PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

PUBLIC 

RESPONDENT'S MOTION FOR SANCTIONS 

Respondent ECM BioFilms, Inc. ("ECM") hereby moves for sanctions against Complaint 

Counsel for violation ofRules 3.31 and 3.37. Rules 3.31 and 3.37 aim, in part, to avoid unfair 

advantage achievable when a party possessed of a document required to be produced withholds 

that document until the moment of deposition of a key witness, endeavoring through surprise to 

achieve an unfair advantage. Notwithstanding a direct, specific document production request by 

Respondent, Complaint Counsel engaged in precisely that forbidden conduct in the deposition of 

ECM President Robert Sinclair on February 19,2014. Complaint Counsel withheld a document 

material to the case until the afternoon of the second day of examination ofECM President 

Robert Sinclair in an effort to surprise that witness and thereby gain an unfair advantage. The 

transcript reveals the conduct to be clear and egregious. See Exh. R.X-A, at 365-79 (Tr. of 

Sinclair Depo.). 

On the deposition record, Complaint Counsel revealed that the document in question was 

withheld from Respondent for at least 5 days before his deposition, a time during which 

Complaint Counsel engaged in email communication with Respondent's counsel but never 

supplied or revealed the existence of the document in question. By its admission at the 

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PUBLIC DOCUMENT 

deposition, Complaint Counsel withheld the document from at least February 14th until February 

19th at 1:24PM whereupon, in the middle of the second day of examination of Robert Sinclair, 

Complaint Counsel produced the document for the first time and, over objection from 

Respondent's counsel, examined the witness concerning it. 

Complaint Counsel thereby violated Rules 3.37(b) and 3.31(e)(2). The ambush tactic 

employed is one commonly condemned as sanctionable. See Only The First, Ltd. V. Seiko Epson 

Corp., 822 F.Supp. 2d 767, 778 (N.D. Ill. 2011) ("The rationale behind Rule 37 is to avoid unfair 

'ambush' in which a party advances new theories or evidence to which its opponent has 

insufficient time to formulate a response"). The most appropriate sanction under the 

circumstances is to rule the document inadmissible in these proceedings; accordingly, 

Respondent seeks that sanction from the court. 

DATED: February 28,2014 

2 

Respectfully submitted, 

Is/ Jonathan W. Emard 

Jonathan W. Emord (jemord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

~-- -----~~--------- -----~-----~~-
PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

PUBLIC 

RESPONDENT'S MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS 

Under Rule 3.38, ECM hereby moves for sanctions against Complaint Counsel for the 

deliberate violation of Rules 3.31 and 3.37. Under Rule 3.38(b), the ALJ may act on the 

violation by prohibiting the violator from introducing or relying on the document improperly 

withheld. See 16 CFR 3.38(b)(4). Here Complaint Counsel received a document that was 

directly responsive to Respondent's extant production requests. See Exh. RX-B, at 7 (Requests 

1, 3). That document (attached hereto as Exhibit RX-C) is a scientific article, published on 

October 1, 2013 entitled, Eddie F. Gomez and Frederick C. Michel Jr., "Biodegradability of 

conventional and bio-based plastics and natural fiber composites during composting, anaerobic 

digestion and long-term soil incubation" Polymer Degradation and Stability 98 (2013) 2583-

2591 (hereinafter "Article"V Complaint Counsel was obliged to supplement its document 

requests when it received the article but did not. See 16 C.F.R. § 3.31(e)(2). Indeed, possessed 

of copies of the article transported from Washington to the Painesville, Ohio site of the 

deposition, Complaint Counsel withheld them until the afternoon ofthe second day of the 

1 The study was marked as Complaint Counsel's Exhibit 23 in Sinclair's deposition. 

1 
PUBLIC DOCUMENT 

Sinclair deposition, whereupon one of Complaint Counsel, Katherine Johnson, endeavored to 

ambush ECM's Sinclair by springing it upon him 12 hours after the start of his deposition. The 

deposition transcript captures the event and the objections made to the improper tactic. See 

Exhibit RX-A, at 365-79. Despite objection, and Johnson's admission ofthe improper 

withholding, she nevertheless interrogated Sinclair about the article, achieving the ambush. 

There being no privilege at stake, Respondent was obliged under the rules to permit the 

examination to continue. 

The FTC's rules of practice contemplate orderly proceedings that avoid ambush tactics of 

this kind. The rules aim to eliminate unfair surprise, especially arising from the wrongful 

withholding of documents first revealed in deposition. Because Complaint Counsel brazenly 

violated the rules, and sought to gain an unfair advantage thereby, reasonable sanctions are 

warranted. Although his Honor is encouraged to impose any reasonable sanction that will 

dissuade recurrence, at a minimum the article in question should be deemed inadmissible. 

BACKGROUND 

On December 3, 2013, Respondent served on Complaint Counsel its Initial Document 

Requests. Request 1 stated: 

Provide all documents that concern whether plastics in general and ECM 

Plastics in particular will break down and decompose into elements found in 

nature after customary disposal or in a landfill. 

See Resp. First Set of Requests for Production of Documents at 7 (Exh. RX-B). Complaint 

Counsel responded as follows on January 2, 2014: 

Complaint Counsel objects to Request for Production 1 on the grounds that a 

request for documents concerning plastics in general is overly broad, vague, 

and ambiguous. Subject to and without waiving the foregoing objections, 

Complaint Counsel will produce responsive, non-privileged documents. 

2 
PUBLIC DOCUMENT 

See Exh. RX-D, at 3-4 (Compl. Counsel's Resp. to Respondent's First Set of Requests for 

Documents). Complaint Counsel produced documents on January 2, 2014 and January 13, 2014, 

respectively, that did not include the Gomez and Michel article. 

On February 18th and 19th, 2014, one of Complaint Counsel, Katherine Johnson, 

deposed ECM's President Robert Sinclair. At 1:24pm on the second day of the deposition, 

eleven hours after its start, Complaint Counsel marked the Gomez and Michel article and 

revealed its existence for the first time (neither Sinclair nor his counsel had seen the document 

before). See Exh. RX-A, at 366:15. Sections of the document were electronically highlighted. 

See Exh. RX-C, at 2583, 2585, 2586-87, 2589-90. Complaint Counsel questioned Sinclair in 

detail about the tests referenced in it purportedly run on ECM's product. See Exh. RX-A, at 366-

71. Respondent's counsel objected to the ambush tactic. See id. at 371-79. Katherine Johnson 

admitted on the record that she possessed the document since at least Friday, February 14, 2014 

(id. at 372:3-5), five days before the deposition commenced. She further admitted that she could 

have produced the document but did not. See id. at 372:13. Moreover, she specifically stated 

that she could have produced the document the morning of the second day of the deposition . 

. -:; 

Having not complied with the rules, she contented herself with the following observation: 

"Well, you have a copy now." See id. at 372:17-19.2 In addition, she admitted that she decided 

to use the document in the Sinclair deposition on Saturday, February 15, 2014, four days before 

the deposition (and at a time when she was in email contact with Respondent's counsel). !d. at 

374:14-15. When asked why she withheld the document, not permitting a fair opportunity for 

2 Complaint Counsel corresponded electronically with Respondent's counsel at 9:03PM 

Eastern Friday, February 14. See Exh. RX-E. Moreover, the Gomez and Michel article is a 

downloadable electronic file readily communicated by email. See 

http://dx.doi.org/10.1016/j.polymdegradstab.2013.09.018 (last visited Feb. 25, 2014). 

3 
PUBLIC DOCUMENT 

advance review, she stated: "This is your opportunity," !d. at 375:1-2, meaning the very moment 

of examination was the opportunity for the witness to examine it. 

Over Respondent's objection, Complaint Counsel questioned Sinclair, a non-scientist, on 

the scientific article, which fell squarely within Respondent's Rule 3.37(a) Document Requests 

served December 3rd. See id. at 365-79; 3 see also Exh. RX-B. 

The decision to withhold a document clearly responsive to Respondent's document 

request, and then spring it on the witness during deposition, was in bad faith, aiming to achieve 

an unfair advantage. That ambush tactic is strongly disfavored and judicially condemned.4 

Finally, the article subject to this motion invites criticism that is elucidated upon 

reflection. Among the aspects revealing the study to be unreliable, the authors claim to have 

tested a representative ECM plastic product and allegedly found little evidence of degradation. 

See Exh. RX-C, at 2585-87. However, the polypropylene plastics (PP) tested are not 

representative of plastics containing ECM's additive (the vast majority of which are not PP) and 

the actual concentration of the additive in the plastic tested is not revealed. Moreover, the 

3 Respondent's counsel explained that ECM was prejudiced by the untimely disclosure. 

See Exh. RX-A, at 372-74. 

4 At deposition, Respondent's counsel stated he would bring this matter before the AT • .T. 

Thus on notice, Complaint Counsel interfered with Respondent's bringing of the motion and 

preparation for depositions the week of March 3, by designating the Sinclair deposition transcript 

"not for sale/release." ECM ordered transcripts for delivery Wednesday, February 26, 2014. 

When the transcript did not appear, ECM contacted For the Record. On February 27,2014, that 

reporting service informed ECM that a transcript had already been delivered to Complaint 

Counsel but the transcript would not be delivered to ECM because Complaint Counsel had 

designated it "not for sale/release." At our urging, the reporter emailed Complaint Counsel and 

asked for a redesignation but received no timely response. Late on February 27, 2014, after 

Respondent's counsel insisted on ECM's right to the transcript to the court reporter, the 

redesignation finally occurred. That obstruction prejudiced ECM, denying Respondent's counsel 

time to review the transcript before depositions of ECM employees scheduled the week of March 

3rd. That delay also deprived ECM of the record in support of the present motion for sanctions, 

delaying submission of the motion. 

4 
PUBLIC DOCUMENT 

authors fail to explain exclusion of one of two ECM products from an anaerobic testing battery, 

or if they included it, they omitted the results from publication. See Exh. RX-C, at 2586-87.5 

Finally, the objectivity of the study's lead author, Dr. Frederick C. Michel, Jr., is in question. He 

has aligned himself with interests favoring compostable plastics products, which products 

compete directly with ECM's biodegradable plastics.6 

ARGUMENT 

Rule 3.38 authorizes sanctions when a party attempts to achieve unfair advantage through 

violation of the discovery rules. See 16 C.F .R 3 .38(b ). A party may seek relief "as may be 

sufficient to compensate for withheld testimony, documents, or other evidence." See 16 C.F .R 

3.38(c). See Matter of the Grand Union Co., 102 F.T.C. 812, 1983 WL 486347 at 136,207 

(1983). Sanctions are appropriate where the party's failure to comply is unjustified. !d.; see also 

In the Matter of Mkt. Dev. Corp., et al., 95 F .T.C. 100, *86 (1980). There can be no justification 

for the failure to divulge in advance of a deposition a document subject to production that a 

deposing party intends to use for examination. 

The discovery rules, including the duty to timely supplement discovery responses, are to 

prevent unfair surprise. See, e.g., Coles v. Perry, 217 F.R.D. 1, 4 (D.D.C. 2003) (excluding 

documents that were improperly withheld so as not "[t]o permit that stratagem and let a party use 

at trial evidence it did not disclose during discovery ... [Condoning such a tactic] would gut the 

5 ECM will produce evidence of multiple ASTM D5511 tests conducted under similar 

conditions on ECM additive containing plastics, showing that such plastics biodegrade 

significantly when compared to control. 

6 See Dr. Frederick C. Michel, Jr., Online Biography, Ohio State University, available at, 

http://www.oardc.ohio-state.edu/michel/CompostResearchmembers.htm (last visited Feb. 25, 

2014) (explaining that the author participates in the OSU's Compose Research Group). 

5 
PUBLIC DOCUMENT 

discovery rules"); Huynh v. J.P. Morgan Chase & Co., CIV 06-0001-PHX-RCB, 2008 WL 

2789532, at *25 (D. Ariz. July 17, 2008); Bishop v. City of Macon, 189 F.R.D. 494,496 (M.D. 

Ga. 1999) ("The primary purpose of liberalized civil discovery rules is to prevent surprise to a 

litigant's opponent"). While we may excuse a lapse in the duty to produce a documents provided 

sound reasons support such a lapse, we cannot excuse intentional withholding aimed at achieving 

unfair advantage in a deposition. This Court should condemn the ambush tactic, establishing 

clear precedent that reigns in Complaint Counsel. 

A. Complaint Counsel Violated Rules 3.31 and 3.37 

Rule 3.31(e) compels supplementation to discovery responses. See 16 C.F.R. § 

3.31(e)(2) ("A party is under a duty to amend in a timely manner a prior response ... [that] is in 

some material respect incomplete or incorrect"). 

The intentional withholding of the article until the second day of Sinclair's deposition 

whereupon it was produced in surprise, ambush fashion is a per se violation of the continuing 

obligation to seasonably supplement document production. Counsel arrived at 9AM the morning 

of the first day of Sinclair's deposition with printed copies of the exhibit in tow yet even 

withheld the document, waiting until the afternoon of the second day in an eff011 to achieve an 

ambush. See Exh. RX-A, at 374:14-15. "Timely" production under Rule 3.31(e)(2) demanded 

provision of the article to Respondent before the deposition of Sinclair commenced; indeed, at 

the very moment it was discovered or, if not then, certainly four days before, on the preceding 

Saturday, when Katherine Johnson decided she would use it in the Sinclair deposition. 

6 

---·---------------~--------------------- -------·----
PUBLIC DOCUMENT 

B. Complaint Counsel's Withholding Was Willful And Unjustified 

As explained hereinabove and revealed in the attached deposition transcript, the 

withholding was willful.? 

The parties spent more than 12 hours in Sinclair's deposition over two days before 

Katherine Johnson revealed the article she possessed five days before. See Exh. RX-A, at 365. 

The parties had corresponded by email the weekend before the deposition, yet Complaint 

Counsel made no mention of the article in that correspondence. See Exh. RX-E. On the record 

Johnson says that she acquired the document on Friday, February 141

h, and resolved to use it in 

the deposition on Saturday, February 16th. We cannot presume her ignorant of the rules or, even 

were she, excusable for that ignorance. She could have supplied Respondent with a copy of the 

document by email on Friday, on Saturday, or on any day thereafter preceding the deposition. 

Moreover, Complaint Counsel produced multiple copies of the document at deposition, copies 

sufficient for the witness and Respondent's counsel, indicating that she travelled from 

Washington with the copies and thus had the opportunity before the start ofthe deposition to 

supply physical copies for Respondent's review. 

Complaint Counsel withheld the article to facilitate an ambush of Sinclair at his 

deposition, aiming thereby to achieve an unfair advantage, thereby acting in bad faith. See 

F.T.C. v. Affiliate Strategies, Inc!., 09-4104-JAR, 2011 WL 2084147 at 9 (D. Kan. May 24, 2011) 

("It [was] difficult for the Court to understand how WPS could not have produced this document 

earlier if it had been acting in good faith"). 

7 Complaint Counsel's Notice of Deposition indicated that they planned to discuss 

"scientific tests relevant or potentially relevant to the biodegradability of plastic ... " See Exh. 

RX-F, at ~10. 

7 
PUBLIC DOCUMENT 

C. Complaint Counsel's Failure Violation of Discovery Obligations 

Prejudices ECM 

Ostensibly planning to impeach or discredit Sinclair with a negative study, and 

undermine his prior testimony, Complaint Counsel asked him, a non-scientist, to verify facts 

from and draw conclusions concerning the scientific article he first witnesses in deposition. See 

Exh. RX-A, at 377:1-21. His testimony would have been more informed had he possessed the 

withheld article in advance of the deposition and had an opportunity to seek input from 

consulting scientists. He was therefore deprived of an opportunity to testify fully on the topics 

identified in Complaint Counsel's Rule 3.33(c)(l) Notice of Deposition. See Exh. RX-F, at ,-riO. 

D. Document Exclusion Is the Customary Remedy 

One ofthe sanctions specifically referenced in Rule 3.38(b)(4) is the exclusion of 

"documents or other evidence ... improperly withheld or undisclosed ... " 16 C.F.R. § 3.38(b)(4). 

"For further guidance in assessing the proper type of sanction, the ALJ may look to precedent 

under Federal Rule of Civil Procedure 37(b)(2), which is substantially similar in both purpose 

and language to Rule 3.38(b)." Matter of the Grand Union Co., 102 F.T.C. 812, 1983 WL 

486347, at *208 (1983). "When a party seeks to frustrate [the process] by disobeying discovery 

orders, thereby preventing disclosure of facts essential to an adjudication on the merits, severe 

sanctions are appropriate." Daval Steel Products, a Div. of Francosteel Corp. v. MIV Fakredine, 

951 ~.2d 1357, 1365 (2d Cir. 1991) (interpreting 37(b)(2)). Courts have held that willful nondisclosure is grounds for dismissal. See S. New England Tel. Co. v. Global NAPs, Inc., 251 

F.R.D. 82, 90 (D. Conn. 2008) affd, 624 F.3d 123 (2d Cir. 2010) ("Dismissal is appropriate if 

there is a showing of 'willfulness, had faith, or fault on the part of the sanctioned party"'). Short 

8 
PUBLIC DOCUMENT 

of dismissal (id. ), the precedent and rule supports exclusion of the evidence wrongfully withheld. 

See 16 C.F.R. § 3.38(b)(4). 

CONCLUSION 

For the foregoing reasons, Respondent respectfully requests that his Honor specifically 

rule that Complaint Counsel violated the discovery rules and hold inadmissible the article 

entitled Eddie F. Gomez and Frederick C. Michel Jr., "Biodegradability of conventional and biobased plastics and natural fiber composites during composting, anaerobic digestion and longterm soil incubation" Polymer Degradation and Stability 98 (2013) 2583-2591, which was 

wrongfully withheld by Complaint Counsel in violation ofRules 3.31 and 3.37, and was 

intended for use as an ambush tactic in the deposition of Robert Sinclair. 

DATED this 28th day ofFebruary 2014. 

9 

Respectfully submitted, 

Is/ Jonathan W. Emord 

Jonathan W. Emord (jemord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 201211 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 
PUBLIC DOCUMENT 

STATEMENT CONCERNING CONFIDENTIALITY 

The undersigned Respondent's Counsel hereby states that the content of the foregoing 

motion, memorandum, and excerpted sections of otherwise confidential exhibits do not contain 

confidential information under this Court's Protective Order and, so, ECM hereby files this 

motion to the public docket. 

DATED: February 28,2014. 

10 

Is/ Jonathan W. Emord 

Jonathan W. Emard 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 
PUBLIC DOCUMENT 

STATEMENT CONCERNING MEET AND CONFER 

Pursuant to Rule 3.22(g), 21 C.F.R. § 3.22(g), the undersigned counsel certifies that, on 

February 19,2014, during the deposition of Robert Sinclair, and then again on February 28,2014, 

Respondent's counsel conferred with Complaint Counsel in a good faith effort to resolve by 

agreement the issues raised in the foregoing Motion for Sanctions. The parties have been unable 

to reach an agreement on the issue raised in the attached motion. 

11 

~--~-~-~ ---
PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

PUBLIC 

[PROPOSED) ORDER GRANTING RESPONDENT ECM BIOFILMS, INC.'S MOTION 

FOR SANCTIONS 

This matter having come before the Administrative Law Judge on February 28,2014, 

upon a Motion for Sanctions ("Motion") filed by Respondent ECM BioFilms, Inc. ("ECM") 

pursuant to Commission Rule 3.38(b), 16 C.F.R. § 3.38(b), for an Order sanctioning Complaint 

Counsel. 

Having considered ECM' s Motion and all supporting and opposing submissions, and for 

good cause appearing, it is hereby ORDERED that ECM' s Motion is granted and Complaint 

Counsel shall be precluded from introducing into evidence or otherwise relying on, in support of 

any claim or defense, the article identified in Exhibit RX-C ofECM's Motion, entitled: Eddie F. 

Gomez and Frederick C. Michel Jr., "Biodegradability of conventional and bio-based plastics 

and natural fiber composites during composting, anaerobic digestion and long-term soil 

incubation" Polymer Degradation and Stability 98 (2013) 2583-2591. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: 

12 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on February 28, 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 through the e-filing system: 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-113 

Washington, DC 20580 

Email: secretary@ftc.gov 

One electronic courtesy copy 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 Complainant: 

Katherine Johnson (kjohnson3@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M -81 02B 

Washington, D.C. 20580 

Jonathan Cohen Gcohen2@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

I certify that I retain a paper copy of the signed original of the foregoing document that is 

available for review by the parties and adjudicator consistent with the Commission's Rules. 

DATED: February 28,2014 

13 

Is/ Jonathan W. Emord 

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 
EXHIBIT RX-A 

-----------
1 

2 

3 

4 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

5 In the Matter of 

PUBLIC VERSION 

6 

7 ECM BioFilms, Inc., Docket No. 9358 

8 a corporation, also d/b/a 

9 Enviroplastics International,) 

10 Respondent. 

11 --------------------

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

ECM Mot. for Sanctions 

Exh. RX-A 

Deposition of 

ROBERT SINCLAIR-VOLUME II 

TRANSCRIPT CONFIDENTIAL 

PURSUANT TO PROTECTIVE ORDER 

February 19, 2014 

9:17a.m. 

Taken at: 

ECM BioFilms, Inc. 

100 South Park Place 

Painesville, Ohio 

Jill A. Kulewsky, RPR, Notary Public 
PUBLIC VERSION 

Sinclair 

ECM BioFilms, Inc., et al. 

1 APPEARANCES: 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

ECM Mot. for Sanctions 

Exh.RX-A 

---------

On behalf of ECM BioFilms, Inc.: 

Emard & Associates, by 

JONATHAN W. EMORD, ESQ. 

PETER A. ARHANGELSKY, ESQ. 

1050 Seventeenth Avenue, Suite 600 

Washington, D.C. 20036 

(202) 466-6937 

Jemord@emord.com 

Parhangelsky@emord.com 

On behalf of the Federal Trade 

Commission: 

Federal Trade Commission 

Bureau of Consumer Protection, by 

KATHERINE JOHNSON, ESQ. 

JONATHAN COHEN, ESQ. 

600 Pennsylvania Avenue, NW 

Mail Stop M-8102B 

Washington, D.C. 20580 

(202) 326-2185 

Kjohnson3@ftc.gov 

Jcohen2@ftc.gov 

For The Record, Inc. 

(301) 870-8025- www.ftrinc.net- (800) 921-5555 

224 

2/19/2014 
PUBLIC VERSION 

225 

Sinclair 

ECM BioFilms, Inc., et al. 2/19/2014 

1 TRANSCRIPT INDEX 

2 

3 APPEARANCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 

4 

5 INDEX OF EXHIBITS ........................ 226 

6 

7 EXAMINATION OF ROBERT SINCLAIR: 

8 By Ms. Johnson. . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 

9 

10 REPORTER'S CERTIFICATE .................... 436 

11 

12 EXHIBIT CUSTODY 

13 EXHIBITS RETAINED BY COURT REPORTER 

14 

15 

16 

17 

18 

20 

21 

22 

23 

24 

25 

ECM Mot. for Sanctions 

Exh.RX-A 

For The Record, Inc. 

(301) 870-8025- www.ftrinc.net- (800) 921-5555 
PUBLIC VERSION 

226 

Sinclair 

ECM BioFilms, Inc., et al. 2/19/2014 

1 

2 NUMBER 

3 Exhibit 

4 

Exhibit 

5 

6 Exhibit 

7 

Exhibit 

8 

9 Exhibit 

10 Exhibit 

11 Exhibit 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

21 

22 

23 

24 

25 

26 

28 

INDEX OF EXHIBITS 

DESCRIPTION MARKED 

An Excerpt From The ECM ...... 234 

Summary Database 

An Excerpt From The ECM ...... 240 

Summary Database 

A Document Entitled Polymer 366 

Degradation And Stability 

A Power Point Regarding ECM 386 

MasterBatch Pellets 

An ECM BioFilms Brochure ...... 403 

A MasterBatch Pellets Flier ... 403 

A Package Of ECM BioFilms 424 

Materials Addressed To 

Michael McCrown 

For The Record, Inc. 

(301) 870-8025- www.ftrinc.net- (800) 921-5555 

ECM Mot. for Sanctions 

Exh.RX-A 
Sinclair 

ECM BioFilms, Inc., et al. 

1 some block copolymer. Boy, that's a long time 

2 ago. I don't recall exactly what it was. I 

3 think it was a block copolymer that we ran. 

4 Q. What's a block copolymer? 

5 A. It's a variation of other resins 

6 that, again, we wouldn't know exactly because 

7 the company we were dealing with wouldn't give 

8 us exact things of what they're running. 

9 Q. But it was a copolymer that had the 

10 additive in it? 

11 A. Yes. In other words, we would run 

12 I'm sure it was run with and without our 

13 additive. 

14 

15 

16 

Q. And ECM commissioned the test? 

A. I wouldn't swear to that one way or 

the other. Yes, I think we did. I think we 

17 did on that one. I think we did. 

18 Q. And do we have the results of this 

19 test? Have these been turned over? 

20 A. You know, until you mentioned that 

21 right now is the first it's ever come into my 

22 mind, but I will make sure that I dig them up 

23 because I'm sure I've got them somewhere. I 

24 will get that over to you. 

25 Q. You also said that there was 

For The Record, Inc. 

PUBLIC VERSION 

365 

2/19/2014 

13:22:46 

13:23:14 

13:23:32 

13:23:48 

13:23:58 

(301) 870-8025- www.ftrinc.net- (800) 921-5555 

ECM Mot. for Sanctions 

Exh.RX-A 
PUBLIC VERSION 

Sinclair 

ECM BioFilms, Inc., et al. 

1 another aerobic OWS test that you were going 

2 to --

3 A. Again, we're going to try to 

4 scour as soon as I have a chance. I got to get 

5 off of those e-mails. After I do that, that's 

6 the next one. It takes an enormous amount of 

7 time. 

8 

9 

10 

11 

12 

13 

14 

15 

(Thereupon, Deposition Exhibit 23, A 

Document Entitled Polymer 

Degradation And Stability, was 

marked for purposes of 

identification.) 

MS. JOHNSON: Let the record show 

16 that I'm marking a document entitled 

17 Biodegradability of Conventional and Bio-Based 

18 Plastics and Natural Fiber Composites During 

19 Composting, Anaerobic Digestion and Long-Term 

20 Soil Incubation dated October 1st, 2013. Take 

21 a moment to look at this. There are some 

22 markings in this document, they're not mine, so 

23 I'm not waiving attorney work product. 

24 Q. Do you know who Eddie F. Gomez or 

25 Frederick C. Michel, Jr. are? They're the 

ECM Mot. for Sanctions 

Exh.RX-A 

For The Record, Inc. 

(301) 870-8025- www.ftrinc.net- (800) 921-5555 

366 

2/19/2014 

13:24:12 

13:24:33 

13:25:53 

13:26:29 
Sinclair 

ECM BioFilms, Inc., et al. 

1 authors. Have you heard their name? Do you 

2 know who they are? 

3 A. No, they don't seem familiar to me. 

4 Q. Have you seen this article before? 

5 A. I don't believe so. 

6 Q. You can take a few minutes to look 

7 through it. Do you want to just flip through 

8 it if you want? 

9 MR. EMORD: I'm going to put an 

10 objection on the record to state that the 

11 witness has testified that he's not previously 

12 seen this before. It purports to be a 

13 publication of a scientific study or test and 

14 the witness is not an expert, so with that 

15 caveat in mind, you can ask your questions. 

16 Q. Mr. Sinclair, do you have any 

17 reason to believe that the Department of Food, 

18 Agriculture and Biological Engineering at Ohio 

19 State University would be biased against you? 

20 

21 

A. In the fact that one of the primary 

people that is biased against us is Cargill, 

22 they -- the Department of Agriculture may well 

23 be. I don't know that. 

24 Q. Well, I don't understand what's the 

25 relationship between Cargill and --

For The Record, Inc. 

PUBLIC VERSION 

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13:27:14 

13:28:10 

13:28:36 

13:28:56 

(301) 870-8025- www.ftrinc.net- (800) 921-5555 

ECM Mot. for Sanctions 

Exh.RX-A 
Sinclair 

ECM BioFilms, Inc., et al. 

1 A. Cargill is NatureWorks, and 

2 NatureWorks is PLA, and they were one of the 

3 primary constituent members of the BPI and have 

4 been for a long time and they've been one of 

5 the primary motor engines behind the general 

6 attacks on our technology. 

7 Q. And what does it have to do with 

8 Ohio State University? 

9 

10 

11 

A. 

Q. 

A. 

Again, I don't know. 

I'm just asking. 

I'm just saying, you asked me would 

12 there be any reason why I would have question 

13 of these people, and I would say that would be 

14 the only question I would have. 

15 Q. So if they had no ties to Cargill 

16 or who else did you mention? 

17 A. BPI, Narayan, and that whole bit. 

18 Q. If they had no connections to those 

19 companies, you would feel they weren't biased 

20 against you? 

21 MR. EMORD: Again, calls for 

22 speculation. 

23 A. I would not know. I would not 

24 know. 

25 Q. Anyway, did you know that your ECM 

For The Record, Inc. 

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13:29:42 

13:29:59 

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(301) 870-8025- www.ftrinc.net- (800) 921-5555 

ECM Mot. for Sanctions 

Exh.RX-A 
Sinclair 

ECM BioFilms, Inc., et al. 

1 MasterBatch Pellet was going to be the subject 

2 of a study? Did you provide samples --

3 A. I do not believe I knew of it. I 

4 don't recall these gentlemen and I don't recall 

5 anybody requesting anything from us from Ohio 

6 

7 

State. 

Q. There is obviously a lot of 

8 information in the article, but the conclusion, 

9 which is at the end, towards the end, it's 

10 marked 4, Conclusion, says "Plastics containing 

11 additives that supposedly confer 

12 biodegradability to polymers such as 

13 polyethylene and polypropylene did not improve 

14 the biodegradability of these recalcitrant 

15 polymers." 

16 MR. EMORD: I'll object to the fact 

17 that the entire sentence in which that 

18 statement was usurped was not read into the 

19 record and I'll now read it into the record. 

20 "While some of the bio-based plastics and 

21 natural fibers biodegraded to an appreciable 

22 extent, plastics containing additives that 

23 supposedly" and then so on as counsel read. 

24 Q. Do you know what a bio-based 

25 plastic is? 

For The Record, Inc. 

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13:30:59 

13:31:41 

13:31:57 

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ECM Mot. for Sanctions 

Exh.RX-A 
PUBLIC VERSION 

370 

Sinclair 

ECM BioFilms, Inc., et al. 2/19/2014 

1 A. I know what they are terming that, 13:32:20 

2 yes. 

3 Q. And that's not a technology that's 

4 similar to your additive, correct? 

5 A. No. Well, in other words, our 

6 stuff could be used in the bio-based plastics. 13:32:39 

7 In other words, a bio-based plastic is simply 

8 taking what they call more recently used 

9 carbon. In other words, carbons that are out 

10 there in the environment in an active form as 

11 opposed to carbons that are in some more fossil 13:32:59 

12 form, and you can make any polymer from those 

13 carbons. 

14 In other words, you could make 

15 standard polyethylene. A company down in 

16 Brazil makes standard polyethylene using 13:33:20 

17 bio-based carbon. In other words, where they 

18 obtain that carbon from the remains of sugar 

19 cane. So bio-based has nothing to do with 

20 biodegradability as a function. 

21 In other words, if they make 13:33:44 

22 polyethylene with bio-based carbon, that 

23 polyethylene is no more biodegradable than is a 

24 standard polyethylene that was made from a 

25 natural gas or from petroleum. 

For The Record, Inc. 

(301) 870-8025- www.ftrinc.net- (800) 921-5555 

ECM Mot. for Sanctions 

Exh.RX-A 
Sinclair 

ECM BioFilms, Inc., et al. 

1 Q. Let's go to Section 2.4. I'm 

2 sorry, the pages aren't numbered. I think at 

3 the top it's 2586. 

4 A. Okay. 

5 MR. EMORD: Take a moment to read 

6 the whole section before you respond. 

7 A. Frankly, again, showing me a 

8 document, I'm not going to make a whole bunch 

9 of conclusions from anything in this document 

10 without having thought about it, giving it over 

11 to experts, whatever the case is. This isn't 

12 just a --

13 MR. EMORD: Gotcha? Yeah, it's not 

14 a gotcha. Read that Section 2.4 through just 

15 so you have some context in which to answer the 

16 questions, realizing that counsel has not 

17 supplied us with a copy of this document before 

18 the deposition and first supplied it to you a 

19 few moments ago. So take a moment and look at 

20 2.4, read it in its entirety, and then we'll 

21 

22 

see what they're going to do with it. 

May I ask, counsel, when you first 

23 got a copy of this document? It's dated 2013, 

24 the publication date. It indicates it was 

25 available online on 1, October, 2013, I don't 

For The Record, Inc. 

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13:34:47 

13:35:02 

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ECM Mot. for Sanctions 

Exh.RX-A 
PUBLIC VERSION 

372 

Sinclair 

ECM Biofilms, Inc., et al. 2/19/2014 

1 know where online, but when did you first come 13:35:40 

2 to acquire a copy of this document? 

3 MS. JOHNSON: I could verify the 

4 exact date and time if you just give me a 

5 minute. I think it was Friday. 

6 MR. EMORD: Did you have the 13:35:50 

7 ability on Friday to send me a copy of it? 

8 MS. JOHNSON: I don't believe so, 

9 but I might have. 

10 MR. EMORD: No? Could someone on 

11 your staff have supplied me with a copy of the 13:35:59 

12 document? 

13 MS. JOHNSON: Possibly. 

14 MR. EMORD: So we could have been 

15 given a copy of the document so we could 

16 confirm 13:36:07 

17 MS. JOHNSON: Well, you have a copy 

18 now. So if you want to take some time and take 

19 a look at it, that's totally fine. 

20 MR. EMORD: Under the production 

21 order and under our request for production of 

22 documents, this would be due. 

23 Now, we've had a lot of 

24 conversations and arguments over production, 

25 and you've demanded rapid production and we've 

ECM Mot. for Sanctions 

Exh.RX-A 

For The Record, Inc. 

(301) 870-8025- www.ftrinc.net- (800) 921-5555 

13:36:13 
Sinclair 

ECM BioFilms, Inc., et al. 

1 worked as diligently as we can to get you the 

2 documents. To the extent that we've argued 

3 over it, we've gone to the court. 

4 In this instance you have a 

5 document that is a scientific document that 

6 you're going to examine this witness about, 

7 which in itself is improper, but let's say you 

8 go ahead and do that, but the point is, you had 

9 this document, you were able to give me a copy 

10 of it, I could have conferred with scientists 

11 who we've worked with on this and I could have 

12 had a better understanding of it to represent 

13 my client. You're right in the middle of a 

14 deposition, you're not giving us that 

15 opportunity, you expect us to give it to you, 

16 

17 

and so you're not giving us that same courtesy. 

MS. JOHNSON: I'm sorry, you gave 

18 us a 20,000 page PDF containing vital e-mails 

19 sometime over the weekend and you expected us 

20 to evaluate it. Are we on the record? 

21 

22 

23 

MR. EMORD: Yes, we are. 

MS. JOHNSON: All right. 

MR. EMORD: And we informed you of 

24 the production of those documents and when we 

25 would provide them to you, and we said we would 

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ECM Mot. for Sanctions 

Exh.RX-A 
PUBLIC VERSION 

374 

Sinclair 

ECM BioFilms, Inc., et al. 2/19/2014 

1 get them to you as rapidly as possible. You 13:37:26 

2 set the date for this deposition, we didn't set 

3 it. If you wanted to change the date for that 

4 deposition to review those documents, we 

5 certainly would have cooperated with you. This 

6 is another matter. You gave us no advanced 13:37:38 

7 notice of this document. None. You had it on 

8 Friday, you knew you were going to use it in a 

9 deposition 

10 MS. JOHNSON: I did not know I was 

11 going to use it. 13:37:48 

12 MR. EMORD: When did you decide you 

13 were going to use it? 

14 MS. JOHNSON: We packed up our 

15 stuff on Saturday afternoon. 

16 MR. EMORD: This is highlighted. 

17 Who did the highlighting on the document? 

18 MS. JOHNSON: I'm not going to 

19 reveal that. 

20 MR. EMORD: Well, either someone on 

21 your staff did the highlighting on the document 

22 or it's one of your scientific consultants, but 

23 in any event, you did not turn this document 

24 over to us when you had the opportunity to do 

25 it and --

For The Record, Inc. 

(301) 870-8025- www.ftrinc.net- (800) 921-5555 

ECM Mot. for Sanctions 

Exh.RX-A 

13:37:54 

13:38:00 
PUBLIC VERSION 

375 

Sinclair 

ECM BioFilms, Inc., et al. 2/19/2014 

1 MS. JOHNSON: This is your 13:38:07 

2 opportunity. 

3 MR. EMORD: -- you're doing an 

4 examination based on it, and I want to make it 

5 absolutely clear, abundantly clear --

6 MS. JOHNSON: Yes, please do. 13:38:16 

7 MR. EMORD: that this is grossly 

8 unfair because you did not give us a chance to 

9 look at a scientific document that you're using 

10 as a basis to examine a non-scientific witness, 

11 but in any event, this document you had in your 13:38:30 

12 possession, it is subject to our production 

13 request, and you did not turn it over. You 

14 didn't turn it over yesterday during the 

15 deposition, you didn't turn it over --

16 MS. JOHNSON: I apologize for that. 13:38:45 

17 MR. EMORD: You didn't turn it over 

18 until the immediate moment when you began this 

19 deposition. We've been here all day long. It 

20 is now in the afternoon, it is what -- what 

21 time is it, it's 20 to 2, you've been here 13:38:55 

22 since 9 in the morning, you didn't turn it over 

23 to us before. The first time you turned it 

24 over to us you began asking the witness 

25 questions about it. 

For The Record, Inc. 

(301) 870-8025- www.ftrinc.net- (800) 921-5555 

ECM Mot. for Sanctions 

Exh.RX-A 
PUBLIC VERSION 

376 

Sinclair 

ECM BioFilms, Inc., et al. 2/19/2014 

1 MS. JOHNSON: Would you like to 13:39:13 

2 take a few moments to read it, we can take a 

3 break? 

4 MR. EMORD: No, he's not a 

5 scientific expert, it's totally improper 

6 MS. JOHNSON: I'm not going to ask 13:39:20 

7 him about the science. I'm not asking about 

8 the science, I just wanted to ask him one or 

9 two questions about the document. 

10 MR. EMORD: I want to make this 

11 clear because I am going to take this up, 13:39:26 

12 whether it's with your superiors, whether it's 

13 with the Judge, this is an important matter. I 

14 don't want this to happen again in a 

15 deposition. I don't want these future 

16 depositions to go on where you do this kind of 13:39:37 

17 thing. Will you tell me on the record that you 

18 won't do this in the future? 

19 MS. JOHNSON: Well, certainly if I 

20 have an opportunity to produce a document 

21 before the date of the deposition, I will do 13:39:48 

22 so. 

23 MR. EMORD: All right. We will 

24 continue. 

25 BY MS. JOHNSON: 

For The Record, Inc. 

(301) 870-8025- www.ftrinc.net- (800) 921-5555 

ECM Mot. for Sanctions 

Exh.RX-A 
Sinclair 

ECM BioFilms, Inc., et al. 

1 Q. You said before, Mr. Sinclair, that 

2 the ASTM 5511 test is a state of the art test, 

3 correct? 

4 

5 

6 

7 

A. That's correct. 

Q. Does it appear that that was the 

test that was identified in this study? 

A. Yeah, I think it's very important 

8 in the second paragraph of 2.4 that you have 

9 indicated that I read that they do say these 

10 conditions resemble those found in high solid 

11 AD digesters and in biologically active 

12 landfills but not in typical landfills where 

13 water is excluded and removed. 

14 In other words, they are talking 

15 about biologically active landfills, and we can 

16 show from the EPA documents that all landfills 

17 that receive municipal solid waste are 

18 bioloqically active. So I appreciate you 

19 bringing this to our attention. That's another 

20 confirmation of what we've been saying all 

21 along. 

22 Q. So --

23 A. Beyond that, I can't make any 

24 conclusions or --

25 Q. I didn't ask you to. I didn't ask 

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ECM Mot. for Sanctions 

Exh.RX-A 
Sinclair 

ECM BioFilms, Inc., et al. 

1 

2 

3 

you anything else. 

A. I thought you did. 

THE WITNESS: If you could, reread 

4 her question to me. 

5 THE NOTARY: Question: "Does it 

6 appear that that was the test that was 

7 identified in this study?" 

8 A. That's making a conclusion of how 

9 they ran the test, what they did. I don't know 

10 anything of that. I can't tell. 

11 Q. All right. 

12 A. This is their report of their 

13 testing. I have no idea what they've done, 

14 other than what they're saying pointblank, and 

15 you can read it as well as I can. 

16 Q. Let's move on to some of the 

17 customer communications and hopefully we can go 

18 a little faster. 

19 Actually, I did want to ask you a 

20 question about the formation of ECM. Did you 

21 sign any documents in 1998 indicating that you 

22 were the President of the company? 

23 A. Yeah, that would have been initial 

24 formation of the company and then quickly the 

25 President would have been the -- I believe I 

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ECM Mot. for Sanctions 

Exh. RX-A 
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379 

Sinclair 

ECM BioFilms, Inc., et al. 2/19/2014 

1 was, you know, at the very formation the sole 13:42:53 

2 shareholder ~nd then would disburse those 

3 shares -- it was just a matter of formality. 

4 Q. But when I asked you yesterday 

5 whether you were President in 1998, I think you 

6 said you did not become President until 2000? 13:43:12 

7 A. Yeah, that was again a 

8 technicality. 

9 Q. I just wanted to be sure I 

10 understood. You were President from the very 

11 beginning? 13:43:23 

12 A. I had forgotten all about that, 

13 again, the formation of the company and how we 

14 had done it at that time. Now that you 

15 refreshed my memory, we did it where we formed 

16 the company, again without any assets, without 

17 anything, and I was the 100 percent 

18 shareholder, and then we had the share 

19 subscription for everybody else and everybody 

20 got their regular percentages that they had in 

21 Microtec in the next phase. So now that you've 

22 brought that to mind, that is correct. 

23 Q. And when was your brother President 

24 again? 

25 A. Well, again, he would have been the 

For The Record, Inc. 

(301) 870-8025- www.ftrinc.net- (800) 921-5555 

ECM Mot. for Sanctions 

Exh.RX-A 

13:43:34 

13:43:51 
EXHIBIT RX-B 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

RESPONDENT'S FIRST SET OF REQUESTS 

FOR PRODUCTION OF DOCUMENTS 

Respondent ECM BioFilms, Inc. ("ECM"), by counsel and pursuant to Rule 3.37 of the 

Federal Trade Commission's Rule of Practice for Adjudicative Proceedings ("Rules"), hereby 

requests that Complaint Counsel for the Federal Trade Commission produce the following 

documents and/or tangible things for inspection and copying at Emord & Associates, P .C., 3210 

South Gilbert Road, Suite 4, Chandler, Arizona, 85286, or at such time and place as may be 

agreed upon by all counsel. 

INSTRUCTIONS 

1. These instructions and definitions should be construed to require responses or 

production based on all information within the Federal Trade Commission's possession, domain, 

custody, or control, including such information within the personal knowledge of those 

employed by the FTC and by those acting on the FTC's behalf. 

2. If you are unable to produce a document or item requested, please state in writing 

why you cannot produce the document or thing and, if your inability to produce the document or 

thing is because it is not in your possession, dominion, control, or that of a person from whom 

ECM Mot. for Sanctions 

Exh.RX-B 

1 
you could obtain it, state the name, address, and telephone number of any person or entity you 

believe may have the original or a copy of any such document or thing. 

3. Your response is required within 30 days after service ofthese Requests per 16 

C.F.R. § 3.37(b). 

4. If you object to any of the requests, answer to the extent that each request or part 

thereof is not objectionable, and state the precise part of the request to which you intend to 

object. Please provide each ground for such objection in sufficient detail to permit Respondent's 

counsel to evaluate the legal sufficiency of same. 

5. If, in answering these Requests, you encounter any ambiguities when construing a 

request, instruction, or definition, your response shall state the matter deemed ambiguous and the 

construction used in responding. 

6. Where a claim of privilege is asserted in responding or objecting to any discovery 

demanded in these Requests and information is not provided on the basis of such assertion, you 

shall, in your response, identify the nature of the privilege claimed, together with the following 

information: (a) the date of the responsive document(s); (b) the sender ofthe document(s); (c) 

the addressee(s) or recipient(s); (d) the number of pages; (c) the subject matter; (f) the basis for 

which the privilege is claimed; (g) the names of all persons to whom copies of any part of the 

document(s) were furnished; (h) the present location of the document(s) and all copies thereof; 

and (i) each person who has ever had possession, custody, or control of the document(s), to the 

extent known. 

7. If the requested document(s) are maintained in a file, the entire file folder is 

included in the request for production of those documents generally, to the extent such 

production is reasonably necessary for context. 

ECM Mot. for Sanctions 

Exh. RX-B 

2 
8. You are under a continuing obligation to supplement your answers to these 

document production requests under Rule 3.31 (e). Every Request for Production herein shall be 

deemed a continuing Request for Production, and the FTC is to supplement its answers promptly 

if and when it obtains responsive documents which add to or are in any way inconsistent with the 

FTC's initial production. 

9. Unless the context clearly requires otherwise, the singular form of any term used 

herein shall include the plural, and vice versa. The present tense of any verb shall include the 

past tense, and vice versa. Similarly, the masculine gender shall include the feminine, and vice 

versa. 

10. The terms "and" and "or" in these Requests shall be construed conjunctively or 

disjunctively as necessary, to make the applicable sentence or phrase inclusive rather than 

exclusive and to ensure a complete, thorough, and accurate response. 

11. Unless otherwise stated, the relevant time period for purposes of these Requests is 

the time period between January 1998 and the date of hearing in this case. 

DEFINITIONS 

Notwithstanding any specific definition set forth below, each word, term, or phrase used 

in these Requests is intended to have the broadest meaning permitted under the Rules of Practice 

of the Federal Trade Commission. 

1. The terms "Complaint Counsel," "you," "your," "FTC," "Complainant," or 

"Commission" are interchangeable in meaning and are to be understood to include all 

employees, agents, attorneys, consultants, representatives, officers, and persons acting or 

purporting to act on behalf of the United States Federal Trade Commission, other than the 

ECM Mot. for Sanctions 

Exh.RX-B 

3 
entities that are identified in Practice Rule 3.35(a) as individuals or entities outside the scope of 

discovery for purposes of these requests. 

2. The term "Document" means documents and other tangible things as defined in 

the broadest sense permissible under the Rules of Practice of the Federal Trade Commission and 

shall include, without limitation, all written (whether handwritten, typewritten, computer 

printed or otherwise generated), recorded, graphic or visual matter of material of any kind in 

original format or, if an original is not available, any copies, as well as any non-identical copies 

(regardless of origin and whether or not including additional writing thereon or attached thereto) 

and whether or not still in existence and drafts of any: books, papers, photographs, video tapes, 

movie films, tapes or other photographic recordings, microfilm, microfiche, computer printouts, 

audio or video tape recordings, magnetic tapes, punch cards, records, reports, letters or any 

correspondence, electronic mail ("e-mail") or similar electronic communications, telegrams, 

telexes, memoranda, notes, field notes, marginal notations, complaints, contracts, studies, 

affidavits, agendas, minutes, resolutions, diaries, appointment books, calendars, desk calendars, 

analysis, work papers, statistical reports, circulars, charts, transcripts, bills, invoices, receipts, 

worksheets, checks, logs, ledgers, payrolls, tax records, audits, reviews, sketches, graphs or 

graphics, pamphlets, brochures, manuals, financial reports, financial summaries, summary 

statements, lists, agreements, purchase orders, expense records, purchase and sale statements or 

their equivalent, depositions, interview transcripts or their equivalent, press releases in 

publications, discs, data cells, drums, printouts, data compilations, maps, lawsuits including all 

pleadings or memoranda submitted to or for submission to any court, administrative agency, 

association, or Governmental tribunal, whether in or outside the United States, text messages, 

phone logs, phone bills, internet social networking posts or entries, internet web posts or entries 

ECM Mot. for Sanctions 

Exh.RX-B 

4 
of any kind, any and all other types of tangible things in whatever form upon or in which 

information is or may be recorded, whether mechanical, electronic or handwritten, including 

any physical file or its equivalent in which any such document or tangible thing has been or is 

stored or maintained. . 

3. The term "Correspondence" is used in the broadest sense to include any 

communication through the exchange of written or spoken word, including, but not limited to 

any such exchange through letters, electronic mail ("e-mail") or similar electronic 

communications, text messages, SMS messages or similar electronic communications, 

telegrams, telexes, memoranda, facsimiles, notes, cards, and phone conversations and records 

thereof. 

4. The term "Person" is used in the broadest sense to include natural persons, public 

or private corporations, charitable or non-charitable corporations, and their subsidiaries that are 

divisions, proprietorships, partnerships, Governmental entities, associations, organizations, 

groups, trusts, estates, and any other form of an entity or organization. Any reference herein to 

a party that is a corporation, partnership, or any entity other than a natural person, shall include 

reference to all past and present subsidiaries, affiliates, directors, officers, employees, and 

agents ofthe entity. 

5. The term "Personnel" is used in the broadest sense to include natural persons, 

Governmental entities, and any other form of an entity or organization employed by or acting as 

agents for Complainants including their respective attorneys, agents, employees, and all persons 

acting on their behalf including, without limitation, the other Complainants and their agents. 

6. The terms "Pertaining to" or "Concerning" mean relating to, referring to, 

constituting, containing, embodying, reflecting, identifying, stating, dealing with, or is in any 

ECM Mot. for Sanctions 

Exh. RX-B 

5 
way pertinent to or associated with the specified subject, including documents concerning the 

preparation of other documents. 

7. The terms "Article" or "Publication" shall refer to all pieces of writing including, 

but not limited to, newspaper pieces, magazine pieces, and information released or appearing in 

scientific peer-reviewed journals. 

8. The term "Communication" shall include any oral statement, dialogue, colloquy, 

discussion or conversations, and also means any transfer of thoughts or ideas between persons 

by means of documents, and includes any transmittal of information in the form of oral or 

written facts, ideas, inquiries, or data transfer from one location to another by electronic or 

similar means, including without limitation, writings, telephonic conversations and oral 

conversations other than telephonic conversations, SMS messaging, and internet web posts. 

9. The term "ECM" or "Respondent" shall include, without limitation, ECM 

BioFilms, Inc., its agents, employees, officers, or anyone else acting on its behalf. 

10. The term "Complaint" as used throughout these requests for production shall refer 

to the Complaint filed by the Federal Trade Commission against ECM BioFilms, Inc., Docket 

No. 9358 (Oct. 28, 2013). 

11. The terms "test," "analysis," "protocol," "study," "survey," "data," or 

"experiment," shall include, without limitation, any procedure intended to establish the quality, 

credibility, veracity, plausibility, performance, or reliability of scientific theories, concepts, or 

ideas, or any measurement (whether or not "scientific" or valid) of human, scientific, or other 

facts and statistics collected together for reference or analysis. 

ECM Mot. for Sanctions 

Exh.RX-B 

6 
12. The term "plastic" as used throughout these requests shall collectively refer to any 

synthetic material made from a wide range of polymers such as polyethylene, PVC, nylon, and 

others, including, but not limited to, all thermoplastics and thermosets. 

13. The term "ECM Plastic" means any plastic product treated with or incorporating 

an ECM additive. 

14. The term "ECM Additive" means the additive manufactured by ECM for 

inclusion in plastics products as a component of the finished plastic. 

15. The term "biodegradation" and any variation thereof means decomposition or 

degradation by or through the action of biological and biochemical agents. 

REQUESTS 

Request 1. Provide all documents that concern whether plastics in general and ECM 

Plastics in particular will break down and decompose into elements found in nature after 

customary disposal or in a landfill. 

Request 2. Provide all documents, whether prepared by or for the Commission or any 

other entity, concerning consumer perception, comprehension, or recall (including, but not 

limited to, copy tests, marketing or consumer surveys and reports, penetration tests, recall tests, 

audience reaction tests, and communication tests) of plastics biodegradability; biodegradability 

in general; landfill composition; or conditions of customary waste disposal. 

Request 3. Provide all documents that support or call into question your conclusion 

that ECM's biodegradable claims for degradation are false. 

Request 4. Provide all documents that support or call into question your conclusion 

that consumers likely interpret unqualified degradable claims to mean that the entire product or 

ECM Mot. for Sanctions 

Exh. RX-B 

7 
package will completely decompose into elements found in nature within one year after 

customary disposal. 

Request 5. Provide all documents relating to your contention that express or implied 

representations made in or implied by ECM BioFilm's written advertising or promotional 

materials are false or misleading. 

Request 6. Provide all correspondence between FTC and ASTM and ASTM present 

and past members, officers, directors, or agents. 

Request 7. Provide all documents pertaining to the ASTM standards which concern 

plastics biodegradability, or concern ASTM policies, membership, or revisions to standards. 

Request 8. Provide all documents that relate to your contention that end-consumers 

(as opposed to ECM's trade customers) view, understand, or rely on ECM's written advertising 

materials. 

Request 9. Provide all documents relating to any investigation conducted by you or 

on your behalf relating to any advertising claims or representations concerning the ECM 

Master Batch Pellets, or any other ECM plastics additive. 

Request 10. Produce all documents concerning your contention that landfills are 

generally anaerobic environments that lack oxygen and that restrict the amount of liquid 

infiltration or moisture content. 

Request 11. Provide all documents concerning plastics chemistry, formation, 

polymerization, formulation, mineralization, enzymatic degradation, or depolymerization in 

biodegradable and non-biodegradable polymers. 

ECM Mot. for Sanctions 

Exh.RX-B 

8 
Request 12. Provide all documents relating to your contention that ECM's tests were 

not designed to support its claims, and that the data from ECM's testing is invalid or cannot 

support reliable conclusions. 

Request 13. Produce all documents concerning the period oftime under which 

conventional plastics generally biodegrade, including documents supporting your contention that 

plastics will normally require hundreds of thousands of years to biodegrade. 

Request 14. Produce all documents concerning your definition of"competent and 

reliable" scientific evidence as that definition concerns biodegradation claims for plastics in 

general and ECM' express and/or implied claims challenged by the FTC. 

Request 15. Provide all documents relating to any advertisement or promotional 

material for the ECM MasterBatch pellets, other than documents produced by Respondents in 

pre-complaint disclosures or discovery. 

Request 16. Produce all documents identified in any answer to an Interrogatory 

propounded by ECM or on which you rely in answering any Interrogatory propounded by ECM. 

DATED this 3rd day of December 2013 

ECM Mot. for Sanctions 

Exh. RX-B 

9 

Respectfully submitted, 

Is/ Jonathan W Emord 

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

Email: jemord@emord.com 
CERTIFICATE OF SERVICE 

I hereby certify that on December 3, 2013, I caused a true and correct copy of the paper 

original of the foregoing RESPONDENT'S INITIAL DOCUMENT REQUESTS to be served 

as follows: 

One electronic copy to Counsel for Complainant: 

Katherine Johnson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Email: kjohnson3@ftc.gov 

Elisa Jillson 

Division ofEnforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mail stop M -81 02B 

Washington, D.C. 20580 

Email: ejillson@ftc.gov 

I further certify that I retain a paper copy of the signed original of the foregoing 

document that is available for review by the parties and adjudicator consistent with the 

Commission's Rules. 

ECM Mot. for Sanctions 

Exh. RX-B 

10 

Is/ Jonathan W Emord 

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

Email: jemord@emord.com 
EXHIBIT RX-C 

-···· . -- ·~ ·- -·--------- -
Polymer l'legr.darion and Stabilily 9S (2013) 25S3- 259l 

Contents lists available at ScienceDirect 

Polymer Degradation and Stability 

ELSEViER jou rn.aHioroepag e: www,e !ieifi er c6mlloc'ci e/polydegsta-b 

l'uh·m~r 

Dt-grndation and 

Stabillty 

Biodegradability of conventional and bio-based plastics and natural 

fiber composites during composting, anaerobic digestion and 

long-term soil incubation 

{l) crossMark 

Eddie F. Gomez. Frederick c. Michel jr. * 

Department of Food, ilgriculrural and Biological Engineering. The Ohio State University, OARDC, 1680 Madison /!venue, Woosttr. OH 44691, USA 

ARTICLE INFO 

Article history; 

Recelv~d 21 August 2013 

Accepted 21 Sept~mber 2013 

J\vail•ble online 1 October 2013 

Keywords: 

Biodegradable plastics 

Anaerobic digestion 

Composting 

Soil 

Biodegradation 

Bioplastics 

1. Introduction 

ABSTRACT 

Plastics are a major constituent or municipal solid waste that pose a growing disposal and environmental 

pollution problem due to their recalcitrant nature. To reduce their environmental impacts and allow 

them to be transformed during organic waste recycling processes, various materials have recently been 

introduced to improve the biodegradability of plastics. These include conventional plastics amended 

with additives that are meant to enhance their biodegradability, bio-oosed plastics and natural fiber 

composites. In this study, the rate and extent of mineralization of a wide range of commerdally available 

plastic alternative materials were determined during composting. anaerobic digestion and soil incubation. The biodegradability .was assessed by measuring the amGunt or carbon mineralized from these 

materials during incubatiGn under conditions that simulate these three environments and by examination Gf the materials by scanning electron micrography (SEM). The results showed that during a 660 

day soil incubation, substantial mineralization was observed for polyhydroxyalkanoate plastics, starchbased plastics and for materials made from compost. However, only a pQiyhydroxyalkanoate-ws.ed 

p!as.tic .biodeg(aded at a rate similar to the· Jl(!Sitive control (cellulose). 'Nd ~lgijifl;~f~¢gr..1Qati(!n w~ 

Q~ed ,;·Or jjolyetlijl~e or.;:j)91ypropyle~ ·pl;aSt'id or'#\¢: samf plai.ri~ ~no~ ~ifi. com)neri;'ial 

~v~~~;Ya:~~~~l>~~~'-~~~;~~~~~~~:r;~~~~~t(J~:.~ ~~~~l:~~ •(CJi . .f + ('~After 115 days or composting. 0.6% of an additive amended polypropylene, 50% of a plastarch material and 12% or a soy wax permeated paper pulp was convened to cart>on dioxide. SEM 

analysis showed substantial disintegration of polyhydroxyalkanoate-based plastic. some surface changes 

roc other bio-based plastics and coconut coir materials but no evidence of degradation of polypropylene 

or polypropylene containing additives. Although certain blo-based plastics and natural fibers bio- . degraded to an appreciable extem in the three environments, only a polyhydroxyalkanoate-wsed resin 

biodegraded to significant extents during the time scale of composting and anaerobic digestion processes 

used for solid waste management 

e 2013 Elsevier ltd. All rights reserved. 

are moving toward more sustainable waste management practices 

such as recycling. composting and anaerobic digestion. 

Plastics are synthetic and semi-synthetic polymeric compounds, 

derived primarily from fossil carbon sources such as crude oil and 

natural gas.llleir mechanical properties and characteristics such as 

low-cost, durability and processability, have led to their widespread 

use for diverse applications. However most commonly used plastics 

are very resistant to biological degradation r 1 ). This has led to major 

challenges for waste management operations especially those that 

• Corresponding author. Tel.: + 1 330 263 3859; fax: + 1 330 263 3670. 

It is estimated that of the 31 million tons of plastic waste 

generated annuo:~ lly in th!' ti.S. only R% i~ recyclt.d [2]. Therefore, a 

large percentage of plastic waste is currently landfilled, or released 

into the environment Throughout the world, roadsides, parks. 

beaches, oceans and natural areas are inundated with plastic debris 

pollution (3). Waste management systems are also affected by high 

volumes of plastics that are often commingled with organic wastes 

(food scraps. wet paper, yard trimmings. soil and liquids), making it 

difficult and impract.ical to recycle both organic fractions and(or the 

plastics mixed with them without expensive cleaning. separation 

E·moil address: miche1.36@osu.edu (F.C. Mlcbel). and sanitizing procedures (4]. 

0141-3910/S - se~ front matter 0 2013 Elsevier Ltd. /\II rights reserved. 

hcrp:/idx.doi.org/10.1016/j.polymdegradsrab20J3.09.01S 

ECM Mot. for Sanctions 

Exb.RX-C 

EXHIBIT 

I OC.~;, 

·------·--.. ·-· ·- ·--- ·-·-.. ··------· 
2584 E. F. Gomez, F.C Michel ]r. f Polymer Degradation and Stability 98 (2013) 2583-2591 

The fact that plastics are made from non renewable resources 

and their persistence in the environment and during organic 

recycling has resulted in global concern and intensive efforts to 

develop plastic materials that not only have acceptable prices and 

similar performance to conventional plastics, but also are made 

from renewable feedstocks and/or undergo biodegradation in a 

reasonable amount of time without leaving toxic residues [ 5]. 

Although biodegradable bio-based plastics are meant to 

improve the sustainable use of resources, a complete life-cycle 

analysis including disposal must be conducted [6) to insure that 

the solution is not worse than the problem. Many factors impact the 

life-cycle carbon balance of plastics including the source of the 

feedstock used to make them, whether the material is recycled and 

the extent and type ofbiodegradation during disposal. For example, 

most plastics are derived largely from fossil sources such as natural 

gas or crude oil[7). However the monomers used to make them can 

also be made from renewable resources. In Brazil, ethylene, the 

building bloc!< of one of the most widely used plastics, polyethylene 

[8] is made from ethanol derived from sugar cane. Although made 

from a biomass feedstock, this type of polyethylene is still essentially not biodegradable. On the other hand, petroleum can also be 

used to make plastics that are biodegradable. The lactic acid used to 

make polylactic acid (PIA) can be produced both by fermentation 

and synthetically from petroleum (9), and either type is biodegradable. On this basis, plastics can be classified into four types 

with respect to whether they are biodegradable and the source of 

the feedstock used to make them. These four types are conventional 

plastic, bio-based plastic, biodegradable plastic and biodegradable 

bio-based plastic (Table 1 ). Understanding the environmental 

benefits of these four classes of materials (Table 1) and the impact 

of their use on GHG emissions can be confusing and is not always 

straightforward. 

Plastics made from petroleum, such as polyethylene, have a 

well-defined life cycle. When landfilled, the carbon in the plastic 

will be sequestered and not contribute to global warming. Recycled 

polyethylene may contribute even less fossil C02 to the environment if less energy is used to recycle it than is used to make it in the 

first place. In these cases, conventional plastics may have less 

impact on GHG emissions that those designed to biodegrade. 

For reasons presented above, efforts have been made to develop 

durable plastics made from renewable biomass feedstocks (5]. 

These are called "bio-based plastics". On balance this type of plastic 

offers a great potential to reduce greenhouse gases m the atmosphere by sequestering carbon. This is because atmospheric C02 is 

fixed into the carbohydrates used as their feedstock. If the plastic i!> 

eventually landfilled, this carbon will become locked for millennia 

within the landfill and on balance reduce atmosphenc COz. However these plastics also pose pollution problems [10]. 

Biodegradable bio-based plastics, are also made from biomass 

but are designed to be compostable and/or biodegradable. These 

types include PIA and polyhydroxyalkanoates-based resins (PHA) 

Table 1 

Classes of plastics. 

Class Source Biodegradable Example Reference 

Petraleumjnatural No 

gas 

II Petroleum/natural Yes 

gas 

III Biomass (Corn, sugar No 

cane, etc) 

IV Biomass (Corn, sugar Yes 

cane, etc) 

• Polylactic acid. 

b Polyhydraxyalkanoates-based resin. 

ECM Mot. for Sanctions 

Exh. RX-C 

Polyethylene, [7] 

polypropylene. 

PIA' from petroleum. [9] 

Polyethylene derived (8) 

from corn ethanol. 

PHAb, PIA derived I 14) 

from starch. 

made from corn. This class of polymer is carbon neutral from the 

standpoint of the carbon in the plastic, but a substantial amount of 

fossil energy is used to produce the plastic and the biomass 

feedstocks. 

The class with perhaps the greatest potential to contribute to 

greenhouse gas emissions is biodegradable plastics made from 

petroleum. This is because not only is fossil energy used to produce 

them in the first place, but fossil carbon is released when the material ultimately biodegrades. If this biodegradation occurs in a 

landfill, then it usually will generate methane (CH4), which is a 

greenhouse gas with 21 times the warming potential of C~. Most 

landfills do a poor job of capturing this gas, even those with 

methane recovery systems [11]. So landfilled biodegradable plastics, eventually contribute both methane and carbon dioxide to the 

atmosphere when they degrade. 

Some novel polymers combine both biomass and fossil derived 

resins to decrease production prices, increase the bio-based content 

and improve material performance [5] (e.g. a plastarch containing a 

blend of a starch-based polymer and conventional plastics such as 

polypropylene). The biogenic renewable carbon contained in these 

and other biomaterials can be determined from the radioactive C14 

signature of the product r12]. Yet these hybrid materials likely are 

neither recyclable nor completely biodegradable and therefore are 

likely worse than conventional plastics from a GHG emissions 

perspective. 

Composting plays an important and growing role in sustainable 

organic waste management and recycling. However, plastics are 

one of the main contaminants in composts. Biodegradable plastics 

are meant to address this problem. Com posting of these materials 

also reduces their environmental impact in that they will largely be 

converted to C~ and not to C~ as they would be in a landfill. Since 

this C02 was originally fixed from the atmosphere into renewable 

biomass, on balance it will not increase atmospheric C02. 

Biodegradation is the mineralization of materials as a result of 

the action of naturally-occurring microorganisms such as bacteria 

and fungi [13]. The biodegradation of plastics is limited by their 

molecular weight, chemical structure [ 14], water solubility and the 

fact that most plastics are xenobiotic. That is, they were not present 

in the environment until very recently so that the evolution of 

metabolic pathways necessary for their biodegradation, a process 

that takes millions of years, has yet to occur. 

In contrast, the biodegradation of natural polymers, such as 

starch or cellulose by microorganisms occurs relatively rapidly. It 

begins with the excretion of extracellular enzymes that depoly111~1 i.t.t! Uu~~t! J!ld.lt!ri.J.Is. Om:t! Lht! polymer is reduced to a size that Is 

water soluble and able to be transported through the cell wall, 

microbial metabolic pathways can then mineralize it [15]. Even 

though microorganisms drive the biodegradation process, other 

non-biotic chemical processes such as photo-oxidation and 

chemical degradation may also take place before or in parallel. 

Biodegradable materials are used in diverse applications. Many 

different biodegradable plastics are used for food packaging and for 

waste containment. They have also been developed for medical 

applications, including medical devices and for drug delivery [16). 

Biodegradable plastics are used widely in agriculture, as mulching 

films and low tunnels [17,18) as well as guide strings and plant 

nursery containers [ 19 ). The physical properties and performance 

of biodegradable plastics made from PIA and natural fibers were 

found to be similar to conventional plastics for greenhouse crop 

production [20). In addition, biodegradable potting containers have 

gained a high degree of acceptance among consumers [21 ). 

Recently, various materials have begun to be marketed that 

claim to be biodegradable or compostable. Terms such as 

"degradable", "oxo-biodegradable", "biological", "compostable" 

and "green" are often used to describe and promote different 

--ro-~-------~~~~-~-
E.F. Gomez, F. C. Michel )r. I Polymer Degradation and Stability 98 (2013) 2583-2591 2585 

plastics. These materials include conventional plastics amended 

with additives meant to enhance biodegradability as well as biobased plastics and natural fiber composites. There has been little 

research on the extent to which these materials truly degrade and/ 

or biodegrade over the time scale of waste management processes 

such as composting and anaerobic digestion (AD) or in natural 

settings [22]. 

The objective of this study was to compare the relative biodegradability of a range of novel plastics and natural fiber composites 

during composting, AD and in soil conditions. The hypothesis was 

that materials that are referred to as biodegradable, compostable 

(or similar terms), and plastics containing additives designed to 

enhance biodegradability, mineralize during the time scale of waste 

treatment processes and in reasonable amounts of time in the 

environment and at rates comparable to natural materials known 

to be biodegradable and or compostable (e.g. cellulose paper). 

2. Materials and methods 

Standardized laboratory-scale experiments were conducted to 

study the biodegradability of various materials during soil incubation, composting and AD conditions [23-25]. The extent of 

biodegradation was calculated by measuring the average carbon 

(C02 and or CH4) mineralized from each treatment minus the 

average carbon evolved from blanks, and dividing this by the total 

amount of sample carbon added to each treatment. Reactors containing only the inoculum (AD), soil (soil tests) or compost 

(compost tests) were used as blanks. 

2.1. Materials 

Materials tested included plastics designed to be biodegradable, 

conventional plastics amended with additives that are meant to 

enhance biodegradability, bio-based plastics and natural fiber 

composites (Tables 2 and 3). The positive and negative controls 

used for all experiments were cellulose paper (Fisher Scientific, PA, 

U.S.) and 100% conventional polypropylene (PP). respectively. Materials were tested both after grinding (a preliminary soil experiment only) and as 1 x 1 em squares (thicknesses shown in Table 3). 

22. Biodegradation in soil incubation 

The extent of long-term biodegradation of polymeric materials 

in contact with soil was determined based on ASTM 05988-03 [24]. 

These included PP + 2% additive, polystyrene (PS) + 2% additive, 

Table2 

polyethylene terephthalate (PETE) + 1% additive, plastarch, a copolyester + com-based plastic, a wheat starch-derived plastic and 

PHA (Tables 2 and 3). Six natural fiber composite materials were 

also tested: paper pulp, paper pulp+ asphalt, coconut coir, rice hull, 

composted cow manure and peat fiber. All samples were incubated 

in triplicate for a period of 660 days. 

The soil media used for the experiments was a mixture of 43% 

certified organic top soil, 43% no-till farm soil collected at coordinates: 40.778633, -81.930873 and 14% sand. Soil was sieved to 

less than 2 mm particle size and large plant materials, stones, and 

other inert materials were removed. The chemical properties of the 

soil mixture are shown in Table 4. The soil media was amended 

with ammonium phosphate (Fisher Scientific, PA, U.S.) to maintain 

a C:N ratio of 20:1 based on the carbon content of the test 

specimen. 

The soil mixture (300 g dry) was placed in the bottom of a 2-L 

(working volume) wide mouth jar (Ball® Corporation, item # 

383178). Distilled water was added to bring the moisture content of 

the mixture to 60% of the moisture holding capacity. The test 

specimens ( 1 g of sample carbon) were then mixed thoroughly into 

the soil. A solution containing 20 ml of potassium hydroxide (KOH) 

0.5 N (Fisher Scientific, PA, U.S.) was placed in a cup suspended 

from the lid of each vessel to trap evolved C02. All vessels were 

sealed and incubated at room temperature (20 ± 2 °(). 

Carbon dioxide produced in each vessel reacted with the KOH in 

the cup to form potassium bicarbonate. The amount of C{h produced was determined by titrating the KOH solution with 0.25 N 

hydrochloric acid (Fisher Scientific, PA, U.S.) to a phenolphthalein 

end-point. The experiment was designed so that the headspace 

volume was sufficient to prevent the oxygen concentration in the 

vessel from falling below 18%. The KOH traps were removed and 

titrated at time intervals that assured that their absorption capacity 

was not exceeded. The KOH traps were refilled at a rate dependent 

on the rate of C02 generation in each flask. At the time of removal of 

the traps, the vessel was flushed and allowed to sit open to allow 

fresh air to fill the heads pace. In addition, distilled water was added 

to the soil to the original weight to maintain adequate moisture. 

The effect of particle size on biodegradation rate was determined by comparing the biodegradability of 1 ern squares to 

ground samples. Samples were ground in liquid nitrogen using a 

JKA® All basic Analytical mill (IKN~ Works Inc., NC, U.S.) for 10 s. 

Test specimens included PP + 2% additive, co-polyester + combased plastic, wheat starch-derived plastic, paper pulp, paper 

pulp+ asphalt, coconut coir and rice hull (Tables 2 and 3). Samples 

were incubated in triplicate for 660 days. 

Material information for commercially available bio-based plastics, plastics amended with ad!litives and natural fiber composites. 

Material 

:P.P + ~i.adt:l(ti~~ 

I'S + ~!!!AJfdltll(~ 

PETE + 1% additive 

Co-polyester + corn-based plastic 

Wheat starch-derived plastic 

PHA 

Poprr pnlp 1 ~oy wax 

!'~per pulp 

Paper pulp + asphalt 

Coconut coir 

Rice hull 

Composted cow manure 

Peat fiber 

Material description 

·QI~di!C:p6Jy~pyleg~·(!'P) wJtli.2%.cECM.!'il;iSI:i!!!'~rcl\il'eUeJ$1>1'iid!l~ir~'(EI:MlliQI'U~·I!):¢, Q.H; U$.;~ 

:Eif¢!i:iilo(Jiiit~~teii:~<:r>S>:wl.tll~:gc¥MiW~a@~eue~"'·iidi!iP.v~(E~:ai~l'ltrili!t~.oi:I,.U.$.)' 

Blend of polyethylene terephthalate (PETE) with 1% Ecol'l!rf'0 ~dclitive (Bio-Tec Environmental LLC., NM, U.S.). 

A blend of polypropylene with corn starch. 

Blend of an aliphatic aromatic co-polyester with a corn starch-derived polymer (Ecobras"', BASF). 

M~de from a wheat starch-derived resin (OP-47 Bio"', Summit Plastic Company, OH, U.S.), 

Made from polyhydroxyalkanoates-based resin (Metaholix, MA, U.S.). 

Pd~i!l pulp put p~J!lleal~tl with soy WilX. 

ltccyclcd (74~ minimum) paper pulp. 

Blend of recycled (74% minimum) paper pulp+ asphalt. 

Made from coconut husk. 

Made from rice hull. 

Made from composted cow manure. 

Made from Canadian sphagnum peat moss+ wood pulp. 

• 1 = injection molding; 2 = blow molding; 3 = thermoforming; 4 =vacuum forming; 5 =compression forming; 6 =pressure forming; 7 =other. 

ECM Mot. for Sanctions 

Exh. RX-C 

Formation 

procesS'' 

1 

1 

2 

3 

1 

3 

1 

4 

4 

4 

7 

5 

6 

6 
2586 E. F. Gomez. F. C. Michel ]r. I Polymer Degradation and Stability 98 (2013) 2583-2591 

Table 3 

Chemical and physical properties of the test specimens. 

Material Chemical and physical properties' 

Total solids(%) Volatile solids (%dw) 

Positive 90.3 ± 5 57.4 ± 1.1 

Negative 99.8± 0.1 96.3 ± 2 

PP + 2% additive 99.8 ± 0.1 97.7 ± 0.1 

PS + 2% additive 99.9± 0.1 97.0 ± 1.5 

PETE+ 1% additive 99.4± 0.5 99.9 ± 0.1 

Plastarch 90.9 ± 2.1 57.5±3 

Co-polyester+ corn-based plastic 95.2 ± 0.1 99.8 ± 0.1 

Wheat starch-derived plastic 97.8± 0.4 98.5 ± 0.5 

PHA 99.4 ± 0.4 90.4± 0.5 

Paper pulp + soy wax 94.3 ± 1 91.0± 0.4 

Paper pulp 92.0 ± 0.1 92.0 ± 0.1 

Paper pulp+ asphalt 93.4 ± 0.5 90.6 ± 0.3 

Coconut coir 96.8 ± 0.3 98.5 ± 0.5 

Rice hull 94.0 ± 0.4 89.6±0.4 

Composted cow manure 92.5 ± 0.1 89.4 ± 1.0 

Peat fiber 92.1 ± 0.3 97.8 ± 0.5 

• Values are means± SD of three replicates. 

23. Biodegradation during composting 

Three materials were tested under simulated composting conditions. These included PITE + 1% additive, plastarch and paper 

pulp+ soy wax (Tables 2 and 3). The experiments were conducted 

in triplicate for a period of 115 days. 

The test conditions used were based on a protocol described in 

ASTM 05338-98 (2003) [25]. This test is a measure of the degree 

and rate of carbon conversion to C(h under conditions that mimic a 

commercial scale industrial composting facility. 

An 80 g sample of each test specimen was mixed with 350 g dry 

of mature compost inoculum (Table 4). The compost inoculum was 

obtained from a full-scale windrow composting facility featuring a 

concrete surface and controlled aeration system at OARDC. The 

compost contained a mixture of dairy manure and hardwood 

sawdust as described elsewhere [26]. 

The compost was collected at various locations on the windrow 

and screened to less than 10 mm and large inert items were discarded. The screened compost was amended with ammonium 

phosphate (Fisher Scientific, PA, U.S.) to give a C:N ratio of 20:1 

including the carbon content of the test specimen. The initial 

moisture content of the mixture was adjusted to 60% (wet-weight 

basis). 

The compost and test specimens were incubated in 4-L 

(working volume) vessels (length 30 em and diameter 15 em), 

made of PVC pipe placed in a 55 "C incubator (BioCold Environmental Inc., MO, U.S.). Each vessel contained approximately 1100 g 

of material on a wet-weight basis. The reactors were aerated from 

below at 100 ± 1 ml/min to maintain aerobic conditions. To avoid 

drying during the experiment, air was saturated by bubbling 

Table4 

Initial mean characteristics of the aerobic and anaerobic organic substrates. 

Organic substrate Chemical and physical properties' 

Total solids(% ww) Volatile solids(% dw) 

Compost" inoculum 243±2.0 88.9 ± 1.0 

Soil mixture' 87.4 ± 0.1 2.96 ± 0.1 

Anaerobic seed0 slmlge 8.92 ± 0.5 59.5 ± 2.0 

Medina County• OFMSW 47.2 ± 7.2 603 ± 1.2 

• Values are means ± SD of three replicates. 

b Dairy manure and hardwood sawdust mature compost. 

< This is the value before adding water to reach 60% of the water holding capacity. 

d Methanogenically active municipal sewage sludge. 

• OFMSW = the organic fraction of municipal solid waste. 

ECM Mot. for Sanctions 

Exh.RX-C 

Total carbon (%dw) Total nitrogen (%dw) Film thickness (mm) 

41.8 ± 0.1 0.03 ± 0.01 035 ± 0.01 

82.9 ± 0.1 0.06 ± 0.003 037 ± 0.01 

82.9 -!c03 0.04 ± O.D1 037 ± 0.03 

88.8± 1 0.05 ± 0.01 0.23 ± 0.01 

64.6 ± 0.1 0.01 ±0.002 036 ± O.Dl 

60.9 ± 02 0.07 ± 0.01 0.48 ± 0.03 

51.9±03 0.10 ± 0.01 0.72 ± 0.02 

49.4±0.1 0.74 ± 0.004 0.50 ± 0.01 

50.7±03 0.45 ± 0.01 0.62 ± 0.01 

46.9 ± 03 0.06±0.01 2.14± 0.03 

42.1 ±0.1 0.10 ± 0.01 2.74 ± 0.01 

46.9 ± 0.03 0.22 ± 0.02 2.61 ± 0.1 

46.7 ± 0.3 0.26 ± 0.002 1.09± 0.02 

38.3 ± 0.1 14.1 ± 0.06 1.24 ± 0.02 

40.5 ± 0.01 1.12 ± 0.05 2.40 ± 0.1 

45.4 ± 0.3 0.49 ± O.D7 1.74 ± 0.05 

through bottles containing water at the incubator temperature. 

