PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. MAR 2 5 2014 

5C:J4;~ SECmA~._ 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

PUBLIC VERSION REDACTED 

ECM BIOFILM'S MOTION TO SANCTION COMPLAINT COUNSEL FOR 

UNAUTHORIZED INTENTIONAL DISSUASION OF RESPONSE TO SUBPOENA 

DUCES TECUM 

Pursuant to Rule 3 .38, ECM hereby moves this Court to sanction Complaint Counsel for 

unlawful interference with a subpoena duces tecum issued February 28, 2014 by ECM to Dr. 

Frederick Michel of Ohio State University ("Michel"). See Exh. RX-E. On March 14,2014, 

Complaint Counsel instructed Michel by letter not to produce any responsive documents he 

possessed "that were submitted to the FTC by third parties" until March 28, 2014, over a week 

after the subpoena return date and four business before fact discovery closes. See Exh. RX-B. 

Complaint Counsel thereby usurped the exclusive authority over subpoena compliance vested in 

this Court and presumptuously instructed Michel writing, "unless we direct you otherwise, we 

have no objection to you producing the remaining responsive documents on March 28." See 

Exh. RX-B (emphasis added). Following that instruction, Michel has in fact refused to produce 

the documents in question on the return dates of March 18th and 24th, reciting that he will only 

supply the documents on the time specified by Complaint Counsel. See Exh. RX-A:3. Thus, 

Complaint Counsel's unlawful interference with the subpoena response has achieved the 

intended obstruction. 

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Federal courts have held precisely analogous conduct sanctionable under similar 

circumstances. See, e.g. Price v. Trans Union, LLC, 847 F.Supp. 2d 788, 794 (E.D. Pa. 2012). 

Moreover, the unlawful conduct is a violation ofthe District of Columbia Rules ofProfessional 

Responsibility 3.4(a) and (f). 

To preserve the integrity ofthe discovery process, to ·prevent precedent that condones 

similar abuses in future, and to remedy harm caused to ECM, sanctions are appropriate. Given 

the egregious nature of the offense, dismissal or removal of counsel would be fully supportable. 

At a minimum, and for the reasons explained in the accompanying memorandum oflaw, ECM 

requests that this Court issue the following sanctions: 

1) Censure Complaint Counsel and refer this matter for further investigation by 

the Legal Ethics Chair of the District of Columbia Bar and the Inspector 

General ofthe Federal Trade Conunission. 

2) Exclude the Michel document attached here as Exhibit RX-C, and preclude 

Complaint Counsel from relying on it in any way. 

3) Extend ECM's fact discovery deadline to permit ECM a limited opportunity 

to conduct additional discovery from Michel, OSU, and others involved in the 

article attached as Exhibit RX-C. 

Respectfully submitted, 

Jo ban W. Emord (je ord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

DATED: March 19,2014 

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PUBLIC DOCUMENT 

In the Matter of 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

Docket No. 9358 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

PUBLIC VERSION REDACTED 

Respondent. 

RESPONDENT'S MEMORANDUM IN SUPPORT OF MOTION TO SANCTION 

COMPLAINT COUNSEL FOR UNAUTHORIZED INTENTIONAL DISSUASION OF 

RESPONSE TO SUBPOENA DUCES TECUM 

Pursuant to Rule 3.22(a), 3.34, and 3.38, ECM hereby moves for sanctions against 

Complaint Counsel for unlawful interference with response to ECM' s subpoena duces tecum to 

Michel. Complaint Counsel have, without leave of Court, unlawfully dissuaded a subpoena 

recipient from providing responsive documents by the subpoena return date of March 18th. 

Under apposite precedent and D.C. Ethics Rule 3.4(a) and (f), that intentional dissuasion is 

sanctionable. 

FACTS: 

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

Requests. Respondent sought inter alia "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 Exh. RX-E, at 7. On January 2, Complaint 

Counsel confirmed that it supplied all responsive, non-privileged documents. Complaint 

Counsel did not produce, and made no mention of, the article marked here as Exhibit RX-C 

(Michel and Gomez, "Polymer Degradation and Stability," (hereinafter, the "Michel Article")). 

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In its "Clarification" to the Court, filed March 13th, and through documents produced on March 

18, Complaint Counsel now reveals that it possessed the Michel Article and related emails and 

attachments since November 2012 but did not produce them. See., e.g., Exh. RX-D. 

On February 18th and 19th, Complaint Counsel deposed ECM President Robert Sinclair. 

In the afternoon of February 19th, Complaint Counsel surprised Sinclair with first production of 

the Michel Article, and questioned Sinclair about it at length over Respondent's objections. 

Respondent filed a Motion for Sanctions on February 28,2014, asking this Court to exclude the 

Michel Article as a sanction for Complaint Counsel's wrongful withholding and ambush use of 

the article. See ECM Mot. for Sanctions (Feb. 28, 2014). 

Complaint Counsel's Opposition: 

On March 10, 2014, in opposition to Respondent's Motion, Complaint Counsel averred 

that they had only recently learned of the Michel Article, and that the recent discovery somehow 

justified the withholding of the document until its disclosure was deemed beneficial during 

depositions. See CC's Opp. to Resp.'s Mot. for Sanctions, at 5 (March 10, 2014). In a sworn 

statement, one of Complaint Counsel stated that they first "received the article ... well after 

business hours on Friday, February 14, 2014, at approximately 8:00pm." See J. Cohen Dec.~ 6 

(Mar. 10, 2013). Complaint Counsel further stated that they had "not communicated in any way 

with Frederick Michel, Eddie Gomez, OARD (Ohio State Agricultural Research & Development 

Center], or anyone at Ohio State." Id at~ 7. 

Meanwhile, on February 28th, Respondent had subpoenaed Michel. See Exh. RX-E. 

That same day ECM supplied a copy of that subpoena to Complaint Counsel. See Exh. RX-A:2. 

Through that subpoena, Respondent sought to investigate peculiarities in the Michel Article. 

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Michel's testing had purportedly assessed the biodegradability of polypropylene plastics1 infused 

with ECM's additive by using an ASTM D5511 test methodology (the very same test 

methodology Complaint Counsel argues in their Complaint should not be used to determine 

ultimate biodegradability in landfills). See CC's Complaint, Dk:t. 9358, at~ 8 (Oct. 28, 20I4). 

The Michel Article allegedly showed that ECM's additive did not biodegrade. See Exh. RX-C. 

However, the study authors chose not to test certain other "ECM" infused polymers. Id. at 2589-

90. Moreover, the sources of the ECM plastics tested by Michel are suspicious because the 

product tested include additives at higher load levels than ECM customarily sells (5% in the 

Michel Article vs. 1% ). Michel published his article in a less prestigious peer-reviewed journal, 

and his Article did not include any raw data. In fact, contrary to Complaint Counsel's argument, 

ECM and its customers conducted many ASTM D55 I I tests through various independent 

laboratories, including tests specifically designed by a well-qualified envirorunental scientist, Dr. 

Timothy Barber, to mimic landfill conditions over time. See, e.g., Exh. RX-H (Barber Tr.). In 

over twenty such tests, plastics manufactured with ECM' s additive did biodegrade at significant 

levels when compared to negative controls (i.e., untreated plastics).2 

Documents disclosed to ECM on March 18, 2014 from Complaint Counsel reveal that 

Michel was, in fact, not a disinterested scientist. He had been a paid consultant to FTC in the 

investigation of similar matters and was connected with, and perhaps influenced by, the 

Biodegradable Plastics Institute (BPI), an organization that lobbies for companies that, and 

technologies which, compete with ECM and its additive. 

1 Polypropylene is a type of plastic polymer known for its ruggedness. ECM advertises 

its additive product for use in many types of plastics, nearly aU of which are plastics made with 

polymers other than polypropylene. 2 Those many tests will be presented before this Court, and addressed by ECM's experts, 

at hearing. 

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SeeExh. D. 

FTC Counsel possessed that infonnation as early as November 16,2012. See Exh. RX-D. In 

depositions ofECM's President on February 19,2014, Complaint Counsel asked whether ECM 

had reason to think Michel was biased. See Exh. RX-1. ECM's President had previously 

testified that BPI is funded by and represents ECM's competitors and, so, BPI has a direct 

financial interest in limiting the use ofECM's technology and had endeavored to do so anticompetitively in ASTM meetings. Because Complaint Counsel had never disclosed Michel's 

substantive documentation, ECM was handicapped by a lack of full evidence concerning 

Michel's agenda and bias. 

Complaint Counsel's "Clarification": 

After Michel received ECM's subpoena, he contacted FTC attorneys. See Exh. RX-B. 

Aware that Michel would produce evidence showing FTC had the Article since 2012, long 

before counsel had earlier stated, Complaint Counsel filed on March 13, post hoc a 

"Clarification" with this Court. Compare CC Opp., Cohen Decl., at~ 6 ("Complaint Counsel 

received the Ohio State Study (unsolicited) well after business hours on Friday, February 14, 

2014, at approximately 8:00pm"), with CC Clarification (Mar. 13, 2014) andExh. R.X-D (Nov. 

2012 Email from Dr. Michel to FTC counsel). In its Clarification, Complaint Counsel 

confessed: 

[W]e learned that two FTC attorneys (not representing Complaint counsel) 

worked with Michel as a consulting expert on unrelated matters ·involving 

biodegradability claims other companies asserted. In the course of evaluating 

Michel's credentials, these attorneys received a draft of the article ultimately 

published. 

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See Clarification, at I. However, Complaint Counsel also explained in a footnote that "[ o ]ne of 

the two attorneys was involved in the pre-Complaint investigation of Respondent, but departed 

the agency approximately eight months before the Complaint was filed." !d. at n.l. 

At least two ofthe "other companies" investigated by Complaint Counsel during that 

period included ECM customers MacNeil Engineering and American Plastic Mfg. Complaint 

Counsel also conceded that one attorney working directly with Michel had also participated in 

the investigation ofECM BioFilms. 

Lead counsel for the Complainants, Katherine Johnson, was assigned to the investigation 

ofECM BioFilms since at least September of201 I. See Exh. RX-G. She therefore worked 

alongside that unnamed attorney investigating ECM BioFilms, its customers, and the "other 

companies," and she was assigned to the ECM matter when Complaint Counsel received 

Michel's 2012 materials concerning ECM. It therefore defies credulity to suggest that Complaint 

Counsel lacked knowledge of the 2012-2013 activities of MicheL Cf CC Clarification, at n.L 

The facts show that Complaint Counsel (and their agents) worked directly with Michel while he 

published the study and participated in an investigation ofECM's customers. ECM intends to 

file a companion motion seeking sanctions for Complaint Counsel's failure to comply with its 

discovery obligations. 

Complaint Counsel Intentionally Dissuades Compliance with this Court's 

Subpoena: 

On March 14, 2014,just two business days before Michel's production deadline, FTC 

attorneys sent Michel instructions to delay production to ECM of responsive documents past the 

subpoena return date ofMarch 18th. See Exh. RX-B. Complaint Counsel proceeded without 

any Court Order. In that letter, FTC counsel advised Michel: 

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[The] documents are governed by the nondisclosure agreement you executed 

before receiving those materials. That agreement provides that you will not 

divulge any materials or information you receive from the FTC to outside 

parties, unless directed to do so by FTC Staff in connection with an adjudicative 

proceeding... [W]e request that you delay production of those materials until 

March 28, 2014. This is necessary to give the submitters 'an opportunity to 

seek an appropriate protective order or in camera order' regarding any 

confidential materials. See 16 C.P.R.§ 4.10(g). 

Moreover, Complaint Counsel usurped this Court's authority presumptuously and 

contumaciously, writing, "unless we direct you otherwise, we have no objection to you 

producing the remaining responsive documents on March 28." See RX-B. Significantly, as 

Complaint Counsel well knows, this Court has already issued a Protective Order that prevents 

disclosure of confidential information, which would also encompass any documents provided by 

Michel to Respondent that were designated "confidential." Immediately after receipt of the 

March 14 FTC Letter, ECM Counsel informed OSU counsel and Michel that Complaint 

Counsel's interference was unlawful, was without this Court's authorization, and that the Court's 

protective order governed (that order accompanied the original subpoena, as required). See Exh. 

RX-A:2 (Mar. 13,2014 Email). 

Complaint Counsel nevertheless maintained its direction to Michel to violate the 

subpoena return date without leave of Court and to delay production of responsive information 

until less than four business days before the close of fact discovery. That direction applied to all 

but one ECM subpoena request (item 20). 

On March 18, 2014, Michel served ECM with a letter, stating that he would abide by 

Complaint Counsel's direction and violate the subpoena return date (he did not file any motion 

so to do with this Court). See Exh. RX-A:3 (March 17th Michel Letter). Michel parroted FTC 

counsel's advice, claiming that "[i]t is my understanding that disclosing these protected 

documents would violated a non-disclosure agreement between me and the FTC" and that 

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"unless directed otherwise by FTC staff, I will produce all responsive documents in my 

possession in native format by March 28th, 2014." See id. (emphasis added). Michel's 

correspondence thus demonstrates unequivocally that he followed precisely the advice given 

him, and understood that position to be dispositive. Complaint Counsel's usurpation of this 

Court's authority combined with its purposeful dissuasion of subpoena compliance violates the 

law governing subpoenas and is unethical conduct. 

ARGUMENT 

A. Michel and Complaint Counsel Have No Sound Justification to Withhold 

Responsive Information in Light of This Court's January 10 Order 

Complaint Counsel's March 13, 2014letter to Michel instructs him to withhold 

documents to "give the submitters 'an opportunity to seek an appropriate protective or in camera 

order' regarding any confidential materials." See Exh. RX-B (citing 16 C.F.R. § 4.10(g)). 

However, Rule 4.1 O(g) is merely a safeguard to ensure confidential documents do not enter the 

public domain. Here the Court has specifically entered a protective order that reaches 

confidential information even when subject to a non-disclosure agreement, as this Court made 

abundantly clear in its January 10, 2014 Order in this case. In that Order, the Court 

unequivocally stated: "The Protective Order Governing Discovery issued in this case on 

October 22, 2013 ... is designed to protect against competitive harm resultingfrom disclosure of 

confidential business information produced in the course of discovery." See Jan. 10 Order, at 5-6 

(emphasis added). "Because adequate safeguards are in place to ensure sensitive information 

will not be misused," ECM was not permitted to "withhold the requested discovery even if such 

information [was] confidential ... " !d. Thus, Complaint Counsel's action not only exceeded 

their authority by proceeding without leave of Court but also contradicted this Court's discovery 

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orders. ECM provided Michel with a copy of the Protective Order along with the February 28, 

2014 subpoena. 

B. Complaint Counsel's Conduct is Per Se Sanctionable 

Federal Courts condemn harshly interference by adverse parties with subpoenas issued to 

non-parties, finding such interference sanctionable per se. See, e.g., Price v. Trans Union, 

L.L.C., 847 F. Supp. 2d 788, 793 (E.D. Pa. 2012); Fox,Indus., Inc. v. Gurovich, CV03-

5166(TCP)(WDW), 2006 WL 2882580 (E.D.N.Y. Oct. 6, 2006). In Price, the Eastern District 

of Pennsylvania concluded: "[n]owhere in the Rule is it contemplated that the adversary of the 

party seeking the information may advise, no matter the reasons, the person commanded by the 

subpoena to produce the information to ignore the subpoena's command." Id. at 794. By 

sending the "advice letters," the attorney in Price had "arrogated to himself a power assigned to 

the Court ... The violation [was] clear and ... sanctionable." Id.; see also Fox Indus., 2006 

WL 2882580. 

C. Complaint Counsel Has Violated the Rules of Professional Responsibility 

Rule 3.4 ofthe District of Columbia Rules ofProfessional Responsibility states that a 

lawyer shall not "obstruct another party's access to evidence ... or counsel or assist another 

person to do so ... " See Wash. D.C. R. Profl Conduct, R. 3.4(a). Rule 3.4(f) prohibits an 

attorney from "[r]equest[ing] a person other than a client to refrain from voluntarily giving 

relevant information to another party ... " See Wash. D.C. R. Profl Conduct, R. 3.4(f). Rule 

3.4(f) provides narrow exceptions that are not applicable here. Complaint Counsel has violated 

the rule by counseling a non-party witness not to produce documents by the return date in ECM's 

validly issued subpoena. Federal Courts interpreting identical ethical rules have found the 

violations "serious" and have imposed sanctions. See, e.g., Harlan v. Lewis, 141 F.R.D. 107, 

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115 (E.D. Ark. 1992); In re Minniti, 99-11652DWS, 2000 WL 275852 (Bankr. E.D. Pa. Jan. 4, 

2000). 

D. Appropriate Sanctions Include Censure, Exclusion of Complaint Counsel, 

Extended Discovery, and Exclusion of Evidence 

Complaint Counsel should be sanctioned for its unlawful interference with the ECM 

subpoena. This Court has power to "fashion an appropriate sanction for conduct which abuses 

the judicial process." See In the Matter of DanielS. Somerson v. Mail Contractors of Am., 2003 

WL 22855212, at *5 (D.O.L Nov. 25, 2003) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 

44-45 (1991)); see also US. Dep't of Housing and Urban Dev. v. First Source Fin. USA, Inc., 

2007 WL 3173360, at *4 (D.O.L. Oct 12, 2007) (citing Nat'/ Hockey League v. Metro. Hockey 

Club, Inc., 427 U.S. 639 *1976)). The conduct is particularly egregious because Complaint 

Counsel proceeded without leave of Court and has no legally tenable basis to interfere in light of 

this Court's protective order and January 10 discovery ruling. Unquestionably, because 

Complaint Counsel was served with a copy of the subpoena on February 28,2014 (see Exh. RXB), they had ample time to move this Court for relief but, instead, they unlawfully assumed the 

Court's power and acted unilaterally. The most severe sanctions are appropriate, including case 

dismissal, or removal of existing Complaint Counsel from this case. At a minimum, this Court 

should grant the sanctions ECM enumerates in the motion accompanying this memorandum. 

CONCLUSION 

For the foregoing reasons, ECM respectfully requests that his Honor specifically rule that 

Complaint Counsel in its March 14, 2014 letter to Frederick Michel acted unlawfully, without 

requisite leave of Court, and contrary to the rules of ethics governing practice in this jurisdiction 

and impose the relief requested hereinabove in the ECM motion. 

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Respectfully submitted, 

J than W. Emord Ge ord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, v A 201 24 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

DATED this 19th day ofMarch 2014. 

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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 

March 18, 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. 

Respectfully submitted, 

Jo than W. Emord (je ord@emord.com) 

EM ORO & ASSOCIATES, P.C. 

11808 WolfRun Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

STATEMENT CONCERNING CONFIDENTIALITY 

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

motion and certain exhibits contain information properly designated by third party witnesses as 

"confidential" under the standing Protective Order in this case. Accordingly, ECM will submit a 

public version with the exhibit content redacted. 

DATED: March 19,2014. 

II 

Respectfully submitted, 

Jo than W. Emord (je ord@emord.com) 

EM ORO & ASSOCIATES, P.C. 

11808 Wolf Run 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 

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

FOR SANCTIONS 

This matter having come before the Administrative Law Judge on March 19,2014, upon 

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

to Commission Rule 3.22, 3.34, and 3.38, 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. 

The Court specifically finds that Complaint Counsel in its March 14 letter to Frederick 

Michel acted unlawfully, without requisite leave of Court, violated this Court's subpoena 

and the rules of ethics governing practice in this jurisdiction. It is hereby further 

ORDERED that 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 C of ECM'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, and shall not make any reference to Dr. 

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Michel at hearing; and it is ORDERED that Respondent ECM BioFilm's shall have an 

extended period ofFact discovery of up to 30 days to conclude discovery concerning the 

aforementioned Exhibit C. A copy of this Order shall be provided by the Office of the 

Administrative Law Judge to the Legal Ethics Chair ofthe District of Columbia Bar and 

the Inspector General of the Federal Trade Commission for further investigation. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: 

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CERTIFICATE OF SERVICE 

I hereby certify that on March 19,2014, I caused a true and correct copy of the foregoing 

to be served as follows: 

One hardcopy original and one courtesy copy to the Office of the Secretary via overnight mail: 

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-11 0 

Washington, DC 20580 

One electronic copy to Counsel for Complainant: 

Katherine Johnson (kjohnson3@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Jonathan Cohen (jcohen2@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-81 02B 

Washington, D.C. 20580 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, 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: March 19,2014 

~·~--·---

14 

Jo than W. Emord (je 1 ord@emord.com) 

EMORD & ASSOCIATES, P.C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Telephone: 202-466-6937 

Facsimile: 202-466-6938 

...,.------- -·----~ 
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EXHIBIT RX-A 
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 

DECLARATION OF PETER ARHANGELSKY IN SUPPORT OF RESPONDENT 

ECM'S MOTION FOR SANCTIONS 

In accord with 28 U.S.C. § 1746, I declare under penalty ofpe.tjury that the following is 

true and correct: 

1. I am over the age of eighteen years and I make this affidavit on personal 

knowledge of its contents and in further support of Respondent's Motion for a Protective Order. 

2. I am employed by the law firm Emord & Associates, P.C., which represents ECM 

BioFilms in matters before the Federal Trade Commission. I am an attorney of record in the 

above-captioned case. 

3. Attachment 1 hereto is a true and correct copy of an email sent to Complaint 

Counsel on February 28, 2014. 

4. Attachment 2 hereto is a tme and correct copy of an email sent to Complaint 

Counsel and Dr. Michel on March 14,2014. 

5. Attachment 3 hereto is a true and correct copy of a letter Respondent received 

from Dr. Michel on March 18, 2014. 

Exh. RX-A 1 
PUBLIC DOCUMENT 

Executed this 19th day ofMarch 2014 in Chandler, Arizona. 

2 Exh. RX-A . 
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EXHIBIT RX-A: 1 

-·--- ··-- -
Peter Arhangelsky 

From: 

Sent: 

To: 

Cc: 

Subject: 

Attachments: 

Counsel, 

Lou Caputo 

Friday, February 28, 2014 3:31 PM 

kjohnson3@ftc.gov 

PUBLIC DOCUMENT 

ejillson@ftc.gov; jcohen2@ftc.gov; Jonathan Emard; Peter Arhangelsky 

Third-Party Subpoenas Duces Tecum 

Subpoena (EcoSmart).pdf; Subpoena (Eisevier).pdf; Supp. Subpoena (Narayan).pdf; 

Subpoena (Gomez).pdf; Subpoena (Michel).pdf; Subpoena (Aimenar).pdf 

Per the AU's Scheduling Order, please find the attached subpoenas duces tecum that were sent earlier t oday to the 

respective subjects. 

Best, 

Lou Caputo 1 EMORD & AssociATES, P.C. 1 3210 S. Gilbert Rd., Ste 4 1 Chandler, AZ 85286 Firm: (602) 388-8901 I 

Facsimile: (602) 393-4361 1 www.emord.com 

~: 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 are not the intended recipient, you should treat this communication as strictly 

confidential and 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. 

Exh. RX-A:l 
PUBLIC DOCUMENT 

EXHIBIT RX-A:2 

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PUBLIC DOCUMENT 

Peter Arhangelsky 

From: Jonathan Emord 

Sent: Friday, March 14, 201411 :15AM 

To: Wilshire, Matthew; Michel, Frederick (miche1.36@osu.edu) 

Cc: 

Subject: 

Johnson, Katherine; 'neiger.4@osu.edu'; Peter Arhangelsky; Lou Caputo 

RE: In the Matter of ECM Biofilms, Inc. 

Importance: High 

To Frederick Michel and all recipients of this email: 

We are in receipt of the below referenced email correspondence and its letter attachment. The letter attachment to the 

email seeks to obstruct compliance with a legally issued subpoena to Frederick Michel. It comes fully 13 days after FTC 

was served with a copy of the subpoena and on the eve of Frederick Michel's production deadline . . It proceeds without 

proper legal authority, and we do not recognize it as having any va lidity. Under Rule 3.34 of the Commission's rules, 

parties subject to a subpoena may seek a motion to quash if they object to compliance; otherwise, they are obliged to 

comply. In this instance, FTC Complaint Counsel has no standing to object to a third party subpoena. Reliance on the 

legally invalid letter by Michel will, therefore, be no defense against non-compliance. 

Further, despite 13 days advance notice, FTC Complaint Counsel has failed to file any motion related to this subpoena 

with the Administrative law Judge. As such, the letter not only exceeds the authority of FTC Complaint Counsel under 

the rules, but also endeavors to supersede the power invested in the Administrative law Judge governing these 

proceedings. We therefore demand that Frederick Michel produce the documents subpoenaed for which we have 

agreed production is required by March 18 (as amended by verbal agreement with counsel to OSU} or we will move to 

compel production of those documents. 

We have previously accompanied the subpoena with a copy of the Administrative law Judge's Protective Order 

Governing Discovery Material. We invite you to examine that Protective Order because it contains provisions that 

define means by which you may designate confidentiality, and that Protective Order, not FTC Complaint Counsel's 

correspondence to you, governs. 

Separately, we will seek sanctions against Complaint Counsel from the Administrative law Judge for its rule violations. 

Sincerely, 

Jonathan W. Emord 

Peter A. Arhangelsky 

l ou F. Caputo 

Counsel to ECM BioFilms, Inc. 

From: Wilshire, Matthew [mailto:mwillshire@ftc.gov] 

Sent: Friday, March 14, 2014 1:37 PM 

To: Michel, Frederick (michel.36@osu.edu) 

Cc: Johnson, Katherine; Jonathan Emord; 'neiger.4@osu.edu' 

Subject: In the Matter of ECM Biofilm!;, lnr.. 

Good Afternoon Dr. Michel, 

Please see the attached correspondence regarding the subpoena you received in this matter. 

Sincerely, 

Exh. RX-A:2 
Matthew J. Wilshire 

Federal Trade Commission 

Bureau of Consumer Protection, Division of Financial Practices 

Direct Dial: 202-326-2976 

2 

Exh. RX-A:2 

PUBLIC DOCUMENT 
PUBLIC DOCUMENT 

EXHIBIT RX-A:3 
Jonathan Emord 

Peter A. Arhangelsky 

Lou F. Caputo 

March 17, 2014 

Gentlemen, 

PUBLIC DOCUMENT 

Frederick C. Michel 

1031 Douglas Dr. 

Wooster, OH 

44691 

In response to subpoena duces tecum from ECM Biofilms, Inc., Docket No. 9358, the enclosed 

CD contains documents responsive to Item # 20 on page 6, requesting, "all correspondence 

between you, any member, employee, representative, or officer ofthe United States Federal 

Trade Commission". 

All of the docwnents supplied here are confidential. 

The names of people whose files were searched are: Fred Michel, PhD, 1031 Douglas Dr. 

Wooster, OH. 44691, Consultant 

All docwnents related to Item 20 on page 6 of the subpoena were collected. The search for 

documents related to Item 20 was complete. The remainder of the documents· in response to 

items 1 to 19 and item 21 of the subpoena will be supplied separately by the Ohio State 

University. 

All of the documents are produced with the exception of docwnents that contain information 

submitted by 3rd Parties to the FTC, hereby known as "protected documents". It is my 

understanding that disclosing these protected documents would violate a non-disclosure 

agreement between me and the FTC. I understand that third parties who submitted these 

documents to the FTC have the right to object to their disclosure according to FTC rules. I am 

willing to produce these protected documents immediately to the administrative law judge for his 

review only. Furthermore, the non-protected parts of these documents have been copied in their 

entirety with the exception of the protected content, into a Microsoft Word file included with this 

submission. The file Is named, "Confidentialemailsnoattacbments.docx" 

Unless directed otherwise by FTC staff, I will produce all responsive documents in my 

possession in native format by March 28th, 2014. To my knowledge no-documents requested in 

the subpoena have been misplaced, stolen or destroyed. 

Sincerely, . 

Frederick C. Michel 

Exh. RX-A:3 

-. ~------ -----·-·._- ---·----
PUBLIC DOCUMENT 

Affadavit 

In the matter of ECM Biofilms Inc., Docket 9358 

I, Frederick C. Michel Jr., declare this 17th day of March, 2014, under penalty of perjury, that the 

following is true and correct. 

In response to a subpoena duces tecum from ECM Biofllms, Inc., Docket No. 9358, this CD contains 

documents responsive to Item # 20 on page 6, requesting, "all correspondence between you, any 

member, employee, representative, or officer of the United States Federal Trade Commission. " 

The names of people whose files were searched are: 

Fred Michel, PhD 

1031 Douglas Dr. 

Wooster, OH. 44691 

Consultant 

All documents related to Item 20 on page 6 of the subpoena were collected. All of the documents 

supplied here are confidential. The remainder of the documents in response to items 1 to 19 and item 

21 of the subpoena will be supplied separately by the Ohio State University. 

The search for documents related to Item 20 was complete. All of the documents are produced with the 

exception of documents that contain information submitted by 3rd Parties to the FTC hereby known as 

protected documents. It is my understanding that disclosing these protected documents would violate a 

non-disclosure agreement that I agreed to with the FTC. I understand that third parties who submitted 

these documents to the FTC have the right to object to their disclosure according to FTC rules. I am 

however willing to produce these protected documents immediately to the administrative law judge for 

his review only. Furthermore, the non-protected parts of these documents have been copied in their 

entirety with the exception of the protected content attachments, into a Microsoft Word file included 

with this submission named, "Confidentialemailsnoattachments.docx" 

Unless directed otherwise by FTC staff, I will produce all responsive documents in my possession in 

native format by March 28th, 2014. 

To my knowledge no documents requested in the subpoena have been misplaced, stolen or destroyed. 

Signed 

Frederick C. Michel 

Exh. RX-A:3 
PUBLIC DOCUMENT 

EXHIBIT RX-B 
Bureau of Consumer Protection 

Division of Enforcement 

Matthew Wilshire 

202-326-2976 

mwilshire@ftc.gov 

By Email 

Frederick C. Michel 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

WASHINGTON, D.C. 20580 

March 14, 2014 

The Ohio State University-QARDC 

1680 Madison Ave. 

Wooster, OH 44691 

Re: In the Matter ofECM BioFilms, Inc., Docket No. 9358 

Dear Dr. Michel: 

PUBLIC DOCUMENT 

I am writing regarding the February 28,2014 subpoena issued to you·in the 

above-captioned matter. The subpoena's Document Request 21 demands production of 

"[a]ll correspondence between you and any member, employee, representative, or officer 

of the United States Federal Trade Commission." The subpoena demands production on 

March 17,2014. 

You have advised me tha:t documents responsive to this request include materials 

that were submitted to the FTC by third parties. Any such documents are governed by 

the nondisclosure agreement you executed before receiving those materials. That 

agreement provides that you will not divulge any materials or information you receive 

from the FTC to outside parties, unless directed to do so by FTC Staff in connection with 

an adjudicative proceeding. 

Because the third party materials in question may be entitled to confidential 

treatment under the FTC Rules of Practice, we request that you delay production of those 

materials until March 28, 2014. This is necessary to give the submitters "an opportunity 

to seek an appropriate protective or in camera order" regarding any confidential 

materials. See 16 C.P.R.§ 4.10(g). 

We have no objection to you producing any other requested docwnents on March 

17, including communications between you and FTC staff. However, we request that 

you stamp any FTC communications you produce as confidential. Unless we direct you 

otherwise, we have no objection to you producing the remaining responsive documents 

on March 28. 

Exb. RX-B 
PUBLIC DOCUMENT 

Thank you for your cooperation in this matter. Please contact me if you would 

like to discuss these issues further. 

Cc: Jonathan W. Emord, Esq. 

Exh. RX-B 

Katherine Johnson, Esq. 

Jan Alan Neiger, Esq. 

Sincerely, 

f'~~ Matthew J. Wilshire 
PUBLIC DOCUMENT 

EXHIBIT RX-C 
PUBLIC DOCUMENT 

Polymer Degr.ldJtioo and St,lbiliry 9S t201J) 2583-2591 

Contents lists available at ScienceDirect 

Polymer Degradation and Stability 

ELSEVIER journal homepage: www.elsevier.com/l ocate/polydegstab 

Biodegradability of conventional and bio-based plastics and natural 

fiber composites during composting, anaerobic digestion and 

long-term soil incubation 

Eddie F. G6mez. Frederick C. Michel Jr .. ; 

Depamnenr of Food. Agricultural and Biological Engineering, The Ohio Stare Universily, OARDC. 1680 Madison Avenue. Wooster. OH 44691, USA 

ART I CLE I NFO 

Article history: 

Received 21 August 2013 

Accepted 21 September 2013 

Available online 1 October 2013 

Keywords: 

Biodegradable plastics 

Anaerobic digestion 

Composting 

Soil 

Biodegradation 

Biopl.lstics 

1. Introduction 

ABSTRACT 

Plastics are a major constituent of 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-based plastics and natural fiber 

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

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

materials during incubation un4er conditions that simulate these three environments and by examination of 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 polyhydroxyalkanoate-based 

plastic biodegraded at a rate similar to the positive control (cellulose). No significant degradation was 

observed for polyethylene or polypropylene plastics or the same plastics amended with commercial 

additives meant to confer biodegradability. During anaerobic digestion for 50 days, 20- 25% of the biobased materials but less than 2% of the additive containing plastics were converted to biogas 

(CH4 + C02). After 115 days of composting, 0.6% of an additive amended polypropylene. 50% of a plastarch material and 12% of a soy wax permeated paper pulp was converted to carbon dioxide. SEM 

analysis showed substantial disintegration of polyhydroxyalkanoate-based pla5tic. some surface changes 

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

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

biodegraded to significant extents during the time scale of com posting and anaerobic digestion proc.esses 

used for solid waste management 

© 2013 Elsevier Ud. All rights reserved. 

are moving toward more sustainable waste management practices 

such as recycling, com posting and anaerobic digestion. 

Plastics are synthe tic and semi-synthetic polymeric compounds, 

derived primarily from fossil carbon sources such as c rude oil and 

natural gas. Their mechanical properties and characteristics such as 

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

~e for diverse applications. However most commonly used plastics 

are very resistant to biological degradation ( lj. This has led to major 

challenges for waste management operations espedally those that 

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

generated annually in the U.S. only 8% is recycled 121. Therefore. a 

large percentage of plastic waste is currently landfilled, or released 

into the environment. Throughout the world, roadsides, parks, 

beaches, oceans and natural a reas are inundated with plastic debris 

pollution (3j. 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 impractical to recycle bot h organic fractions and/or the 

plastics mixed with them without expensive cleaning, separation 

and sanitizing procedures (4j. 

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

E-mail address: michel.36@osu.ed u (f.C Michel~ 

0141·3910/S - see front matter @ 2013 Elsevier Ud. All rights reserved. htrp:!fdx.doi.orgjl0.10]6jj.polymdegrJdmb.20.13.09.0I8· 
PUBLIC DOCUMENT 

2584 E.F. Gomez, F.C. Michel ]r. I 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 of biodegradation 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 block 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 in the atmosphere by sequestering carbon. This is because atmospheric C02 is 

fixed into the carbohydrates used as their feedstock. If the plastic is 

eventually landfilled, this carbon will become locked for millennia 

within the landfill and on balance reduce atmospheric C02. 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 

Petroleum/natural No 

gas 

II Petroleum/natural Yes 

gas 

Ill Biomass (Com, sugar No 

cane, etc) 

IV Biomass (Com, sugar Yes 

cane, etc) 

• Polylactic acid. 

b Polyhydroxyalkanoates-based resin. 

---··------··--------· ·----

Polyethylene, [!) 

polypropylene. 

PIA" from petroleum. [ 9] 

Polyethylene derived [8) 

from corn ethanol. 

PHA". Pl.A 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 C02. 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 ]12]. 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. Composting of these materials 

also reduces their environmental impact in that they will largely be 

converted to C02 and not to CH4 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 depolymerize these materials. Once the 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 [lG]. 

Biodegradable plastics are used widely in agriculture, as mulching 

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

nursery containrr:; [ 1 rJ ]. Thr phy:;ir.al propertie:; and perform a nrC' 

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 
PUBLIC DOCUMENT 

E.F. Gomez, F.C Michel ]r. /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 [22j. 

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 [23-25j. 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). 

2.2. Biodegradation in soil incubation 

The extent of long-term biodegradation of polymeric materials 

in contact with soil was determined based onASTM D5988-03 [24j. 

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

Table2 

polyethylene terephthalate (PETE) + 1% additive, plastarch, a copolyester + corn-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, 

com posted 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 °C). 

Carbon dioxide produced in each vessel reacted with the KOH in 

the cup to form potassium bicarbonate. The amount of C02 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 headspace. 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 em squares to 

ground samples. Samples were ground in liquid nitrogen using a 

IKA® A11 basic Analytical mill (IKA® Works Inc., NC, U.S.) for 10 s. 

Test specimens included PP + 2% additive, co-polyester + cornbased 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 additives and natural fiber composites. 

Material 

PP + 2% additive 

PS + 2% additive 

PETE+ 1% additive 

Plastarch' 

Co-polyester + corn-based plastic 

Whcdl >ldlth-tlcaivctl pld>lit 

PHI\ 

Paper pulp + soy wax 

Paper pulp 

Paper pulp + asphalt 

Coconut coir 

Rice hull 

Compostcd cow manure 

Peat fiber 

Material description 

Blend of polypropylene (PP) with 2% ECM MasterBatch PelletsTM additive (ECM BioFilms Inc., OH, U.S.) 

Blend of polystyrene (PS) with 2% ECM Master Batch PelletsTM additive (ECM BioFilms Inc .. OH, U.S.) 

Blend of polyethylene terephthalate (PETE) with 1% EcoPure® additive (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 (EcobrasTM, BASF). 

Mdtlc fwau d wh~dl sldl'dl·tl~rlvetl resin (OP-47 Dlo®, Summlr Plasrlc Company, OH. U.S.). 

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

Paper pulp pot permeated with soy wax. 

Recycled (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. 

Formation 

process' 

1 

2 

3 

1 

3 

1 

4 

4 

4 

7 

6 

6 
PUBLIC DOCUMENT 

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

Table3 

Chemical and physical properties of the test specimens. 

Material Chemical and physical properties·' 

Positive 

Negative 

PP + 2% additive 

PS + 2% additive 

PETE+ 1% additive 

Plastarch 

Co-polyester + corn-based plastic 

Wheat starch-derived plastic 

PHA 

Paper pulp + soy wax 

Paper pulp 

Paper pulp + asphalt 

Coconut coir 

Rice hull 

Composted cow manure 

Peat fiber · 

Total solids {%) 

90.3 ± 5 

99.8 ± 0.1 

99.8 ± 0.1 

99.9 ± 0.1 

99.4 ± 0.5 

90.9 ± 2.1 

95.2 ± 0.1 

97.8 ± 0.4 

99.4 ± 0.4 

94.3 ± 1 

92.0 ± 0.1 

93.4 ± 0.5 

96.8 ± 0.3 

94.0 ± 0.4 

92.5 ± 0.1 

92.1 ± 0.3 

• Values are means± SD of three replicates. 

2.3. Biodegradation during composting 

Volatile solids (%dw) 

57.4 ± 1.1 

96.3 ± 2 

97.7 ± 0.1 

97.0 ± 1.5 

99.9 ± 0.1 

57.5 ± 3 

99.8 ± 0.1 

98.5 ± 0.5 

90.4 ± 0.5 

91.0 ± 0.4 

92.0±0.1 

90.6 ± 0.3 

98.5 ± 0.5 

89.6 ± 0.4 

89.4 ± 1.0 

97.8 ± 0.5 

Three materials were tested under simulated composting conditions. These included PETE + 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 

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

and rate of carbon conversion to C02 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 oc 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 24.3 ± 2.0 88.9 ± 1.0 

Soil mixture'" 87.4 ± 0.1 2.96 ± 0.1 

Anaerobic seed" sludge 8.92 ± 0.5 59.5 ± 2.0 

Medina County" OFMSW 47.2 ± 7.2 60.3 ± 1.2 

• Values are means± SD of three replicates. 

" Ddily llldllule dJU.I hdnlwuuu sdwuuslmdlure wmposl. 

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

d Methanogenically active municipal sewage sludge. 

e OFMSW = the organic fraction of municipal solid waste. 

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

41.8 ± 0.1 0.03 ± 0.01 0.35 ± 0.01 

82.9 ± 0.1 0.06 ± 0.003 0.37 ± 0.01 

82.9 ± 0.3 0.04 ± 0.01 0.37 ± 0.03 

88.8 ± 1 0.05 ± 0.01 0.23 ± 0.01 

64.6 ± 0.1 0.01 ± 0.002 0.36 ± 0.01 

60.9 ± 0.2 0.07 ± 0.01 0.48 ± 0.03 

51.9 ± 0.3 0.10 ± 0.01 0.72 ± 0.02 

49.4 ± 0.1 0.74 ± 0.004 0.50 ± 0.01 

50.7 ± 0.3 0.45 ± 0.01 0.62 ± 0.01 

46.9 ± 0.3 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 ± 0.07 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 COz using an infrared gas 

analyzer (Vaisala model GMT 220, range 0-20%). COz 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. Biodegradation during anaerobic digestion 

The biodegradation of four materials was compared during high 

solids batch anaerobic digestion. These included PP + 2% additive, 

PETE + 1% additive, plastarch and a co-polyester + com-based 

plastic (Tables 2 and 3). The experiments were conducted in triplicate for a period of 50 days. 

The anaerobic degradation of the polymeric materials was 

compared under high-solids AD conditions based on a protocol 

described in ASTM 05511-02 [23) international standard. The test 

measured the conversion of samples to C02 and CH4 during incubation under controlled anaerobic 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 digestors and in biologically active landfills, but not in 

typical landfills where water is excluded and removed. 

Total carbon (% dw) Total nitrogen (% dw) vH 

48.7 ± 5.5 2.37 ± 0.2 7.95 ± 0.04 

1.19 ± 0.2 0.13 ± 0.02 7.43 ± 0.4 

36.8 ± 1.0 7.21 ± 0.2 8.30 ± 0.01 

89.6 ± 1.3 0.92 ± 0.2 7.50 ± 0.4 
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E.F. Gomez. F.C. Michel jr. J Polymer Degradation and Stability 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 •C) 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 [28]. 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 

microbial 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 contem of the 

test specimen. 

The volumetric production and C02 and ~ content of the 

biogas produced in the AD experiments were analyzed by volume 

displacemenc and gas chromatography as described by Gomez et at. 

[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 

determined by drying samples to a constant weight at 80 •c. The 

volatile solids content was determined using an ashing oven set at 

500 •c 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~ detection) and nitrogen content (TMECC 

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 thit kness of 0.2 kN using a 

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

electron beam was applied . . 

2.6. Statistical analysis 

Three independent replicates were used for each treatment 

Analysis of variance (ANOVA) was calculated for the average final 

cumulative percent of carbon loss for each of the studies. Comparisons for all pairs of final cumulative biodegradation means 

were performed using Tukey-Kramer HSD analysis. All conclusions 

were based on a significant difference level of a = 0.05. The statistical analyses were performed using JMP statistical program 

version 9 {SAS Institute Inc., SAS Campus Drive, NC. U.S.). 

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 

relatively large fraction of the ubiquitous 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 plan table pots, 

nursery containers [30].This has resulted in the recent develop · 

ment 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 

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

to be com posted 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 t method for particle size effect. Student's 

r method revealed that out of the seven materials 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 + corn-based plastic in 1 x 1 em square film form 

( 55.1 ± 2.1 %) after 660 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 particle 

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 moisturecontenton a 

wet-weight basis across all treatments was 14.3 ± 3.3% (wetweight basis) which is 84.9 ± 2.4% of the 60% moisture holding 

capacity of the soil mixture. The positive control (cellulose paper) 

exhibited 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 + corn-based plastic with almost 34.6 ± 2.4% 

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 142 ± 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 + cornbased plastic were 74.2 ± 4.5, 69.2 ± 6.4 and 55.1 ± 6.1 %. respectively. For the wheat starch-derived plastic and plastarch the final 

conversion reached 19.7 ± 1.1 and 31.3 ± 1.7%, respectively. 

SEM images of PHA and co-polyester + corn-based plastic 

before and after mineralization showed substantial changes in the 

100% -Positive (ceUuJosc paptr} -PIIA 

90% -+-C4.pol}"'tsler + C"CWllobMed pol}'tDcr 

j -.-Wheat Sftlld1--deri\·od resin 

~ 

sw. -PtJE .fol%&dditive 

! 70% 

~ 60'/o 

l so~~ 

-.-Plasratth 

- - - PP + 2% addilivc 

---· PS + ~'. IW:ldifi!e 

'C 40% 'I 

1 ~ 

~ 20% 

u 

~ 10% 

0% 

100 200 JOO 400 100 

Time (4oys) 

Fig. 1. Cumulative orbon loss (CO.- C) as percentage of initial carbon (±cumulative 

standard error) for bio-based plaslics and for conventional plastics amended will! 

additives during 660 days of soil incubation. For some data points Slandard error bars 

are smaller than markers. 
PUBLIC DOCUMENT 

2588 E.F. G6mez. F.C. Mid1el )r.f Polymer Degrodorion and Scabillty 98 (2013) 2583- 2591 

Fig. 2. Sc~n ing eleclron microgr~phs of piJstics during 2 years of soil incubat.ion. From top to bottom: PHA (a : ~l . 1>: fin~ I}, co-polyester + corn-based plastic (c: niti~ . d: final}, 

polypropylene+ 2% additive (e: initial, f: final} •nd coconut coir (g: initial, h: final). 

surface of the PHA material (rig. ?.A and B) and some degradation of 

the co-polyester + corn-based plastic ('·'"· ·,c and 0). 

For conventional plastics and the same plastics amended with 

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 between 0.9 and 1%. These values were less than that 

measured for the negative control (PP) which reached a final cumulative conversion of 1.3 ± 0.7%. Although they were not significantly different. SEM images did not reveal qualitative changes in 

the appearance ofPP or PP + 2% ac'lclitivP ;1fter the 2 year incubation 

period (fig. 2E and F). 

The mineralization in soil of I hi" ;~ ur;ll fihPr rnmpo<irP m;lrPrials was most rapid during the first 65 days of the experiment 

1000. 

so~. 

.s 

i -:co. 

~ IO"'o 

~ 

~ <(11. 

't 

! 30'0 

~ :!0 ... 

ii 

u lll1l 

oo• 

__.:... Pow ;;(~ ~~pe-;:;j ----:::;:::..pi\JX'r pulp 

-+- P3p:rpulp "' U>Vh..'\JI --'-COlU).lOSU-d.COWJDI.IJW'C 

- C'ocmu1 ccxr ~ R1cc hull -·4·· r\..M r.tlCr • "Ot"d l'lrJp 

100 200 ;oo Tlmf' (dA)'t) soo 600 

Fig. 3. Cumul~ 1ve vorbon loss (LUz-l} •s percentage of initial carbon (±cumulative 

•nd•rd error) for natur l fi be• 'ompositcs during GG() days of soil incubation. Fu1 

sum~ tl•u )10in1s >1antlard error bars are smaller than markers. 
PUBLIC DOCUMENT 

EF. C6mez, F.C. Michel }r.f Polymer Degradarion and Stability 98 (2013) 2583- 2591 2589 

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

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

mineralization percent of the composted cow manure. paper pulp 

and pape r pup+ asphalt were 35.5 ± 2.3. 313 ± 3.6. 29.4 ± 2.1%. 

respectively. lower final conversion values were observed for rice 

hull. peat fiber and coconut coir with values of21.1 ± 2.6.183 ± 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 

C(h 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 polyesters of various 

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

the biodegradability of aliphatic 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- Kramer 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 conventional 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 com posted 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 humified (26,40). However, much less extents of 

degradation were observed for uncomposted 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 structural 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. Biodegradation during composting 

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% 

adctitive (Til hit'S ;;> and 3). 

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

mean compost moisture content across all treatments was 

642 ± 33% (wet-weight basis). 

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 final 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 

(F4.

7 = 496.6, P < 0.0001) existed between group means. TukeyKramer HSD analysis revealed that all test specimens differed from 

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

significantly from the negative control. 

Nol)e 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 sta.rch 

containing portion of the material has been reported {47.48). 

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. 

3.3. Biodegradation during anaerobic digestion 

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 mineral.ize organic substrates to 

both C02 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 C(h. Since in the U.S. only 30% of the landfills capture 

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. 

·~ r-----------------------------------------, 90% 

~ &<!% 1 70% 

6e>-..O 

= $0% 

~ . 'f. ·10% 

~ 30% 

.g 20% 

d 10% 

~ PO$ilive (cellulase paper) 

--Paper pllp + scy ,,.,, 

- ...... p£TE-+ l%add)rive 

20 30 100 120 

Fiz, 4. Cumulative carbon loss (l <h-C) as percentage of initial carbon (:!:Cumulative 

stondard error) for bio-based plastics, conventional plastics amended with additives 

and natural tiber composites during 115 days of thermophilic composring. For some 

data points standard error bars are smaller than markers. 
PUBLIC DOCUMENT 

2590 E.F. Gomez. F.C Michel Jr. I Polymer Degradation and Stabilicy 98 (2013) 2583- 259! 

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 + corn-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 ± 6.1 %. 

During the AD incubation, the positive control (cellulose paper) 

exhibited 74.1 ± 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 ± 3.5 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 •q and 

thermophilic (55 •C) AD conditions. CeUulose powder reached a 

cumulative conversion of 80% under both temperature conditions. 

Other authors have also studied the anaerobic minerabzation of 

aliphatic polyesters. Abou-Zeid et al. (54] conducted a study to 

determine the biodegradability of the natural polyesters poly(bhydroxybutyrate) (PHB). poly(b-hydroxybutyrate-co-116%-bhydroxyvalerate) (PHBV) and the synthetic polyeste r 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 PHB was converted in 9 days, but only 60 and 30% weight loss 

too-..• 

90'4 --Positi<e (ccllulo« paper) 

j ---.Co-polyester + corn.w.s.cd po)ymtr 

SO% -;.;-.. PWiateh 

~ 70 ~ -e-- PP + 1'* adcitive 

a ~PETE + l~ taddiJh't 

:i 60% 

i so~• 

~ 40% '$ 

1 30% 

l 20% 

~ c; 10% 

0% 

0 10 20 JO 40 so T._< (days) 

Fig. 5. Cumulative carbon lo•s (COr-C) s JI~"'""Ldge of initial carbon (±cumulative 

standard error) for blo-based plastics, conventional plastics amended with additives 

and natural fiber composites during 50 <Uys of an.erobk digestion. for some dat.1 

points standard error bars are smaller than markers. 

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 composting and soil incubation conditions, respectively. The plastarch material degraded faster under 

composting conditions reaching 50% 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 + corn-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 + cornbased plastic reached 55% conversion after 660 days of soil incubation. Conventional plastics and those containing additives did 

not degrade at all under any of the three conditions . 

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 associated 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 smaJJ 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 

commercial applications was investigated under composting, soil 

incubation and anaerobic digestion 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, plastics containing additives 

that supposedly confer biodegradability to polymers such as polyethylene and polypropylene did not improve the biodegradability 

of these recalcitrant polymers. SEM analysis confirmed that substantial biodegradation of polyhydroxyalkanoate-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 + com-based plastic > 

composted cow manure > plastarch > paper pulps > natural 

fibers > conventional plastics containing additives to enhance 

biodegradability = conventional plastics. For anaerobic digestion 

and composting the relative biodegradability was plastarch > copolyester + corn-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 (com posting 

and anaerobic digestion) most of the bioplastics biodegraded to 
PUBLIC DOCUMENT 

E.F. Gomez. F.C. Michel Jr. I Polymer Degradation and Stability 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 (Class 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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avium subsp paratuberculosis and other zoonotic pathogens during simulated 

composting. manure packing. and liquid storage of dairy manure. Appl Environ Microbial 200G;72:555-74. 

G6mez E, Martin J. Michel FC. Effects of organic lo.1ding rate on reactor 

performance and arcllaeal community structure in mesophilic anaerobic 

digesters treating municipal sewage sludge. Waste Manage Res 2011 ;29: 

1117--23. 

Barnes DKA Galgani F. Thompson RC. B,1r!az M. i\ccumulation and fragmentation of plastic debris in global environments. Philos Trans R Soc B Bioi Sci 

2009:364:1985-93. 

Kyrikou I, Briassoulb D. Biodegradation of agricultural plastic films: a crit:ical 

review. J Polym Environ 2007:15:125-50. 

Bastioli C. Global status of t:he production of biob,1sed packaging m.1terials. 

Starch-Starke 2001 ;53:351-5. 

Riggi£, S<1ntagata G, Malinconico M. Bio-based and biodegradable plastics for 

use in crop production. Recent Patents Food Nutr i\gric 2011 ;3:49-63. 

Chiellini E. Corti A. D'Antone s. Billingham N. Microbial biomass yield and 

turnover in soil biodegradation tests: carbon substrate effects. 1 Polym Environ 2007;15:169-78. 

Kaplan D. Biopolymers from renewable resources. Berlin; New York: Springer; 

1998. 

Mliller RJ. J<leeberg I. Deckwer WD. Biodegradation of polyesters containing 

aromatic consrituents. 1 Biotedmol 2001 ;86:87-95. 

Miiller RJ. 'Wilt U, Rantze E. Deckwer \ND. Architec1:ure of biodegradable 

copolyesters containing aromatic constituents. Polym Degrad Stabil 1998;59: 

203--8. 

[37] Tokiwa Y. Calabia B. Biodegradability and bioclegraclation of polyest:ers. 

J Polym Environ 2007; 15:259-57. 

[38] Tokiwa Y, Ugwu CU. Calabia BP. Aiba S. Biodegradability of plastics. lnt 1 Mol 

Sci 2009:10:3722-42. 

[39] Tokiwa Y. Ando T. Suzuki T. Takeda K. Biodegradation of synthetic polymers 

containing ester bondsln Agricultural and synthetic polymers. American 

Chemic,11 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] Saheb DN, Jog JP. Natural fiber polymer composites: a review. Adv Polyrn 

Techno! 1999;18:351-63. 

[42] Mohantv AK, Misra M, Hinrichsen G. Biofibres, biodegradable pol;~ners ,md 

biocornposites: an overview. Macromol Mater Eng 2000;276-277:1-24. 

[43] Khedari .f. Nankongnab N. Hirunlabh 1. Teekasap S. New low-cost insul.1tion 

particleboards from mixture of durian peel and coconut coir. Enild Environ 

2004;39:59-65. 

[44] Pillaiyar P. Rice postproduction manual. New Delhi: Wiley Eastern; 1988. 

[45] Albertsson AC. l<<1rlsson S. Degradable polymers for the h.tture. /\eta Polyrn 

1995;46:1 "14-23. 

[46] Griffin Ger,1ld JL Biodegradable fillers in rhermopJ,1sticsln Fillers and reinforcements for plastics. American Chemical Society; "1974. p. 159-70. 

[47] Gould 1M. Gordon SH, Dexter LB. Swanson CL Biodegradation of starchcontaining plastics; 1990. p. 55-75. 

[48] Shah AA. Hasan F. H.1meed A. Ahmed S. Biological degradation of plastics: a 

comprehensive review. Biotechnol t"\dv 2008;26:~46-65. 

[49] Anderson KL. Degradation of cellulose and starch by anaerobic bac1:eria. In: 

Doyle Rj, editor. Gl_ycomicrobiology. US: Springer; 2002. p. 359-86. 

[SO] 1\iv,ml C1. Adney WS, Himmel ME, Mitchell D.f. Vinzant TB. Grohmann K. 

et al. Effects of natural polymer acetylation on the anaerobic bioconvcrsion 

to meth,me and carbon dioxide. Appl Biochem Biorechnol 1992;34····35:725--

36. 

[51] Abou-Zeid DM, Muller RJ. Deckvvcr WD. Biodegradation of aliphatic homopolyesters .:md aliphatic - dramatic copolyesters by anaerobic microorganisms. 

BiomacromolecuJes 2004;:1:1687--97. 

[52] Federle T\>\1, Barlaz !ViA. Pettigrew CA. Kerr KM, Kemper .U. Nuck BA. et al. 

Anaerobic biodegradation of aliphatic polyesrers: poly(3-hydroxybutyrate-co3-hyclroxyocranoa[e} and poly( t•psilon-caprolactone). Bion\acromolecules 

2002;3:813-2:'. 

[53] Yagi H. Ninomiya F, Funabashi M. Kuniok<l M. Anaerobic biodegradation tests 

of polytiactic <Kit1) under mesophilic <1nd thermophilic conditions using a new 

evalttation syste1n for merhane ferrnenta.tion in anaerobic sludge. lntJ Mol Sci 

2009;10. 

(54) Abou-Zeld D-M, Mlil!er R-f. Deckvver VV-D. Degrdddtion or HdlUidl dud ~:vnthetic polyesters under an~erobic conditions. J Rio techno! 2001 ;85:"1 13--··26. 

[55] Shin P, Kim M, Kim 1. Biodegr,ldabilit_y of clegradabie plastics exposed w 

anaerobic digested sludge and simulated Jandflll conditions . .I Polym Environ 

1997:5:33-9. 

[56] Levis IW. Barlaz MA. Is biodegradability a desirable attTibme for discarded 

solid \vaste? perspectives from a national landfill greenhouse gas inventory 

model. Environ Sci Techno! 2011 ;45:5470-6. 
PUBLIC DOCUMENT 
PUBLIC DOCUMENT 

REDACTED 

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

EXHIBIT RX-E 
VIA UPS 

Frederick C Michel Jr. 

Ohio State University 

207 Hayden Hall 

1680 Madison A venue 

Wooster, Ohio 44691 

February 28, 2014 

PUBLIC DOCUMENT 

A Professional Corporation 

W ASIDNGTON I VIRGINIA I PHOENIX 

11808 WOLF RUN LANE 

CLIFTON, VA 20124 

3210 S. GILBERT ROAD 

SUJTE 4 

CHANDLER, AZ 85286 

(602) 388-8899 1 FAX (602) 393-4361 

1050 SEVENTEENTH STREET, N. W. 

SUITE 600 

W ASHINGTON, D.C. 20036 

(202) 466-69371 FAX (202) 466-6938 

Lou F. Caputo, Esq. 

602.388.8901 

1caputo@emord.com 

Re: In the Matter of ECM BioFilms, Inc., Docket No. 9358 

Dear Mr. Michel: 

Pursuant to the Federal Trade Commission's Rules of Practice, please find enclosed 

Respondent ECM BioFilms, Inc.'s subpoena duces tecum. This subpoena requests the 

production of documents and other materials. Included with the subpoena is Schedule A, which 

describes the instructions and specific requests of Respondent and a copy ofthe Protective Order 

issued in this matter. 

Please provide all requested documents no later than March 17,2014. We welcome you 

to contact us with questions. 

Sincerely, 

&:w~ Peter A. Arhangelsky 

Lou F. Caputo 
PUBLIC DOCUMENT 

DUCES 

ProVided by the Secretary Of the FederaJ Trade CommiSsion, and 

Issued Pursuant to Commission Rule 16 C.F.R. ·3.34(b)(2010) 

1. TO 

Frederick C Michel Jr. 

Ohio State University 

207 Hayden Hall 

·1680 Madison Avenue 

Wooster, ·Ohio 44691 

2. FROM 

UNITED STATES. or= AMERICA 

FEDERAL TRADE COMMISSION 

Thls subpoen,a, you to produee and ins'pectlon an4 d~ (as defi~jn 

Rille 3.34(b)); cx: ~le ~ at the date and tirne$p8Cified in Item and at the ~:eqUeSt of cOunsei fisted. in ~m 9, in · 

the proceeding ~bed in Item .6. 

PlACEOF'~ . 

Emard & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

. Chandler, AZ 85286 

6. ~TOFPROCEED~ · 

4. MATERIAL WIU.BE ~to· .. 

Peter Arhangelsky 

. 5. DATE AND TIME OF ~UCTION 

March 1.7, 2014, 5:00 PM EST 

In Jhe matter of ECM BioFilms, Inc., Docket No. 9358 

7; 'MATi:Rw.. TO 81: PRODUCED ... . . . . . . 

See Attachect Schedule A for description of all documents and materials. 

8. ' ADMIN!STRAnvE LAW JUDGE 

Chie.f Administrative Law Judge 

-D. Michael Chappell 

Federal Trade Comrriission wa$hington, o.c. ~ · OA~SIGNeo .. 

2/28114• 

9. COUNS8. AND PARTY ISSUING SllBPOENA 

Jonathan W. Emard, Peter Arhangelsky, Lou 

Caputo 

Emord & Associates, P.C. for Respondent 

. ECM BioFilms, Inc . . 

~INSTRUCTIONS 

~E 

~delivery ofthia s~ to. yOu by &l')y.metllod 

. ~by. ~eommlsa!on & R~les ot Practice. • · legal service and may subject you to a pen8lty . 

Imposed by law fw failure to cOmply. . · · 

MOTION TO L,IMIT .()R QUASH 

:The Col1lmisslon's ~ of.Pradice requile that any 

. rnotioO to .limit Or quash ttQ $ibpoena must C!)I'I'IPfy with 

· Co~ RUle ~.34(c). 16 F.R: § 3.34(c:). arid in · . . · · pal1i~must be filed . Wilhin the eartier .. of 1(J •YJ after · 

. 8fmllc8 cr the time foicOm,:itiane8. ~Oijglnal and ten 

copJes: of the p8fitJO,n n1ust be fliect befOre the ~taw~ and·with the Sea8taryofthe 

Cornrn!ssfoli, acc:Ompaplecfby an affidavit pf ~ of 

· Ute doc;ument VP.O.R cqunset,lislec:Hrfttiem 9. and upon, au ·. ather P£lrtiea-~ by the Rules.of·P.radice. • . ' .. . . . . . ' ·. . 

~VEL~.·. 

The Commission's Rules of Practice~ that fee& and 

mileage be. pa~ by. the p8rty tti8t ..eque.ct your appearance. . You &M.uld present your claim to~ listed in.ltem 9 fQr 

payment. If you are pen:n!llltlflUY or tornporarily, Uving 

somewhere other than the acfdtess on this subPoena and it 

would require exoessive 1rave1 rot yoll to' appe.,.. you muSt get 

prior aPProval from coUnsel·li$ted ill Item 9. 

A oopy or~ con~ rtqles of Pradkle Is ~re 

online at http;JibH 1¥JEICRu!naq1Pmmoo: Peper cq:iiee are· 

available upon request 

This Upoena d(!es not·reqUi,e apprOval bY OMB under 

the Paperwodt Reduction Ad of 1980. . . 
PUBLIC DOCUMENT 

SCHEDULE "A" TO SUBPOENA DUCES TECUM DIRECTED TO 

FREDERICK C MICHEL JR. 

INSTRUCTIONS 

A. Unless otherwise specified, the time period covered by a numbered request shall be limited to 

the time period extending from January 1, 2007 until the present date, unless differently 

stated therein. 

B. Documents must be delivered to Counsel for Respondent at the following address: 

Emord & Associates, P.C., 

3210 South Gilbert Road, Suite 4 

Chandler, AZ 85286 

C. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the numbered request. The document shall not be edited, cut 

or expunged and shall include all covering letters and memoranda, transmittal slips, 

appendices, tables or other attachments. 

D. All information submitted shall be clearly and precisely identified as to the numbered 

request(s) to which it is responsive. Pages in the submission should be numbered 

consecutively, and each page should be marked with a unique "Bates" document tracking 

number. 

E. Documents covered by these numbered requests are those which are in your possession or 

under your actual or constructive custody or control, whether or not such documents were 

received from or disseminated to any other person or entity, including attorneys, accountants, 

directors, officers and employees. 

F. Documents that may be responsive to more than one numbered request need not be submitted 

more than once. However, your response should indicate, for each document submitted, each 

numbered request to which the document is responsive. Identification shall be by the Bates 

number if the documents(s) were so numbered when submitted or by author and subject 

matter if not so numbered. 

G. If any of the documentary materials requested in these numbered requests are available in 

machine-readable form (such as floppy or hard disks, drums, core storage, magnetic tapes or 

punch cards), state the form in which it is available and describe the type of computer or 

other machinery required to read the documents involved. If the information requested is 

stored in a computer or a file or record generated by a computer, indicate whether you have 

an existing program that will print the information in readable form and state the name, title, 

business address and telephone number of each person who is familiar with the program. 

H. All objections to these numbered requests, or to any individual request, must be raised in the 

initial response or otherwise waived. 
PUBLIC DOCUMENT 

I. The Federal Trade Commission's Rules of Practice describes withholding requested material 

responsive to a subpoena under Rule 3.38A For your convenience, Rule 3.38A states: 

(a) Any person withholding material responsive to a subpoena 

issued pursuant to §3.34 or §3.36, written interrogatories requested 

pursuant to §3.35, a request for production or access pursuant to 

§3.37, or any other request for the production of materials under 

this part, shall assert a claim of privilege or any similar claim not 

later than the date set for production of the material. Such person 

shall, if so directed in the subpoena or other request for production, 

submit, together with such claim, a schedule which describes the 

nature of the documents, communications, or tangible things not 

produced or disclosed - and does so in a manner that, without 

revealing information itself privileged or protected, will enable 

other parties to assess the claim. The schedule need not describe 

any material outside the scope of the duty to search set forth in 

§3.3l(c)(2) except to the extent that the Administrative Law Judge 

has authorized additional discovery as provided in that paragraph. 

(b) A person withholding material for reasons described in 

§3.38A(a) shall comply with the requirements of that subsection in 

lieu of filing a motion to limit or quash compulsory process. 

J. The Federal Trade Commission's Rules of Practice describes motions to quash and/or limit 

subpoenas under Rule 3.34(c). For your convenience, Rule 3.34 states in relevant part: 

(c) Motions to quash; limitation on subpoenas. Any motion by the 

subject of a subpoena to limit or quash the subpoena shall be filed 

within the earlier of I 0 days after service thereof or the time for 

compliance therewith. Such motions shall set forth all assertions of 

privilege or other factual and legal objections to the subpoena, 

including all appropriate arguments, affidavits and other 

supporting documentation, and shall include the statement required 

by §3.22(g). Nothing in paragraphs (a) and (b) of this section 

authorizes the issuance of subpoenas except in accordance with 

§§3.31(c)(2) and 3.36. 

K. Some documents that you are requested to provide may be confidential. In the Protective 

Order dated October 22, 2013, Chief Administrative Law Judge D. Michael Chappell ordered 

that a party conducting discovery from third parties shall provide such third parties a copy of 

the Protective Order so as to inform third parties of his, her, or its rights. See ALJ Protective 

Order at 2, ,4. Accordingly, a copy of the Protective Order is attached with this subpoena. 

L. If nny requested material is withheld based on a claim of privilege, submit together with such 

claim a schedule of the items withheld. For each item withheld, the schedule should state: (a) 

the item's type, title, specific subject matter and date; (b) the names, addresses, positions and 

organizations of all authors or recipients of the item; and (c) the specific grounds for 
PUBLIC DOCUMENT 

claiming that the item is privileged. If only part of a responsive document is privileged, all 

non-privileged portions of the document must be submitted. 

DESCRIPTION OF DOCUMENTS REQUESTED 

Please produce the original or copies of the following documents (the term "documents" 

shall include all records, books of account, worksheets, checks, instructions, specifications, 

manuals, reports, books, periodicals, pamphlets, publications, raw and refined data, memoranda, 

graphs, drawings, notes, lab books, advertisements, list studies, meeting minutes, working 

papers, transcripts, magnetic tapes or discs, punch cards, computer printouts, letters, 

correspondence 1

, agreements, drafts of agreements, telegrams, email, drafts, proposals, employee 

records, customer records, log files recommendations, and any other data recorded in readable 

and/or retrievable form, whether typed, handwritten, reproduced, magnetically recorded, coded, 

or in any other ay made readable or retrievable): 

1. All documents conceming2 ECM BioFilms, Inc. 

2. All correspondence between you and ECM BioFilms, Inc. 

3. All documents sent or received by you making reference to ECM BioFilms, 

Robert Sinclair, or ECM BioFilms Master Batch Pellets. 

1 The term "correspondence" is intended, used, and defined in its broadest sense 

allowable under the FTC Rules of Practice. Such term includes, but is not limited to embrace 

emails, documents appended to emails, reports and any other written or electronic document of 

any kind that is communicated from the subpoena recipient or its agents to any and all other 

persons and entities. 

2 The term "concerning" is intended, used, and defined in its broadest sense allowable 

under the FTC Rules of Practice and should be considered to be synonymous with regarding, 

relating to, mentioning, discussing, referencing, implicating, explaining, or about the documents 

subject to any and all individual requests in this subpoena. 
PUBLIC DOCUMENT 

4. All documents concerning any test or report (including any and all notes and raw 

data) performed or written about a product or substance containing any product of ECM 

BioFilms, Inc., including "ECM Masterbatch Pellets." 

5. All documents concerning the article, Gomez, EF, Michel Jr., FC. 

"Biodegradability of conventional and bio-based plastics and natural fiber composites during 

composting, anaerobic digestion and long-term soil incubation" Polymer Degradation and 

Stability. Vol. 98 (December 2013): 2583-2591. 

6. All drafts and notes concerning the article, Gomez, EF, Michel Jr., FC. 

"Biodegradability of conventional and bio-based plastics and natural fiber composites during 

composting, anaerobic digestion and long-term soil incubation" Polymer Degradation and 

Stability. Vol. 98 (December 2013): 2583-2591. 

7. All documents concerning the involvement of any and all individuals with the 

article, Gomez, EF, Michel Jr., FC. "Biodegradability of conventional and bio-based plastics and 

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

Polymer Degradation and Stability. Vol. 98 (December 2013): 2583-2591, and/or the tests and 

procedures described in such article. 

8. All documents concerning the actual tests and procedures (including any and all 

notes, drafts, protocols, identity and sources of the ECM additives received and used, and all raw 

data) described in "Gomez, EF, Michel Jr., FC. "Biodegradability of conventional and bio-based 

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

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

9. Reserve samples of all plastics allegedly containing the ECM additive that are 

referenced in the article, "Gomez, EF, Michel Jr., FC. "Biodegradability of conventional and bio-
PUBLIC DOCUMENT 

based plastics and natural fiber composites during composting, anaerobic digestion and longterm soil incubation" Polymer Degradation and Stability. Vol. 98 (December 2013): 2583-2591. 

10. All documents specifically concerning all funding and sources of funding for the 

article, Gomez, EF, Michel Jr., FC. "Biodegradability of conventional and bio-based plastics and 

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

Polymer Degradation and Stability. Vol. 98 (December 2013): 2583-2591. 

11. All documents and correspondence concerning Ohio State University's 

knowledge and/or approval ofthe article, Gomez, EF, Michel Jr., FC. "Biodegradability of 

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

digestion and long-term soil incubation" Polymer Degradation and Stability. Vol. 98 (December 

2013): 2583-2591. 

12. All documents concerning any presentations, official discussions, lectures, 

interviews and/or publications in which the article Gomez, EF, Michel Jr., FC. "Biodegradability 

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

anaerobic digestion and long-term soil incubation" Polymer Degradation and Stability. Vol. 98 

(December 2013): 2583-2591 was discussed. 

13. All documents concerning any other test, article, report, and/or project involving 

all versions of ASTM International standard D5511. 

14. All correspondence between you and Eddie F. Gomez concerning biodegradable 

products; biodegradable plastic products; compostable products; compostable plastic products; 

ECM BioFilms; ECM additives and/or plastic products allegedly containing ECM additives; Dr. 

Ramani Narayan; all versions of ASTM D5511, D5526, D5338, D6400; and/or Biodt:lgradablt:l 

Products Institute ("BPI"). 

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

15. All documents concerning Dr. Ramani Narayan. 

16. All correspondence between you and Dr. Ramani Narayan. 

17. All documents concerning the BPI. 

18. All correspondence between you and the BPI. 

19. All correspondence between you and any member, employee, or representative of 

ASTM International. 

20. All correspondence between you and any member, employee, representative, or 

officer of the United States Federal Trade Commission. 

21. All documents concerning your education, training, and experience, including a 

list of all current and pending articles and written works that you have authored or co-authored. 

INSTRUCTIONS FOR COMPLIANCE BY DELIVERY OF DOCUMENTS 

If documents are delivered by hand, overnight delivery service, certified mail, or any other 

means your response shall be accompanied by an affidavit, executed by you that provides: 

The names, addresses, positions, and organizations of all persons whose files 

were searched and all persons who participated in or supervised the collection 

of the documents 3

, and a brief description of the nature of the work that each 

person performed in connection with the collecting the documents. 

A statement that the search was complete and that responsive documents are 

being produced. 

A statement as to whether the documents were made at or near the time of the 

occurrence of the matters set forth in such documents, kept in the course of 

your regularly conducted business, whether it was your regular practice to 

make and keep such documents, and the custodian of records and/or other 

executive(s) and/or employees of Ohio State University who have knowledge 

of such matters, can authenticate the documents and materials produced, and 

who can testify to such matters. 

3 "Document" and "documents" as used in this Attachment are defined in this subpoena's 

"Description ofDocuments Requested" section. 
PUBLIC DOCUMENT 

A statement as to whether any document called for by the subpoena has been 

misplaced, lost or destroyed. If any document has been misplaced, lost, or 

destroyed, identify: type of documents the date (or approximate date) of the 

documents, subject matter of the documents, all persons to whom it was 

addressed, circulated, or shown; its date of destruction, or when it was lost or 

misplaced; the reason it was destroyed, lost or misplaced; and the custodian of 

the documents on the date of its destruction, loss, or misplacement. 

A declaration that states: 

I declare (or certify, verify, or state) under penalty of perjury that the forgoing 

is true and correct. 

Executed on [date]. 

[Signature of party executing the declaration] 

Respectfully submitted, 

Is/ Jonathan W Emord 

Jonathan W. Emord, Esq. 

EMORD & ASSOCIATES, P.C. 

11808 WolfRune Lane 

Clifton, VA 20124 

Ph: 202-466-6937 

Fx: 202-466-6938 

Em: jemord(a{emord.corn 

Counsel to ECM BioFilms, Inc. 
PUBLIC DOCUMENT 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMJNISTRA TIVE LAW JUDGES 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

) 

) 

) 

") 

) 

) 

) 

DOCKET NO. 9358 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

Commission Rule 3.31 (d) states: "In order to protect the parties and third parties 

against improper use and disclosure of confidential information, the Administrative Law 

Judge shall issue a protective order as set forth in the appendix to this section." 16 C.F.R. 

§ 3.3l(d). Pursuant to Commission Rule 3.31 (d), the protective order set forth in the 

appendix to that section is attached verbatim as AttachmentA.a:nd is her~.by issued. 

ORDERED: 

D. Michael C a ell 

Chief Administrative Law Judge 

Date: October 22,2013 
PUBLIC DOCUMENT 

ATTACHMENT A 

For the purpose of protecting the interests of the parties and third parties in the 

above-captioned matter against improper use and disclosure of confidential information 

submitted or produced in connection with this matter: 

IT IS HEREBY ORDERED THAT this Protective Order Governing 

Confidential Material ("Protective Order") shall govern the handling of all Discovery 

Material, as hereafter defined. 

1. As used in this Order, "confidential material" shall refer to any document or portion 

thereof that contains privileged, competitively sensitive information, or sensitive personal 

information. "Sensitive personal information" shall refer to, but shall not be limited to, 

an individual's Social Security number, taxpayer identification number, financial account 

number, credit card or debit card number, driver's license number, state-issued 

identification number, passport number, date of birth (other than year), and any sensitive 

health information identifiable by individual, such as an individual's medical records. 

"Document" shall refer to any discoverable writing, recording, transcript of oral 

testimony, or electronically stored information in the possession of a party or a third 

party. "Commission" shall refer to the Federal Trade Commission ("FTC"), or any of its 

employees, agents, attorneys, and all other persons acting on its behalf, excluding persons 

retained as consultants or experts for purposes of this proceeding. 

2. Any document or portion thereof submitted by a respondent or a third party during a 

Federal Trade Commission investigation or during the course of this proceeding that is 

entitled to confidentiality under the Federal Trade Commission Act, or any regulation, 

interpretation, or precedent concerning documents in the possession of the Commission, 

as well as any information taken from any portion of such document, shall be treated as 

confidential material for purposes of this Order. The identity of a third party submitting 

such confidential material shall also be treated as confidential material for the purposes of 

this Order where the submitter has requested such confidential treatment. 

3. The parties and any third parties, in complying with informal discovery requests, 

disclosure requirements, or discovery demands in this proceeding may designate any 

responsive document or portion thereof as confidential material, including documents 

obtained by them from third parties pursuant to discovery or as otherwise obtained. 

4. The parties, in conducting discovery from third parties, shall provide to each third 

party a copy of this Order so as to inform each such third party of his, her, or its rights 

herein. 

5. A designation of confidentiality shall constitute a representation in good faith and after 

careful determination that the material is not reasonably believed to be already in the 

public domain and that counsel believes the material so designated constitutes 

confidential material as defined in Paragraph 1 of this Order. 

2 
PUBLIC DOCUMENT 

6. Material may be designated as confidential by placing on or affixing to the document 

containing such material (in such manner as will not interfere with the legibility thereof), 

or if an entire folder or box of documents is confidential by placing or affixing to that 

folder or box, the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, together with an indication of the 

portion or portions of ¢-e document considered to be confidential material. Confidential 

information contained in electronic documents may also be designated as confidential by 

placing the designation "CONFIDENTIAL- FTC Docket No. 9358" or any other 

appropriate notice that identifies this proceeding, on the face of the CD or DVD or other 

medium on which the document is produced. Masked or otherwise redacted copies of 

documents may be produced where the portions deleted contain privileged matter, 

provided that the copy produced shall indicate at the appropriate point that portions have 

been deleted and the reasons therefor. 

7. Confidential material shall be disclosed only to: (a) the Administrative Law Judge 

presiding over this proceeding, personnel assisting the Administrative Law Judge, the 

Commission and its employees, and personnel retained by the Commission as experts or 

consultants for this proceeding; (b) judges and other court personnel of any court having 

jurisdiction over any appellate proceedings involving this matter; (c) outside counsel of 

record for any respondent, their associated attorneys and other employees of their law 

firm(s), provided they are not employees of a respondent; (d) anyone retained to assist 

outside counsel in the preparation or hearing of this proceeding including consultants, 

provided they are not affiliated in any way with a respondent and have signed an 

agreement to abide by the terms of the protective order; and (e) any witness or deponent 

who may have authored or received the information in question. 

8. Disclosure of confidential material to any person described in Paragraph 7 of this 

Order shall be only for the purposes of the preparation and hearing of this proceeding, or 

any appeal therefrom, and for no other purpose whatsoever, provided, however, that the 

Commission may, subject to taking appropriate steps to preserve the confidentiality of 

such material, use or disclose confidential material as provided by its Rules of Practice; 

sections 6(±) and 21 of the Federal Trade Commission Act; or any other legal obligation 

imposed upon the Commission. 

9. In the event that any confidential material is contained in any pleading, motion, exhibit 

or other paper filed or to be filed with the Secretary of the Commission, the Secretary 

shall be so informed by the Party filing such papers, and such papers shall be filed in 

camera. To the extent that such material was originally submitted by a third party, the 

party including the materials in its papers shall immediately notify the submitter of such 

inclusion. Confidential material contained in the papers shall continue to have in camera 

treatment until further order of the Administrative Law Judge, provided, however, that 

such papers may be furnished to persons or entities who may receive confidential 

material pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing 

confidential material, the filing party shall file on the public record a duplicate copy of 

the paper that does not reveal confidential material. Further, if the protection for any 

such material expires, a party may file on the public record a duplicate copy which also 

contains the formerly protected material. 

3 
PUBLIC DOCUMENT 

10. If counsel plans to introduce into evidence at the hearing any document or transcript 

containing confidential material produced by another party or by a third party, they shall 

provide advance notice to the other party or third party for purposes of allowing that 

party to seek an order that the document or transcript be granted in camera treatment. If 

that party wishes in camera treatment for the document or transcript, the party shall file 

an appropriate motion with the Administrative Law Judge within 5 days after it receives 

such notice. Except where such an order is granted, all documents and transcripts shall 

be part of the public record. Where in camera treatment is granted, a duplicate copy of 

such document or transcript with the confidential material deleted therefrom may be 

placed on the public record. 

11. If any party receives a discovery request in any investigation or in any other 

proceeding or matter that may require the disclosure of confidential material submitted by 

another party or third party, the recipient of the discovery request shall promptly notify 

the submitter of receipt of such request. Unless a shorter time is mandated by an order of 

a court, such notification shall be in writing and be received by the submitter at least 10 

business days before production, and shall include a copy of this Protective Order and a 

cover letter that will apprise the submitter of its rights hereunder. Nothing herein shall be 

construed as requiring the recipient of the discovery request or anyone else covered by 

this Order to challenge or appeal any order requiring production of confidential material, 

to subject itself to any penalties for non-compliance with any such order, or to seek any 

relief from the Administrative Law Judge or the Commission. The recipient shall not 

oppose the submitter's efforts to challenge the disclosure of confidential material. In 

addition, nothing herein shall limit the applicability of Rule 4.1l(e) of the Commission's 

Rules ofPractice, 16 CFR 4.11(e), to discovery requests in another proceeding that are 

directed to the Commission. 

12. At the time that any consultant or other person retained to assist counsel in the 

preparation of this action concludes participation in the action, such person shall return to 

counsel all copies of documents or portions thereof designated confidential that are in the 

possession of such person, together with all notes, memoranda or other papers containing 

confidential information. At the conclusion of this proceeding, including the exhaustion 

of judicial review, the parties shall return documents obtained in this action to their 

submitters, provided, however, that the Commission's obligation to return documents 

shall be governed by the provisions of Rule 4.12 of the Rules of Practice, 16 CFR 4.12. 

13. The provisions of this Protective Order, insofar as they restrict the communication 

and use of confidential discovery material, shall, without written permission of the 

submitter or further order of the Commission, continue to be binding after the conclusion 

of this proceeding. 

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\. 
PUBLIC DOCUMENT 

EXHIBIT RX-F 
PUBLIC DOCUMENT 

United States of America 

FEDERAL TRADE COMMISSION 

Katherine Johnson 

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

(202) 326-2185; kjohnson3@ftc.gov 

Jonatban Cohen 

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

(202) 326-2551; jcoben2@ftc.gov 

VIA FEDERAL EXPRESS 

Poly-America Gp, LLC 

c/o Michael A. Ross, President 

2000 West Marshall Drive 

Grand Prairie, TX 75051 

Elisa Jillson 

600 Pennsylvania Ave. NW, M-8102B 

Washington, DC 20580 

(202) 326-3001; ejillson@ftc.gov 

January 29,2014 

Re: In the Matter of ECM BioFilms, Inc, Dkt. No. 935/J 

Subpoena Duces Tecum to Poly-America Gp, LLC ("Poly-America") 

Dear Mr. Ross: 

The Federal Trade Commission ("FTC") has recently initiated an adjudicative proceeding 

against ECM BioFilms, Inc., Docket No. 9358. The Commission Rules ofPractice state that 

"counsel for a party may sign and issue a subpoena on a form provided by the Secretary of the 

Commission, commanding a person to produce and permit inspection and copying of designated 

books, documents, or tangible things. 16 C.F .R. § 3 .34(b ). This letter is to notify you that 

Complaint Counsel has issued a subpoena duces tecum for certain of Poly-America's documents. 

The subpoena with attached schedule and exhibits is enclosed. 

On October 22,2013, the Federal Trade Commission's Office of the Administrative Law 

Judges issued a Protective Order Governing Discovery Material ("Protective Order") in the 

above-referenced action. The Protective Order protects confidential materials from discovery in 

the case. A copy of the Protective Order signed by Chief Administrative Law Judge D. Michael 

Chappell is enclosed as an exhibit to the subpoena's schedule. 

Any documentc; you produce to the Commission that are confidentjal must include the 

notice "CONFIDENTIAL- FTC Docket No. 9358" in accordance with the Protective Order. If 

you produce confidential documents in electronic or other media, you may place the 

"CONFIDENTIAL- FTC Docket No. 9358" designation on the CD. 

Exh. RX-F 
PUBLIC DOCUMENT 

Please call at your earliest convenience to discuss any issues regarding production. You 

may reach me at (202) 326-3001. 

Enclosures 

2 

Exh. RX-F 

Sincerely, 

£~~~·-

Elisa Jillson 

Complaint Counsel 
PUBLIC DOCUMENT 

SUBPOENA DUCES TECUM 

Provided by the Secretary of the FederaJ Trade Commission, and 

Issued Pursuant to Commission Rule 3.34{b), 16 C.F.R. § 3.34(b){201 

1. TO 

Poly-America Gp, LLC 

c/o Michael A. Ross, President 

2000 West Marshall Drive 

Grand Pr~irie, TX 75051 

2. FROM 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

This subpoena requires you to produce and pennit inspection and copying of designated books, documents (as defined in 

Rule 3.34(b)), or tangible thin·gs, at the date and time specified in Item 5, and at the request of Counsel listed in Item 9, in 

the proceeding described in Item 6. 

3. PLACE OF PRODUCTION 

Federal Trade Commission 

600 Pennsylvania Ave, NW, Mailstop M-81028 

Washington, DC 20580 

6. SUBJECT OF PROCEEDING 

In the Matter of ECM Biofilms, Inc., Docket No. 9358 

7. MATERIAL TO BE PRODUCED 

4. MATERIAL WILL BE PRODUCED TO 

Elisa Jillson 

5. DATE AND TIME OF PRODUCTION 

February 12, 2014 at 9:00A.M. 

See documents and materials idenlifted on the attached Schedule and Exhibits, including the Protective Order 

Governing Discovery Material. 

8. ADMINISTRATIVE LAW JUDGE 

The Honorable D. Michael Chappell 

Federal Trade Commission 

Washington, D.C. 20580 

9. COUNSEL AND PARTY ISSUING SUBPOENA 

Complaint Counsel 

Katherine Johnson (202) 326-2185 

Jonathan Cohen (202) 326-2551 

Elisa Jillson (202) 326-3001 

DATE SIGNED SIGNATURE OF COUNSEL ISSUING SUBPOENA 

GENERAL INST 

APPEARANCE 

The delivery of this subpoena to you by any method 

prescribed by the Commission's Rules of Practice is 

legal service and may subject you to a penalty 

imposed by law for failure to comply. 

MOTION TO LIMIT OR QUASH 

The Commission's Rules of Practice require that any 

motinn to limit or quRsh this subpoena must comply with 

Commission Rule 3.34(c), 16 C.F.R. § 3.34(c), and In 

particular must be filed within the earlier of 10 days after 

service or the time for compliance. The original and ten 

copies of the petition must be filed before the 

Administrative Law Judge and with the Secretary ofthe 

Commission. accompanied by an affidavit of service of 

the document upon counsel listed in Item 9, and upon all 

other parties prescribed by the Rules of Practice. 

E:iiJcRXTfii.E (rev. 1197) 

TRAVEL EXPENSES 

The Commission's Rules of Practice require that fees and 

mileage be paid by the party that requested your appearance. 

You should present your claim to counsel listed in Item 9 for 

paymenl If you are permanently or temporarily fiving 

somewhere other than the address on this subpoena and it 

would require excessive travel for you to appear, you must get 

prior approval from counsel listed in Item 9. 

A copy of the Commission's Rules of Practice is available 

online at hHp'//btl.ly/EICRulesofPractice. Paper copies are 

available upon request. 

This subpoena does not require approval by OMB under 

the Paperwork Reduction Act of 1980. 

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Exh.RX-F 

PUBLIC DOCUMENT 

RETURN OF SERVICE 

I hereby certify that a duplicate original of the within 

subpoena was duly served: (check the melhod used) 

C inperson. 

By Federal Express overnight mail, pursuant to Rule 

(i'• by registered mail. 4. 4 (a) (2) of the Federal Trade Commission's Rules of 

Practice. 

(". by leaving copy at principal offlce or place of business, fo wit: 

on the person named herein on: 

January 29, 2014 

(Month, day, and yea" 

Elisa Jillson 

(Name at person making s91'\1ice) 

Attorney, Federal Trade Commission -·---------·~-----·-------------

(Offlc1al title) 

------------------------------ --------------------
PUBLIC DOCUMENT 

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 

PUBLIC 

COMPLAINT COUNSEL'S SCHEDULE FOR PRODUCTION OF DOCUMENTS 

PURSUANT TO SUBPOENA 

Pursuant to Complaint Counsel's attached Subpoena Duces Tecum issued January 29, 

2014, under Commission Rule ofPractice § 3.34(b), Complaint Counsel requests that the 

following materials be produced to the Federal Trade Commission, 600 Pennsylvania Ave, NW, 

Mailstop M-8102B, Washington, DC 20580. 

DEFINITIONS 

A. "And;'' as well as "or," shall be construed both conjunctively and disjunctively, as 

necessary, in order to bring within the scope of any Specification all information that 

otherwise might be construed to be outside the scope of the specification. 

B. "Any" shall be construed to include "all," and "all" shall be construed to include the 

word "any." 

C. "Communication" includes, but is not limited to, any transmittal, exchange, transfer, or 

dissemination of information, regardless of the means by which it was accomplished, and 

includes all communications, whether written or oral, and all discussions, meetings, 

telephone communications, or email contacts. 

D. "Document" shall mean the complete original and any non-identical copy (whether 

different from the original because of notations on the copy or otherwise), regardless of 

origin or location, of any written, typed, printed, transcribed, filmed, punched, or graphic 

matter of every type and description, however and by whomever prepared, produced, 

disseminated or made, including but not limited to any advertisement, book, pamphlet, 

periodical, contract, correspondence, file, invoice, memorandum, note, telegram, report, 

record, handwritten note, working paper, routing slip, chart, graph, paper, index, map, 

tabulation, manual, guide, outline, script, abstract, history, calendar, diary, agenda, 

minute, code book or label. "Document" shall also include Electronically Stored 

Information. 

E. "ECM" shall mean ECM Biofilms, Inc., including without limitation, its agents, 

employees, officers, or anyone else acting on its behalf. . 

Exh.RX-F 
PUBLIC DOCUMENT 

F. "ECM Additive" means the plastic additive manufactured by ECM, including but not 

limited to "Master batch Pellets." 

G. "ECM Plastic" means any plastic treated with or incorporating an ECM Additive. 

H. "Electronically Stored Information" or "ESI" shall mean the complete original and any 

non-identical copy (whether different from the original because of notations, different 

metadat~ or otherwise), regardless of origin or location, of any information created, 

manipulated, communicated, stored, or utilized in digital form, requiring the use of 

computer hardware or software. This includes, but is not limited to, text messages, 

electronic mail, instant messaging, videoconferencing, and other electronic 

correspondence (whether active, archived, or in a deleted items folder), word processing 

files, spreadsheets, databases, and video and sound recordings, whether stored on: cards; 

magnetic or electronic tapes; disks; computer hard drives, network shares or servers, or 

other drives; clou_d-based platforms; cell phones, PDAs, computer tablets, or other mobile 

devices; or other storage media. "ESI" also includes such technical assistance or 

instructions as will enable conversion of such ESI into a reasonably usable form. 

l. "Include'' and "including" mean "without limitation," or "including but not limited to," 

so as to avoid excluding any documents or information that might otherwise be construed 

to be within the scope of any specification. 

J. "Referring to," "relating to," or "related to" shall mean discussing, describing, 

reflecting, containing, analyzing, studying, reporting, commenting, evidencing, 

constituting, setting forth, considering, recommending, concerning, or pertaining to, in 

whole or in part. 

K. ''You" and "Your" means Poly-America Gp, LLC. 

INSTRUCTIONS 

A. Applicable time period: Unless otherwise directed in the specifications, the applicable 

time period for the request shall be from January 1, 2007, until the date of full and 

complete compliance with this subpoena 

B. Petitions to Limit or Quash: Pursuant to Commission Ru1e ofPractice 3.34(c), any 

motion to limit or quash this subpoena must be filed within ten days of service hereof. 

C. Protective Order: On October 22,2013, the Court entered an order governing discovery 

material in this matter. A copy of the Protective Order is attached hereto as Exhibit A 

with instructions on the handling of confidential information. 

D. Sensitive Personally Identifiable Information: If any material called for by these 

Specifications contains sensitive personally identifiable information or sensitive health 

information of any individual, please contact us before sending those materials to discuss 

ways to protect such information during production or whether it would be appropriate to 

redact the sensitive information. 

2 

Exh. RX-F 
PUBLIC DOCUMENT 

For purposes of these requests, sensitive personally identifiable information includes: an 

individual's Social Security number alone; or an individual's name or address or phone 

number in combination with one or more of the following: date of birth, Social Security 

number, driver's license number or other state identification number, or a foreign country 

equivalent, passport number, financial account number, credit card number, or debit card 

number. Sensitive health information includes medical records and other individually 

identifiable health information relating to the past, present, or future physical or mental 

health or conditions of an individual, the provision of health care to an individual, or the 

past, present, or future payment for the provision of health care to an individual. 

E. Scope of Search: This subpoena covers documents and information in your possession 

or under your actual or constructive custody or control including, but not limited to, 

docrunents and information in the possession, custody, or control of your attorneys, 

accountants, directors, officers, partners, employees, and other agents and consultants, 

whether or not such documents and information were received from or disseminated to 

any person or entity. 

Document Production: You shall produce the documentary material to Katherine 

Johnson, Federal Trade Commission, 600 Pennsylvania Ave., NW, M-81 02B, 

Washington, DC 20580. Because postal delivery to the Commission is subject to delay 

due to heightened security precautions, please use a courier service such as Federal 

Express or UPS. Please see the attached Bureau of Consumer Protection Production 

Guide for detailed instructions for submitting ESI or digitally imaged hard copies. Please 

mark the exterior of all packages containing electronic media sent through the U.S. Postal 

Service or other delivery services as follows: 

MAGNETIC MEDIA- DO NOT X-RAY 

MAY BE OPENED FOR POSTAL INSPECTION. 

F. Documents that may be responsive to more than one specification of this subpoena need 

not be submitted more than once; however, your response should indicate, for each 

document submitted, each specification to which the document is responsive. If any 

documents responsive to this subpoena have been previously supplied to the 

Commission, you may comply with this subpoena by identifying the document(s) 

previously provided and the date of submission. Documents should be produced in the 

order in which they appear in your files or as electronically stored and without being 

manipulated or otherwise rearranged; if documents are removed from their original 

folders, binders, covers, containers, or electronic source in order to be produced, then the 

documents shall be identified in a manner so as to clearly specifY the folder, binder, 

cover, container, or electronic media or file paths from which such documents came. In 

addition, number by page (or file, for those documents produced in native electronic 

format) all documents in your submission, preferably with a unique Bates identifier, and 

indicate the total number of documents in your submission. 

G. Production of Co-pies: Unless otherwise stated, legible photocopies (or electronically 

rendered images or digital copies of native electronic files) may be submitted in lieu of 

original documents, provided that the originals are retained in their state at the time of 

receipt of this subpoena. Further, copies of originals may be submitted in lieu of 

originals only ifthey are true, correct, and complete copies of the original documents; 

provided, however, that submission of a copy shall constitute a waiver of any claim as to 

the authenticity of the copy should it be necessary to introduce such copy into evidence in 

any Commission proceeding or court of law; and provided further that you shall retain the 

original documents and produce them to Commission staff upon request. 

3 

Exh.RX-F 

~., ·-· ·-------~-~~ ~- ~ ---
PUBLIC DOCUMENT 

H. A complete copy of each document should be submitted even if only a portion of the 

document is within the terms of the request. The document shall not be edited, cut, or 

expunged in any way and shall include all covering letters and memoranda, transmittal 

slips, appendices, tables or other attaclnnents. 

I. Each request includes any and all copies of the responsive document and, to the extent 

applicable, preliminary drafts or documents that differ in any respect from the original or 

final draft or from each other (e.g., by reason of differences in form or content or by 

reason of handwritten notes or comments having been added to one copy of a document 

but not the original or other copies thereof). 

J. In the event that any document covered by this subpoena was in your possession or actual 

or constructive custody or control and has been lost or destroyed, the document is to be 

identified in writing as follows: addressee, person who prepared or authored the 

document, date of preparation or transmittal, substance of the document and its subject 

matter, number of pages, attaclnnents, or appendices, all persons to whom distributed, 

shown or explained, date of loss or destruction, and, if destroyed, the manner of 

destruction, the reason for destruction. the persons authorizing destruction, and the 

persons who destroyed the document. 

K. If an objection is made to any request herein, all documents covered by the request not 

subject to the objection should be produced. Similarly, if an objection is made to 

production of a document, the portion of that document not subject to objection should be 

produced with the portion objected to redacted and clearly indicated as redacted. 

L. All objections to these requests or to any individual request must be raised in the initial 

response or are otherwise waived. 

M. Claims of Privilege: Pursuant to Federal Trade Commission Rules ofPractice 3.38A, 16 

C.F.R. § 3.38A, if any documents are withheld from production on a claim of privilege or 

any similar claims, you shall provide , not later than the date set for production of 

materials, a schedule that describes the nature of the documents, communications, or 

tangible things not produced or disclosed with sufficient detail to enable Complaint 

Counsel to assess the claim of privilege. The schedule shall state individually for each 

item withheld: · 

1. The custodian of the document; 

2. The type of document, including any attachments (e.g., letter, memorandum); 

3. The date of the document; 

4. The general subject matter ofthe document; 

5. The sender, author, and all recipients of the document; and 

6. The basis on which you contend you are entitled to withhold the document from 

production. 

If only a part of a responsive document is privileged, all non-privileged parts must be 

submitted. 

N. Certification of Records of Regularly Conducted Activity: Attached as Exhibit B is a 

Certification of Records of Regularly Conducted Activity, which may reduce the need to 

subpoena you to testify at future proceedings in order to establish admissibility of the 

documents produced in response to this subpoena. You are asked to execute this 

certification and provide it with your response. 

4 

Exh. RX-F 
PUBLIC DOCUMENT 

SPECIFICATIONS 

Demand is hereby made for the following documents: 

(1) Provide all documents regarding ECM and the ECM Additive, including: 

Exh.RX-F 

a. any communications with ECM; 

b. any marketing materials provided by ECM; 

c. any testing materials or scientific or product information provided by ECM; 

d. any testing documents regarding the ECM Additive; 

e. any internal communications regarding the ECM Additive; 

f. any communications with third parties regarding the ECM Additive; 

g. any marketing materials for your products containing the ECM Additive 

regarding biodegradability. 

5 

Respectfully submitted, 

/;::Q·· J /1 ./ __/' Z-. --.. ·1/t/~ Katherine ohnson 

Jonathan Cohen 

Elisa Jillson 

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 
PUBLIC DOCUMENT 

Attachment A 

Exh. RX-F 

---------,-.-----
Exh. RX-F 

In the Matter of 

lJNlTED STATES OF AMERICA 

.tmERAL TRADE COMMISSION 

OV'FlCE;OF ADMINlSTRATIVE LAW JlJDGES 

PUBLIC DOCUMENT 

ECM BjoFHms. Inc .. 

) 

) 

) 

) 

) 

) 

) 

DOCKETNO. 9358 

a corporation, .alsg d/b/a 

En:v.irop.lastics lnterna:tional, 

Respondent. 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

Commission~ ,.31{ d) states; uin order to protect the parties and third parties 

against improper use and -disclosure of ao¢idential info~'Qll, the Ad.tninistrati.ve Law 

Judge sball1ssue a.protective order as set forth in the appendix to~ -section," 16 C.F ,R. 

§ 3.31( d).- Put8uant to Con:im.ission Rule 3.31 (d), the protective order set fu.tth in the 

appendix.to that sectien is attached verbatim as Attachment A aml.is. hereby issued. 

ORDEJ{ED: 

Chief Adtnip.isttative Law Judge 

Date~ Ootob.er'22,2013 

~ 

1 

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Exh. RX-F 

PUBLIC DOCUMENT 

ATTACHMENT A 

For the purpose of protecting the interests of the parties and third parties in the 

above-captioned matter against improper use and dis.closure ofconfidential infonnation 

submitted or produced in connection with this matter; 

ITJS HEREBY ORDERED TIIAT this Protective Orde.r Governing 

Confidential Material ("Protective Order") shall govern th.e handling of aU Discovery 

Material> a1; hereafter defmed. 

1. As used in this. Order~. ·~confidential material'' shall refer to any document or portion 

thereof that contains privileged, competitively sensitive information., or sensitive personal 

inforination. "Sensitive personal information" shall refer to, bu.t shall not be limited to, 

an i»dividuaPs Social Security nu:tnber, taxpayer identification nutnber,. :financial account 

number, cred.it card or debit card number, driver's lic:ense nUlilber~ state-issu:ed 

identification number~ passport. number,. date of birth (other than year), and any sensitive 

h~tli:information identifiable by individual, such as an indivJduaPs medical records. 

''Document" shall refer tq ru.:tY dlSGQverable writing~ reoo1·d,ing, transcript oforal 

testimony, or electronically stOred information in the possession of a party or a third 

party. "'Coilllnission'' sh~l refer to the Federal Trade. Commission ("FTC''), or any of its 

employees, agents, attorneys, and all other persons acting on its behalf, excluding persons 

retained as consultants or experts for purposes of this proceeding, 

2. A11y docmnent or portion thereof SJ.tb'lllitted by a respon,d,eut 01; :a third party during .a 

F~ Trade Commission investigation or during the cour.se.ofthis proceeding that is 

entii)ed to ~onfi.dentiality unqe.r the Federal Trade Com::t:rtission Act, or any regulaticm, 

interpretation~ or precedent c0ncerning documents in the possession of the Commission, 

as well as any info:rrtl.ation,tfil~en fto:rn any portion of such document, shall be treated as 

confidential material for purposes of this Otder. The identity of a third party submitting 

such confidential :tnatei'ial shall also be treated as confidential material for the purposes of 

this Order where 1M submitter has requested such confidential treatblent. 

3. The parties and any third parties, in complying with inf-ormal dis.covery requests> 

disclosure requirem~nts. Pf discovery demands in this proeeeding may designate any 

responsive document o.tportion thereof as confidential mat~ri~,; including documents 

obtained by them from third parties pursuant to discovery or as otherwise obtained. 

4. The parties. in conducting discovery from third partiesj sl'mll ptovide to each third 

party a copy of this Ordel' so as to inform each such third party ofhis, her, or its rights 

herein. · 

5. A designation ofcollfidentiality shall constitute a representation in good faith and after 

careful determination that the material is not reasonably believed to be already in the 

public domain and that counsel believes the material so designated constitutes 

confidential mat.erial as defined in Paragraph 1 of this Otdet. 

2 
Exh. RX-F 

PUBLIC DOCUMENT 

6. Material may be designated as confidential by placing on or affixing to the document 

containing such ma.te:r1ai (in such manner as will not interfere with the legibility thereof)~ 

or if an entire' folder or box of documents is confidential by plac:il1g or affixing to that 

foldet or box, the designation ucONFlDBNTIAL- FTC Docket No. 935B" 01' any other 

appropriate notice that identifies this proceeding, together with an indication of the 

portion or portions of the document considered to be co-nfidential material Con:tidential 

intoi.mation contairted in electronic documents may also be designated as confidential by 

placing the designation ~(CONFIDENtiAL- FTC Docket No. 9358'~ or any other 

appropriate notice that identifies this proceeding, on the face ofthe CD o.r D'VD ·or other 

medium on which the documentis produced. Masked or otherwise redacted copies of 

documents may be produced where the portions deleted contain privileged. matter, 

provided that the copy produced shall.ind1cate at the appropriate point that portions have 

been deleted and the reasons therefor. 

7. Confidential material shall be disclosed only to: (a) the Adnri;nistrative La,W Judge 

presiding o'Vel'this pro·c.eeding, personnel assisting the Administrative Law .Judge; the 

Commission and its employees> f.!.Ud per$onne1 retained by the Commission as experts or 

consultants for this proceeding; (b) Judges and other court personnel of any court haying 

jurisdiction over any appellate proceedings involvln.g this matter; (c) outside counsel of 

record for any respond~n"t; their as$Ociated attorneys and other employees of their law 

finh(s), provided they are not employees of a respondent; (d) anyone retained to assist 

outsi~e counsel in.1he prep~at'ton or hearing of this proceeding inc.Iuding consultants, 

provided they are not affiliated in any waY with a reSpqndent and have signed an 

agreement to abide by the terms of the protective order; and (e) any witness or deponent 

who may have authored o:r receiv~d the information in question. 

8. Disclosure of confidtntial material to any person. described in Paragraph 7 of this 

Order shlilll be only for the purposes of the. preparation and hearing ofthis proc~ed.ing, or 

any app~al. therefrom~ and for no other purpose what~Soover, provided, however, that the 

Co1l11llission may) subject to taking appr{;Jpriate steps to preserve the confidentiality of 

suCh material, use or disclose confidential materia~ as provided :by iW. Rules of Practice; 

sections 6(f) and 21 of the Federal Trade Commission Act; or atlY~other legal obligatibn · 

itpposed upon the :Commissicm. 

9. ru the event that .any confidential material is contained in any pleading, motion. exhibit 

Ot otber paper filed Ol' to be filed with the Secretary of the Commission, the Secretary 

shall be so info:t':l.ned by the Party :tiling such papers~ and such papers shall be filed in 

came;·a.. To the extent that such material was originally submitted by a third p!il,iy, the 

party including the materials in its papers shall immediately notify the submitter of such 

mclilsion. Confidential material contained in the papers shall continue to ·have in. camera 

treatment until further order ofthe Administrative Law Judge, provided. however., that 

such papers mfl,y be furnished to persons or entjties who may receive confidential 

material pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing 

confidential material, the filing party shall file on the public record a duplicate copy of 

the paper that does not reveal confidential material. Further, if the: protection for any 

such material expires. a party may file on the public record a duplicate copy which also 

contains the formerly protected nraterial. 

3 
Exh. RX-F 

PUBLIC DOCUMENT 

10. If counsel plans to introduce into evidence at the hearing any document or transcript 

containing confidential m~terial produced by another party or by a third party, they shall 

provide advance notkre to the other party or third party for purposes of allowing that 

party to s~ek an or\ier that the dotument or transcri'pt be granted in camera treatment. If 

that party wishes in camera treatment for·the document or transcript, the party shall file 

an appropriate motion with the Administrative Law Judge within 5 days after it receives 

such.n()tice. Except where such an order is granted.l:lll documents and ~cripts S.hall 

be part ofthe public record. Where in camera treatment is g.ranted, a duplicate copy of 

such document or transcript with the confidential material deleted therefrom may be 

:placed on the public record. 

11. If any party receives a discovery request in any investigation or in any other 

proceeding or .matter that may require. the disclosu.re of confidential material $Ubmitted by 

another party or third party, the tedpl¢nt ofthe discovery reql.lest shall promptly notify 

the submitter of receipt of such request. Unless a shorter titne is mandated by an order of 

a court~ such notification shall be in writing and be received by the-submitter at least 10 

business days before production:, and shall include a copy of this Protective Order and a 

cover letter that wUl apprise the su..bmitter of its rights hereunder. Nothing herein shall be 

construed as requiring.the recipient of the discovery request or anyone el:se covered by 

this Order to challeng~ or appeal any order requiring production of confidential material, 

to' subject itself to any penalties for non-compliance with any such 'Order, or to seek any 

telieffrom the AdministrativeLaw Judge or the Commission. The recipient shal~ not 

oppos:e the submitterls efforts to chall~:ttge the disclosure of confidential material. In 

addition, nothing herein shall limit tb.~ applicability o:tRule 4.11 (e) of the C-ommission's 

Rules of Practice~ 1.6 CFR. 4.11(~)~ to discovery requests in another proceeding that ate 

directed to the Comtnis~ion. 

12.. At the time that any conwltant or other person retained to assist counsel in the 

preparati® ofthi~ action concludes particip'ation in the action, such person. shall return to 

co~el all copies of documents or portions thereof designated confident124. that a.re in the 

possession of mch person, together with all notes~ memoranda or other papers containing 

confidential infO:rmation. At the conc1.us.ion ofthis proceeding, including. the exhaustion 

of judicial t6view~ the parties shall return documents obtained in this ac#on to the'ir. 

submitters-, provided, however, that the.CotrUnission's obligation to rettun documents 

shalll:>e governed by .the provisio~ of~ule 4.12. of the Rules of Practice~ 16 C.FR 4.12. 

13. The provisJons of'this Protective Order~ insofar as they restrict the commtmieation 

and use of confidential discovery mater~al, shall~ without written pernrissio.t:i of the. 

submitter or further order of the Commission, continue to be binding aft€r the conclusion 

of tills proceeding. 

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Attachment B 

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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

) 

) 

) 

) 

) 

) 

ECM BioFilms, Inc., Docket No. 9358 

a corporation, also d/b/a 

Enviroplastics International PUBLIC 

1. 

CERTIFICATION OF COMPLIANCE AND RECORDS 

Pursuant to 28 U.S.C. § 1746 

I, ________________ (name and title), have personal 

knowledge of the facts set forth below and am competent to testify as follows: 

2. I have authority to certify the authenticity of the records produced by 

-------------(company name) (''the Company") and 

attached hereto. 

3. On behalf of the Company, I hereby certify that the Company has used its best efforts to 

respond to the Federal Trade Commission Subpoena dated January 29,2014 

("Subpoena"). The Company has conducted a reasonable search and has provided all 

documents and information in its possession, custody, or control that are responsive to 

the requests contained in the Subpoena and has substantially complied with those 

requests. 

4. The documents produced and attached hereto by the Company in response to the 

Subpoena are originals or true copies of records of regularly conducted activity that: 

a) were made at or near the time of the occurrence of the matters set forth by, or 

from information transmitted by, a person with knowledge of those matters; 

b) were kept in the course of the regularly conducted activity ofthe Company; and 

Exh. RX-F 
PUBLIC DOCUMENT 

c) were made by the regularly conducted activity as a regular practice of the 

Company. 

I certify under penalty of petjury that the foregoing is true and correct. . . 

Executed on _______ __, 2014. 

(Name, Title) 

Exh.RX-F 
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CERTIFICATE OF SERVICE 

I hereby certify that on January29, 2014, I caused a true and correct copy of the 

foregoing document to be .served by email to Counsel for the Respondent: 

Jonathan W. Emord 

Emord & AssoCiates, P.C. 

11808 Wolf Run 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 

Dated: January 29,2014 

Exh. RX-F 

6 

Peter Arhangelsky 

Emord & Associates, P .C. 

3210 S. Gilbert Road, Suite4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

R~~~~ttOO, __--- . 

Kalherine ~@flc.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 

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