation position throughout the case. (Comm’n Op. 13.) 

Moreover, the Commission based its findings, in large part, on Dr. Frederick’s Google Consumer 

Survey evidence. (Comm’n Op. 17-24, 31.) ECM challenged Dr. Frederick’s survey in multiple 

respects before the ALJ and on appeal to the Commission, vigorously arguing it is not competent 

survey evidence. (Resp. Ans. Appeal Br. 21-34.) Thus, it is hard to imagine what additional 

evidence ECM could have introduced to rebut the five-year claim, and ECM points to none. 

Regardless, because ECM argued that the five-year claim was unsupported by extrinsic 

survey evidence in the record, it cannot now claim it lacked that opportunity. (Resp. Ans. App.

Br. 14-15.) Consequently, ECM was not denied “a full and fair opportunity” to rebut that the
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unqualified biodegradable claim implies complete decomposition within five years, as opposed 

to one year. Having raised no due process concerns to warrant reconsideration on appeal, and 

certainly none that rise to the level of “serious questions going to the merits,” ECM’s stay 

application should be denied.

C. Even if ECM Satisfied the Threshold Requirement, the Balance of the 

Equities are Not in ECM’s Favor.

As the Commission has explained, there is an inverse relationship between the likelihood 

of success and the balancing of the remaining three equitable factors—harm to the movant, the 

harm to the other party, and the public interest. N. Texas Specialty Physicians, 141 F.T.C.at 457-

58 & n.2 (citing California Dental, 1996 FTC LEXIS 277, at *10). Because ECM has made no 

showing of success on the merits, its stay application does not warrant further consideration. 

However, even if ECM satisfied the minimal threshold showing, it must still demonstrate that the 

weight of the remaining factors strongly warrants a stay. Id. The equities, however, are 

decidedly against a stay.

1. ECM Will Not Suffer Irreparable Harm.

ECM bears the burden of demonstrating that denial of a stay will cause irreparable harm. 

Simple assertions of harm or conclusory statements based on unsupported assumptions will not 

suffice. See Toys “R” Us, 126 F.T.C. at 698; California Dental, 1996 FTC LEXIS 277, at *7. A 

party seeking a stay must show with particularity that the alleged injury is substantial and likely 

to occur absent a stay. Id. Instead, ECM merely asserts, without any support, that it will suffer 

irreparable injury if it must truthfully qualify its claims. Furthermore, the Commission already 

expressly rejected this argument: “We reject ECM’s contention that the Order effectively 
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prohibits all biodegradable claims because we reject ECM’s contention that there is no scientific 

means to provide a rate or extent qualification.” (Comm’n Op. 57.)1 

Moreover, ECM’s assertions of constitutional harm do nothing to tilt the equities in its 

favor. As discussed above, the Commission has considered and rejected ECM’s constitutional 

arguments. 

2. Immediate Implementation of the Order is Required to Protect 

Consumers and the Public Interest.

Because Complaint Counsel represents the public interest, the Commission analyzes the 

third and fourth factors together. See Novartis, 128 F.T.C. at 236. Both the harm to consumers 

and the public interest weigh heavily against ECM. The Commission found that ECM’s 

violations of the law were serious, repeated, and deliberate. (Comm’n Op. 65.) There is every 

reason to believe that absent the Commission’s Order, ECM will continue along the same path. 

ECM’s current arguments (that an unqualified biodegradable claim only conveys some 

amorphous inherent biodegradable message) and its CEO’s supporting declaration (in which he 

makes unsubstantiated and likely false assertions about its product) reinforce this conclusion. 

(See Stay App, Ex. I, Sinclair Decl. ¶¶4-5.) Given its prior history of violations, coupled with its 

present deceptive description of its product, the likelihood of continued violations is great and 

will cause the precise type of harm the Order is intended to prevent: inducing the purchase of

higher-priced plastic based on deceptive biodegradability and environmental benefit claims and 

altering consumer behavior based on these deceptive claims. (See Comm’n Op. 43.) Therefore, 

consumer and public interest call for immediate implementation of the Order.

