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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Edith Ramirez, Chairwoman

Julie Brill

Maureen K. Ohlhausen

Terrell McSweeny

In the Matter of

ECM BioFilms, Inc.,

a corporation, also d/b/a

Enviroplastics International DOCKET NO. 9358

FINAL ORDER

DEFINITIONS

For purposes of this Order, the following definitions shall apply:

1. “Clearly and Prominently” shall mean as follows: 

A. In print communications, the disclosure shall be presented in a manner that stands 

out from the accompanying text, so that it is sufficiently prominent, because of its 

type size, contrast, location, or other characteristics, for an ordinary consumer to 

notice, read, and comprehend it;

B. In communications made through an electronic medium (such as television, video, 

radio, and interactive media such as the Internet, online services, and software), 

the disclosure shall be presented simultaneously in both the audio and visual 

portions of the communication. In any communication presented solely through 

visual or audio means, the disclosure shall be made through the same means 

through which the communication is presented. In any communication 

disseminated by means of an interactive electronic medium such as software, the 

Internet, or online services, the disclosure must be unavoidable. Any audio 

disclosure shall be delivered in a volume and cadence sufficient for an ordinary 

consumer to hear and comprehend it. Any visual disclosure shall be presented in 

a manner that stands out in the context in which it is presented, so that it is 

sufficiently prominent, due to its size and shade, contrast to the background 
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against which it appears, the length of time it appears on the screen, and its 

location, for an ordinary consumer to notice, read, and comprehend it; and

C. Regardless of the medium used to disseminate it, the disclosure shall be in 

understandable language and syntax. Nothing contrary to, inconsistent with, or in 

mitigation of the disclosure shall be used in any communication.

2. “Close proximity” means on the same print page, web page, online service page, or other 

electronic page, and proximate to the triggering representation, and not accessed or displayed 

through hyperlinks, pop-ups, interstitials, or other means. 

3. “Commerce” shall mean as defined in Section 4 of the Federal Trade Commission Act, 

15 U.S.C. § 44.

4. “Competent and reliable scientific evidence” shall mean tests, analyses, research, or 

studies that have been conducted and evaluated in an objective manner by qualified persons, that 

are generally accepted in the profession to yield accurate and reliable results, and that are 

sufficient in quality and quantity based on standards generally accepted in the relevant scientific 

fields, when considered in light of the entire body of relevant and reliable scientific evidence, to 

substantiate that a representation is true. Specifically:

A. For unqualified degradability claims, any scientific technical protocol (or 

combination of protocols) substantiating such claims must assure complete 

decomposition and simulate the physical conditions found in landfills, where most 

trash is disposed.

B. For qualified degradability claims, any scientific technical protocol (or 

combination of protocols) substantiating such claims must both:

i. assure the entire product will (1) completely decompose into elements 

found in nature in any stated timeframe or; or (2) decompose into elements 

found in nature at the rate and to the extent stated in the representation; 

and

ii. simulate the physical conditions found in the type of disposal facility or 

method stated in the representation or, if not qualified by disposal facility 

or method, the conditions found in landfills, where most trash is disposed.

For example, results from ASTM (American Society for Testing and Materials) International 

D5511-12, Standard Test Method for Determining Anaerobic Biodegradation of Plastic 

Materials under High Solids Anaerobic Digestion Conditions, or any prior version thereof, are 

not competent and reliable scientific evidence supporting unqualified claims, or claims of 

outcomes beyond the parameters and results of the actual test performed.

5. “Customary disposal” means any disposal method whereby respondent’s products 

ultimately will be disposed of in a landfill, in an incinerator, or in a recycling facility.
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6. “Degradable” includes biodegradable, oxo-biodegradable, oxo-degradable, or 

photodegradable, or any variation thereof.

7. “Landfill” means a municipal solid waste landfill that receives household waste. 

“Landfill” does not include landfills that are operated as bioreactors or those that are actively 

managed to enhance decomposition. 

8. “Means and instrumentalities” shall mean any information, including, but not necessarily 

limited to, any advertising, labeling, promotional, sales training, or purported substantiation 

materials, for use by trade customers in their marketing of any product, package, or service, in or 

affecting commerce.

9. Unless otherwise specified, “respondent” shall mean ECM BioFilms, Inc., a corporation, 

and its successors and assigns.

I.

IT IS ORDERED that respondent, and its officers, agents, representatives, and 

employees, directly or through any corporation, partnership, subsidiary, division, or other device, 

in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale, or 

distribution of any product, package, or service, in or affecting commerce, shall not represent, in 

any manner, directly or indirectly, expressly or by implication:

A. That any plastic product or package is degradable, or that any product, package, 

or service affects a plastic product or package’s degradability, unless such 

representation is true, not misleading, and, at the time it is made, respondent 

possesses and relies upon competent and reliable scientific evidence that 

substantiates the representation; and

i. the entire item will completely decompose into elements found in nature 

within five (5) years after customary disposal; or 

ii. the representation is clearly and prominently and in close proximity 

qualified by: 

a. Either (1) the time to complete decomposition into elements found in 

nature; or (2) the rate and extent of decomposition into elements found 

in nature, provided that such qualification must disclose that the stated 

rate and extent of decomposition does not mean that the product or 

package will continue to decompose; and

b. If the product will not decompose in a customary disposal facility or 

by a customary method of disposal, both (1) the type of non-customary 

disposal facility or method and (2) the availability of such disposal 
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facility or method to consumers where the product or package is 

marketed or sold.

