UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Edith Ramirez, Chairwoman

Julie Brill

Maureen K. Ohlhausen

Joshua D. Wright

Terrell McSweeny

_______________________________

)

In the Matter of )

)

ECM Biofilms, Inc., )

a corporation, also d/b/a/ ) Docket No. 9358

Enviroplastics International )

_______________________________ )

ORDER SCHEDULING SUPPLEMENTAL BRIEFING AND DENYING CORRECTION 

REGARDING STATEMENTS MADE DURING ORAL ARGUMENT

This matter having been heard by the Commission upon the appeal of ECM Biofilms and 

the cross-appeal of Complaint Counsel and upon the respective briefs and oral arguments in 

support of their positions, the Commission has determined that supplemental briefing would 

assist it in resolving the issues presented. In accordance with Commission Rule 3.54, the 

Commission directs supplemental briefing limited to the following issues:

A. Can the survey evidence in the record be interpreted as causal or experimental 

surveys with appropriate test and control groups? Would it be appropriate to do so? If 

so, please explain what inferences can be drawn from such an interpretation in light 

of relevant legal authority and statistical methods. If not, please explain why not.

B. In light of relevant legal authority and statistical methods, what weight should the 

Commission give to the results of descriptive surveys, which measure an attitude, 

characteristic, or belief that survey respondents hold, relative to the results of causal

surveys or experimental surveys, which use test and control groups to measure the 

effect of a specific variable? 

C. Is it possible to quantify the degree of convergence among the consumer surveys in 

the record in this case (APCO, Synovate, Frederick, and Stewart) or within any single 

survey? If so, please calculate the degree of convergence, if any, of these surveys. If 

not, please explain the significance of the inability to quantify convergence to an 

issue or issues on appeal.
Accordingly, 

IT IS ORDERED THAT:

1. On or before June 22, 2015, ECM and Complaint Counsel shall file briefs, not to 

exceed 4,000 words (excluding any attachments), addressing only the foregoing 

issues;

2. On or before 14 days after service of the briefs described in Paragraph 1, ECM and 

Complaint Counsel may file responding briefs not to exceed 2,500 words

(excluding any attachments); and

3. Attachments to briefs may include declarations from any experts who testified in 

this proceeding.

No extensions of time or word limits will be granted.

Additionally, we note that following oral argument, Complaint Counsel submitted a filing 

entitled Complaint Counsel’s Correction Regarding Statements Made During Oral Argument. 

Respondent thereafter filed an Opposition arguing that Complaint Counsel’s filing is not 

authorized under the Commission’s Rules of Procedure. Given the Commission’s order for 

supplemental briefing, the Commission finds Complaint Counsel’s submission to be moot and 

has determined not to consider it. 

Therefore,

IT IS FURTHER ORDERED THAT Complaint Counsel’s Correction Regarding 

Statements Made During Oral Argument shall not be considered. 

By the Commission.

Donald S. Clark

Secretary

SEAL:

ISSUED: May 29, 2015