 1 ECM also argues that the “Commission completely barred ECM from making a truthful claim that its Additive 

causes plastic to become intrinsically biodegradable.” (Stay App. 18). This is not true for two reasons. First, the 

Commission determined, based on the scientific evidence, that the additive just as likely does nothing at all to help 

plastic biodegrade. (Comm’n Op. 47.) Second, should ECM develop substantiation for such a claim, the Order 

would permit them to make it. The Order “permits ECM to promote the benefits of its products, in ways that are not 

misleading, to the extent, but not beyond, what can be scientifically substantiated.” (Comm’n Op. 64.)
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III. CONCLUSION

For the reasons stated above, Complaint Counsel respectfully requests that the Commission 

deny ECM’s request for a stay of the Order pending the appeal.

Dated: November 18, 2015 Respectfully Submitted,

/s/ Katherine Johnson

Katherine Johnson

Elisa Jillson

Federal Trade Commission

Bureau of Consumer Protection

Division of Enforcement

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

Washington, D.C. 20580

Telephone: (202) 326-2185; -3001

Facsimile: (202) 326-3259

Counsel Supporting the Complaint
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CERTIFICATE OF SERVICE

I hereby certify that on November 18, 2015, I caused a true and correct copy of the 

foregoing to be served as follows:

One electronic copy and one copy through the FTC’s e-filing system to the Office of the 

Secretary:

Donald S. Clark, Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Room H-159

Washington, DC 20580

Email: secretary@ftc.gov

One electronic copy to Counsel for the Respondent:

Jonathan W. Emord

Emord & Associates, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Email: jemord@emord.com 

Peter Arhangelsky

Emord & Associates, P.C.

3210 S. Gilbert Road, Suite 4

Chandler, AZ 85286

Email: parhangelsky@emord.com 

Eric J. Awerbuch

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: eawerbuch@emord.com

Bethany Kennedy

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: bkennedy@emord.com

Date: November 18, 2015 /s/ Katherine Johnson

Katherine Johnson (kjohnson3@ftc.gov) 

Elisa Jillson (ejillson@ftc.gov)

Federal Trade Commission

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

Washington, DC 20580

Phone: 202-326-2185;-3001

Fax: 202-326-3197
Notice of Electronic Service

I hereby certify that on November 18, 2015, I filed an electronic copy of the foregoing Complaint Counsel's

Opposition to Respondent's Motion for Stay Pending Judicial Appeal, with:

D. Michael Chappell

Chief Administrative Law Judge

600 Pennsylvania Ave., NW

Suite 110

Washington, DC, 20580

Donald Clark

600 Pennsylvania Ave., NW

Suite 172

Washington, DC, 20580

I hereby certify that on November 18, 2015, I served via E-Service an electronic copy of the foregoing

Complaint Counsel's Opposition to Respondent's Motion for Stay Pending Judicial Appeal, upon:

Jonathan Emord

Emord & Associates, P.C.

jemord@emord.com

Respondent

Peter Arhangelsky

Emord & Associates, P.C.

parhangelsky@emord.com

Respondent

Lou Caputo

Emord & Associates, P.C.

lcaputo@emord.com

Respondent

Katherine Johnson

Complaint Counsel

Federal Trade Commission

kjohnson3@ftc.gov

Complaint

Elisa Jillson

Complaint Counsel

Federal Trade Commission

ejillson@ftc.gov

Complaint

Jonathan Cohen

Federal Trade Commission, Bureau of Consumer Protection, Enforcement Division

jcohen2@ftc.gov

Complaint

Joshua Millard

Attorney

Federal Trade Commission

jmillard@ftc.gov

Complaint

Benjamin Theisman

Attorney
Federal Trade Commission

btheisman@ftc.gov

Complaint

Eric Awerbuch

Emord & Associates

eawerbuch@emord.com

Respondent

Arturo DeCastro

Attorney

Federal Trade Commission

adecastro@ftc.gov

Complaint

Bethany Kennedy

Ms.

Emord & Associates, P.C.

bkennedy@emord.com

Respondent

Katherine Johnson

Attorney