The air exiting the vessels was passed through flasks in a separate 

water bath set at 9 oc to condense moisture from the off-gas. The 

off-gas was then analyzed for percent C02 using an infrared gas 

analyzer (Vaisala model GMT 220, range 0-20%). C02 data was 

automatically recorded using a Campbell Scientific model 23XL 

data logger for each vessel every hour. Each vessel was also 

equipped with a K-type thermocouple to measure the temperatures of the composts mix near the center of the compost vessel, 

and was recorded automatically every 12 min. A more complete 

description of the laboratory-scale composting system can be 

found elsewhere [27]. 

2.4. Biodegraduticm ~ilnng anaerobkdigesiion 

The biodegr<!di,!tion offo)lrinaterialswas compared <luring high 

solids batch anaerobic digestion.Ut~_efu.clu.de4~t+ ~%';add}t.i\lei 

PETE + 1% .additive, plastarch and a co-polyester + com-bas.ed 

.·N~~-tJI~4~&cfr~~?Jf~~p~erii'rl.ents:W~re;~~ri~Ji®4~1{l:fiJ~• 

·#~~~:1~1~~~~~~!~~~=~;~;~~ef~; measured the coJ•version of-Samples t~ C02. an(} CI-t! d\tring incubation under contrc>lled anaerobi.c conditions. For this study test 

specimens were eXposed to an ·active methanogenic inoculum 

derived from a full-scale anaerobic digester treating. municipal 

sewage sludge. These conditions resemble those found in highsolids AD digestotS and ln biologically active li'indfiUs, but not ill 

typical landfills wh¢r¢wateris eXcluded and r~m~oved. 

Total carbon (% dw) Total nitrogen(% dw) pH 

48.7 ± 5.5 2.37 ± 0.2 7.95 ± 0.04 

1.19 ± 0.2 0.13 t 0.02 7.43 ± 0.4 

36.8 ± 1.0 7.21 ± 0.2 830 + O.Dl 

89.6 ± 1.3 0.92 ± 0.2 7.50 ± 0.4 

------... --.. - ...... ----------~"_, __ ,...,_, ____ --------.. -----~----------- , __ 
E. F. C6mez. F.C Michel )r./ Polymer Degrodadon and Stabilicy 98 (2013) 2583-2591 2587 

The AD assays were conducted in 2-L (working volume) 

laboratory-scale batch reactors. Temperatures were maintained at a 

mesophilic (37 ± 1 oc) range by means of incubators. Test specimens (25 g of sample carbon) were mixed with 750 g wet of 

methanogenically active sludge obtained in October of 2010 from a 

full-scale (3000 m3) anaerobic digester located at the City of Akron 

wastewater treatment plant and operated by KB Compost Services, 

Akron. Ohio (2S). This was mixed with 187.5 g wet of the organic 

fraction of municipal solid waste (OFMSW) of the Medina County, 

Ohio Solid Waste District to achieve the desired solids content for 

the test and to provide supplemental nutrients for the anaerobic 

mkrobial consortia. The chemical properties of the seed sludge and 

OFMSW substrate are shown in Table 4. Ammonium phosphate 

(Fisher Scientific, PA. U.S.) was added to the mixture to adjust the 

C:N ratio to a value of 20:1 considering the carbon content of the 

test specimen. 

The volumetric production and C02 and CH4 content of the 

biogas produced in the AD experiments were analyzed by volume 

displacement and gas chromatography as described by GOmez et al. 

( 28 ). respectively. This information was used to calculate the moles 

of carbon emitted from each reactor. 

2.5. Analytical methods 

Solids content in soil, organic substrates and test specimens was 

detennined by drying samples to a constant weight at 80 oc. The 

volatile solids content was determined using an ashing oven set at 

500 oc for 4 h. pH was determined using a pH electrode (TMECC 

04.11-A 1:5 slurry method, mass basis). Carbon (TMECC 04.01-A 

combustion with C(h detection) and nitrogen content (lMECC 

04.02-D oxidation, Dumas method) were determined by the Service Testing and Research laboratory at the OARDC. 

Selected test specimens were also analyzed before and after soil 

incubation using scanning electron microscopy (SEM) (Hitachi S3500N, Hitachi High Technologies America, Inc., CA, U.S.). Samples 

were coated with platinum to a thiclmess of 0.2 kN using a 

Hummertb 6.2 sputtering system (Anatech USA. CA, U.S.). A 15 Kv 

electron beam was applied. 

3. Results and discussion 

3.1. Biodegradation during soil incubation 

The importance of understanding the biodegradability of plastics in soil has increased since these are released inadvertently into 

the environment where they may persist. Plastics comprise a 

rel;ttively large fraction of the ubiquilous pollution found worldwide in both land and ocean environments (29). In addition, 

intensive and semi-intensive agriculture utilizes large quantities of 

these materials annually in the form of mulches, as plantable pots, 

nursery containers (30].This has resulted in the recent development of biodegradable agricultural plastics for these applications 

(31,32). One example of this is biodegradable plant nursery pots. 

Some containers are designed to be plantable pots (e.g. rice hull and 

ECM Mot. for Sanctions 

Exb. RX-C 

coconut coir) allowing them to degrade in the soil after planting, or 

to be compos ted at plant nurseries rather than being landfilled. 

An initial experiment was conducted to assess the effect of 

particle size on biodegradation during soil incubation. Seven materials were tested and the amount of carbon converted to C02 was 

compared using student's rmethod for partide size effect. Student's 

t method revealed that out of the seven mate.rials· studied in this 

experiment. only one. a co-polyester+ com-based plastic, showed 

a significant effect of particle size on biodegradability. A significantly greater extent of biodegradation was observed for copolyester + com-based plastic in 1 x 1 em square film form 

(55.1 ± 2.1%) after660 days as compared to a ground sample of the 

same material (39.71 ± 2.4%). For the rest of the materials, there 

was not a significant effect of particle size on biodegradation. Results from this study suggested that for most of the materials 

studied, biodegradability in soil was not greatly affected by partide 

size under the experimental conditions used in the study. 

A second soil experiment was conducted to evaluate the relative 

biodegradability of thirteen different test specimens in 1 x 1 em 

square film form. These included bio-based plastics, plastics 

amended with additives that are meant to enhance biodegradability and natural fiber composites. The experiment was conducted for a period of 660 days. The initial moisture content of the 

mixes was 16.6 ± 2.1% and the final mean soil moisture content on a 

wet-weight basis across all treatments was 143 ± 3.3% (wetweight basis) which is 84.9 ± 2.4% of the 60% moisture holding 

capacity ofthe soil mixture. The positive control (cellulose paper) 

ex.bibited 74.2 ± 4.5% conversion during the period of incubation. 

For some bio-based plastics and the positive controls (cellulose 

paper), the initial rate of mineralization was rapid (Fig. 1 ). Most of 

the mineralization took place during the first 300 days of incubation (Fig. 1 ). The most rapid initial rate of conversion was observed 

for co-polyester + com-based plastic with almost 34.6 ± 24% 

mineralized during the first 55 days of the experiment. The extent 

of PHA biodegradation was initially lower, but its extent surpassed 

that of co-polyester + com-based plastic after approximately 280 

days reaching a value of 48.5 ± 4.6%. For the wheat starch-derived 

plastic and plastarch conversion rates were 14.2 ± 0.8 and 

24.6 ± 1.4% after 110 and 280 days of experiment. respectively. 

Final (660 days) cumulative biodegradation values during soil 

Incubation for the positive control. PHA and co-polyester + combased plastic were 742 ± 4.5, 69.2 ± 6A and 55.1 ± 6.1%, respectively. For the wheat starch-derived plastic and plastarch the final 

conversion reached 19.7 ± 1.1 and 313 ± 1.7%, respectively. 

SEM images of PHA and co-polyester + corn-based .t~ L 

bt!fow and after mtncraltZJtton showed substantial changes In tbc 

100 lOD •oo Thot (dol') 

Fig. 1. Cumulative carbon loss (C02- C) as percentage of initi.'ll carbon (±cumulative 

sraodard error) for bio-basell ptasrlcs and for conventional plastics amended wlm 

additives during 660 days of soil incubation. For rome dag points standard error bars 

are smaUer than markers. 

....... ... -· ....... -... .. ..... _ .. __ _ ...... . .... ........ --- ---·-·--.. ··--·-..... __ . ..... . ........ . .. .. ................... -·-·-·- ·-- ........ --- ----·--··-- ---
2588 f.F. C6mez. F. C. Michel }r. I l'o(Ymer Degrodocion and Stabiliry 98 (2013) 2583-2591 

Fig. 2. ScAhningelectron micrographs of plastics during 2 years of soil i.ncubation. From top to bottom: PHA (•: initial, b: final), co-polyester+ corrH>ased plastic (c: initial, d: final~ 

polypropylene+ 2% addlrive (e: Initial, f: final) and coconut coir (g: initial. h: final). 

surface ofthe PHA material (Fig. 2A and B) and some degradation of 

the co-polyester+ com-based plastic (Fig. zc and D). 

For conventional plastics and the same plastics amended w ith 

additives that were supposed to enhance biodegradability. almost 

no biodegradation was observed after nearly two years of incubation in soil (Fig. 1). The highest observed conversion during soil 

incubation was 1.0 ± 0.1% (PP + 2% additive). for all other plastics 

amended with additives, the final cumulative biodegradation 

ranged hetween 0.9 and 1%. These values were less thJn that 

measured for the negative control (PP) whic.:h re<Khed a final cumulative conversion of 1.3 + 0.7%. Althnuf:h they were not significantly different SEM images did nor reveal qualitative changes in 

the appearance ofPP or PP + 2% additive after the 2 year incubation 

period (Fig. 2E and F). 

The mineralization in soil of the natural fiber composite marerials was most rapid during the first 65 days of the experiment 

ECM Mot. for Sanctions 

·Exh.RX-C 

10~~ 

-+- PO$-h ~ td ~ pAper) 

Oo/. - Paper J'\14> 1 asph:.lt 

a ~ Cocaow .:Qit 

• 80% ~--..a • ~:a t fib r~ ~mx,l J14t.lp 

. 'E 10~ 

~ ... .,. I ~~~ . 

-.-p,,~r pllp 

-to'-Compl&tcd cow f1"QQOJ't 

cel_ru)l 

.. .o,.. ;. 

f 

I lu"' 

il ltl'l!J 

tOO 200 300 .fOO soo Tlo•e (dll).,) 

F.g. 3. Cumulative carbon loss (C02-c) as percentage of Jnttial arbon (:!:cumulatiVe 

m ndard error) for natural fiber composites during 660 days of soli incubation. For 

some data points standard error bars are smaller than marken. 
£.F. C6mez, F.C Michel Jr./ Polymer Degradation and Srobiffcy 98 (2013) 2583- 2591 2589 

(Fig. 3). This was followed by a period of slow minera.lization until 

the tennination of the experiment (Fig. 3). After 660 days, the 

minera.lization percent of the compos ted cow manure, paper pulp 

and paper pup+ asphalt were 35.5 :t 2.3, 31.3 ± 3.6, 29.4 ± 2.1%, 

respectively. Lower final conversion values were observed for rice 

hull, peat fiber and coconut coirwithvalues of21.1 ± 2.6, 18.3 ± 0.7 

· "and 14:4 ·± 2.5%.respectively. SEM images of coconut coir revealed 

some surface changes indicative of biodegradation (Fig. 2G and H). 

Approximately 74.2% of cellulose added to soil was converted to 

COz after 660 days. This is similar to the conversion of cellulose of 

80% reported in a 800 day soil incubation conducted to evaluate 

how carbon substrates affect microbial biomass yield in soil 

biodegradation tests (33 ). 

The highest biodegradability observed during soil incubation 

was reported for PHA (70%); a polyhydroxyalkanoate-based plastic. 

This was similar in magnitude to the extent of mineralization of the 

cellulose positive control (cellulose paper). Bacterial polyhydroxyalkanoates are intracellular aliphatic potyesters of various 

chain lengths [34). Several studies have been conducted to study 

the biodegradability of allphatic polyesters under different conditions [35- 38). Mineralization of these polymers is mainly achieved 

by cleavage of the ester bonds which occurs due to both enzymatic 

and chemical hydrolysis [39). 

Statistically analysis revealed that significant differences in the 

extent of biodegradation (f15.32 = 822.2, P < 0.0001) existed between group means. Tukey-Kra.mer HSD analysis revealed that 

among bio-based plastics. the difference between PHA and the 

positive control (cellulose paper) was not significant Analyses also 

revealed that differences were not significant between plastics 

amended with additives that are meant to enhance biodegradability and the negative control (PP). For natural fiber composites all 

test specimens differed significantly from both the positive and 

negative controls (Fig. 3). 

The results of this study indicate that conventiona.l plastics 

containing additives do not biodegrade any faster than nonadditive containing plastics in soil. Manufacturers of these additives claim that If at least 1-5% (by weight) of their additive is 

added to plastics products. these will fully biodegrade when 

disposed of in microbe-rich environments. These claims are not 

supported by the findings of this study. 

The greatest extent of biodegradation among the fiber composite materials tested was the composted cow manure (35%). This 

was unexpected since low carbon conversion rates were anticipated for the composted cow manure since it had previously been 

biologically degraded. After undergoing a composting cycle, much 

of the carbon contained in the cow manure was expected to be 

stable and hurnlfied [26.40]. However, much less extents of 

degradation were observed for uncomP<>sted composites produced 

from rice hulls. from peat fiber pot and coconut coir. For these 

materials, the extent of degradation in soil ranged from 14 to 21% 

(Fig. 3). These materials have been used as natural composites due 

to their low price and structura.l strength [41.42). Approximately 

46% of coconut coir is lignin [43) as is 21-40% of rice hulls [44] 

which may have limited their biodegradation. 

32. Biodegmdation during composdng 

Three different materials were evaluated for their relative rate of 

degradation during composting. The materials were composted at 

55 •c under aerobic conditions for a period of 115 days. The tested 

materials included plastarch. paper pulp + soy wax and PETE + 1% 

additive (Tables 2 and 3 ). 

The initial moisture content was adjusted to 60% and the final 

mean compost moisture content across all treatments was 

64.2 ± 3.3% (wet-weight basis). 

ECM Mot. for Sanctions 

Exh.RX-C 

Mineralization under composting conditions occurred at a rapid 

initial rate for both the positive control and the plastarch material 

during the first 80 days (Fig. 4). Overall, the positive control ( cellulose paper) exhibited 78.4 ± 3.5% conversion during composting. 

For paper + soy wax, a majority of the mineralization took place 

during the first 15 days. For PETE + 1% additive no significant 

conversion was observed over the entire period of study (Fig. 4). 

The fina.l cumulative biodegradation during composting for plastarch. paper + soy wax and PETE + 1% additive was 51.3 ± 4.9. 

12.4 ± 2.7 and 0.6 ± 3.7%, respectively. The ANOVA indicated that 

statistically significant differences in the extent of biodegradation 

(f47 = 496.6. P < 0.0001) existed between group means. TukeyKr~er HSD analysis revealed that all test specimens differed from 

the positive control. However, PETE + 1% additive did not differ 

significantly from the negative control. 

None of the tested materials mineralized at rates comparable to 

the positive control material. The highest cumulative biodegradation during com posting was observed for the plastarch containing 

material (51.3%). Starch is made of repeating glucose units linked by 

glucosidic bonds that are susceptible to enzymatic attack. Uses and 

applications of starch in its native form or blended with other 

materials have been discussed [45.46). Biodegradation of the starch 

containing portion of the material has been reported (47,481. 

However the reason that the plastarch degraded more slowly than 

cellulose is not known. 

After 20 days, only 12% of the paper pulp composite was converted to C02 during composting. The low level of cumulative 

degradation could be related to inhibitory properties of the soy 

derived wax on the microbial consortia or limiting water accessibility. For plastics containing additives, no degradation was 

observed. Additives did not improve the biodegradability of PETE 

during composting. 

Understanding the biodegradation of different materials in 

anaerobic conditions such as in industrial sewage sludge AD systems, landfills and anoxic environments is important since under 

these conditions, microorganisms mineralize organic substrates to 

both C~ and methane. Methane itself can be used as a fuel source 

but if not captured it has a global warming potential 21 times 

stronger than COl. Since in the liS. only 30% of the landfills capttlrP 

methane and among those that do capture, only a small percentage 

of the methane produced Is recovered, then biodegradable plastics 

in landfills have a greater potential than composted biodegradable 

plastics to contribute to global warming. 

100!'. ,------:----:---:---:----------------.., --+-PO$itive. (eeUulofC J>lpt:T) 90~~ 

! aMi 

~ 10,. 

~ ! 6m 

s .sov. ~ 'I 40\i 

~ ,\4>.,. 

f uw~ 

~ to•• 

-e-?la.t'hU'Ch 

_...._ P&pcrpu!JI + 40Y \\'li-t 

-·-.. F£TE t l,.adi.Jirivc 

~- ~---~---~·~~~~~~-+~ 

0 .o· GO UOM(4a1') 100 1.20 

f'.g. 4. Cumulative carbon loss (C02- C) as percentage of initi.JI carbon (±cumulative 

standard error) for bio-based plastics, conventional plaslks amended witb additives 

and natural fiber composites during 115 days of thermophilic composting. for some 

data points standard error bars are smaller than markers. 
2590 f.F. C6mez, F.C. Michel)r.j Polymer Degradation and Stability98 (2013j 2583- 2597 

The biodegradability of polymeric materials exposed to an 

active methanogenic inoculum was studied under controlled laboratory conditions that resemble those found during active AD for a 

period of 50 days. They likely differ somewhat from the conditions 

within a landfill where moisture is usually removed and a greater 

diversity of materials is present. Yet the extent of biodegradation is 

·· -· likely similar to what would ultimately occur over many years in a 

landfill environment. 

Materials tested included plastarch, co-polyester + com-based 

plastics, PP + 2% additive and PETE + 1% additive (Tables 2 and 3). 

The mean methane content in the biogas across treatments during 

the entire period of study was 54.1 :1: 6.1%. 

During the AD incubation, the positive control (cellulose paper) 

exhibited 74.1 :1: 4.8% conversion. For plastarch, the carbon conversion rate to biogas was similar to the positive control (cellulose 

paper) for the first 7 days (fig. 5). However, after this period, the 

rate of conversion slowed as compared to the positive control 

through day 28. In contrast, no significant mineralization was 

observed for the plastics containing additive samples over the 

entire period of the study. 

The final cumulative carbon conversion during AD for plastarch 

and co-polyester + com-based plastic were 26.4 :1: 35 and 

20.2 ± 4.4%, respectively. The final conversion values for PP + 2% 

additive and PETE + 1% additive were 3.1 ± 3.7 and 2.2 ± 1.6%. 

respectively. The ANOVA indicated that statistically significant 

differences in the extent of biodegradation (Fs,t2 = 50.7. P < 0.0001) 

existed between group means. The Tukey-Kramer HSD analysis 

revealed that the bio-based plastics were significantly different 

than the positive control but not different from each other. There 

was no significant difference in the carbon conversion of the 

negative control (PP) and the plastic containing the additive. 

The biodegradability of different bio-based materials including 

cellulose and starch (49,50) has been investigated previously under 

anaerobic conditions (51,52). Yagi et al. (53) studied the biodegradability of cellulose powder under mesophilic (35 6 C) and 

thermophilic (55 •c) AD conditions. Cellulose powder reached a 

cumulative conversion of 80% under both temperature conditions. 

Other authors have also studied the anaerobic mineralization of 

aliphatic polyesters. Abou-Zeid et at (54) conducted a study to 

determi.ne the biodegradability of the natural polyesters poly(bhydroxybutyrate) (PHB), poly(b-hydroxybutyrate-co-11.6%-bhydroxyvalerate) (PHBV) and the synthetic polyester poly(ocaprolactone) (PCL) using different anaerobic sludges and individual strains. Biodegradability of the powdered materials was 

measured as the percent of weight loss. They found that almost all 

the PI Ill was converted in 9 days. but only 60 and JO% weight Joss 

10014 

w~ 

-+-POiilive (cdhl1osc JW'P!r) 

i -.-eo.po~y,ster + (om~bJSCd JJOl~1nct 80'> · -Pfntlil":h c: ....... pp + 2o/. addi01.-t ~ ~ 

II - +-l'l]l: ' 1 '" addilht. 

i {)1),. . 

i 50" 'Q •o•• # 

~ 31)'1; 

• 2Mt ~ 

" () tG~ 

O>; 

0 10 20 

·n .. , (Oa)~J 

30 •o 50 

·.~~~~~·~~~~'~:.=4~C;i~. arid; ilatufat fiber. COII)paSites iluiing Sil ~ o{.!.anwoliii! -digemon;,For. ;som&,<bti. 

:p<iii!is; ~~ em>i· &rs-ai~.'sniilrerUW. inart(~ 

ECM Mot. for Sanctions 

Exh. RX-C 

was observed for the PHBV and PCL. respectively. Similar results 

were reported by Shin et al. (55) in which nearly complete conversion was observed for the natural bacterial polyester but no 

biodegradability for synthetic analogs was observed under simulated landfill conditions. 

The results of this study indicate that materials have different 

rates of mineralization under different end of·life scenarios. For 

example, the positive control reached 70% conversion in 25 days 

during AD while 75 and 400 days were needed to reach the same 

extent of conversion under compostlng and soil incubation conditions, respectively. The plastarch material degraded faster under 

composting conditions reaching SO% conversion in 85 days than 

under AD and soil incubation conditions where only 26 and 30% 

was converted after 50 and 660 days, respectively. For copolyester + com-based plastic 20% of the material was converted 

during 20 days of soil incubation while 50 days were needed to 

reach the same value during AD. Ultimately, co-polyester + combas~ plastic reached 55% conversion after 660 days of soil Incubation. corivel\tiOrial '-plastlci ailil)ti()s~>-containmfadditivesdjd 

:O,Ofiie&i:~~· at aJEW:it;Jei: any Of the ~ee cOOc:litions. 

Biodegradable plastics are potential alternatives to petroleumbased materials that can be incorporated into organic recycling 

schemes based on anaerobic digestion or composting. They also 

could potentially reduce the pollution assodated with conventional 

plastics and therefore lead to the development of products that are 

more environmentally friendly. Ideally, biodegradable materials 

must be useful for a predetermined service life and then biodegrade 

in a short period of time, leaving no visible fragments and no toxic 

residues when composted or anaerobically digested. Disposal of 

these materials in landfills as opposed to anaerobic digestions is not 

recommended since under anaerobic conditions they biodegrade to 

form methane and most landfills capture only a small fraction of 

the methane created (56). 

4. Conclusion 

In this study, the relative biodegradability of a range of polymeric materials and natural fiber composites used for various 

commerdal applications was investigated under composting, soil 

Incubation and anaerobic dlgesdon conditions. The validity of the 

tests was confirmed in that positive controls (cellulose paper) 

biodegraded by more than 70% in all three systems in a reproducible manner. · 

While some of the bio-based plastics and natural fibers biodegraded to an appreciable extent. i!la:Sties,:comir· ,.,o .... , diilves tlia.r;;u:;;.;~>,~Y. ~;mr~ biod.~racia&iliiY tO. ii~iYiTiw . a:{P<)ii~ 

ethylene~ aru1 · Pi:IIYP.ri:i.PYieJie aid):ior irrfp ov~ me- &i~~ifulibblliiY 

oflh:esC' e~ld#'il~ '}:i9lyffi(j'$; SEM analysis confirmed that substantial biodegradation of polyhydroxyallcanoate-based plastics 

occurred and that some surface changes occurred in copolyester + com-based plastic and coconut coir materials. However. SEM confirmed that no degradation of polypropylene and 

polyethylene occurred, even after amendment with additives 

meant to confer biodegradability. 

The relative biodegradability of the materials during long-term 

soil incubation was PHA > co-polyester + corn-based plastic > 

composted cow manure > plastarch > paper pulps > natural 

fibers > conventional plastics containing additives to enhance 

biodegro~dability = conventional plastics. For anaerobic digestion 

and composting the relative biodegradability was plastarch > copolyester + com-based plastic > conventional plastics with additives and plastarch > paper pulp + soy wax > conventional plastic 

with additives. respectively. 

·Over the time scale of organic recycling processes (composting 

and anaerobic digestion) most of the bioplastics biodegraded to 
E.F. G6mez, F.C Michel Jr. j Polymer Degradation and Scability 98 (2013) 2583-2591 2591 

only a limited extent. Furthermore, under anaerobic incubation, 

some of the bio-based plastics biodegraded to generate methane, a 

potent greenhouse gas that unless captured may negate the 

perceived environmental benefits of using these materials. Biodegradable plastics made from petroleum (Class II), may have more 

adverse environmental impacts than conventional plastics ( dass I) 

if their ultimate fate is landfilling and anaerobic conversion to 

methane. 

Acknowledgments 

The authors thank the Ohio State University Department of 

Food, Agricultural and Biological Engineering for financial support 

to the main author during this project. We would also like to thank 

the OSU Molecular and Cellular Imaging Center at OARDC for 

assistance with scanning electron micrographs. 

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ECM Mot. for Sanctions 

Exh. RX-C 

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romposting of dai£y manure amended with sawdust o1' straw. Con1post Sci 

Uti! 2004:12:323-34. 

Grewal Sf<, 1\ajeev S, Sreevatsan S, Michel FC. Persistence of mycobactclium 

avium subsp paratuberculosis and other zoonotic pathogens during simulated 

composting, manur~ pacl<ing, and liquid storage of dairy manure. Appl Environ Microbial 2006:72:565-74. 

G6me~ E. Martin j, Michel FC. Effens of organic loading rate on reactor 

peJ·form.ance and archaea.l community structure in mesophilic .anaerobic 

digesters treating municipal sewage sludge. Waste Manage Res 2011 ;29: 

1117-23. 

Barnes DKA, Galgani f, Thompson RC, Barlaz M. i\ccumulation and fragmenracion of plastic debris in global environmems. Philos Trans R So.: ll Bioi Sci 

2009:364:1985-98. 

Kyrikou I, Briassoulis D. Biodegradation of agricultural plastic films: a crirical 

review. J Polym Environ 2007;15:125-50. 

Bastioti C. Global sta~os of the production of biobased packaging materials, 

Starch-Starize 2001 ;53:351-5. 

Riggi£, Santagata G. Malinconico M. Bio-based and biodegradable plastics for 

use in crop production. Recent Patenrs Food Nut!' Agric 2011 ;3:49-63. 

Chiellini E, Corti A D'Amone S, Billingham N. Microbial biomass yield and 

turnover in soil biodegradation tests: carbon substrate effects. J Polym Environ 2007;15:169-78. 

Kaplan D. Biopolymers from renewable resources. Berlin; New York: Springer; 

1998. 

MOller RJ, Kleeberg 1. Deckwer WD. Biodegradation of polyesters cot1tai11ing 

aromatic constirucncs. j Biote.::hnol 2001 :86:S7-95. 

Mliller RJ, Witt U. Ramze E. Deckwer WD. Architecture of biodegradable 

copolyesters ro11taining aromatic constituents. Polym Degrad Stabil 1998;59: 

203-8. 

[37] Tokiwa 'i, Calabia B. BiodegradJbility and biodegradation of polyesters. 

J Polym Environ 2007;15:259-67. 

[38] Tokiwa Y, Ugwu Cll, Calabia BP, Alba S. Biodegradability of plastics. lnt] Mol 

Scl2009:10:3722-42. 

[39] Tokiwa Y. Ando T. Suzuki T, Takeda K. Biodegl'<ldation of synthetic polymers 

containing ester bondsln Agl'iculrural and synthetic polymers. American 

Chemical Society; 1990. p. 135-48. 

[40] Barrington S, Choiniere D. Trigui M. Knight W. Effect of carbon source on 

compost nitrogen and carbon losses. Bioresour Techno\2002;83:189-94. 

[41] S<!heb DN, Jog JP. N.1tural fiber polymer composites: a review. Adv Polym 

Techno! 1999; 18:351-63. 

[42] Mohanty AK. Misra M, Hinrichs~n G. Biofibres, biodegradable polymers and 

biocomposites: an overview. Ma.:romol Mater Eng 2000;276--277:1-24. 

[43] Khedari j. Nankongnab N, Hirunlabh j, Teekasap S. New low-cost insulation 

particleboards from mixture of durian peel and coconut coir_ Build Environ 

2004:39:59-65. 

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[45] Albertsson AC. Karlsson S. Degradable polymers for the future. Acta Polym 

1995;46:114-23. 

[46] Griffin Gerald Jl.. Biodegradable fillers in thermoplasticsln Fillers and reinforcements for plastics. Ametican Chemical Society; 1974. p. 159-70. 

[47] Gould JM. Gordon SH. Dexter LB, Swanson CL Biodegradation of starchconraining plastics; 1990. p. 65-75. 

[48] Shah AA. Hasan F. Hameed A, Ahmed S. Biological degradation of plastics: a 

romprellensive review, Bioterhnoi Adv 2008;26:246-65. 

[49] Anderson r<L Degradation of cellulose and starch by anaerobic bacteria. In: 

Doyle RJ, editor. Glycomicrobiology. US: Springer; 2002. p. 359-86. 

(50] Rivard Cj. Adney WS. Himmel ME. Mitchell Dj. Vinzant TB, Grohrnann K, 

et al. Effects of natural polymer acetylation on the anaerobic bioconversion 

to methane and carbon dioxide. Appl !lic.:hem Biotechnol1992;34-35:725-

36. 

[51] Abou-Zeid DM. Muller Rj. Deckl.vcr WD. Biodegradation of aliphatic homopolyesters and aliphatic - aromatic copolyesters by anaembir microorganisms, 

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2002:3:813·-22. 

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of poll'(lactic acid) under me>ophilic and thermophilic conditions using a new 

evaluation system for methane fermentation in anaerobic sludge.lnt] Mol Sci 

200~;10. 

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~~~J 'htn 1'. l<.tm M, Kim j. ~iodeg•'adabillty of degradable plastics exposed to 

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model. Environ Sd Technol2011 :45:5470-6. 
EXHIBIT RX-D -·-----·-·-·-----
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

COMPLAINT COUNSEL'S RESPONSE TO 

RESPONDENT ECM BIOFILMS, INC.'S FIRST SET OF 

REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS 

Pursuant to Rule 3.37 of the Federal Trade Commission's Rules of Practice for 

Adjudicative Proceedings, Complaint Counsel hereby submits the following objections and 

responses to Respondent ECM Biofilms, Inc.'s ("ECM's") First Set of Requests for Production 

of Documents and Things. 

GENERAL OBJECTIONS 

1. Complaint Counsel reserves the right to assert additional objections to production 

of information or documents as appropriate and to supplement these objections and responses. 

As to each request where Complaint Counsel has stated that it will produce or make responsive 

documents available for inspection, such a statement does not imply or represent that responsive 

documents are known to exist or do, in fact, exist. Complaint Counsel objects to the Document 

Requests to the extent they seek information that is not relevant to the subject matter of the 

litigation and/or not reasonably calculated to lead to the discovery of relevant information. 

2. Complaint Counsel's willingness to provide information or documents 

notwithstanding the objectionable nature of the Document Request shall not be construed as (a) 

an acknowledgment or admission that the material is relevant; (b) a waiver ofthe General 

ECM Mot. for Sanctions 

Exh. RX-D 
Objections or the Objections asserted in response to specific document requests; or (c) an 

agreement that requests for similar information will be treated in a similar manner. 

3. Complaint Counsel objects to each document request to the extent that it calls for 

information or the production of any document that is protected from disclosure by the attorneyclient privilege, the attorney work-product privilege, the deliberative process privilege, the law 

enforcement privilege, the investigative privilege, the government informant privilege, the nontestifying expert privilege, the joint prosecution privilege, the common interest doctrine, that is 

exempt from disclosure pursuant to confidentiality provisions set forth in the FTC Act, that is 

protected from disclosure by the privilege for information given to the FTC on a Pledge of 

Confidentiality, that is protected from disclosure under principles of financial privacy, that is 

subject to a protective order from another litigation, or that is subject to any other applicable 

legal protection or privilege. The inadvertent production of any privileged documents shall not 

be deemed a waiver of any applicable privilege with respect to that document or any other 

document or information. 

4. Complaint Counsel objects to each document request to the extent that it calls for 

materials generated and transmitted between Complaint Counsel and non-testifying Federal 

Trade Commission employees, as outside the scope of discovery pursuant to Rule 3.31 ( c )(2). 

5. Complaint Counsel objects to each document request to the extent it seeks 

information that is not relevant to the subject matter of the litigation and/or not reasonably 

calculated to lead to the discovery of information relevant to the allegations of the complaint, to 

the proposed relief, or to Respondent's defenses. 

6. Complaint Counsel objects to each document request to the extent that it is overly 

broad, unduly burdensome, vague, and ambiguous. 

ECM Mot. for Sanctions 

Exh. RX-D 

2 
7. Complaint Counsel objects to each document request to the extent that it seeks 

documents that are not in the possession, custody, or control of Complaint Counsel. 

8. Complaint Counsel will not produce documents responsive to this request that 

Respondent previously has produced to Complaint Counsel at any point during the investigation 

or litigation in this matter. 

9. Complaint Counsel will not produce documents responsive to this request that 

have been provided to Respondent previously. 

10. This response addresses only documents collected or reviewed in the course of the 

investigation and prosecution of this case and that are in the possession, custody or control of the 

FTC Bureau of Consumer Protection. See FTC Rule 3.31(c)(2). Complaint Counsel objects to 

the Requests to the extent they seek documents outside this scope, and such documents will not 

be produced. 

11. Each of the foregoing General Objections is incorporated in each of the 

Responses hereinafter set forth. Subject to and without waiving any of such objections, 

Complaint Counsel responds as follows: 

OBJECTIONS AND RESPONSES TO REQUESTS 

Request for Production 1: Provide all documents that concern whether plastics in 

general and ECM Plastics in particular will break down and decompose into elements found in 

nature after customary disposal or in a landfill. 

Response: Complaint Counsel objects to Request for Production 1 on the grounds that a 

request for documents concerning plastics in general is overly broad, vague, and ambiguous. 

Subject to and without waiving the foregoing objections, Complaint Counsel will produce 

responsive, non-privileged documents. 

ECM Mot. for Sanctions 

Exh. RX-D 

3 
Request for Production 2: Provide all documents, whether prepared by or for the 

Commission or any other entity, concerning consumer perception, comprehension, or recall 

(including, but not limited to, copy tests, marketing or consumer surveys and reports, penetration 

tests, recall tests, audience reaction tests, and communication tests) of plastics biodegradability; 

biodegradability in general; landfill composition; or conditions of customary waste disposal. 

Response: Complaint Counsel objects to Request for Production 2 on the grounds that it 

is overly broad, vague, and ambiguous. Subject to and without waiving the foregoing objections, 

Complaint Counsel will produce responsive, non-privileged documents. 

Request for Production 3: Provide all documents that support or call into question your 

conclusion that ECM's biodegradable claims for degradation are false. 

Response: Complaint Counsel objects to Request for Production 3 on the grounds that 

the request is overly broad, vague, and ambiguous. Subject to and without waiving the foregoing 

objections, Complaint Counsel will produce responsive, non-privileged documents. 

Request for Production 4: Provide all documents that support or call into question your 

conclusion that consumers likely interpret unqualified degradable claims to mean that the entire 

product or package will completely decompose into elements found in nature within one year 

after customary disposal. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

ECM Mot. for Sanctions 

Exh.RX-D 

4 
Request for Production 5: Provide all documents relating to your contention that 

express or implied representations made in or implied by ECM BioFilm's written advertising or 

promotional materials are false or misleading. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 6: Provide all correspondence between FTC and ASTM and 

ASTM present and past members, officers, directors, or agents. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 7: Provide all documents pertaining to the ASTM standards 

which concern plastics biodegradability, or concern ASTM policies, membership, or revisions to 

standards. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 8: Provide all documents that relate to your contention that 

end-consumers (as opposed to ECM's trade customers) view, understand, or rely on ECM's 

written advertising materials. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

ECM Mot. for Sanctions 

Exh. RX-D 

5 
Request for Production 9: Provide all documents relating to any investigation 

conducted by you or on your behalf relating to any advertising claims or representations 

concerning the ECM MasterBatch Pellets, or any other ECM plastics additive. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 10: Produce all documents concerning your contention that 

landfills are generally anaerobic environments that lack oxygen and that restrict the amount of 

liquid infiltration or moisture content. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 11: Provide all documents concerning plastics chemistry, 

formation, polymerization, formulation, mineralization, enzymatic degradation, or 

depolymerization in biodegradable and non-biodegradable polymers. 

Response: Complaint Counsel objects to Request for Production 11 on the grounds that 

it is overly broad, vague, and ambiguous. Subject to and without waiving the foregoing 

objections, Complaint Counsel will produce responsive, non-privileged documents. 

Request for Production 12: Provide all documents relating to your contention that 

ECM' s tests were not designed to support its claims, and that the data from ECM' s testing is 

invalid or cannot support reliable conclusions. 

ECM Mot. for Sanctions 

Exh. RX-D 

6 
Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 13: Produce all documents concerning the period oftime under 

which conventional plastics generally biodegrade, including documents supporting your 

contention that plastics will normally require hundreds of thousands of years to biodegrade. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Request for Production 14: Produce all documents concerning your definition of 

"competent and reliable" scientific evidence as that definition concerns biodegradation claims 

for plastics in general and ECM's express and/or implied claims challenged by the FTC. 

Response: Complaint Counsel objects to Request for Production 14 on the grounds that 

it is overly broad, vague, and ambiguous. Subject to and without waiving the foregoing 

objections, Complaint Counsel will produce responsive, non-privileged documents. 

Request for Production 15: Provide all documents relating to any advertisement or 

promotional material for the ECM MasterBatch pellets, other than documents produced by 

Respondents in pre-complaint disclosures or discovery. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

ECM Mot. for Sanctions 

Exh. RX-D 

7 
Request for Production 16: Produce all documents identified in any answer to an 

Interrogatory propounded by ECM or on which you rely in answering any Interrogatory 

propounded by ECM. 

Response: Subject to and without waiving the foregoing objections, Complaint Counsel 

will produce responsive, non-privileged documents. 

Dated: January 2, 2014 

ECM Mot. for Sanctions 

Exb.RX-D 

8 

therine Johnson 2 2) 326-2185 

Jonathan Cohen ( 02) 326-2551 

Elisa K. Jillson (202) 326-3001 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Mailstop M-8102B 

Washington, DC 20580 
CERTIFICATE OF SERVICE 

I hereby certify that on January 2, 2014, I caused a true and correct copy of the paper 

original of the foregoing Complaint Counsel's Response to Respondent ECM Biofilms, Inc. 's 

First Set of Requests for Production of Documents or Things to be· served as follows: 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord 

Emord & Associates, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Lou Caputo 

Emord & Associates, P. C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Peter Arhangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

I further certify that I possess a paper copy of the signed original of the foregoing 

document that is available for review by the parties and the adjudicator. 

ECM Mot. for Sanctions 

Exh.RX-D 

9 

erine Johnson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Ave., NW, M-8102B 

Washington, DC 20580 

Telephone: (202) 326-2185 

Facsimile: (202) 326-2558 

Email: kjohnson3@ftc.gov 
EXHIBIT RX-E 
Peter Arhangelsky 

From: 

Sent: 

To: 

Cc: 

Subject: 

Thanks, Peter. 

Johnson, Katherine <kjohnson3@ftc.gov> 

Friday, February 14, 2014 6:36PM 

Peter Arhangelsky 

Jonathan Emord; Lou Caputo; Jillson, Elisa; Cohen, Jonathan 

Re: File Request- Data for Katherine Johnson: ECM Biofilm 

From: Peter Arhangelsky [mailto:PArhangelsky@emord.com] 

Sent: Friday, February 14, 2014 08:31 PM 

To: Johnson, Katherine 

Cc: Jonathan Emord <JEmord@emord.com>; Lou caputo <LCaputo@emord.com>; Jillson, Elisa; Cohen, Jonathan 

Subject: FW: File Request - Data for Katherine Johnson: ECM Bioftlm 

Katherine, 

I am having some t rouble working with the larger files. I hope to resolve all issues so I can transmit, but that may not 

happen tonight after all. Because the link below is valid for four days, I still intend t o use the t ransfer protocol. I will 

work to complete the supplemental production shortly, likely by Monday. 

Best, 

Peter 

Peter A. Arhangelsky, Esq. I EMORD & AssociATES, P.C. I 3210 S. Gilbert Rd., Ste 4 1 Chandler, AZ 85286 

Firm: (602) 388-8899 I Direc t: (602) 334-4416 I Facsimile: (602) 393-4361 1 www.emord.com 

H.QIJ.Qi: This is a confidential communication intended for the recipient listed above. The content of this communication is protected from 

disclosure by the attorney-client privilege and the work product doctrine. If you ore not the intended recipient, you should treat this 

communication as strictly confidential a nd provide it to the person intended. Duplication or distribution of this communication is prohibited 

by the sender. If this communication has been sent to you in error, please notify the sender and then immediately destroy the document. 

From: pclarke@ftc.gov [mailto:pclarke@ftc.gov) 

Sent: Friday, February 14, 2014 2:44PM 

To: Peter Arhangelsky 

Subject: File Request - Data for Katherine Johnson: ECM Biofilm 

-·--·- ·--~-

pclarke@ftc.gov has requested a file from you.· Use the link below to send securely. 

Please use the attached link ·to upload data t~;r e ·FTc·for Katherine Johnson .. Thanks: 

pclarke@ftc.gov has requested a file from you. 

Please click on the link below to send files back: 

https://securemail. ftc. gov/a/wreq/SVykJclt5t08888 

In order to send a file securely, please do not use your email reader's reply function. Rather click the above-enclosed link, and 

1 

ECM Mot. for Sanctions 

Exb.RX-E 

---- - -----·----
upload through the secure web interface for an encrypted file transfer 

The request file is-only valid for 4 day(s) or up to 1 transaction(s) only. , 

(If clicking the link in this message does not work. copy and paste the link into the address bar of your browser.) 

ECM Mot. for Sanctions 

Exh. RX-E 

2 

Secured by Accellion 
EXHIBIT RX-F 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

COMPLAINT COUNSEL'S NOTICE OF 

RULE 3.33(c)(l) DEPOSITION 

To: ECM Biofilms, Inc. 

Victoria Place, Suite 225 

100 South Park Place 

Painesville, OH 44077 

PLEASE TAKE NOTICE that Complaint Counsel will depose ECM Biofilms, Inc. 

("ECM"), upon oral examination, pursuant to Rule 3.33(c)(l) of the Federal Trade 

Commission's Rules of Practice for Adjudicative Proceedings, as to the matters set forth below. 

ECM is required to designate one or more officers, directors, managing agents, or other persons 

to testify on its behalf who have knowledge of the matters specified below. Pursuant to Rule 

3.33(c)(l) and other applicable authority, ECM's designee must testify regarding all information 

known or reasonably available to ECM. 

1. The allegations in the Complaint. 

2. The bases for ECM's refusal to unequivocally admit every allegation in the 

Complaint that ECM did not unequivocally admit. 

3. ECM' s affirmative defenses. 

4. Any and all objections to the conduct relief Complaint Counsel seeks to obtain. 

5. ECM's basis for its refusal to unequivocally admit each Request for Admission that 

ECM did not unequivocally admit. 

6. ECM's claims that plastic products made with ECM's additive are (a) biodegradable, 

(b) biodegradable in a landfill, (c) biodegradable in approximately nine months to 

five years, and (d) biodegradable in some period greater than a year. 

7. EC:M's s::~les and marketing strategies related to the advertising daims identified in 

Topic 6. 

ECM Mot. for Sanctions 

Exh. RX-F 
8. ECM's communications with current, former, and potential customers and 

distributors related to the advertising claims identified in Topic 6. 

9. ECM's substantiation, including, without limitation, various scientific tests such as 

ASTM D5511, for the advertising claims identified in Topic 6. 

10. Other scientific tests relevant or potentially relevant to the biodegradability of plastic 

including, without limitation, ASTM 5209, ASTM D5511, ASTM D5526, ASTM 

D5338, ASTM D6400, SEM imaging, GPC, ISO 14855, and C-14 tagging, regardless 

of whether ECM relies upon the test for substantiation. 

11. Every scientific test, report, or article related to biodegradability that ECM conducted, 

caused to be conducted, created, caused to be created, reviewed, or relied upon for 

any purpose, regardless of whether ECM relies upon it for substantiation. 

12. All certificates of biodegradability (or other similar documents) that ECM issued, or 

considered issuing, to customers or potential customers. 

13. All logos (or other similar marks) concerning or indicating biodegradability that ECM 

issued, or considered issuing, to customers or potential customers. 

14. ECM's position with respect to consumer perception of claims that a product is (a) 

biodegradable, (b) biodegradable in a landfill, (c) biodegradable in approximately 

nine months to five years, and (d) biodegradable in some period greater than a year, 

including all facts, studies, or other evidence supporting ECM's position. 

15. All facts, studies, surveys, or other evidence that ECM has ever received, reviewed, 

or relied upon regarding consumer perception of claims that a product is (a) 

biodegradable, (b) biodegradable in a landfill, (c) biodegradable in approximately 

nine months to five years, and (d) biodegradable in some period greater than a year, 

including all facts, studies, or other evidence supporting ECM's position. 

16. ECM's position with respect to its customers' perception of claims that plastic 

products made with ECM's additive are (a) biodegradable, (b) biodegradable in a 

landfill, (c) biodegradable in approximately nine months to five years, and (d) 

biodegradable in some period greater than a year, including all facts, studies, or other 

evidence supporting ECM's position. 

17. All facts, studies, surveys, or other evidence that ECM has ever received, reviewed, 

or relied upon regarding its customers' perception of claims that plastic products 

made with ECM's additive are (a) biodegradable, (b) biodegradable in a landfill, (c) 

biodegradable in approximately nine months to five years, and (d) biodegradable in 

some period greater than a year, including all facts, studies, or other evidence 

supporting ECM's position. 

18. The representations made in the Declaration ofRobert Sinclair executed December 

12,2013. 

ECM Mot. for Sanctions 

Exh. RX-F 
19. ECM's communications with the media. 

20. ECM's communications with current, former, and potential customers and 

distributors regarding this action, or any other litigation or enforcement proceeding of 

any sort related in any way to biodegradability claims. 

21. ECM' s communications with any person or institution that has, or purports to have, 

any expertise regarding chemistry, biodegradability, or materials science. 

22. ECM's communications with the FTC, NAD, or any other organization or public 

agency in any way responsible for or with jurisdiction over marketing claims. 

23. ECM's contractual arrangements with its current and past customers and distributors. 

24. The contents and usage ofECM's Website. 

25. ECM's document retention policies and practices, and its compliance with document 

preservation obligations. 

26. ECM's practices for archiving and maintaining records of customer-related 

communications and other customer-related documents. 

The deposition will be held on Friday, January 24, 2014 at 9:00A.M. at the offices of the Federal 

Trade Commission's Division ofEnforcement, 1800 M St. NW, 8

1

h floor, Washington, DC, 

before an officer authorized to take depositions. 

ECM Mot. for Sanctions 

Exh. RX-F 

Is/ Elisa Jillson 

Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen Gcohen2@ftc.gov) 

Elisa Jillson ( ejillson@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 205RO 

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

Fax: 202-326-2551 
CERTIFICATE OF SERVICE 

I hereby certify that on January 10,2014, I caused a true and correct copy of the paper 

original ofthe foregoing Complaint Counsel's Notice of Rule 3.33(c)(l) Deposition to be served 

as follows: 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emard 

Emard & Associates, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Lou Caputo 

Emard & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com 

Peter Arhangelsky 

Emard & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

I further certify that I possess a paper copy of the signed original of the foregoing 

document that is available for review by the parties and the adjudicator. 

ECM Mot. for Sanctions 

Exh. RX-F 

Is/ Elisa Jillson 

Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen Gcohen2@ftc.gov) 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

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

Washington, DC 20580 

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

Fax: 202-326-2551