B. That any product, package, or service offers any environmental benefit, unless the 

representation is true, not misleading, and, at the time it is made, respondent 

possesses and relies upon competent and reliable evidence, which when 

appropriate must be competent and reliable scientific evidence, that substantiates 

the representation.

II.

IT IS FURTHER ORDERED that respondent, and its officers, agents, representatives, 

and employees, directly or through any corporation, partnership, subsidiary, division, or other 

device, in connection with the manufacturing, labeling, advertising, promotion, offering for sale, 

sale, or distribution of any product, package, or service in or affecting commerce, shall not 

provide to others the means and instrumentalities with which to make, directly or indirectly, 

expressly or by implication, including through the use of endorsements or trade names, any false, 

unsubstantiated, or otherwise misleading representation of material fact regarding any 

environmental benefit. 

III.

IT IS FURTHER ORDERED that respondent, and its officers, agents, representatives, 

and employees, directly or through any corporation, partnership, subsidiary, division, or other 

device, in connection with the manufacturing, labeling, advertising, promotion, offering for sale, 

sale, or distribution of any product, package, or service, in or affecting commerce, shall not 

misrepresent, in any manner, expressly or by implication, the existence, contents, validity, 

results, conclusions, extrapolations, or interpretations of any test, study, or research, including 

making any representations that are prohibited, or otherwise contrary to limits set, by the 

promulgating organization for such test, study, or research.

IV.

IT IS FURTHER ORDERED that respondent shall, for five (5) years after the last date 

of dissemination of any representation covered by this Order, maintain and upon request make 

available to the Commission for inspection and copying:

A. All advertisements, labeling, packaging and promotional materials containing the 

representations specified in Parts I, II and III;

B. All materials that were relied upon in disseminating the representations specified 

in Parts I, II and III;

C. All tests, reports, studies, surveys, demonstrations, or other evidence in its 

possession or control that contradict, qualify, or call into question the 

representation, or the basis relied upon for the representation, including 
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complaints and other communications with consumers or with governmental or 

consumer protection organizations; and

D. All acknowledgments of receipt of this Order obtained pursuant to Part V.

V.

IT IS FURTHER ORDERED that respondent shall deliver a copy of this Order to all 

current and future subsidiaries, current and future principals, officers, directors, and managers, 

and to all current and future employees, agents, and representatives having responsibilities 

relating to the subject matter of this Order. Respondent shall secure from each such person a 

signed and dated statement acknowledging receipt of the Order, with any electronic signatures 

complying with the requirements of the E-Sign Act, 15 U.S.C. § 7001 et seq. Respondent shall 

deliver this Order to current personnel within thirty (30) days after the date of service of this 

Order, and to future personnel within thirty (30) days after the person assumes such position or 

responsibilities.

VI.

IT IS FURTHER ORDERED that respondent shall notify the Commission at least 

thirty (30) days prior to any change in the corporation that may affect compliance obligations 

arising under this Order, including, but not limited to, a dissolution, assignment, sale, merger, or 

other action that would result in the emergence of a successor entity; the creation or dissolution 

of a subsidiary, parent, or affiliate that engages in any acts or practices subject to this Order; the 

proposed filing of a bankruptcy petition; or a change in the business or corporate name or 

address. Provided, however, that, with respect to any proposed change in the corporation about 

which respondent learns less than thirty (30) days prior to the date such action is to take place, 

respondent shall notify the Commission as soon as is practicable after obtaining such knowledge. 

Unless otherwise directed by a representative of the Commission in writing, all notices 

required by this Part shall be emailed to Debrief@ftc.gov or sent by overnight courier (not the 

U.S. Postal Service) to: Associate Director for Enforcement, Bureau of Consumer Protection, 

Federal Trade Commission, 600 Pennsylvania Avenue NW, Mail Stop M-8102B, Washington, 

DC 20580. The subject line must begin: “ECM BioFilms, Inc., Docket No. 9358, File No. 122 

3118.”

VII.

IT IS FURTHER ORDERED that respondent shall, within sixty (60) days after the date 

of service of this Order file with the Commission a true and accurate report, in writing, setting 

forth in detail the manner and form in which respondent has complied with this Order. Within 

ten (10) days of receipt of written notice from a representative of the Commission, respondent 

shall submit additional true and accurate written reports. Unless otherwise directed by a 

representative of the Commission in writing, all notices required by this Part shall be emailed to 

Debrief@ftc.gov or sent by overnight courier (not the U.S. Postal Service) to: Associate 

Director for Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 
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Pennsylvania Avenue NW, Mail Stop 8102-B, Washington, DC 20580. The subject line must 

begin: “ECM BioFilms, Inc., Docket No. 9358, File No. 122 3118.”

VIII.

This Order will terminate on October 11, 2035, or twenty (20) years from the most recent 

date that the United States or the Commission files a complaint (with or without an 

accompanying consent decree) in federal court alleging any violation of the Order, whichever 

comes later; provided, however, that the filing of such a complaint will not affect the duration of:

A. Any Part in this Order that terminates in less than twenty (20) years;

B. This Order’s application to any respondent that is not named as a defendant in 

such complaint; and

C. This Order if such complaint is filed after the Order has terminated pursuant to 

this Part.

 Provided, further, that if such complaint is dismissed or a federal court rules that the 

respondent did not violate any provision of the Order, and the dismissal or ruling is either not 

appealed or upheld on appeal, then the Order will terminate according to this Part as though the 

complaint had never been filed, except that the Order will not terminate between the date such 

complaint is filed and the later of the deadline for appealing such dismissal or ruling and the date 

such dismissal or ruling is upheld on appeal.

 By the Commission.

Donald S. Clark

Secretary

ISSUED: October 11, 2015

SEAL: