1 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Edith Ramirez, Chairwoman 

Julie Brill

Maureen K. Ohlhausen 

Terrell McSweeny

In the Matter of 

ECM BioFilms, Inc., DOCKET NO. 9358 

a corporation, also d/b/a/ 

Enviroplastics International 

OPINION OF THE COMMISSION 

By Commissioner Terrell McSweeny, for the Commission. 

This is a deceptive marketing case in which the Commission has alleged that Respondent 

ECM BioFilms, Inc. (“ECM”) made false, misleading, and unsubstantiated environmental claims 

about its product, a plastics additive called “MasterBatch Pellets.” The scientific community 

widely recognizes that conventional plastic products are biodegradable only over a very long 

period of time. However, for many years ECM made a number of biodegradability claims for its 

additive, including that plastics treated with the additive (“ECM Plastics”) would: biodegrade; 

biodegrade in some period greater than a year; and completely biodegrade in a landfill within a 

period of nine months to five years. It also represented that accepted scientific tests supported its 

claims. 

Complaint Counsel asserted that the unqualified representation that ECM Plastics will 

biodegrade and the representation that they will biodegrade in some period greater than a year 

both convey an implied claim that the products will completely biodegrade in a landfill within a 

reasonably short period of time, or one year to five years. 

In his Initial Decision, Administrative Law Judge D. Michael Chappell found agreement 

among all of the scientific experts in the case that ECM Plastics do not fully biodegrade within 

five years in a landfill, and therefore held that ECM’s express claims of biodegradation within 

nine months to five years were false, misleading, and material, in violation of Section 5 of the 

FTC Act. However, the ALJ found that Complaint Counsel had failed to prove that ECM’s 

representations that ECM Plastics are “biodegradable” and “biodegradable in some period 

greater than a year” imply that ECM Plastics will completely biodegrade in a landfill within one 

year. He did not address whether ECM’s representations imply that ECM Plastics will 

biodegrade in a reasonably short period of time or within five years. 

REDACTED PUBLIC VERSION
2 

 We affirm the ALJ’s decision with respect to ECM’s express claim of biodegradation in 

nine months to five years. However, based on our own de novo examination of the evidence, we 

find that ECM also made implied claims that ECM Plastics will biodegrade in a reasonably short 

period of time, or within five years, and the implied claims are false, unsubstantiated, and 

material.1 The Order we enter prohibits ECM from making such claims in the future without 

adequate scientific substantiation. 

I. Factual Background 

ECM is a small Ohio-based corporation that was started in 1998 by Patrick Riley to 

manufacture and sell a plastics additive he had developed which, he claimed, would render 

plastics made with the additive “biodegradable” in nine months to five years. IDF 152; Sinclair, 

Tr. 747-48, 754-55.2

 The formula for the additive (the “ECM Additive”) is a trade secret and has 

never been patented. IDF 160. ECM licenses the technology from Micro-Tech Research, Inc., a 

predecessor corporation also established by Mr. Riley. IDF 153. The ECM Additive, which 

ECM markets as “MasterBatch Pellets,” is the only product ECM sells. IDF 156-58; 163. 

 In 2000 ECM hired a local lawyer, Robert Sinclair, as CEO and President. IDF 84-85; 

Sinclair, Tr. 745-46, 757. Mr. Sinclair had previously invested in Micro-Tech and provided legal 

advice to it on a possible spin-off of certain assets including the ECM Additive technology. 

Sinclair, Tr. 745-46; 756-57; CCX-818 (Sinclair Dep.) at 71-73. From 2000 on, Mr. Sinclair has 

acted as ECM’s CEO and President, directing all of ECM’s business operations, including the 

marketing and sales of the ECM Additive to customers, and determining its advertising claims. 

IDF 85; CCX- 818 (Sinclair Dep.) at 75-76, 194. Although Mr. Sinclair is not a scientist, he 

 

1

 Commissioner Ohlhausen dissents from this opinion to the extent it holds that Complaint Counsel provided 

evidence sufficient to prove that ECM’s unqualified biodegradability claim conveyed to consumers that ECM 

Plastics will completely biodegrade within a landfill within a reasonably short period of time. See Partial Dissent of 

Commissioner Maureen K. Ohlhausen. 

2

 This opinion uses the following abbreviations for citations to the record: 

Comp.: Complaint 

Answer: Answer and Affirmative Defenses of Respondent ECM BioFilms, Inc. 

ID: Initial Decision of the Administrative Law Judge 

IDF: Numbered Findings of Fact in the ALJ’s Initial Decision 

Tr.: Transcript of Trial before the ALJ 

Tr. Oral Arg.: Transcript of Oral Argument before the Commission 

CCX: Complaint Counsel’s Exhibit 

CCAppB: Complaint Counsel’s Appeal Brief 

CCAnsB: Complaint Counsel’s Answering Brief 

CCSuppB: Complaint Counsel’s Amended Supplemental Brief Responding to Issues Raised by the Commission 

CCSuppRB: Complaint Counsel’s Response to ECM’s Supplemental Brief 

RX: Respondent’s Exhibit 

RAppB: Respondent ECM BioFilms’ Brief on Appeal from the Initial Decision of Chief ALJ D. Michael Chappell 

RAnsB: Respondent ECM BioFilms’ Brief in Answer to Complaint Counsel’s Appeal 

RRB: Respondent ECM BioFilm’s Brief in Reply to Complaint Counsel’s Answering Brief 

RSuppB: Respondent’s Supplemental Brief 

RSuppRB: ECM’s Response to Complaint Counsel’s Supplemental Brief 
3 

took some science courses in college and at one point taught science at the high school level. 

IDF 87. 

The key selling point for the ECM Additive is that it is seen as helpful to the environment 

because it purportedly hastens the biodegradation of plastics. See IDF 200-01, 205, 1497, 1500, 

1503, 1534; Sinclair, Tr. 767-68, 777-75; CCX-819 (Sinclair Dep.) at 321, 324. Since about 

2002, ECM has issued a “Certificate of Biodegradability” to its customers attesting to the rate 

and extent of the biodegradability of ECM Plastics based on scientific testing. IDF 266-70. The 

2007 version of the Certificate states, in part, 

This is to certify that numerous plastic samples, submitted by ECM BioFilms, 

Inc., have been tested by independent laboratories in accordance with standard 

test methods approved by ASTM, ISO and other such standardization bodies to 

determine the rate and extent of biodegradation of plastic materials. 

IDF 269; CCX-1. 

ECM’s primary marketing tool is its website. ID 207. Potential customers often contact 

ECM through the website, and then ECM’s sales manager, Tom Nealis, follows up and provides 

additional sales literature and other basic information. ID 211-14. Mr. Sinclair also answers 

potential customers’ questions as part of the sales process. IDF 214, 222. 

The description of ECM Plastic’s “biodegradable” attribute in its sales process has varied 

somewhat over time.3

 Sinclair, Tr. 1609. Initially ECM stated that ECM Plastics were 

biodegradable without referencing any particular time frame in which complete biodegradation 

would occur. However, as customers began asking about the rate of biodegradation, ECM added 

more specific claims, representing that ECM Plastics would “completely” biodegrade “in a 

landfill” in “9 months to five years.” Sinclair, Tr. 1609, 1613 (time period just “crept in” as “in 

the market . . . people were interested in having some idea of a time period”). This “nine months 

to five years” claim then became ECM’s standard claim in its marketing materials and other 

sales communications, including representations that the rate was established through scientific 

testing. IDF 245, 265, CCX-5, CCX-6.4

 

ECM primarily relied upon the American Society for Testing and Materials (“ASTM”) 

D5511 test to prove to potential customers that ECM Plastics would biodegrade in nine months 

to five years. The ASTM D5511 protocol is an “accelerated” test designed to measure the 

 

3

 Examples of ECM’s marketing materials containing the unqualified “biodegradable” claim, the “nine months to 

five years” claim, and the “some period greater than a year” claim are set out in Appendix A to this opinion. The 

Appendix also includes examples of the express “nine months to five years” claim and the unqualified 

“biodegradable” claim (in the form of the “ECM Biodegradable” tree logo) that appeared on finished products that 

would have been seen by end-users. 

4

 The record is not clear as to precisely when ECM began making the nine months to five years claim. Compare

CCX-818 (Sinclair Dep.) at 175 (testifying that ECM began conveying the nine months to five years claim in 2009 

or 2010) with CCX-10 (January 17, 2007 ECM Reprint of a Letter to an Interested Party representing that ECM 

Plastics will “fully biodegrade . . . buried in landfills” and will “completely biodegrade in a period of from 9 months 

to 5 years or less”). 
4 

intrinsic biodegradability of a product under certain laboratory conditions in a much shorter time 

frame compared to what would occur in nature. See IDF 717-31. ASTM specifically forbids the 

test to be used to market as ECM did. The test protocol states: “Claims of performance shall . . . 

not be used for unqualified ‘biodegradable’ claims.” CCX-84 at 1 (ASTM D5511 § 1.4). 

“Furthermore,” the protocol continues, “results shall not be extrapolated past the actual duration 

of the test.” Id. As a member of several ASTM committees on plastics and environmental 

issues, Mr. Sinclair was presumably aware of this marketing prohibition. IDF 88; Sinclair, Tr. 

778-80. 

In October 2012, the Commission revised the FTC Guides for the Use of Environmental 

Marketing Claims (“Green Guides”) to clarify that a reasonably short period for biodegradation 

implicated by an unqualified claim of biodegradability is biodegradation to completion within 

one year and that an unqualified biodegradability claim therefore requires substantiation of that 

fact.5

 The current version of the Green Guides advises that “[d]egradable claims should be 

qualified clearly and prominently to the extent necessary to avoid deception about: (1) [t]he 

product’s or package’s ability to degrade in the environment where it is customarily disposed; 

and (2) [t]he rate and extent of degradation.” 16 C.F.R. § 260.8(d). 

Following the issuance of the updated Green Guides, ECM revised its marketing 

materials and logo. It placed an asterisk next to the word “biodegradable” and provided the 

following text: “Plastic products manufactured with [the ECM Additive] will biodegrade in any 

biologically-active environment (including most landfills) in some period greater than a year.” 

IDF 251-54; 256; see also IDF 270 (describing similar changes to ECM’s Certificate of 

Biodegradability). It added the following explanation to its website: 

The basic concept is that biodegradation is a natural process that occurs around 

the world but at various speeds due to various conditions. Plastics with our 

additives behave like sticks, branches or trunks of trees. Due to this fact, we do 

not guarantee any particular time because the time depends on the same factors 

that the biodegradation of woods and most other organic materials on earth 

depend – ambient biota and other environmental conditions. Under specific 

composting conditions with additional accelerants sprayed on them, some 

customers have reported biodegradation in as little as a couple of months. 

RX-681 at 61. However, ECM did not remove the “nine months to five years” claim from its 

website until the end of 2013 – more than a year later – and it also continued to disseminate 

some sales brochures containing the “9 months to 5 years” claim during that period. IDF 259. In 

communications with potential and existing customers, ECM continued to define the “window of 

biodegradation” as nine months to five years through January 2014, several months after this 

adjudicative proceeding commenced. See, e.g., CCX-280 (Mr. Sinclair stated in a letter to a 

 

5

 The Green Guides help marketers avoid making environmental marketing claims that are unfair or deceptive under 

Section 5 of the FTC Act, 15 U.S.C. § 45. They do not confer any rights on any person and do not operate to bind 

the FTC or the public. The Commission, however, can take action under the FTC Act if a marketer makes an 

environmental claim inconsistent with the Guides. In any such enforcement action, the Commission must prove that 

the challenged act or practice is unfair or deceptive in violation of Section 5 of the FTC Act. 16 CFR § 260.1(a). 
5 

customer in January 2013 that the “window of biodegradation” was “9 months to 5 years”); 

CCX-281 (In April 2013, a customer asked about the “time span” for the decomposition progress 

and Mr. Nealis told him nine months to five years); CCX-282 (when asked in October 2013 if 

the rate of degradation varies depending on the type of soil, Mr. Nealis stated “Yes.... This is 

why we state the biodegradation will take place in a period of 9 months to five years.”); CCX259-259A (Mr. Nealis made the “9 months to 5 years” rate claim to a customer on January 8, 

2014). 

 

ECM sells the ECM Additive directly and through distributors to companies that 

manufacture plastics (or to companies that have plastics manufactured for them). IDF 164-70. 

ECM does not sell directly to consumers, although its website is available to the general public 

and end-use consumers see the “ECM Biodegradable” tree logo and other biodegradability 

claims on plastic items made with the ECM Additive. IDF 164, 285-86, 289-304. ECM 

routinely provides its customers with its marketing materials and encourages them to pass along 

those materials (and hence ECM’s biodegradability claims) to their own customers. IDF 280. 

Some of those customers in turn have included the claims, including the specific “nine months to 

five years” language, and/or the “ECM Biodegradable” tree logo on items provided to end-use 

consumers, such as plastic bags. IDF 285-86, 289-90, 293-305; CCX-819 (Sinclair Dep.) at 415 

(describing inclusion of ECM logo on grocery bags as “gorgeous” advertising). Among the 

plastic products manufactured with the ECM Additive and bearing ECM’s biodegradable claims 

are plastic dinnerware, straws, “clam shell” carry-out containers, restaurant and grocery bags, 

trash bags, plastic film, and shampoo and conditioner bottles. IDF 285-86. 

II. Procedural Background 

A. The Complaint 

On October 18, 2013, the Commission issued a Complaint alleging that ECM’s 

biodegradability claims were false and unsubstantiated. Specifically, the Complaint alleges that 

ECM, through various marketing and promotional materials, “has represented, expressly or by 

implication, that: 

A. ECM Plastics are biodegradable, i.e., will completely break 

down and decompose into elements found in nature within a 

reasonably short period of time after customary disposal; 

B. ECM Plastics are biodegradable in a landfill; 

C. ECM Plastics are biodegradable in a stated qualified timeframe; 

and 

D. ECM Plastics have been shown to be biodegradable, 

biodegradable in a landfill, or biodegradable in a stated qualified 

timeframe under various scientific tests including, but not limited 

to, ASTM D5511.” 

Comp. ¶ 9. The Complaint further alleges that “[i]n truth and in fact: 
6 

A. ECM Plastics will not completely break down and decompose 

into elements found in nature within a reasonably short period of 

time after customary disposal; 

B. ECM Plastics will not completely break down and decompose 

into elements found in nature within a reasonably short period of 

time after disposal in a landfill; 

C. ECM Plastics will not completely break down and decompose 

into elements found in nature within respondent’s stated qualified 

timeframes after customary disposal; and 

D. ECM Plastics have not been shown to completely break down 

and decompose into elements found in nature within a reasonably 

short period of time after customary disposal, after disposal in a 

landfill, or within respondent’s stated qualified timeframe, under 

various scientific tests, including, but not limited to, ASTM 

D5511.” 

Id. ¶ 10. Accordingly, the Complaint alleges that ECM’s representations were false and 

misleading. Id. ¶ 11. 

The Complaint also charges that the representations were misleading because, at the time 

they were made, Respondent lacked reasonable substantiation for its representations. Id. ¶¶ 12-

13. Furthermore, the Complaint alleges, ECM distributed the false and misleading 

representations through its marketing and promotional materials to its customers to use with their 

own customers, thereby providing those entities with the “means and instrumentalities” to 

deceive. Id. ¶ 14. 

Complaint Counsel’s proposed order would prohibit ECM from making any unqualified 

representation that any product or package is “degradable” unless ECM can substantiate with 

competent and reliable scientific evidence that its product or package will decompose completely 

in a landfill within one year. Likewise, the proposed order prohibits any “qualified” claim as to 

the rate and extent of biodegradation unless the claim is substantiated by such evidence. Notice 

Order ¶ I. 

B. The Initial Decision 

The administrative hearing began on August 5, 2014 and concluded on August 29, 2014. 

On January 28, 2015, ALJ D. Michael Chappell issued an Initial Decision in which he found that 

ECM had claimed that ECM Plastics would fully biodegrade in a landfill within nine months to 

five years, and further claimed that tests proved that they would do so. ID 6, 177; IDF 265. He 

determined that these claims were false and unsubstantiated. ID 245-46. In addition, he found 

that these claims “pertained to the central characteristics of plastics infused with the ECM 

Additive” and were material to the purchasing decisions of ECM customers and downstream 

customers. IDF 1497, 1500. He also rejected ECM’s argument that its customers were 

sophisticated purchasers who did not necessarily believe the claims, as not supported by the 

evidence. ID 290-91. The ALJ concluded that by making these claims, ECM made deceptive 
7 

representations and that it also provided the means for its customers and others in the supply 

chain to themselves engage in deception in violation of Section 5 of the FTC Act. ID 291-94, 

319. 

Judge Chappell found, however, that Complaint Counsel had not proven that ECM made 

what he refers to as an “implied one year claim” – i.e., that Complaint Counsel had not proven 

that ECM’s claims that ECM Plastics are “biodegradable” and biodegradable “in some period 

greater than a year” implied that they would completely biodegrade into elements found in nature 

in a landfill within a one-year period. ID 220-23. He concluded that “ECM’s revised stated time 

period of ‘some period greater than a year,’ on its face, is clearly and directly contrary to any 

message that complete biodegradation would occur ‘within one year.’” ID 182. He reasoned 

that “[t]he plain meaning of the word ‘biodegradable’ [as defined in the dictionary] does not 

include any particular time frame for complete decomposition, much less complete 

decomposition, into elements found in nature, in a landfill, within one year.” ID 184. He also 

found the three consumer surveys offered by Complaint Counsel to show that a significant 

minority of reasonable consumers interpret “biodegradable” to mean complete decomposition 

within one year – a survey conducted by Complaint Counsel’s expert, Dr. Frederick, a survey 

previously commissioned by the American Plastics Council (“APCO”), and a survey conducted 

by Synovate – were methodologically flawed and hence entitled to little evidentiary weight. ID 

187-213. 

By contrast, the ALJ found that the consumer survey conducted by ECM’s expert, Dr. 

Stewart, was methodologically sound and showed that consumers interpret the term 

“biodegradable” as a process of decomposition and understand that it depends on the type of 

material involved. ID 216-17. He rejected Complaint Counsel’s contentions that ECM’s 

consumer survey results are fully consistent with the results of the other three surveys in showing 

that consumers believe that products labeled “biodegradable” will biodegrade within one year 

and that the similarity of results of all four studies, or their “convergent validity,” underscores 

the basic validity and reliability of the survey results. ID 208-16. He therefore concluded that 

Complaint Counsel had failed to show by a preponderance of the evidence that a significant 

minority of reasonable consumers would interpret ECM’s unqualified “biodegradability” claim 

or its qualified “some period greater than a year” claim to encompass an implied claim that ECM 

Plastics completely biodegrade in a landfill within one year. ID 181. 

Having found ECM liable only for its claim that ECM Plastics will fully biodegrade in a 

landfill within nine months to five years and the related establishment claim (i.e., the claim that 

scientific tests prove such biodegradation within nine months to five years), the ALJ 

recommended an order that prohibits ECM from representing that any product or package will 

completely biodegrade within any time period, or that tests prove such representation, unless the 

representation is true, not misleading, and, at the time made, substantiated by competent and 

reliable scientific evidence. ID 320-21. 

C. The Cross-Appeals 

ECM appeals the ALJ’s finding of liability as to its express nine months to five years rate 

claim, arguing it was not material, RAppB 18-39, and urges us to affirm the ALJ’s decision on 

the remaining claims. Id. at 6-7. It also argues that application to ECM of what it terms the 
8 

Green Guides’ “One Year Rule” would constitute ultra vires agency action (id. at 43-44); that 

certain discovery and evidentiary rulings by the ALJ violated its due process rights (id. at 44-51); 

and that the order issued by the ALJ is not in the public interest because no actual consumer 

injury has been shown. Id. at 39-43. 

Complaint Counsel appeal the ALJ’s rulings on the implied rate claim that ECM Plastics 

will completely biodegrade in a landfill in a reasonably short period of time, i.e., one or five 

years, and that scientific testing proves this. CCAppB 6-30. They also appeal his conclusion 

that they had not proven either the falsity or lack of adequate substantiation as to ECM’s implied 

biodegradability claims. Id. at 30-47. Further, they defend their proposed order as appropriate 

and necessary. Id. at 5-6, 47-54. 

With respect to the implied non-establishment rate claim, Complaint Counsel contend 

that the four consumer surveys in the record – including one conducted by ECM’s own expert – 

show that a significant minority of reasonable consumers believe that products claimed to be 

“biodegradable” will completely biodegrade within a reasonably short period of time and 

specifically that some consumers believe that period to be within one year and an even larger 

number of consumers believe it to be within five years. CCAppB 6-27; Tr. Oral Arg. 62-63. 

Complaint Counsel also point to survey evidence showing that consumers interpret ECM’s 

“some period greater than a year claim” as implying that ECM Plastics will decompose within a 

reasonably short period of time; they contend that that result is consistent with what consumer 

survey experts refer to as the “anchoring” effect, the tendency of consumer estimates to cluster 

around a provided reference point, such as ECM’s “a year.” CCAppB 27-29. With respect to 

the issues of falsity and substantiation, Complaint Counsel maintain that none of the scientific 

experts found that ECM Plastics will biodegrade in a reasonably short period of time. They 

argue that the laboratory tests relied upon by ECM are unreliable, and that ECM has failed to 

present any substantiation that would be accepted by the relevant scientific community. Id. at 

42-47.6

 

III. Analysis 

The Commission reviews the record de novo by considering “such parts of the record as 

are cited or as may be necessary to resolve the issues presented” and exercising “all the powers 

which it could have exercised if it had made the initial decision.” 16 C.F.R. § 3.54. ECM does 

not dispute that the Commission has jurisdiction over the conduct at issue.7

 

6

 In addition, the organization Californians Against Waste has moved for leave to file an amicus curiae brief in 

support of Complaint Counsel. That motion is granted because the public interest will benefit from the 

Commission’s consideration of the brief. Of course, the amicus brief does not establish any fact of record, see 

Union Oil Co. of Ca., 138 F.T.C. 1, 72 (2004), and we have not relied on any facts drawn from exhibits appended to 

the brief. Nor have we relied upon the brief’s reference to CX-28, which was admitted to the record only for limited 

purposes. Tr. 1634-36; see also Tr. 1617-19. In fact, no portion of our decision rests on facts or arguments 

presented in the amicus brief. 7

 Section 5 of the Federal Trade Commission Act grants the Commission authority to prevent “unfair or deceptive 

acts or practices in or affecting commerce” by “persons, partnerships, or corporations.” 15 U.S.C. § 45(a)(1)-(2). 

ECM is an Ohio corporation, Answer ¶ 1, over which the FTC has jurisdiction. Its principal office or place of 

business is in Ohio. Id. ECM is in the business of manufacturing, advertising, selling, and distributing the ECM 
9 

Section 5 of the FTC Act prohibits “unfair or deceptive acts or practices.” An 

advertisement is deceptive if it contains a representation or omission of fact that is likely to 

mislead a consumer acting reasonably under the circumstances, and that representation or 

omission is material to the consumer’s purchasing decision or conduct. See Policy Statement on 

Deception, 103 F.T.C. 174, 175 (1984) (appended to Cliffdale Assocs., Inc., 103 F.T.C. 110 

(1984)) (“Deception Statement”); Kraft, Inc., 114 F.T.C. 40, 120 (1991), aff’d, 970 F.2d 311 (7th 

Cir. 1992). Thus, in determining whether an advertisement is deceptive, we conduct a “threestep inquiry, considering: (i) what claims are conveyed in the ad, (ii) whether those claims are 

false, misleading, or unsubstantiated, and (iii) whether the claims are material to prospective 

consumers.” POM Wonderful v. F.T.C., 777 F.3d 478, 490 (D.C. Cir. 2015). 

This case involves both express and implied claims. ECM does not dispute that it 

expressly represented that ECM Plastics are “biodegradable” and “biodegradable in a landfill,” 

and that scientific testing proved those claims. Nor does it dispute that it expressly represented 

that ECM Plastics “completely” biodegrade “in a landfill” “within nine months to five years,” 

and that scientific tests also established8

 that claim.9 Likewise, ECM does not dispute that it 

made the claim that ECM Plastics will biodegrade “in some period greater than a year” and that 

scientific tests proved that claim. 

The first set of issues we must resolve are: (i) whether ECM’s unqualified representation 

of biodegradability implies a claim that ECM Plastics will completely biodegrade in a landfill 

within a reasonably short period of time; and (ii) whether ECM’s representation that ECM 

Plastics will biodegrade “in some period greater than a year” likewise implies complete 

biodegradation in a landfill within a “reasonably short period of time.” See Complaint ¶ 9.A; 

CCAppB 6. 

ECM vigorously disputes that a claim that ECM Plastics are “biodegradable” implies the 

products will biodegrade “within a reasonably short period of time.” It argues that its 

representations regarding “biodegradability” mean only that ECM Plastics are “intrinsically” 

biodegradable, without implicating any reference to time. As discussed above, the ALJ found 

that Complaint Counsel failed to establish that the implied rate claim was conveyed from 

representations of “biodegradability” or biodegradability “in some period greater than a year,” 

and thus found it unnecessary to consider the claim’s alleged falsity or materiality. However, we 

find that both the unqualified representation of biodegradability and the representation that ECM 

 Additive to plastic manufacturers and distributors of plastics, Answer ¶ 2, located in various states across the United 

States. See IDF 4, 9, 23, 37, 53, 64, 78. Consequently, ECM’s acts and practices, as alleged in the Complaint, are 

and have been “in or affecting commerce,” within the meaning of Sections 4 and 5 of the FTC Act. 

8 See infra section III.B (explaining that establishment claims represent that a certain level of evidence establishes 

the performance or efficacy of a product). 

9

 The ALJ found that ECM’s claim that tests prove that ECM Plastics will fully biodegrade in a landfill within nine 

months to five years, while not expressly stated, is “clear and conspicuous based on the overall net impression of the 

marketing materials upon which the claim appeared.” IDF 1499; see also IDF 265; ID 223. ECM has not appealed 

this finding. We adopt the ALJ’s rulings concerning ECM’s claim that tests establish the ECM Additive’s efficacy. 
10 

Plastics biodegrade “in some period greater than a year” imply that ECM Plastics completely 

biodegrade in landfills within a reasonably short period of time (i.e., within five years).10

The next set of issues we must resolve relate to the allegation that the express and implied 

claims were false and unsubstantiated. ECM has not appealed the ALJ’s ruling that its “nine 

months to five years” express biodegradation claim and associated establishment claim were 

both false and unsubstantiated. However, it contends that its representations that ECM Plastics 

are “biodegradable” and “biodegradable in a landfill” (considered without regard to any implied 

time frame) are true and adequately substantiated by scientific testing, in particular the ASTM 

D5511 gas emission testing. Similarly, it maintains that its claim that ECM Plastics biodegrade 

“in some period greater than a year” is true and adequately substantiated. For the reasons 

discussed below, we find that ECM lacks a reasonable basis for its implied biodegradable rate 

claims and that those claims were false and unsubstantiated. 

The last liability issues we examine relate to materiality and the public interest. ECM 

contends that its “nine months to five years” claim was not material, and that the ALJ’s proposed 

order, which was based only on that claim, was therefore not in the public interest. RAppB 51. 

For the reasons discussed below, we affirm the ALJ’s ruling with respect to the materiality of 

ECM’s “nine months to five years” claim and its related establishment claim; we find ECM’s 

implied rate claim and its related establishment claim material; and we reject ECM’s contention 

that an order is not in the public interest. 

A. The Implied Rate Claim 

In the course of its marketing to direct customers, ECM made a series of claims about the 

biodegradability of ECM Plastics. First, it made claims of biodegradability without reference to 

any specific period of time; then it switched to claims that promised biodegradation in a specific 

time frame of nine months to five years; and eventually it represented that ECM Plastics would 

biodegrade in “some period greater than a year.” End-use consumers who encountered plastic 

products made with the ECM Additive were also exposed to unqualified biodegradation claims 

and to express claims of biodegradation within nine months to five years. IDF 285-86, 297. 

Complaint Counsel contend that “Respondent’s ‘biodegradable’ claim and ‘some period greater 

than a year’ claim implied to reasonable consumers that plastic treated with its additive would 

completely break down into elements found in nature in a landfill in a reasonably short period of 

time (i.e., within one or five years).” CCAppB 6. 

1. The Legal Framework 

The Commission’s framework for interpreting advertising claims is well settled and is not 

in dispute. The Commission “will deem an advertisement to convey a claim if consumers, acting 

reasonably under the circumstances, would interpret the advertisement to contain that message.” 

POM Wonderful, LLC, 2013 WL 268926, at *19 (F.T.C. 2013), aff’d, POM Wonderful LLC v. 

FTC, 777 F.3d 478 (D.C. Cir. 2015); Thompson Med. Co., 104 F.T.C. 648, 788 (1984), aff’d, 

 

10 Commissioner Ohlhausen dissents from this conclusion with regard to the unqualified biodegradable claim. See

supra note 1. 
11 

791 F.2d 189 (D.C. Cir. 1986); Deception Statement, 103 F.T.C. at 176. When an ad conveys 

more than one meaning, only one of which is misleading, a seller is liable for the misleading 

interpretation even if non-misleading interpretations are also possible. POM Wonderful, 2013 

WL 268926, at *19 (citing Bristol-Myers Co., 102 F.T.C. 21, 320 (1983), aff’d, 738 F.2d 554 (2d 

Cir. 1984)); Nat’l Comm’n on Egg Nutrition v. FTC, 570 F.2d 157, 161 n.4 (7th Cir. 1977). 

An interpretation may be reasonable even if it is not shared by a majority of consumers in 

the relevant class or by particularly sophisticated consumers. See, e.g., Novartis Corp., 127 

F.T.C. 580, 684 (1999); Kraft, 114 F.T.C. at 122. “An ad is misleading if at least a significant 

minority of reasonable consumers are likely to take away the misleading claim.” Telebrands, 

140 F.T.C. 278, 291 (2005), aff’d, 457 F.3d 354 (4th Cir. 2006)); see Kraft,114 F.T.C. at 122; 

Deception Statement, 103 F.T.C. at 177 n.20.11 In prior cases, we have found percentages 

ranging from 10% to 22% to be sufficient to constitute a significant minority.12 See, e.g., 

Firestone Tire & Rubber Co. v. FTC, 481 F.2d 246, 249 (6th Cir. 1973); Telebrands, 140 F.T.C. 

at 325. 

Claims may be express or implied. Express claims directly state the representation at 

issue; implied claims are those that are not express. Kraft, 114 F.T.C. at 120. The Commission 

reviews implied claims as if they are on a continuum, ranging from claims that are “virtually 

synonymous with an express claim through language that literally says one thing but strongly 

suggests another to language which relatively few consumers would interpret as making a 

particular representation.” Id.; see also Thompson Med. Co., 104 F.T.C. at 789; Novartis Corp., 

127 F.T.C. at 680. Both express claims and implied claims can be deceptive. Kraft, 114 F.T.C. 

at 120 (citing, e.g., Removatron Int’l Corp., 111 F.T.C. 206, 292-95 (1988), aff’d, 884 F.2d 1489 

(1st Cir. 1989)). 

 “It is well established that the Commission has the common sense and expertise to 

determine ‘what claims, including implied ones, are conveyed in a challenged advertisement, so 

long as those claims are reasonably clear.’” POM Wonderful, 2013 WL 268926, at *20-21 

(quoting Kraft, Inc., 970 F.2d at 319-20); see FTC v. Colgate-Palmolive Co., 380 U.S. 374, 391-

92 (1965); Stouffer Foods Corp., 118 F.T.C. at 798; Daniel Chapter One, 2009 WL 516000, at 

*14-15 (F.T.C. 2009), aff’d, 405 Fed. Appx. 505 (D.C. Cir. 2010 (unpublished opinion), 

available at 2011-1 Trade Cas. (CCH) ¶77,443 (D.C. Cir. 2010). 

However, if after completing a facial analysis we cannot conclude with confidence that 

an advertisement can reasonably be read to contain a particular implied message, the 

Commission requires extrinsic evidence to determine how reasonable consumers actually 

perceive the ads. See, e.g., Kraft, 114 F.T.C. at 121; Thompson Med. Co., 104 F.T.C. at 789-90. 

 

11 While in her Partial Dissent Commissioner Ohlhausen characterizes reliance on the inferences drawn by a 

significant minority of reasonable consumers as an “exception” to a more rigorous rule, Partial Dissent at 8, the 

Commission’s Deception Statement presents that approach directly and affirmatively: “A material practice that 

misleads a significant minority of reasonable consumers is deceptive.” Deception Statement, 103 F.T.C. at 177 n.20. 

12 Commissioner Ohlhausen dissents from this characterization of the case law. She argues in her partial dissent that 

the FTC has never found a claim interpretation to be reasonable solely based on evidence that a significant minority 

of consumers adopt that interpretation. The dissent does not find the cases the majority cites apposite. 
12 

Such extrinsic evidence may include the results of consumer surveys, expert opinion as to how 

the ad may be interpreted by consumers, and generally accepted principles drawn from market 

research. See, e.g., Kraft, 114 F.T.C. at 121. Traditionally, we have found that consumer 

surveys – particularly experimental surveys, if properly designed and conducted – are especially 

informative in assessing the actual impact of an ad on consumer perceptions. See, e.g., Kraft,

970 F.2d at 318; Telebrands, 140 F.T.C. at 315-29; Stouffer Foods Corp., 118 F.T.C. 746, 804-

11; (1994) Thompson Med. Co., 104 F.T.C. at 788-89 (“The extrinsic evidence we prefer to use 

and which we give great weight is direct evidence of what consumers actually thought upon 

reading the advertisement in question. Such evidence will be in the form of consumer survey 

research. . . .”). Further, in considering consumer survey evidence, we assess the methodologies 

used and any asserted shortcomings in such methodologies, but we recognize that that there are 

typically flaws in any survey. We do not demand perfection. See POM Wonderful, 2013 WL 

268926, at *28 (“The Commission does not require methodological perfection . . . but looks to 

whether such evidence is reasonably reliable and probative.”). 

Also, while a respondent need not intend to make a claim in order to be held liable, a 

showing of intent to make a particular claim is “powerful evidence that the alleged claim in fact 

was conveyed to consumers.” Telebrands, 140 F.T.C. at 304; see also POM Wonderful, 2013 

WL 268926, at *29 (statements by respondents that were never conveyed to consumers showed 

an intent to convey particular types of claims, which supported the Commission’s interpretation 

of respondents’ ads); Novartis Corp., 127 F.T.C. at 683 (“evidence of intent to make a claim may 

support a finding that the claims were indeed made”). 

2. ECM’s Unqualified “Biodegradability” Representation 

First, we consider Complaint Counsel’s allegation that the representation that ECM 

Plastics are “biodegradable” conveys to reasonable consumers the claim that ECM Plastics “will 

completely break down and decompose into elements found in nature within a reasonably short 

period of time after customary disposal.” Comp. ¶ 9.A. 

From the time that ECM first began marketing the ECM Additive in the late 1990s until 

about 2009, ECM told its customers that the ECM Additive would render conventional plastics 

“biodegradable” without reference to any specific time frame.13 CCX-818 (Sinclair Dep.) at 75-

78. Also, finished products made with ECM Plastics purchased by end-users have included 

claims – that originated with ECM – that the products were “biodegradable” without reference to 

time, including the “ECM Biodegradable” tree logo. IDF 285. 

ECM does not dispute that it has expressly represented that ECM Plastics are 

“biodegradable,” “biodegradable in a landfill,” and “fully biodegrade,” and that tests prove these 

assertions. Rather, the issue is whether a significant minority of reasonable consumers would 

 

13 To the extent that over a prolonged course of dealing, any ECM customers were exposed to both an earlier 

unqualified biodegradability claim and a later specific claim of biodegradation within nine months to five years, we 

conclude that the net impression conveyed to such customers would be the more specific claim communicating the 

time frame of five years or less. See Deception Statement, 103 F.T.C. at 179 (“the Commission will evaluate the 

entire advertisement, transaction, or course of dealing in determining how reasonable consumers are likely to 

respond.”). 
13 

likely interpret those representations to imply biodegradation “within a reasonably short period 

of time.” 

The ALJ interpreted “reasonably short period of time” to mean “within one year,” see ID 

180-81 & n.23, and found that the marketing materials and extrinsic evidence failed to establish 

an “implied one year rate claim.” ID 182. 

 At the outset, we reject ECM’s argument that the only implied claim properly at issue is 

a claim that ECM Plastics fully biodegrade in landfills within one year. See RAnsB 13-14. The 

Complaint reads more broadly: rather than stating a specific number of years, it alleges that ECM 

has claimed that ECM Plastics will completely break down into elements found in nature “within 

a reasonably short period of time” after customary disposal. Throughout the trial, Complaint 

Counsel identified a range from one to five years as the “reasonably short period of time” at 

issue. In their Pre-Trial Brief, Complaint Counsel asserted that ECM had impliedly claimed that 

“(1) ECM Plastics will completely biodegrade; (2) after customary disposal (i.e., in a landfill); 

(3) in a period close to one year, or at least within 5 years.” Id. at 21; see also id. at 40 (stating 

that ECM’s implied claims – “that the ECM additive would make plastic biodegrade in a 

reasonably short period of time (e.g., less than a year, or at least 5 years) after customary 

disposal (i.e., in a landfill) – are likewise presumptively material”). Following trial, Complaint 

Counsel defined ECM’s implied claims in the same terms: complete biodegradation in a landfill 

“in a period close to one year, or at least within 5 years.” Complaint Counsel’s Amended PostTrial Brief 28. While Complaint Counsel focused their arguments on biodegradation within one 

year, they also repeatedly presented evidence using five years as the applicable benchmark. See 

id. at 31 n.27, 41 n.35, 48 n.50, 50 n.53. Given these facts, ECM was on notice that an implied 

claim of biodegradation within five years was at issue, and its contention that “[h]aving not 

presented the alleged ‘five years or less’ implied claim in its Complaint or at trial, Complaint 

Counsel are foreclosed from doing so on appeal,” RAnsB 13, is unpersuasive.14

Further, through a facial analysis of the advertising in question, we reject ECM’s 

argument that the word “biodegradable” means, in the context of consumer advertising, only that 

the product is “intrinsically” biodegradable, with no time element. Such an interpretation would 

render the term meaningless. This is because nearly all substances, including conventional 

plastics, will biodegrade if given enough time – even if that time period might be thousands or 

millions of years. Complaint Counsel’s landfill and polymer engineering experts, Drs. Tolaymat 

and McCarthy, as well as ECM’s own scientific expert, Dr. Sahu, have acknowledged this. See

CCX-891 at 7 and 11, n.4 (conventional plastics will take thousands of years to biodegrade and 

“[o]ver time, all things will likely biodegrade”); RX-855 at 8, n.3 (Dr. Sahu estimating 

“conservatively (i.e., on the low side) that the general time period for complete degradation of 

 

14 In her partial dissent, Commissioner Ohlhausen argues that we have “revised” Complaint Counsel’s position by 

concluding that ECM impliedly claimed plastics with the ECM additive would biodegrade within five years. As 

support for her contention, she cites in particular Complaint Counsel’s statement at oral argument confirming that 

their principal argument was a claim of one year. Partial Dissent at 11 n.53. But, as Commissioner Ohlhausen 

herself acknowledges, Complaint Counsel explained in the very next sentence that they were also pressing a claim 

of five years as a fallback position, as they had during trial. Parties assert alternative positions all the time in 

litigation. There is nothing revisionist in our concluding that at least one of Complaint Counsel’s two alternative 

positions is amply supported by the evidence. 
14 

conventional plastics in the environment is, say, 1000 years,” and noting agreement with Dr. 

Tolaymat’s estimate that it could be “centuries, eons”). 

Even if scientific understanding regards biodegradation as a process and does not 

incorporate any specific time frame, this tells us nothing about consumers’ understanding, which 

is the focus of our inquiry. See, e.g., Thompson Med.Co., 114 F.T.C. at 809 n.33, n.35 (noting 

that “scientific and popular understandings are known to vary on occasion,” and that 

“[d]efinitions are less reliable than survey research as an indicator of how consumers understand 

advertisements because they can only provide the meanings generally used for words, rather than 

the specific meaning of the words in a particular context”). 

ECM’s contention that consumers interpret biodegradability claims solely in terms of a 

process, without inferring a rate, in effect means that consumers view plastic labeled 

“biodegradable” no differently than any other plastic, i.e., that they ascribe no meaning 

whatsoever to the word “biodegradable.” Such an interpretation is not plausible on its face. We 

find that the word “biodegradable” as used by ECM conveys some time element. But ECM’s 

proffered interpretation – that biodegradation is understood merely as a process without any 

reference to time – is unconvincing. 

Turning now to the issue of the specific rate of biodegradation that is implied by an 

unqualified “biodegradable” claim, we agree with the ALJ that such representations in ECM’s 

marketing materials, including its tree logo, cannot reasonably be read to convey the alleged 

specific implied rate claim based on a facial analysis alone. However, for the reasons discussed 

below, we find that the extrinsic evidence in the record establishes that reasonable consumers 

expect that plastic products labeled “biodegradable” will decompose within a reasonably short 

period of time (i.e., within five years), and would be misled if a plastic product labeled 

“biodegradable” did not do so. 

First, we briefly consider evidence of ECM’s intent to convey a rate claim when using the 

term “biodegradable.” Then we turn to the surveys conducted to explore the time period 

conveyed when consumers interpret the term “biodegradable.” The central question is whether 

reasonable consumers would likely infer from the term “biodegradable” that a plastic product 

will not only eventually break down or decompose, but also that it will do so in a reasonably 

short period of time. 

As discussed below, we find that the evidence indicates that ECM intended its 

unqualified biodegradability claim to convey a reasonably short period of time for ECM Plastics 

to biodegrade. Moreover, we find that the Frederick and Stewart consumer surveys are 

consistent and demonstrate that reasonable consumers would likely infer that message. The ALJ 

erred in his analysis of that key evidence. Accordingly, we find that Complaint Counsel have 

shown by a preponderance of the evidence that ECM made the implied claim that ECM Plastics 

will completely break down in landfills within a reasonably short period of time, i.e., within five 

years. 
15 

a. ECM Intended that “Biodegradable” Imply a Rate 

As set forth in Section I above, the core attribute of the ECM Additive was purportedly to 

speed up the biodegradation process of plastic products. ECM’s customers were interested in 

just how fast their products could degrade if they added the ECM Additive, which was an 

important factor in determining whether to purchase it. ID 288-89; IDF 1502. ECM’s intent to 

convey a reasonably short time period is evident in its customer communications. ECM asked its 

customers to sign a Certificate of Assurance that they would always incorporate ECM Additive 

in an amount representing at least one percent of plastic weight for the very reason that “ECM’s 

reputation can be materially and, perhaps, irreparably damaged when products claiming to use 

ECM MasterBatch Pellets fail to biodegrade with[in] a reasonable period of time.” CCX-826. 

Also, Mr. Sinclair testified that he would tell customers to bury a stick or small piece of wood 

(e.g., a tongue depressor) alongside plastic treated with the ECM Additive, and “by the time that 

stick or tongue depressor, or whatever the case may be, biodegrades, you should expect the 

plastic to biodegrade as well....” CCX 818 (Sinclair Dep.) at 70. Most importantly, ECM knew 

that its direct purchasers wanted this information so that they could assure their downstream 

customers that the biodegradation rate was reasonably short and that those manufacturers and 

retailers could comfortably label their end use products as “biodegradable.” See, e.g., IDF 280-

81, 299, 1502-03. This evidence demonstrates that ECM intended the term “biodegradable” to 

convey a reasonably short time element. 

b. Dr. Frederick’s Google Survey 

Based on our de novo review of all four consumer surveys in the record, we find Dr. 

Frederick’s survey the most informative on the key issue of the impact of labeling a plastic 

article “biodegradable” on reasonable consumer expectations regarding time frames for 

biodegradation. 

Dr. Frederick’s survey is the only one introduced in this case that is experimental.15 As 

discussed below, Dr. Frederick’s survey establishes, among other things, that affixing a 

“biodegradable” label on a plastic product significantly increases the percentage of consumers 

who infer rapid decomposition of the package and provides evidence that a majority of 

consumers expect biodegradation to occur within five years.

Dr. Frederick used Google Consumer Surveys (“Google Surveys”) to collect almost 

29,000 responses for his study. Google Surveys is a relatively new, web-based research tool 

introduced by Google in about 2012. In a Google Survey, an internet user encounters a “pop-up” 

 

15 As Dr. Frederick explains, “[o]bservational research measures but does not manipulate variables.” CCSuppB, 

Frederick Dec. at 3. By contrast, experimental research manipulates as well as measures variables by asking “test” 

and “control” questions to determine what factor or factors affect the issue being addressed. Id. at 3-4. While 

observational (also referred to as “descriptive”) studies are intended to measure certain aspects of survey 

respondents’ beliefs or opinions about a given topic (in this case, biodegradability and, in particular, 

biodegradability rates), an experimental study is designed to explore cause and effect. Id. at 4. Dr. Stewart’s 

survey, for example, was an observational study. It was intended to measure various aspects of respondents’ beliefs 

about biodegradability, but all respondents received the same version of the survey, answered the same questions, 

and no variables were manipulated. By contrast, Dr. Frederick’s Google Survey functions both as an observational 

and experimental survey. 
16 

survey question when attempting to access desired content on a website; the user is blocked from 

access to the desired content unless he or she answers the survey question or pays for access to 

the desired content without answering. IDF 357, 359. Each consumer who participated in the 

survey was asked only a single question. 

Dr. Frederick’s survey consisted of approximately 60 questions. See CCX-860, App. A 

at 27-45. The first set of questions (lA through 1K) asked in various ways how much time the 

respondent thought it would take for a generic biodegradable product or a generic product 

labeled “biodegradable” to decompose. Id., App. A at 27-28. A related series of questions (2A2E) asked in various ways how long such products should take to decompose before the 

respondent would feel misled. Id., App. A at 29. The responses to those questions showed that 

between 57% and 91% of the respondents who provided answers that included both a number 

and specific unit of time believe that biodegradation will occur within 5 years.16 Id., App. A at 

27-28. They also suggest that, if asked the amount of time a package labeled biodegradable 

should take to biodegrade, consumers respond with even faster biodegradation rates. See id., 

App. A at 29; CCSuppB, Frederick Dec. at 6. 

A second set of questions focused specifically on plastic products, and it is the answers to 

those questions that are especially pertinent here. This portion of the survey included control 

questions. Question 3L asked survey respondents “If a plastic package is NOT labeled 

“biodegradable,” how long will it take to decompose?” Similarly, without reference to 

biodegradability, Questions 3M and 3N asked how long it takes a plastic package or a plastic 

water bottle, respectively, to decompose. CCX-860, App. A at 33. Questions 3A to 3K, on the 

other hand, asked in various ways how long respondents believed it would take for a plastic 

water bottle or other type of plastic package that was labeled “biodegradable” to decompose. 

Id., App. A at 30-33. Some of these latter questions presented photoshopped images of various 

types of “biodegradable” logos and asked “If you saw this label on a plastic water bottle, how 

long would it take to decompose?” See id., Questions 3D-3G, App. A at 30-31. By contrast, 

other questions presented images of the “ECM biodegradable” tree logo on a plastic container 

(Questions 3H and 3J) and on a plastic bag (Questions 3I and 3K) (as the test questions). A 

separate set of questions presented an image of the identical plastic container (Question 3O) and 

plastic bag (Question 3P) without the ECM logo as controls. Again, the respondents were asked 

how long they thought it would take for each of the plastic products to decompose. 

A significant percentage of respondents (40-76%) expected plastic products that are 

labeled “biodegradable” to decompose within five years. See id., Questions 3A-3K, App. A at 

30-33.17 Between 77% and 85% reported that they would feel misled if a plastic product labeled 

“biodegradable” did not biodegrade in 5 years or less. See id., Questions 4B & 4C, App. A at 35. 

 

16 As discussed further below, Dr. Frederick employed a coding methodology that classified survey responses into 

time categories for analysis. The survey results referenced in this section reflect the percentages of all responses to a 

particular question that included both a number and a temporal unit. 

17 As one would expect, the survey respondents provided somewhat longer biodegradation times for biodegradable 

plastic products than for biodegradable products whose composition was unspecified. See CCSuppB, Frederick 

Dec. at 6 (comparing the results for Questions 1A & 3C and 1D & 3B). 
17 

Most importantly, Dr. Frederick’s survey shows that labeling a plastic product 

“biodegradable” significantly increased the percentage of respondents who inferred 

decomposition of the plastic product within five years. In particular: 

 For the plastic “Tupperware” container, the difference between the 

container bearing the “ECM Biodegradable” tree logo and the one without 

was 35% (56% versus 21%, comparing responses to Questions 3J and 

3O);18

 For the plastic bag, the difference between the bag bearing the “ECM 

Biodegradable” tree logo and the one without was 32% (57% versus 25%, 

comparing responses to Questions 3K and 3P); 

 For the plastic water bottle, the difference between the bottles bearing a 

“biodegradable” logo and one without ranged from 49% to 52% 

(comparing responses to Question 3N to responses to Questions 3D and 

3E);19 and 

 For a plastic package, the difference between a package labeled 

“biodegradable” and one not labeled “biodegradable” was 42% (64% 

versus 22%, comparing responses to Question 3C and 3M). 

Frederick CCSuppB, Frederick Dec. at 7-9.20 Dr. Frederick concluded from these results that 

“[b]ecause the distribution of beliefs regarding products with biodegradable claims differs 

markedly from those lacking such claims,” “the biodegradable claim is causing that difference.” 

Id. at 10. 

 The interpretation of the word “biodegradable” on a plastic product as implying a 

biodegradation time within five years is reasonable. It makes sense that consumers read some 

time period into the word “biodegradable,” because otherwise the term ceases to have any 

significance. In this context, the finding of an implied time period of five years is not 

“outlandish” or indicative that the respondents are unreasonable outliers. See Deception 

 

18 The comparisons in the text make use of the responses to Questions 3J and 3K, rather than 3H and 3I. The 

questions are identical except that Questions 3J and 3K clarify that the depicted logo says “ECM biodegradable.” 

Dr. Frederick explains that he included that language in Questions 3J and 3K because the small font for the word 

“biodegradable” was not legible on many computer screens, and he wanted to help ensure that the variable he 

intended to manipulate (ECM’s “biodegradable” claim), was, in fact, taken into consideration by survey 

respondents. CCSuppB, Frederick Dec. at 7 n.5; Frederick, Tr. 1151, 1154. Although ECM argues that Questions 

3J and 3K are therefore biased and leading, and the results unreliable, we understand Dr. Frederick’s concern with 

the likely illegibility of the key “biodegradable” variable in Questions 3H and 3I and do not find the clarification 

leading or otherwise biased as ECM contends. 

19 The percentages are 70% for Question 3D, 67% for Question 3E, and 18% for Question 3N. 

20 Indeed, Dr. Frederick’s survey indicates that a “biodegradable” label on a plastic product significantly increased 

the percentage of respondents who inferred decomposition of the plastic product within one year; the difference was 

18% for the Tupperware, 25% for the plastic bag, 34-41% for a plastic water bottle, and 30% for a plastic package. 

CCSuppB, Frederick Dec. at 7-9; CCX-860, App A at 30, 33 
18 

Statement, 103 F.T.C. at 178, citing Kirchner, 63 F.T.C. at 1290.21 Moreover, while we discuss 

the demographics of the respondents to Dr. Frederick’s survey in further detail below, the 

respondents certainly “fall within the range of persons who would be average or ordinary 

members of the adult population and, as such, are reasonable consumers.” Thompson Med. Co., 

104 F.T.C. at 810. 

We recognize that many of the respondents to Dr. Frederick’s survey may appear to hold 

incorrect underlying beliefs about the biodegradability of conventional plastic items. See, e.g., 

CCX-860, Questions 3O & 3P, App. A at 34 (indicating that 21% of respondents stated that a 

plastic “Tupperware” container would degrade in five years or less, and 25% of respondents 

stated that a plastic bag would degrade in five years or less, when neither item was marked as 

“biodegradable.” However, the fact that the survey respondents are confused or mistaken about 

biodegradation does not make them unreasonable and does not mean that they are acting 

unreasonably.22 Biodegradation claims – like most environmental benefit claims in general – are 

credence claims; consumers are unable to verify for themselves whether they are true. It is not 

unreasonable for consumers to have mistaken ideas about a biological process that they almost 

certainly have never directly observed. 

Therefore, Dr. Frederick’s survey demonstrates that attaching a “biodegradable” label to 

a plastic product leads reasonable consumers to believe that the product will biodegrade within 

five years. 

ECM, however, argues that the methodology of Dr. Frederick’s survey was seriously 

flawed, and that the ALJ correctly decided it was entitled to little if any evidentiary weight. It 

argues that the survey does not qualify as experimental, and that the only reliable survey in the 

record is the observational survey of its own expert, Dr. Stewart. RSuppB 1-6. In particular, 

ECM accuses Dr. Frederick of using a less expensive Google Survey only because he could then 

pocket more of his fixed fee. RAnsB 26. It argues that Dr. Frederick’s survey methodology and 

design are fatally flawed because Dr. Frederick failed to define a relevant population or use an 

appropriate sampling methodology, failed to ask appropriate questions, and failed to code and 

 

21 Accordingly, we find no substance to Commissioner Ohlhausen’s varying suggestions, Partial Dissent at 8-10 & 

n.46, that we have not considered whether the interpretation of the label “biodegradable” on a plastic product to 

imply biodegradation within five years is reasonable, or that we have based consideration of that issue solely on the 

finding that a significant minority of consumers hold that interpretation. 

22 One of the Commission’s major areas of advertising enforcement activity relates to weight loss products, and 

despite the scientific consensus that successful weight-loss efforts require changes to diet and/or exercise, consumers 

often will believe implausible weight-loss claims. However, the Commission still finds deception and does not 

consider such consumers unreasonable because they believe an advertiser’s claims – against the weight of science – 

that a miracle pill will enable them to lose weight effortlessly. See, e.g., FTC v. 7734956 Canada Inc., No. 1:14-cv02267-CCB (D. Md. Jul. 16, 2014) (complaint) (challenging, inter alia, claims that a dietary supplement could cause 

a minimum of 20 pounds of weight loss per week, without the need to diet or exercise); Wacoal America, Inc., FTC 

Docket No. C-4496 (Nov. 10, 2014) (complaint) (challenging claims that undergarments made with fabric 

containing microcapsules of caffeine eliminate cellulite, destroy fat cells, and cause substantial slimming); see also 

Deception Statement, 103 F.T.C. at 179 n.30 (to some consumers “the promises of weight loss without dieting are 

the Siren’s call, and advertising that heralds unrestrained consumption while muting the inevitable need for 

temperance, if not abstinence, simply does not pass muster.”) (quoting Porter v. Dietsch, 90 F.T.C. 770, 864-65 

(1977), aff’d, 605 F.2d 294 (7th Cir. 1979), cert denied, 445 U.S. 950 (1980)). 
19 

analyze the data correctly. RAnsB 25-32. Finally, ECM contends that the Google Survey 

“suffers from disinterest bias.” RAnsB 32-34. 

ECM’s arguments are unpersuasive. First, we find no basis for impugning Dr. 

Frederick’s motives in using a Google Survey rather than a more traditional approach, such as 

Dr. Stewart’s landline telephone survey. While the record shows that Dr. Frederick chose 

Google Surveys in part because of its lower cost, see, e.g., Frederick, Tr. 1086, he explained that 

Google Surveys has substantive benefits that contributed to his selection of the methodology and 

that he has used Google Surveys in many other research projects. CCX-860 at 13; Frederick, Tr. 

1104. For example, Google Surveys enable the use of substantially larger sample sizes,23

reaching a broader spectrum of American consumers than surveys limited to landline telephone 

users. See id.; CCX-865 (Frederick Rebuttal Report) at 4; Frederick, Tr. 1087 (testifying that 

landline telephone surveys such as Dr. Stewart’s are skewed toward older Americans). Also, 

with a Google Survey, a researcher can present visual images of a product with and without the 

challenged advertising and more nearly replicate the experience of a consumer in encountering a 

“biodegradable” claim. Frederick, Tr. 1091-92. 

Second, we disagree with ECM’s contentions that Dr. Frederick failed to define the 

relevant population and that the demographics of his sample are “unknowable.” RAnsB 27-29. 

Dr. Frederick appropriately defined the relevant population as “American consumers,” Frederick, 

Tr. 1066-67, and further explained why the data collected through Google Surveys is “highly 

representative both demographically and psychographically” of that population. Frederick, Tr. 

1410; see also id. at 1067-75. As Dr. Frederick explained, Google Surveys pays approximately 

340 mainstream Internet content providers to present survey questions to Internet users. Google 

Surveys then uses dynamic imputation algorithms to infer the demographic representativeness of 

each survey sample based on five data points: IP addresses provide information about geographic 

region and urban density, and browsing history provides information about gender, age, and 

income. Google Surveys reports this demographic information, along with the survey results, to 

the researcher. See CCX 865 at 3-4; Frederick, Tr. 1076-77; CCX-863 (spreadsheet showing 

demographic data for Dr. Frederick’s survey respondents). 

ECM argues that Google’s inferred demographics “can be wrong” and that screening 

questions are essential to ensure a survey sample is representative. RAnsB 27-28. For example, 

ECM says, if the respondent has disabled the “cookies” on his or her computer, Google cannot 

use the respondent’s browsing history to infer gender or age. RAnsB 28. Likewise, Google’s 

inferences about gender, age, or income could be incorrect if one family member used another’s 

computer in responding to the survey. Id. 

Dr. Frederick acknowledges that Google’s inferred demographics may not always be 

accurate or complete as to individual respondents. As he observes, however, even if there are 

 

23 As mentioned above, Dr. Frederick’s survey included approximately 60 questions and collected a total of nearly 

29,000 responses. See, e.g., CCX-860 at 12; Frederick, Tr. 1059. However, because each respondent was asked 

only one question, the sample size for any particular question in the survey ranged from 72 to 1,704. See CCX-860 

at 12. For each of Questions 3A-3P discussed above (which all related to the biodegradation of plastic containers, 

bags, water bottles, and packages), the sample size ranged between 200 and 268. See id., App. A at 30-34. 
20 

some imperfections as to individual respondents, those imperfections would not compromise the 

representativeness of the total pool of 29,000 respondents as a whole.24 See CCX-865 at 4 

(“Based on my understanding of how [Google Surveys] operates, I can conclude that it assesses 

demographics in the aggregate with accuracy”); id. at 3-4 (although Google Surveys “cannot 

ascertain every demographic characteristic of every respondent, every time, with perfect 

accuracy, any moderately large sample is highly likely to be demographically representative”); 

Frederick, Tr. 1079; see also Stewart, Tr. 2745 (opining as to his own survey that individual 

imperfections do not matter if the overall sample is representative). In addition, Dr. Frederick 

testified that he had confidence in Google’s sampling approach in part because various studies – 

including one by the highly-regarded Pew Research Center – indicate that the Google sampling 

approach compares favorably to other survey approaches, including internet panels. Frederick, 

Tr. 1068-76.25 

We likewise are not persuaded that screening questions are “essential” for Dr. Frederick’s 

survey as ECM maintains. At least when the population at issue is all American consumers 

rather than a particular subset, drawing a large sample through mainstream internet content 

providers and inferring demographics using Google’s techniques is adequate. Indeed, as we 

discuss infra, Dr. Stewart’s screening questions had significant problems of their own. 

Third, ECM faults Dr. Frederick’s survey for failing to ask appropriate questions. To 

begin with, ECM argues that his questions are leading – they “assume[ ] that the representation 

of ‘biodegradable’ communicates a biodegradation rate,” thereby “injecting a bias” into the 

questions. RAnsB 29-30. To avoid this, ECM suggests, a proper question must be open-ended, 

e.g., “What does the term biodegradable mean to you?” See id. at 29. But that merely asks the 

survey respondent to provide his or her definition of “biodegradable,” and a definitional question 

is unlikely to elicit a response sufficiently focused to analyze or quantify a specific attribute. 

Asking about a specific attribute may be necessary to focus the answer, and if neutrally phrased, 

need not be deemed inappropriately leading. In this case, we find nothing biased in Dr. 

Frederick’s questions asking about the respondents’ views on how long it takes for plastic items 

to biodegrade. Indeed, this was the key question the survey was intended to address, and Dr. 

 

24 While the sample size for any particular question in the survey was a subset of these 29,000 respondents, ranging 

in number from 72 to 1,704, see supra note 23, if the total pool of respondents is representative of the general 

population, a randomly selected and smaller but still moderately-sized subset of respondents from that pool who 

responded to a particular question is also likely to be representative. See Frederick, Tr. 1360-61; CCX-865 at 4. 

25 See CCX-874 (Pew study comparing the results of its own telephone survey of internet users with Google Survey 

respondents and finding little difference); CCX-872 (New York Times article concluding that Google Surveys 

outperformed established pollsters including CCN, Gallup, and Reuters in predicting the 2012 presidential election 

results); CCX-868 (Google-commissioned study showing that Google Surveys performed as well as or better than 

internet panel surveys and deviated only 4% from established benchmarks). The Pew Research study, for example, 

found that Google Surveys “achieved a representative sample of internet users on gender, age, race/ethnicity, marital 

status and home ownership when compared with internet users in Pew Research Center,” CCX-874 at 5, and found a 

median difference of three percentage points in responses to 43 questions about a wide range of policy and political 

questions, CCX-874 at 2. 
21 

Frederick, by asking it in numerous different ways, sought to control for any bias from the 

manner in which a particular question was phrased.26

ECM further argues that Dr. Frederick’s single-question design cannot provide reliable 

results and that multiple questions must be asked to sufficiently probe consumers’ understanding 

of the term “biodegradable.” We again disagree. The single-question design used by Dr. 

Frederick had multiple benefits. For instance, respondents’ answers to questions were not 

influenced by the phrasing of earlier questions. See Stewart, Tr. 2689 (acknowledging that 

information conveyed to respondents earlier in a survey can affect their answers to later 

questions). Moreover, it allowed the survey to mimic the various ways “biodegradable” claims 

reach consumers by presenting, to random samples of the same population, visual images of 

different types of plastic products, some containing different biodegradable labels. See

CCSuppB, Frederick Dec. at 4, 7. Furthermore, asking questions in varying ways provides 

greater confidence in the results. As Dr. Frederick explained, arriving at “the same result despite 

asking questions in different ways” is a good indication that the results are “robust.” Frederick, 

Tr. 1061-62. In short, although multi-question, “funnel” designs (that progress from more 

general to more narrow questions on a topic) are often used in observational studies such as Dr. 

Stewart’s, we find nothing inherently inferior in the single-question design used by Dr. 

Frederick. 

Fourth, ECM faults Dr. Frederick’s survey for “disinterest bias,” suggesting that 

respondents might not have given serious consideration to the Google Survey questions because 

they wanted to access internet-based content, not answer a survey question. As evidence, ECM 

points to selected responses in Dr. Frederick’s data base that it describes as nonsensical or 

obviously made in protest (e.g., “go away”). RAnsB 33. However, as Dr. Frederick points out, 

the number of obviously disinterested protest responses in the Google Survey was de minimis – 

less than 1% of a 29,000 respondent sample (Frederick, Tr. 1123-24, 1136, 1138; CCX-865 at 5). 

Moreover, there is no reason to believe that “disinterest bias” is of any greater concern in a 

Google Survey than in a telephone survey, a mall intercept survey, or any of the other more 

traditional survey methods, some of which may be more invasive and require more time. 

Finally, Google itself takes steps to validate respondents’ willingness to provide meaningful 

responses by asking questions with obvious answers and ensuring that those who respond 

incorrectly do not receive future Google Surveys. Frederick, Tr. 1099-1100. Thus, we find this 

criticism to be unpersuasive. 

Finally, ECM faults Dr. Frederick’s coding and analysis of the data collected by Google. 

In particular, it contends that Dr. Frederick used a “bright-line” coding rule that biased the 

results. That rule specified that, for questions asking for a numeric response, only responses with 

both a number and a unit of time (e.g., one year) were to be coded.27 ECM contends that this 

 

26 Dr. Frederick asked 12 open-ended questions, phrased in slightly different ways, about the respondents’ expected 

time frames for biodegradation of plastic items. Although ECM suggests that these are “closed-ended” questions of 

the type we criticize in the APCO and Synovate surveys, discussed infra, they are not. Whereas the APCO and 

Synovate questions provided a limited set of options from which the respondents could select answers, Dr. 

Frederick’s questions allowed respondents to state their own answers. 

27 Dr. Frederick did not include several categories of responses in his calculation of time-frame percentages, namely: 

(i) numeric responses lacking a temporal unit (e.g., a response of “7”); (ii) responses containing a temporal unit, but 
22 

biased the results by excluding truthful answers such as “it depends” and “I don’t know,” on the 

one hand, and including nonsensical responses such as “one nanosecond” on the other. RAnsB 

31. ECM accuses Dr. Frederick of using the rule to “force fit” the responses into preconceived 

time categories, and argues that this was tantamount to turning open-ended questions into closedended questions. RAnsB 32. ECM labels Dr. Frederick’s coding methodology “particularly 

egregious” because it reduces the denominator of the ratios, “which has the effect of inflating the 

reported percentages.” Id. It also contends that “the coding was invalid because it was 

performed by individuals who were not “blinded.” Id. 

We find none of these criticisms convincing. First, Dr. Frederick’s “bright-line rule” was 

designed precisely to prevent the coding process from introducing bias through the coders’ 

interpretation of responses that were vague or otherwise unclear.28 See, e.g., CCX-865 at 6; 

Frederick, Tr. 1131; CCSuppRB, Exh. A (Frederick Dec.) at 17. The bright line served to ensure 

that uniform rules were followed. Frederick, Tr. 1133. Although certain categories of responses 

were not included in his calculation of time-frame percentages for each question calling for a 

numerical response, Dr. Frederick reported both the coded numerical responses and the total 

number of uncoded responses. See CCX-860 at 12 n.7 & App. A. Additionally, he provided the 

raw data in an Excel spreadsheet. See CCX-863. This was both transparent and reasonable. 

Second, ECM has provided no basis for believing that Dr. Frederick’s omission of 

uncoded responses from his calculations significantly affected the results. Omitting the uncoded 

responses would only affect the results if the respondents whose answers were not coded as a 

group held different views on biodegradation times than the remainder of the population; 

however, there is no reason to believe that is the case here. See CCX-865 at 6; Frederick, Tr. 

1123-28. 

Moreover, ECM’s contention that omitting responses from the denominator of the 

calculations was particularly “egregious,” does not hold up under scrutiny. Indeed, even if all of 

the responses excluded by Dr. Frederick’s coding rule were included in the denominator with no 

adjustment to the numerator – an unrealistic assumption that every uncertain, ambiguous, or 

unclear response should be counted as stating an expectation that biodegradation will take more 

than five years – the results still support Dr. Frederick’s findings. The percentage of respondents 

who believe that a “biodegradable” plastic product biodegrades or decomposes within five years 

remains quite significant – ranging from 30% to 65% in responses to Questions 3A through 3K.29 

 no specification of quantity (e.g., a response of “months” or “years”); (iii) responses indicating unwillingness to 

answer without further clarification (e.g., “it depends”); (4) responses indicating unwillingness to respond because 

of uncertainty (e.g., “I don’t know”), and (5) “other responses” (including protest responses or responses designed to 

bypass the survey wall (e.g., “asdf” or “blah”)). CCX-865 at 6. Dr. Frederick and his assistants coded 21,453 of the 

responses (including the responses to the binary questions, which did not require a numeric response). CCX-860 at 

12 n.7. 

28 As is common in academic research, Dr. Frederick hired several research assistants to assist him in coding the 

responses. 

29 The number of responses of five years or less is calculated by multiplying the total number of coded responses by 

the percentage of coded responses that estimated periods of five years or less. The number of responses of five 

years or less can then be divided by a denominator consisting of the sum of coded and uncoded responses. Dr. 

Frederick’s report provides all the necessary information. See CX-860 at 12 n.7. 
23 

For instance, after adding all the uncoded responses to the denominator, the percentage of survey 

respondents answering Question 3N, “How long would it take a plastic water bottle to 

decompose” with a response of less than or equal to five years is 13%; the percentages answering 

Questions 3D and 3E – asking the same question about plastic water bottles with different 

“biodegradable” labels – are 49% and 44%, respectively. The increase of 31-36% shows that the 

biodegradable label leads a significant minority of reasonable consumers to believe that the 

plastic bottle will biodegrade within five years, even after inclusion of the uncodeable responses 

in the document. Similarly, adding all uncoded responses to the denominators in the 

comparisons of plastic “Tupperware” containers and plastic bags with and without the 

“biodegradable” label shows that adding the label increases the percentage of those offering 

responses of less than five years by 28% and 20%, respectively.30 In each case, adding the 

“biodegradable” label continues to lead a significant minority of reasonable consumers to believe 

that the plastic product will biodegrade within five years, even after inclusion of the uncodeable 

responses in the denominator. 

Finally, ECM’s criticism about Dr. Frederick and his coders not being “blinded” – 

meaning that at the time they were analyzing the survey responses, they were aware that the 

survey pertained to litigation brought by the FTC against ECM – is likewise unpersuasive. Of 

course, Dr. Frederick knew the source of funding for his survey; he had to, just as Dr. Stewart 

knew that ECM was the source of funding for his survey. However, ECM has cited no evidence 

even suggesting that the Google Survey coding – under the “bright-line rule” – was 

compromised as a result of not being “blinded.” 

In sum, ECM’s criticisms of Dr. Frederick’s Google survey are not well founded. The 

Google survey asked the key questions at issue of a large and representative sample of U.S. 

consumers; the questions were clear and not improperly leading; and the responses were coded 

and analyzed in an acceptable and transparent manner. Of the four surveys in the record, we find 

the Google Survey the most informative regarding the consumer takeaways from unqualified 

“biodegradable” claims, and we give it substantial weight. 

Commissioner Ohlhausen agrees with the Commission’s decision in this case except for 

one issue: how to interpret ECM’s unqualified “biodegradable” claim. She opines in a separate 

statement that Dr. Frederick’s survey does not offer sufficiently reliable extrinsic evidence to 

draw any conclusions about consumer interpretations of the word “biodegradable.”31 As noted 

above, consumer surveys and in particular experimental surveys are highly informative on 

questions of consumer interpretations, as surveys constitute “direct evidence of what consumers 

actually thought upon reading the advertisement in question,” Thompson Med. Co., 104 F.T.C. at 

788-89. The methodological design of such research varies significantly and the Commission 

does not demand perfection, “but looks to whether such evidence is reasonably reliable and 

 

30 After adding in the uncoded responses, the percentages answering Questions 3O and 3J with responses of less or 

equal to five years are 16% and 44%, respectively; the percentages providing that response to Questions 3P and 3K 

are 21% and 41%, respectively. 

31 Commissioner Ohlhausen’s statement does not address the other extrinsic evidence supporting our finding about 

the unqualified claim, which is the evidence proving ECM’s intent that the word “biodegradable” should convey a 

reasonably short rate of degradation. See Section III.A.2.a, supra. 
24 

probative.” POM Wonderful, 2013 WL 268926, at *45. For the reasons explained in detail 

above, we find that Dr. Frederick’s experimental results showing the effect of the unqualified 

“biodegradable” claim are reasonably reliable and probative. 

In her statement, Commissioner Ohlhausen questions the reliability of Dr. Frederick’s 

survey based on an alleged disparity in consumer perception depending upon whether 

respondents who were shown a plastic product bearing an ECM biodegradable logo were 

presented with a question that specifically called out the content of that logo or not. Partial 

Dissent at 5-6. In fact, to us this disparity just confirms that the logos on the labels used for two 

particular questions were indeed illegible. The decision in Thompson Medical is instructive. 

There, the Commission found that consumer survey results from “unaided” recall questions were 

not persuasive in determining whether consumers thought Aspercreme contained aspirin, as they 

showed that only 2.9% to 5% thought it did. Yet, the responses to the “aided” recall questions 

showed that 22.2% believed the product contained aspirin compared to only 4.8% and 6.3% for 

two comparative products, which allowed the Commission to conclude with confidence that 

consumers thought the product contained aspirin based on respondent’s ad. 104 F.T.C. at 805. 

In the case of Dr. Frederick’s survey data, the only disparity in the responses that Commissioner 

Ohlhausen cites are those relating to the question pairings in which the label stating 

“biodegradable” is difficult to read. Five other question pairings show a consistently high 

differential, ranging from 32-52%. 

Commissioner Ohlhausen also finds it problematic that the majority does not defer to the 

ALJ’s findings regarding the relative credibility of opinions expressed by Drs. Frederick and 

Stewart.32 She notes that, unlike the ALJ, the Commissioners have not observed “the manner 

and tone” of the experts’ explanations and answers to questions. Partial Dissent at 3 (citing IDF 

324; ID 188). The ALJ, however, does not suggest that the witnesses’ manner or tone had any 

bearing on his findings. Rather, the ALJ’s findings rest on his assessment of the reasoning, 

credibility, and persuasiveness of the experts’ “opinions.” IDF 324; ID 188. We are well 

situated to give de novo review to the experts’ opposing opinions and to draw our own 

assessments thereof. See generally, POM Wonderful, 2013 WL 268926, at *45 n.23 (disagreeing 

with an ALJ’s assessment that was not based on “observation of [the expert’s] courtroom 

demeanor”). 

c. Dr. Stewart’s Survey 

ECM’s expert, Dr. Stewart, conducted a telephone survey in connection with this 

litigation in the spring of 2014. IDF 498. This survey likewise shows that at least a significant 

minority of reasonable consumers believe that an item labeled “biodegradable” will decompose 

within five years. Dr. Stewart’s survey is a traditional, “funnel” type, observational consumer 

survey.33 In contrast to Dr. Frederick’s Google Survey that included a total of 29,000 

 

32 We note that Commissioner Ohlhausen is herself willing to discount Dr. Stewart’s survey findings, concluding 

that “[t]he consumer surveys all have significant methodological flaws.” Partial Dissent at 3. 

33 Commissioner Ohlhausen argues that the Stewart study cannot shed light on how ECM’s claims affected 

consumers’ preexisting beliefs because it lacks an experimental control. Yet testing with open-ended responses is an 

appropriate methodology to understand consumer takeaway from an ad claim, which is the issue at hand. “There is 

nothing in Commission precedent that requires the use of a control ad for open-ended questions.” Stouffer Foods 
25 

respondents,34 Dr. Stewart included the responses of only 400 landline telephone users, who 

were selected based on seven screening questions. RX-856 at 21 (referencing RX856 Page 21), 

& App. B.35

The initial questions were general. Question 1 asked, “When you hear the term 

‘biodegradable’ what does that mean to you?” RX-856 at 23 & App. B (RX-847). Question 2 

asked, “Is the fact that a product or package is biodegradable important to you?” Id. And 

Question 3 asked, “Is the fact that a product is biodegradable helpful to the environment or not?” 

Id. at 24. The results were as follows: 

 82% of the respondents reported that they interpreted “biodegradable” to mean 

something about disintegration, decomposition or breakdown; 

 71% reported that the biodegradability of a product or package is important to 

them; and 

 Corp., 118 F.T.C. at 808; see also Telebrands, 140 F.T.C. at 318 (“it is appropriate to consider the open-ended 

responses without netting out any controls”). 

34 As explained above, the sample size for any given question in Dr. Frederick’s survey was a subset of the 29,000 

total pool of respondents, see supra note 23. 

35 Dr. Stewart defined the relevant population as “men and women over the age of 18 in the United States who 

reported that they had personally purchased any product in the past month that came in a plastic container or was 

made of plastic.” RX-856 at 19-20. “In addition, respondents must have indicated that they have a general 

understanding of what the term ‘biodegradable’ means.” Id. at 20; see also id. n.13 (explaining that Dr. Stewart 

“disqualified” 68 respondents because they had not purchased a plastic product within the last month, and 39 

because they did not have an acceptable understanding of the term “biodegradable.”). Dr. Stewart extols his 

respondents as being particularly “sophisticated” and criticizes Dr. Frederick for not including questions to screen 

for “knowledgeable” consumers. RSuppB, Exh. A (Stewart Dec.) ¶ 17. (“In contrast to the results of the APCO, 

Synovate, and Frederick surveys, my survey offers a picture of knowledgeable consumers with very sophisticated 

views of what biodegradation means.”). We do not share Dr. Stewart’s view. The relevant population is not limited 

to especially knowledgeable, “sophisticated” consumers; reasonable consumers who do not properly understand the 

biodegradation process – or who have not recently purchased a plastic product – may also be deceived by marketing 

materials, and we are concerned when that occurs. See Deception Statement, 103 F.T.C. at 177 n.20 (“An 

interpretation may be reasonable even though it is not shared . . . by particularly sophisticated consumers.”). 

Accordingly, it is Dr. Stewart’s conception of the relevant population – not that of Dr. Frederick – that we find 

problematic. 

 For the same reason, we reject ECM’s argument that those respondents who reported low time frames for 

biodegradation are simply uninformed and therefore “unreasonable,” and hence cannot be counted toward the 

significant minority of reasonable consumers who believe that products labeled “biodegradable” biodegrade within a 

reasonably short period of time. See, e.g., RX-856 at 11 (“This is just what one might expect when consumers are 

asked factual questions about which they have little or no knowledge”); RSuppB, Exh. A (Stewart Dec.) at ¶ 21 

(attributing low time frames reported by consumers to their non-scientific beliefs as to fast biodegradation); RSuppB 

13 & n.6 (arguing that “Complaint Counsel has not shown that at least a significant minority of reasonable

consumers interpret the claim ‘biodegradable’ to mean complete decomposition into elements found in nature within 

one year” because “believing that a plastic product will biodegrade completely within one year without qualification 

is unreasonable because it is scientifically invalid”) (emphasis original). This is not a case in which an “outlandish” 

belief is held by “a few misguided souls,” as ECM suggests. See RAnsB 16 (quoting Kirchner, 63 F.T.C. 1282, at 

*6.). Rather, as shown below, Dr. Stewart’s own study likewise establishes that at least a significant minority of his 

“sophisticated” consumers believe that a product denoted “biodegradable” will biodegrade within a reasonably short 

period of time, i.e., within five years. 
26 

 95% reported their belief that the biodegradability of a package is helpful to the 

environment. 

RX-856 at 27 & App. D (RX-846 at 8-9, 14-15). 

More pertinent to the issue here, Question 4 asked, “If something is biodegradable, how 

long do you think it would take for it to decompose or decay?” Those who answered this 

question were then asked two subquestions. Subquestion 4a asked for a yes/no response, “Do 

you think there are differences in the amount of time it takes for different types of products to 

biodegrade, decompose or decay?” Those who answered “yes” were then asked Question 4b, 

“What differences exist in the time for different types of products to biodegrade, decompose or 

decay?” RX-856 at 24 & App. B (RX-847). 

Although the form of Question 4 – i.e., referring to “something” rather than to plastic in 

particular – is more vague and less worthy of weight than Dr. Frederick’s many questions 

focused on plastic products, it is still noteworthy that 64% of those who provided answers to 

Question 4 with both a number and a unit of time reported their belief that biodegradation would 

occur in five years or less. CCSuppB, Frederick Dec. at 14.36 Even if all responses are taken 

into account (including those that did not include a specific time frame), 23% answered with 

time frames of five years or less, by Dr. Stewart’s own calculations. See RX-856 at 28.37 We 

find that the respondents to Dr. Stewart’s survey are at least “average or ordinary members of the 

adult population” and, as with the consumers that responded to Dr. Frederick’s survey, in the 

absence of any evidence to the contrary we conclude that they are “reasonable.” See Thompson 

Med. Co., 104 F.T.C. at 810. Thus, Dr. Stewart’s own calculations drawn from his own survey, 

which the ALJ praised for its adherence to traditional survey methods, likewise show that at least 

a significant minority of reasonable consumers believe that a product denoted “biodegradable” 

will decompose within a reasonably short period of time. 

ECM contends that such reliance on Question 4 data is improper, and urges us to focus 

instead on responses to the first question and to Subquestions 4(a) and (b). See RAnsB 20; 

RSuppB 10-11. It argues that the answers to Question 1 show that consumers do not define 

“biodegradable” to encompass any message as to the rate of biodegradation – in particular, that 

only 3% of the respondents answered Question 1 with a specific time frame. RSuppB 11. It 

further argues that the responses to Subquestions 4(a) and (b) show that consumers do not 

understand “biodegradable” to mean any “uniform,” “set,” or “fixed” time frame for 

biodegradation, but rather realize that the time frames for biodegradation are highly variable 

depending on what the item is and how it is disposed of. See, e.g., RAnsB 14, 20; RSuppB 1-2, 

13. From this ECM argues that Complaint Counsel have not met their burden of showing that 

 

36 A table prepared by Dr. Stewart suggests a similar result. See RX-846 at 20-21. It reports 119 responses in 

categories falling in the interval of five years or less. It reports 64 responses in categories exceeding five years, 

including one category designated “Forever/takes a long time/100 years.” Even if we were to treat all of the latter 

64 responses as providing both a number and a unit, 65% (119 of 183) of the responses named a period of five years 

or less. Our analysis accepts the smaller figure cited in the text. 

37 Summing the nine entries in Dr. Stewart’s table for periods of five years or less yields 119 responses, or 30% of 

the total sample size. RX-846 at 20-21. Again, to be conservative, we rely only on the smaller figure cited in the 

text and validated by Dr. Stewart. 
27 

consumers have any “fixed” rate of biodegradation in mind when they see a product labeled 

“biodegradable,” and that the implied rate claim therefore fails. See, e.g., RSuppB 13. 

We disagree. First, ECM’s assertion that only 3% of the respondents to Question 1 

explicitly mentioned a “time” or “rate” is incorrect. In addition to respondents who provided a 

specific time period (e.g., “a year or two”) or comparative rate (e.g., “faster than a normal plastic 

product”) in their answers, we note that 18% of respondents specifically used the word “time” in 

their response to this question, with seven respondents providing an answer that referenced a 

“reasonable” amount or period of time, three referencing a “relatively short” amount of time, and 

another ten referencing a “certain” amount or period of time. See RX-606. We think it is clear 

that these particular responses all incorporated the concepts of both time and rate. The vast 

majority of the other references to “time” expressed the belief that biodegradation occurs “over 

time,” suggesting that respondents believe there is a time element to the process of 

biodegradation. Accord RX-605 at 7 (stating that 22% of responses to Question 1 referenced 

disintegration, breaking down, rotting, or decomposing “over time”). Another 7% of 

respondents stated that biodegradable items will “eventually” decompose or break down, 

suggesting that there is an outer boundary to the expected time period relevant to biodegradation. 

Id. 

Second, we do not find it at all surprising that most of the respondents did not volunteer a 

specific time frame when asked a general question, like Question 1, about what biodegradability 

means to them. To illustrate this point, as noted above, when asked directly in Question 3 

whether a biodegradable product is helpful to the environment, 95% of respondents answered 

“yes.” Yet in response to Question 1 asking what the term “biodegradable” means to them, a far 

lower percentage provided an answer referencing any sort of environmental benefit or impact. 

See RX-846 at 8 (reporting that 26% of respondents to Question 3 gave an answer referencing 

safety, the environment, not harming the earth, or pollution); RX-856 at 27, 28 & App. E (RX606). Following ECM’s logic, we would be forced to conclude that if a consumer did not 

reference an environmental benefit in response to Question 1, it would be improper to conclude 

that the term “biodegradable” implied an environmental benefit, regardless of the consumer’s 

answer to Question 3. 

As Dr. Frederick persuasively points out, ECM’s argument is analogous to claiming that 

“only 7% of people have an expectation of how long it would take an ice cube to melt if only 7% 

happened to use the word ‘time’ or ‘rate’ when asked, ‘When you hear the term melt, what does 

that mean to you?’” CCSuppRB, Frederick Dec. at 8. Question 1 inquired about 

biodegradation’s meaning, not its specific attributes, and the fact that survey respondents did not 

volunteer answers about a specific time frame does not mean that they do not have some idea of 

how long it takes for a product labeled biodegradable to biodegrade, in contrast to an unlabeled 

version of the same product. Rather, a more focused question is required to elicit this 

information. In Dr. Stewart’s survey, that is Question 4. 

ECM also places great weight on the response to Subquestion 4a, RX-846 at 21, 

repeatedly highlighting the fact that 98% of survey respondents answered “yes” to the 
28 

subquestion “Do you think there are differences in the amount of time it takes for different types 

of products to biodegrade, decompose or decay?”38 ECM’s reliance on this result is misplaced. 

The result is hardly surprising: would we expect survey respondents to believe that 

banana peels, plastic bottles, and steel girders all biodegrade at the same rate? Moreover, the 

responses to Question 4 and Subquestion 4a are not inconsistent with the results of Dr. 

Frederick’s Google Survey. There is no contradiction between, on the one hand, consumers in 

Dr. Stewart’s study stating that the length of time an unspecified “something” takes to 

biodegrade “depends,” and believing that different products might take different amounts of time 

to degrade, and, on the other hand, respondents in Dr. Fredrick’s Google Survey providing a 

specific time period for degradation when presented with a question about a specific object (e.g., 

a plastic bottle, container, or bag). 

Moreover, the responses to Subquestion 4a are no basis for ignoring responses to other 

questions in the Stewart survey – such as Question 4, which conveys the perception of many 

consumers that biodegradable products, in general, will biodegrade within five years – or 

responses to questions in other surveys that probed consumers’ perceptions of biodegradation 

rates specific to plastic products. Contrary to ECM’s contentions (see, e.g., RSuppB 6), 

Complaint Counsel need not show that there is one “set,” “fixed” or “uniform” time period in 

which consumers believe that all types of products will biodegrade. Rather, they must show that 

consumers acting reasonably would likely infer from ECM’s claim of biodegradability that ECM 

products will biodegrade within a reasonably short period of time. As discussed above, Dr. 

Frederick’s survey, which is experimental as well as observational, provides the clearest and 

most comprehensive insights into that key issue. However, Dr. Stewart’s observational survey 

also supports Complaint Counsel’s position that at least a significant minority of reasonable 

consumers believe that a product labeled “biodegradable” will decompose within a reasonably 

short period of time, and we also take that evidence into consideration in our analysis. 

d. The APCO Survey 

Complaint Counsel also introduced the results of a 2006 telephone survey commissioned 

by the American Plastics Council (“APCO”). Among other things, the survey asked 

approximately 1,000 respondents about their perception of the term “biodegradable.” IDF 455. 

They responded as follows to Question 4: 

If a package is labeled “biodegradable,” what should be the 

maximum amount of time that it should take for that package to 

decompose? 

 1 month or less 19% 

 

38 See, e.g., RSuppB 11; Tr. Oral Arg. 10, 15 (ECM Counsel stating, “Then when you add in the fact that 98 percent 

– that’s the extraordinary figure 98 percent. Rarely do you ever see that in a survey – 98 percent recognized 

variance in the rate based on the environment and based on the type of plastic . . . .”). Despite ECM Counsel’s 

statement, the 98 percent figure was a response to Dr. Stewart’s question about “different types of products,” not 

different types of plastic. 
29 

 3 months 7% 

 6 months 8% 

 1 year 26% 

 2 to 4 years 5% 

 Five years or more 16% 

 Unsure 17% 

CCX-860 App. at 53. Thus, 65% of the respondents indicated that the maximum amount of time 

a package labeled “biodegradable” should take to decompose was four years or less. 

The ALJ, however, found Question 4 to be seriously flawed, primarily because it was 

closed-ended and offered choices that “predisposed people to select a short time frame rather 

than a longer time frame.” ID 204-05.39 He also found that the APCO survey failed to address 

“the material factual issue in this case” which, in his view, “is what message was implied by the 

term “biodegradable,” including “whether the term ‘biodegradable’ communicates to the 

consumer any message as to a rate for complete biodegradation.” ID 204. ECM urges us to 

conclude that the APCO survey is invalid on these grounds. RAnsB 24-25. In addition, the ALJ 

noted that the use of the word “should” could be interpreted by survey respondents as referring to 

what would be desirable as opposed how long decomposition would actually take. ID 206. 

We recognize that APCO Question 4 is a closed-ended question in which most of the 

available choices are clustered around a year or less, and that this may have biased the responses 

toward lower time frames and led to more homogeneity in the responses than would otherwise 

have been the case. Indeed, we have previously identified this as a flaw in the APCO survey.40 

And we also recognize that use of the word “should” could be construed by some survey 

respondents as asking what would be desirable, although we think a reasonable reading in the 

context of the question as a whole would be that it is asking for the maximum amount of time 

consistent with the label biodegradable – another way of asking how long it takes a 

biodegradable package to biodegrade.41 

 

39 Both Dr. Stewart and Dr. Frederick likewise agreed that this was a flaw. ID 204, see also IDF 489, 492-93. 

40 As the ALJ correctly noted, ID 206-07, we identified the use of closed-end questions as a shortcoming in both the 

APCO and Synovate surveys in connection with our consideration of revisions to the Green Guides in 2012. See

Statement of Basis and Purpose, Revised Green Guides 121 n.409, available at 

https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-issues-revised-greenguides/greenguidesstatement.pdf. At that time we also faulted the APCO and Synovate surveys for lacking control 

groups. Id. As discussed above, Dr. Frederick has addressed both of these shortcomings by using largely open-end 

questions to probe consumer expectations of biodegradation rates and by using control groups. See supra Section 

III.A.2.b. 

41 Dr. Frederick’s survey provides a rough estimate of the potential impact of this ambiguity. Question 1G, an exact 

duplicate of the APCO survey question, asked, “If a package is labeled ‘biodegradable,’ what should be the 

maximum amount of time that it should take for that package to decompose.” Eighty-nine percent of codeable 
30 

However, aside from concerns regarding the survey’s methodology, we do not believe 

that the APCO survey is properly designed to answer the central question at issue, which is what 

time period, if any, do consumers infer from a label of “biodegradable” on a plastic product. 

Question 4 of the APCO survey asks about biodegradation time for a “package” of unspecified 

material: consumers responding to the closed-ended question could have been providing answers 

pertaining to different types of material, such as paper, cardboard, styrofoam, or plastic. Further, 

there is no control question in the survey that sheds light on consumer belief regarding 

degradation times for packages not marked as “biodegradable.” Because of the lack of 

specificity in the question, in combination with the other concerns highlighted above, we do not 

consider the results of the APCO survey in deciding this case. 

e. The Synovate Survey 

Finally, a 2010 consumer survey conducted by the research firm Synovate included 2000 

internet panel respondents and was commissioned by EcoLogic, a competitor of ECM, in 

connection with the Commission’s proposed revisions to the Green Guides. IDF 480-81. Like 

the APCO survey it was an observational study designed to probe consumer beliefs about 

biodegradation, including the time frames it requires. 

In particular, Question 19 of the survey asked: 

What do you believe is a reasonable amount of time for a ‘biodegradable” plastic package 

to decompose in a landfill? Please select one: 

Less than 1 year 25% 

 Less than 5 years 45% 

 Less than 10 years 17% 

 Less than 20 years 6% 

 Less than 40 years 3% 

 40 years or greater 4% 

IDF 485-86. 

Thus, 70% of respondents indicated that a reasonable amount of time for a plastic

package labeled “biodegradable” to decompose in a landfill was less than 5 years. See CCX-860 

App. at 50. 

 responses (64% of all responses) were five years or less. Question 1H, which changed the question by substituting 

“would” for “should,” asked, “If a package is labeled ‘biodegradable,” what would be the maximum amount of time 

that it would take for that package to biodegrade.?” Seventy-nine percent of codeable responses (53% of all 

responses) were five years or less. The difference is 10 or 11%. A deduction of this magnitude from the APCO 

result would still leave a majority of responses of four years or less. 
31 

The ALJ found the Synovate survey flawed for many of the same reasons as the APCO 

survey, again objecting to the closed-ended format, finding bias in the choice selection, and 

questioning whether the survey adequately probed whether the term “biodegradable” conveyed a 

message as to biodegradation rates. And he found fault with Question 19’s wording, suggesting 

that asking about a “reasonable amount of time” might have been interpreted as asking the 

respondent what he or she would like to happen rather than what he or she believed would occur. 

The ALJ also noted that, when it amended the Green Guides in 2012, the Commission had 

concluded that “reliable real-world conclusions cannot be drawn from the Synovate survey.” ID 

204-08 (quoting Statement of Basis and Purpose, Revised Green Guides at 121). The ALJ 

therefore concluded that the Synovate survey, like the APCO survey, was of little if any 

probative value. 

ECM urges us to reject the Synovate survey as invalid and unreliable. See RAnsB 24-25; 

RSuppB 1-2 & Exh. A (Stewart Dec.) ¶¶ 24-27. 

For the purposes of assessing whether the term “biodegradable” implies a time period to 

consumers, we find the survey unreliable. The answers to Question 19 of the survey are 

potentially biased not only because of the closed-ended nature of the question (although the 

closed-ended options provided to respondents would actually favor longer periods of time), but 

also because of certain framing statements that were presented to participants. For instance, at 

the beginning of the survey, participants were informed that, “We are conducting a survey on 

behalf of a company that is striving to develop products that they believe will be helpful to the 

environment and will improve the ways that plastic products are disposed.” CCX-94 at 11. 

More importantly, Question 11 of the survey asked, “Did you know that traditional (nonbiodegradable) plastic products take hundreds of years to decompose, if they do so at all?” Id. at 

14. By providing a specific time period anchor for traditional plastic degradation and presenting 

the survey as sponsored by a company interested in improving plastic disposal and helping the 

environment, the survey design likely influenced answers to Question 19. 

Therefore, we do not rely on the results of the Synovate survey to decide this case. 

f. Summary of Consumer Survey Evidence 

In determining how a significant minority of reasonable consumers would interpret the 

representation that ECM Plastics are “biodegradable,” we rely upon two consumer surveys, 

conducted at different times, by different parties, using different methodologies. Neither of the 

surveys is perfect. Because it specifically addresses plastic products, we find the Google Survey 

most useful, but the Stewart survey also contributes to our understanding. While ECM maintains 

that the survey results vary, see, e.g., RSuppB 12, RSuppRB 8, both in fact point to the same 

bottom-line conclusion, that labeling a plastic product biodegradable conveys a message to at 

least a significant minority of reasonable consumers (and likely substantially more) that the item 

will decompose within five years. 

In her statement, Commissioner Ohlhausen argues that the “key question ... is whether 

ECM’s unqualified claim caused reasonable consumers to believe that plastics treated” with the 

ECM Additive would biodegrade within a particular time period, and seems to imply that a claim 

may only be found deceptive if the ad meaning has been separated from consumers’ prior beliefs. 
32 

Partial Dissent at 2, 6. That is not the law. Indeed, the purpose of the Green Guides has been to 

alert marketers that consumers are reasonably confused about complicated scientific processes 

such as “biodegradability,” and that marketers can avoid liability by properly qualifying their 

claims to minimize misleading interpretations that stem from the use of unqualified 

environmental terms of art. In this case, ECM failed to properly qualify its claims. Regarding 

the narrow methodological question of how to analyze responses to consumer surveys, in some 

limited circumstances it is necessary to use control questions to account for preexisting consumer 

beliefs.42 This is what the Commission has been able to do in its examination of experimental 

evidence from Dr. Frederick’s survey. Of course the Commission may consider many different 

types of evidence in determining ad meaning,43 and there is no case law supporting 

Commissioner Ohlhausen’s suggestion that we must separate ad meaning from preexisting 

beliefs as a general matter. 

Finally, Commissioner Ohlhausen incorrectly states that “[t]he FTC has never used 

extrinsic evidence of a ‘significant minority’ as a stand-alone basis to determine that a claim 

interpretation is reasonable.” Partial Dissent at 9. In fact, our analysis of Dr. Frederick’s survey 

results to determine the message reasonably conveyed to consumers by the term “biodegradable” 

is closely analogous to the approach the Commission used to determine the net impression of 

advertising in Thompson Medical, 104 F.T.C. at 802-08. In that case, the Commission could not 

conclude from facial analysis whether a certain set of ads conveyed an implied claim that 

Aspercreme contains aspirin. Id. at 803. The Commission then proceeded to examine the results 

of several consumer surveys. As we discussed above, in one survey where consumers were 

shown an Aspercreme television ad, 22.2% of respondents stated that Aspercreme contained 

aspirin, compared to only 6.3% and 4.8% who stated that aspirin was an ingredient in two 

competing products. Id. at 805; see also supra pp. 23-24. Based on these results, the 

Commission concluded that the ad shown to consumers “did, in fact, cause average viewers to 

believe that the product being described contains aspirin,” and that the survey results “clearly 

support[] the conclusion that [the ad at issue] generated a net impression of aspirin content 

among its viewers.” Id. at 805-06. The Commission also examined the results of another 

survey, where consumers were shown either an ad for Aspercreme or an ad for a competing 

product. Id., at 806-08. When consumers who saw the Aspercreme ad were asked what 

ingredients the product contained according to the ad, a significantly larger number answered 

aspirin (17%) than salycin (4%), when the latter was the actual active ingredient in the product. 

Id. at 807. Further, 38% of respondents who saw the Aspercreme ad believed that the advertised 

product contained aspirin, compared to 5% who viewed an ad for a competing product. Id. 

 

42 See Kraft, 114 F.T.C. at 131 n.19 (rejecting evidence from a survey that used closed-ended questions because “no 

measures were used ... to correct for pre-existing or inherent survey bias”); but see Stouffer, 118 F.T.C. at 809-11 

(where any preexisting beliefs cut against the advertiser’s claim, there is no need to control for them, even in the 

case of closed-ended questions); Telebrands Corp., 140 F.T.C. at 326 (because respondent’s intent was to exploit 

preexisting beliefs “deliberately by inviting consumers to recall the claims in other ads to help convey a message,” 

the results of controlled copy tests “likely understate the extent to which the challenged claims were 

communicated”); cf. id. at 318-19 (controls are unnecessary for open-ended questions). 

43 See, e.g., Thompson Medical Co., 104 F.T.C. at 811-12 (discussing express claims); Telebrands, 140 F.T.C. at 304 

(discussing intent evidence); POM Wonderful, 2013 WL 268926 at *22-27 (discussing facial analysis); Thompson 

Medical Co., 104 F.T.C. at 789-90 (discussing empirical evidence). 
33 

Based on these survey results, the Commission concluded that “the net impression conveyed by 

[the ad at issue] to at least one group of average listeners was that Aspercreme contains aspirin.” 

Id. at 808.44

Whether an ad conveys an implied claim is a question of fact, POM Wonderful, 2013 WL 

268926, at *27, citing Removatron Int’l Corp. v. FTC, 884 F.2d 1489, 1496 (1st Cir. 1989); Nat’l 

Urological Grp., 645 F.Supp. 2d at 1189, and we have examined all of the evidence pertinent to 

that question. For the reasons explained above, based on our weighing of all the evidence, we 

find that at least a significant minority of reasonable consumers would interpret ECM’s 

unqualified representation that ECM Plastics are “biodegradable” to convey the claim that ECM 

Plastics fully biodegrade in landfills within a reasonably short period of time, i.e., five years.45 

3. ECM’s “Some Period Greater than a Year” Representation 

As discussed above, after the Commission issued its revised Green Guides in October 

2012, ECM began to omit the “9 months to 5 years” claim from its marketing materials, IDF 

251-52, and utilize a “some period greater than a year” qualifier for its unqualified biodegradable 

claims:46

“BIODEGRADABLE* PLASTICS QUALIFIER 

*Plastic products manufactured with ECM BioFilms’ additives 

will biodegrade in any biologically-active environment (including 

most landfills) in some period greater than a year.” 

IDF 253; see, e.g., CCX-20. ECM inserted this purported disclaimer where the word 

“biodegradable” appeared in its advertising. At this time, ECM also changed its logo, placing 

similar text beneath the word “Biodegradable” on its tree logo, IDF 256; see CCX-13, and its 

Certificate of Biodegradability. See IDF 270; CCX-14 (retaining the claim that ECM Plastics’ 

biodegradability had been “tested,” and the rate and extent of degradation determined, by 

“independent laboratories in accordance with standard test methods”). 

 

44 In Thompson Medical, a significant minority reasonably took away a deceptive message – Aspercreme contains 

aspirin – but a clear majority took away a non-deceptive message – it does not contain aspirin. Here, there is even 

more reason for concern. As generally reflected in the responses to the Frederick survey, the majority of consumers 

shown a plastic product labeled “biodegradable” think the product will degrade within five years. In other words, 

this is not a case in which most consumers understand the claim to convey a true attribute of the product. 

45 Our determination about ECM’s implied claim relating to the biodegradability of plastics may raise certain 

broader issues about the Commission’s Green Guides. However, our sole role here is to address the limited issues 

presented by the parties’ respective appeals of the ALJ’s decision. The Commission will address any broader 

implications of our ruling at an appropriate, later time. 

46 As with the discussion of the unqualified biodegradable claim above, this analysis focuses on direct customers 

who were exposed only to the “some period greater than a year” claim and not the more specific nine months to five 

years claim. Many direct purchasers were provided with the express rate claim of nine months to five years, in 

addition to the “some period greater than a year” assertion, at some point prior to purchase. For those customers 

who saw the nine months to five years claim at any point in time, the net impression clearly would be that ECM 

Plastics would degrade within five years. See supra note 13. 
34 

In October 2012, ECM also notified its customers that they needed to qualify their 

“biodegradable” claims if the time frame of a year or less set out in the revised Green Guides did 

not “fit” their products. See IDF 261. For example, ECM sent its customers an e-mail that stated 

in part: 

If you have evidence that your products with our additives will 

fully biodegrade in one year or less in the environment where it 

will be customarily disposed you may still make an unqualified 

claim of “biodegradable” for those products. But for most of our 

customers’ plastic products with our additives whose customary 

disposal is in a landfill, they will not be able to use that unqualified 

claim. 

IDF 262; see also RX-35 through RX-37. 

The ALJ found that ECM’s “some period greater than a year” claim would not convey to 

consumers the message that ECM Plastics biodegrade within a year. He did not consider more 

generally whether the claim would convey biodegradation within a reasonably short period of 

time. 

Based on our own facial analysis of the marketing materials, in combination with the 

extrinsic evidence discussed below, we find that a reasonable interpretation of ECM’s 

representation that ECM Plastics biodegrade “in some period greater than a year” is that ECM 

Plastics biodegrade within a reasonably short period of time, i.e., five years or less.47

a. Facial Analysis 

The first step in our analysis is to determine what message the phrase would convey to a 

reasonable consumer based on the face of the representation. Taken literally, ECM’s claim 

would encompass any time period from one year and a day to thousands or even millions of 

years. However, if so interpreted, the claim would be essentially meaningless because almost 

everything degrades into elements found in nature given enough time. 

We view the specific reference to “a year” as critical to interpreting the message that a 

reasonable consumer would likely take away from ECM’s claim. That is because of what is 

known as the “anchoring” effect of the one-year reference point. Anchoring effects have long 

been recognized by behavioral psychologists.48 An anchor can be described as 

 

47 Commissioner Ohlhausen agrees that ECM’s “in some period greater than a year” representation conveyed that 

ECM Plastics biodegrade within a reasonably short period of time. She bases this conclusion on the Commission’s 

facial analysis of that representation and on expert testimony regarding the anchoring effect. She finds the extrinsic 

consumer survey evidence too unreliable to be helpful in interpreting this claim, and does not rely on it. 

48 See, e.g., Gretchen B. Chapmen & Eric J. Johnson, Anchoring, Activation, and the Construction of Values, 79 

ORGANIZATIONAL BEHAVIOR AND HUMAN DECISION PROCESSES 115 (1999); Karen E. Jacowitz & Daniel 

Kahneman, Measures of Anchoring in Estimation Tasks, 21 PERSONALITY AND SOC. PSYCHOL. BULL. 1161 (1995); 

Amos Tversky & Daniel Kahneman, Judgment under Uncertainty: Heuristics and Biases, 185 SCIENCE 1124, 1128 

(1974). 
35 

an arbitrary value that the subject is caused to consider before 

making a numerical estimate. An anchoring effect is demonstrated 

by showing that the estimates of groups shown different anchors 

tend to remain close to these anchors.49

Anchoring effects have been observed in a variety of contexts – they have been 

highlighted by legal scholars,50 acknowledged by courts and jurists,51 and studied by the FTC.52 

As Dr. Frederick, Complaint Counsel’s consumer survey expert explained, in this case the “one 

year” functions as a numeric referent so that when consumers see “one year” they focus on that 

term and rely on it when making judgments of the overall message being conveyed. CCX-860 at 

18 ¶ 41. Thus, for example, if ECM had stated “some period greater than a hundred years” the 

message conveyed would be far different than that conveyed by “some period greater than a 

year.” Whereas a reasonable consumer would focus on the “hundred years” as suggesting that 

biodegradation would take a long period of time, the reference to “a year” conveys the message 

that the time for biodegradation will be reasonably short – perhaps longer than a year, but not a 

lot longer. 

Dr. Frederick is an authority on the effects of “anchoring” on consumer perceptions, 

having authored a number of peer-reviewed articles on the subject. See CCX-860 at 22-24. Yet 

the ALJ dismissed the anchoring concept out-of-hand. Instead, he relied on his own literal 

reading of ECM’s representation, without giving any consideration to the anchoring effect of the 

one-year reference on the net impression ECM’s representation would convey to a reasonable 

consumer. That was error. 

Here we find that the net impression created by ECM’s representation is that ECM 

Plastics will biodegrade within a reasonably short period of time, anchored around one year. 

See, e.g., FTC v. Cyberspace.com LLC, 453 F.3d 1196, 1200 (9th Cir. 2006) (“A solicitation may 

be likely to mislead by virtue of the net impression it creates even though the solicitation also 

contains truthful disclosures.”); FTC v. AMG Services, Inc., 29 F. Supp.3d 1338, 1349 (D. Nev. 

2014) (“[T]he Court considers “the overall, common sense ‘net impression’ of the representation 

 

49 Jacowitz & Kahneman, supra note 48, at 1161. 

50 See, e.g., Jeffrey J. Rachlinski et al., Can Judges Make Reliable Numeric Judgments? Distorted Damages and

Skewed Sentences, 90 IND. L.J. 695 (2015); Debra Pogrund Star & Jessica M. Choplin, A Cognitive and Social 

Psychological Analysis of Disclosure Laws and Call for Mortgage Counseling to Prevent Predatory Lending, 16 

PSYCHOL. PUB. POL’Y & L, 85, 100 (2010); Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: 

The Problem of Market Manipulation, 74 N.Y.U. L. REV. 630, 667-69 (1999). 

51 See, e.g., United States v. Ingram, 721 F.3d 35, 40-41(2d Cir. 2013) (Calabresi, J., concurring); Diaz-Pena v.

Warden, Federal Correctional Institution, Fort Dix, New Jersey, 586 F.Supp. 2d 1, 3-4 (D. Mass. 2008); Mark W. 

Bennett, Confronting Cognitive “Anchoring Effect” and “Blind Spot” Biases in Federal Sentencing: A Modest 

Solution for Reforming A Fundamental Flaw, 104 J. CRIM. L. & CRIMINOLOGY 489 (2014) (article by Federal 

District Court Judge for the Northern District of Iowa). 

52 See generally Manaj Hastok & Dennis Murphy, Effects of Bristol Windows Advertisement with an “Up To” 

Savings Claim on Consumer Take-Away and Beliefs (May 2012) (FTC-commissioned study indicating that when 

marketers use the phrase “up to” in claims about their products, many consumers are likely to believe that they will 

achieve the maximum “up to” benefits), at 

https://www.ftc.gov/sites/default/files/documents/reports/effects-bristol-windows-advertisement-savings-claimconsumer-take-away-beliefs/120629bristolwindowsreport.pdf. 
36 

or act as a whole to determine whether it is misleading, and a Section 5 violation may still be 

found even if the fine print and legalese were technically accurate and complete.”); National 

Urological Grp., 645 F. Supp. 2d at 1189 (“When assessing the meaning and representations 

conveyed by an advertisement, the court must look to the advertisement’s overall, net impression 

rather than the literal truth or falsity of the words in the advertisement.”). Our interpretation of 

the claim does not contradict the plain text of the representation. The anchoring effect means 

that the “some period greater than a year” representation conveyed to consumers that 

biodegradation will be reasonably short – perhaps longer than a year, but not a lot longer. 

b. The Extrinsic Evidence 

Extrinsic evidence – namely, the Frederick and Stewart surveys – corroborates our 

interpretation.53 Although the two surveys employed different methodologies and posed 

different questions, both point to the same conclusion as to how consumers would interpret the 

“some period greater than a year” language. 

Question 5b of Dr. Stewart’s survey asked: 

“Plastic products manufactured with our additives will biodegrade 

in any biologically-active environment (including most landfills) in 

some period greater than a year.” In your own words, what does 

this claim mean to you? 

RX-856 App. B at 20 (RX-847). Twenty-four percent of the respondents to this question 

answered that the plastic product would be “Gone/decomposed/biodegrade in one year.” RX856 App. D (RX-846) at 26. This supports our analysis that when viewing ECM’s representation 

that a plastic product will biodegrade in some period greater than a year, a significant minority of 

reasonable consumers will focus on the numerical reference point – the one year – and ignore or 

discount the “greater than” language. In other words, the answers to Question 5b provide 

corroborating empirical evidence of an anchoring effect.54 

Dr. Frederick’s Google Survey also asked respondents to react to a plastic package’s 

claim of biodegradability in “some period greater than a year.” Specifically, Question 3R asked: 

Suppose a plastic package is labeled biodegradable, and is claimed 

to biodegrade in “some period greater than a year.” What is your 

best estimate of the amount of time it will take to biodegrade? 

CCX-860 App. at 35. Fifty-four percent of the survey respondents who provided a codeable 

time period in response believed that a plastic package bearing the claim “in some period greater 

than a year” will biodegrade in five years or less. CCX-860 at 1 & App. at 35. Twenty-three 

 

53 As noted above, Commissioner Ohlhausen does not find the extrinsic evidence reliable enough to provide any 

useful information about consumer interpretations of this claim. 

54 ECM argues that reliance on responses to individual questions in Dr. Stewart’s survey is “selective” and 

“improper.” RAnsB 20-21; see also RSuppB 11. ECM also made this point with reference to responses to a 

different question in the Stewart survey, and we addressed this criticism supra in Section III.A.2.c. 
37 

percent of these respondents provided answers that clustered close to the one-year point of 

reference – i.e., one year to two years.55 Dr. Frederick’s survey also asked in four different ways 

whether the respondents believed a package claimed to biodegrade “in 9 months to 5 years” 

would biodegrade in a longer or shorter time period than one claimed to biodegrade “in some 

period greater than a year.” The survey respondents understood both phrases to imply much the 

same thing about the amount of time needed for biodegradation. See CCX-860, App. at 45.56

In sum, both Dr. Stewart’s survey and Dr. Frederick’s survey point in the same direction: 

at least a significant minority of respondents in the Stewart survey and a majority of respondents 

in the Frederick survey stated that if a plastic product was claimed to biodegrade “in some period 

greater than a year,” they believed the product would decompose in less than five years. 

Our facial analysis and this extrinsic evidence support the finding that ECM’s 

representation – that ECM Plastics biodegrade “in some period greater than a year” – conveys 

the implied claim to reasonable consumers that ECM Plastics fully biodegrade in landfills within 

a reasonably short period of time, i.e., a period close to a year and no more than five years. 

B. ECM’s Claims are False and Unsubstantiated 

Having established that the language in ECM’s materials conveys the claims that ECM 

Plastics are fully biodegradable in landfills in nine months to five years; that ECM Plastics will 

completely decompose within a reasonably short period of time, i.e., within five years, including 

within a landfill; and that scientific tests, including ASTM D5511, show ECM’s claims of 

efficacy, we turn to whether such claims are false or likely to mislead. In doing so, we 

distinguish between efficacy claims and establishment claims. See, e.g., Thompson Med. Co. v. 

FTC, 791 F.2d 189, 194 (D.C. Cir. 1986). Efficacy claims suggest that a product successfully 

performs the advertised function or yields the advertised benefit, but do not include a suggestion 

regarding the level or type of proof of the product’s effectiveness. See id.; Removatron Int’l 

Corp., 884 F.2d at 1492 n.3. Establishment claims suggest a certain type or level of support for 

the advertised function or effectiveness. See Thompson Med. Co., 791 F.2d at 194. Here, as 

described above, ECM made both efficacy and establishment claims. 

Claims may be found misleading under either of two distinct analytical routes. Claims 

may be misleading if they lack a reasonable basis or if they are false. Because an objective claim 

about a product’s performance or efficacy carries with it the express or implied representation 

that the advertiser had a reasonable basis to substantiate the claim, failure to have a reasonable 

basis is misleading. See POM Wonderful, 777 F.3d at 490 (“If an ad conveys an efficacy claim, 

 

55 Cf. CCX-860 at 18 (reporting the number as 20 percent, an apparent typographical error). Either figure, however, 

would suggest an anchoring effect. See id. ECM takes issue with the methodology of Dr. Frederick’s survey and 

challenges its validity. We discussed these issues supra in Section III.A.2.b. 

56 Questions 14A and 14B asked “Which package do you think will take longer to biodegrade?” Sixty percent of 

respondents chose the package that biodegrades in “some period greater than a year” rather than the package that 

biodegrades in “9 months to 5 years” when the former choice was listed first; forty percent chose that package when 

that choice appeared second. Questions 14C and 14D asked “Which package do you think will biodegrade more 

quickly?” Fifty percent chose the package that biodegrades in “some period greater than a year” when that choice 

was listed first; forty percent chose that package when the choice appeared second. 
38 

the advertiser must possess a ‘reasonable basis’ for the claim.”); FTC Policy Statement 

Regarding Advertising Substantiation, appended to Thompson Med. Co., 104 F.T.C. 648, 839 

(1984) (“Substantiation Statement”); Thompson Med. Co., 104 F.T.C. at 813 n.37, 819. For 

establishment claims, when an advertiser represents that there is a particular level of support, the 

absence of that support makes the claim false. 

1. Unappealed Findings and Consensus Among Experts 

Evaluating substantiation usually requires that we determine whether the tests that a 

respondent identifies meet the level or standard of substantiation required to support the claims. 

Here, however, even without a detailed evaluation of the tests, the unappealed findings of the 

Initial Decision and the clear consensus among both parties’ experts enables us to conclude that 

ECM lacks substantiation for its express and implied claims that ECM Plastics fully biodegrade 

in landfills within 5 years. 

The ALJ ruled that ECM’s express efficacy and establishment claims that ECM Plastics 

fully biodegrade in a landfill in nine months to five years “are both false and unsubstantiated.” 

ID 246, 318. Although ECM has appealed whether these claims are material, ECM has not 

appealed the ALJ’s conclusion that the claims are both false and unsubstantiated.57 Because 

ECM’s implied claims similarly convey that ECM Plastics biodegrade completely in a landfill 

within 5 years,58 a finding that these implied claims are false and unsubstantiated follows directly 

from the ALJ’s unappealed ruling. 

Moreover, as the ALJ explained, “All of the experts in this case agreed that ECM Plastics 

do not fully biodegrade in 9 month to 5 years in a landfill.” ID 246. Complaint Counsel’s 

polymer engineering expert, Dr. McCarthy, opined that ECM Plastics will not fully biodegrade 

in nine months to five years in a landfill. IDF 698 (citing CCX-891 at 26 (McCarthy Expert 

Report) (“claims that ECM Plastic will completely biodegrade in periods of time as short as five 

years cannot be true”)). Similarly, Dr. Michel stated that “it has not been demonstrated that 

ECM amended conventional plastics will biodegrade in a landfill in 1 to 5 years.” CCX-895 at 

12; IDF 700. Even ECM’s expert admits that “the expectation that all plastics with the ECM 

additive added in the usual amount (i.e., at a level of 1 or at most a few percent) should 

completely . . . degrade in typical landfill conditions, in a time period of 1 year or even 5 years, 

is unrealistic.” RX-855 at 8 (Sahu Expert Report); IDF 701. 

Similarly, landfill experts for both parties explained that ECM Plastics would not 

biodegrade fully in landfills within five years. Dr. Tolaymat, Complaint Counsel’s expert, 

testified that ECM Plastics would not biodegrade fully in nine months to five years. IDF 699 

(citing Tolaymat, Tr. 121-22 (explaining that even the most biodegradable material would not 

completely biodegrade in a landfill within five years even under optimum conditions); see also

 

57 Commission Rule 3.51(b) provides, “Any objection to a ruling by the Administrative Law Judge, or to a finding, 

conclusion or a provision of the order in the initial decision, which is not made a part of an appeal to the 

Commission shall be deemed to have been waived.” 16 C.F.R. § 3.51(b). 

58 Commissioner Ohlhausen dissents from this finding with regard to the unqualified biodegradable claim. See supra

note 1. As such, she offers no opinion as to the truthfulness or substantiation of that alleged implied claim. 
39 

CCX-893 at 6 (even “leaves and food scraps take many years” to degrade in landfills), 16, 23-24. 

ECM’s landfill expert had a similar opinion. Dr. Barlaz explained that “the suggestion that all 

materials should biodegrade within one or even five years of disposal is not consistent with even 

the highest rates of biodegradation expected for mixed MSW [municipal solid waste].” RX-853 

at 3 (Barlaz Expert Report); see also IDF 702; Barlaz, Tr. 2292-97 (even food waste takes 

slightly under five years for 87.5% biodegradation under “accelerated” conditions). Dr. Barlaz 

also testified that he had not seen any data that demonstrates that ECM Plastics will fully 

biodegrade in nine months to five years. CCX-943 at 46 (Barlaz Dep. at 180). 

The ALJ’s unappealed findings and the substantial agreement among the expert witnesses 

provide sufficient basis for finding that ECM lacks a reasonable basis for its express and implied 

efficacy and establishment claims and for deeming its claims false and unsubstantiated. 

2. Analysis of Tests Offered as Substantiation Confirms the Experts’ 

Conclusions 

Review of the specific substantiation evidence in the record confirms these conclusions. 

In this section we apply a traditional analysis of the substantiation issues presented and conclude, 

again, that ECM lacks a reasonable basis for its claims and that those claims are false and 

unsubstantiated. The inquiry is much more detailed, but the result is the same. 

a. Factual Background 

Many of the substantiation issues here involve laboratory tests and their relationship to 

landfill conditions. Landfills provide the principal option for addressing municipal solid waste 

(MSW) in the United States. IDF 566. Most landfills in the United States are required by 

federal regulations to operate with oxygen content below 5%; thus, landfill environments are 

predominantly anaerobic. IDF 579. Temperatures in MSW landfills in the United States range 

between 20 and 40 degrees Celsius (between 68 and 104 degrees Fahrenheit), but average around 

37 degrees Celsius. CCX-893 at 12 (Tolaymat Expert Report); Barlaz, Tr. 2208-09 (37 to 40 

degrees Celsius is typical). Without the active addition of moisture, the typical moisture content 

of U.S. landfills is limited, between 15% and 30%. IDF 590. 

Biodegradation is a biological process by which microorganisms such as bacteria and 

fungi use the carbon found in organic material as a food source. ID 226. As a result of that 

biological process, the organic material undergoes a change in chemical structure and loses some 

properties. Id. at 228. Biodegradation in an anaerobic environment, i.e., a landfill, produces 

methane and carbon dioxide as end products. RX-853 at 4 (Barlaz Expert Report). 

Many of the tests at issue for substantiation purposes analyze biodegradation issues in 

terms of the end products produced in a laboratory setting. In gas evolution tests, the endproducts of biodegradation are detected and measured to provide evidence that biodegradation 

has occurred. The basic methodology of an anaerobic gas evolution test is to expose a sample of 

the test material to a source of bacteria (“inoculum,” such as well-decomposed refuse), and the 

resulting biogases (methane and carbon dioxide) are measured. The test article, a positive 

control (such as cellulose that is known to be biodegradable), a negative control (such as 

conventional plastic, which is generally considered a product known to biodegrade, only over 
40 

very long periods of time), and an inoculum blank are simultaneously tested and the resulting 

biogases for each are collected. The lab compares the gases produced by the inoculum blank to 

the gases produced by the test article and the negative control to determine if the test article 

biodegrades. The lab can calculate the percentage of biodegradation of the test article by 

comparing the net level of gases attributable to the test sample with the theoretical maximum 

yield of gases from the sample, calculated from the known chemical makeup and amount of the 

product. IDF 743-49, 763-68. 

One type of gas evolution test uses the ASTM D5511 methodology, the Standard Test 

Method for Determining Anaerobic Biodegradation of Plastic Materials Under High-Solids 

Anaerobic Digestion Conditions. See CCX-84. The method is a laboratory-scale reactor test 

performed in a high-solids environment, which is more representative of the matrix in landfills 

than some other test methods. IDF 760-62. However, water is added to the system and the pH 

of the liquids is monitored and adjusted, IDF 763, so these particular conditions differ from a 

typical landfill. The ASTM D5511 test is incubated at a temperature of 52 degrees Celsius, IDF 

781-84, whereas the average temperature of a typical landfill in the United States is 37 degrees 

Celsius. IDF 577. The increased moisture content, adjusted pH, and increased temperature 

relative to typical landfill conditions are intended to accelerate in a lab the natural process of 

biodegradation. IDF 717-20, 731.59

b. Legal Framework 

To determine whether challenged claims are false or misleading, we conduct two 

inquiries. First, we determine what level of substantiation respondents were required to have for 

their advertising claims. This is a question of fact, based on the evidence adduced at trial. FTC 

v. QT, Inc., 448 F. Supp. 2d 908, 959 (N.D. Ill. 2006). For efficacy claims, the appropriate level 

of substantiation is determined by weighing the Pfizer factors. See Pfizer Inc., 81 F.T.C. 23 

(1972). Pfizer requires weighing the following factors: (1) the product involved; (2) the type of 

claim; (3) the benefits of a truthful claim; (4) the ease of developing substantiation for the claim; 

(5) the consequences of a false claim; and (6) the amount of substantiation experts in the field 

would agree is reasonable. See Substantiation Statement, 104 F.T.C. at 840; Removatron Int’l 

Corp., 111 F.T.C. at 306 n.20; Thompson Med. Co., 104 F.T.C. at 821. The analysis is not a 

simple tallying of the number of factors that demand higher or lower levels of substantiation; 

rather, it is a flexible application that considers the interplay of the identified factors. See Pfizer, 

81 F.T.C. at 64. For establishment claims, the Pfizer factors are unnecessary; the advertiser is 

held to whatever level of substantiation is represented in the materials. See, e.g., POM 

Wonderful, 777 F.3d at 491. 

 

59 Biochemical methane potential (BMP) tests are also gas evolution tests, but they are performed in small vials 

(rather than laboratory-scale reactors) and conducted at much higher moisture levels than those in ASTM D5511 

tests. There are no standards for BMP tests, and individual laboratories modify the tests, at times adding vitamins 

and minerals, changing temperatures, or changing the test’s duration. IDF 750-54. BMP tests may be used for 

screening purposes to determine whether biodegradation of the material is possible, but BMP tests are not used to 

establish rate data, and the actual volume of methane generated in a landfill may well be less than what is shown by 

a BMP test. IDF 755-57. 
41 

After determining the level of substantiation the advertiser must have, the second inquiry 

asks whether respondents possessed that level of substantiation. Respondents have the burden of 

establishing on what substantiation they relied. Complaint Counsel have the burden of proving 

that respondents’ purported substantiation was inadequate. See, e.g., QT, 448 F. Supp. 2d at 959. 

c. The Required Level of Substantiation 

ECM must provide substantiation for the claims that it makes. Here, we have found that 

ECM has made representations that convey the claims that ECM Plastics will completely 

biodegrade in a landfill within 5 years and that scientific tests show this. ECM must have 

substantiation for its claims. See Substantiation Statement, 104 F.T.C. at 840 (stating that firms 

“should generally be aware of reasonable interpretations and will be expected to have prior 

substantiation for such claims”). The ALJ’s analysis of substantiation for a different claim – that 

ECM Plastics are “intrinsically biodegradable,” a view of biodegradability in which time is 

irrelevant – does not dispose of the question before us. Similarly, evidence that the scientific 

community expects the material to fully decompose in some less clearly defined time period 

beyond five years is unavailing. 

Our first step is to determine the level of substantiation ECM is required to have. We 

perform separate inquiries for establishment claims and efficacy claims. 

i. Establishment Claims 

When “ads contain express or implied statements regarding the amount of support the 

advertiser has for the product claim . . . , the advertiser must possess the amount and type of 

substantiation the ad actually communicates to consumers.” Substantiation Statement, 104 

F.T.C. at 839. “If an establishment claim ‘states a specific type of substantiation,’ the ‘advertiser 

must possess the specific substantiation.’” POM Wonderful, 777 F.3d at 491 (quoting 

Removatron, 884 F.2d at 1492 n.3). If an ad instead conveys a nonspecific establishment claim, 

such as a suggestion that the claim is based on scientific evidence, then “the advertiser ‘must 

possess evidence sufficient to satisfy the relevant scientific community of the claim’s truth.’” 

POM Wonderful, 777 F.3d at 491 (quoting Bristol-Myers Co., 102 F.T.C. 21, 321 (1983), aff’d, 

738 F.2d 554 (2d Cir. 1984)); see also Removatron Int’l Corp., 111 F.T.C. at 297; Thompson 

Med. Co., 104 F.T.C. at 821-22 n.59. 

Here, ECM represents that ECM Plastics have been shown to be fully biodegradable, 

biodegradable in a landfill, or biodegradable in a stated qualified time frame under various 

scientific tests including, but not limited to ASTM D5511. Thus, ECM makes both specific 

establishment claims, which identify tests using the ASTM D5511 methodology,60 and 

 

60 See, e.g., CCX-14 (ECM Certificate of Biodegradability stating that ECM Plastics have been “tested by 

independent laboratories in accordance with standard test methods approved by ASTM” and other standardization 

bodies “to determine the rate and extent of biodegradation of plastic materials”; that the results of such testing are 

contained in an ecological assessment report that “certifies that plastic products manufactured with ECM additives 

can be marketed as biodegradable”; and that ECM Plastics will biodegrade in “most landfills” “in some period 

greater than a year”); CCX-20 at 14 (ECM website stating “Material treated with ECM has been tested and proved 

as biodegradable . . . by using . . . ASTM 5511,” explaining that this means that “[p]lastic products made with our 
42 

nonspecific establishment claims. For the specific establishment claims, ASTM D5511 tests 

must prove ECM’s claims. For the nonspecific claims, ECM must possess evidence that would 

satisfy the relevant scientific community of the claim’s truth. As Judge Chappell found, the 

scientific community would “require[] the results of appropriately analyzed, independent, welldesigned, well-conducted, and well-controlled testing.” IDF 705; see also IDF 704; CCX-891 at 

13 (“The testing should use the appropriate plastic application, load rate, inoculum, test 

conditions, and sample weight, over an appropriate duration of time.”), 14-18. 

ii. Efficacy Claims 

For ECM’s efficacy claims, we apply the Pfizer factors to determine the level of 

substantiation that ECM must possess. Applying those factors leads us to conclude that the 

efficacy claims regarding the biodegradability of ECM Plastics demand competent and reliable 

scientific evidence, which is similar to the level of substantiation necessary to substantiate 

ECM’s nonspecific establishment claims.61

The first factor is the type of claim. ECM made claims regarding the biodegradability of 

ECM Plastic. The Commission has previously stated in general terms that the substantiation 

standard for environmental marketing claims, including biodegradability claims, often requires 

“competent and reliable scientific evidence.” FTC Green Guides, 16 C.F.R. § 260.2 (2012). 

Competent and reliable scientific evidence “consists of tests, analyses, research, or studies that 

have been conducted and evaluated in an objective manner by qualified persons and are 

generally accepted in the profession to yield accurate and reliable results.” Id. Such a standard 

is consistent with prior cases that have determined that “claims whose truth or falsity would be 

difficult or impossible for consumers to evaluate by themselves” require a high level of 

substantiation. See Removatron Int’l Corp., 111 F.T.C. at 306 n.20; Thompson Med. Co., 104 

F.T.C. at 822. 

The second Pfizer factor is the type of product. Plastics are used by all consumers and 

also comprise a significant portion of municipal solid waste. Consequently, for consumers who 

are concerned about the environment, claims about plastic would be of particular importance, 

which suggests a need for a high level of substantiation. 

 ECM BioFilm’s additives will biodegrade in any biologically-active environment (including most landfills) in some 

period greater than a year,” and adding, “This process continues until all the plastic is fully biodegraded"). 

61 Although we conclude that ECM’s efficacy and establishment claims require the same level of substantiation, we 

do not adopt the ALJ’s analysis that led him to a similar conclusion. The ALJ concluded that all of ECM’s materials 

make establishment claims: he found that “[t]he net impression of ECM’s [materials] . . . is that ECM Plastics are 

biodegradable and that testing by independent laboratories proves that ECM Plastics are biodegradable.” ID 237. 

We disagree. Some of ECM’s materials make its biodegradable claims from presentations as simple as a logo 

consisting of a tree and the words “ECM Biodegradable.” We do not find that such materials convey a claim that 

testing by independent labs prove that ECM Plastics are biodegradable. Not “every reference to a test necessarily 

gives rise to an establishment claim,” Bristol-Myers Co., 102 F.T.C. at 321 n.7, and ads in this case that make no 

reference to any level of support do not convey establishment claims. In fact, in Thompson Medical, the 

Commission expressly recognized the need to conduct a separate analysis for a subset of ads that did not specify the 

level of support for the claims. Thompson Med. Co., 104 F.T.C. at 821 n.59. 
43 

The third factor is the benefit of a truthful claim. The fourth factor is the ease of 

developing substantiation for the claim. We often consider these factors in tandem. Our concern 

in analyzing these factors is to ensure that the level of substantiation we require is not likely to 

prevent consumers from receiving potentially valuable information about product characteristics. 

See Thompson Med. Co., 104 F.T.C. at 823. 

Here, the benefit of truthful claims is that consumers would act on appropriate and 

accurate information, choosing products destined for landfill disposal rather than recycling, in 

keeping with their environmental concerns. Although precise information linking laboratory 

tests to landfill biodegradation rates is not easily acquired, the science of biodegradation testing 

is clear, and information, within laboratory testing’s limitations, can be gathered without great 

expense. These factors inject a modest note of caution against undue substantiation 

requirements. Nonetheless, difficulty developing substantiation does not excuse claims that go 

beyond what can be substantiated; the claims should be qualified or limited to reflect the 

limitations of the testing. See POM Wonderful, 2013 WL 268926, at *50. 

The fifth factor involves the consequences of a false claim. Here, false claims are likely 

to harm consumers by inducing purchases of higher-priced plastics that purportedly are 

biodegradable instead of conventional plastic. See Thompson Med. Co., 104 F.T.C. at 824 

(significant economic harm “result[s] from the repeated purchase of an ineffective product by 

consumers who are unable to evaluate” the efficacy claims). And, again, the choice between 

directing products to landfills and recycling will be distorted by false biodegradation claims. 

These considerations support a high level of substantiation. 

The sixth and final factor is the amount of substantiation experts in the field would agree 

is reasonable. As noted above, experts in the field would expect competent and reliable 

scientific evidence to support claims regarding biodegradability. Moreover, they would expect 

well-designed, well-conducted tests with statistically significant, well-analyzed results. 

Based upon our review of the six Pfizer factors, we conclude that the proper level of 

substantiation for ECM’s biodegradable efficacy claims is competent and reliable scientific 

evidence. This is consistent with the expectations of both parties. See ID 237 (“In the instant 

case, the parties agree that, applying the Pfizer factors, the appropriate level of substantiation for 

Respondent’s claims is ‘competent and reliable scientific evidence.’”). As the ALJ explained, 

such evidence “means ‘tests, analyses, research, studies, or other evidence based on the expertise 

of professionals in the relevant area, that have been conducted and evaluated in an objective 

manner by persons qualified to do so, using procedures generally accepted in the profession to 

yield accurate and reliable results.’” Id. at 238 (quoting POM Wonderful, 2013 WL 268926, at 

*48). 

d. The Substantiation Possessed by ECM 

Having determined the levels of substantiation required for ECM’s claims – ASTM 

D5511 substantiation for its specific establishment claims and competent and reliable scientific 

evidence for its non-specific claims – the remaining step is to inquire whether ECM possesses 

those levels of substantiation. We examine each issue in turn. 
44 

i. ECM’s Specific Establishment Claims – that ATSM 

D5511 Tests Prove ECM Plastics Biodegrade 

Completely in Landfills within Five Years – are False 

Although ECM asserts that ASTM D5511 tests substantiate its claims, ASTM, the 

organization that established the test methodology, instructs that ASTM D5511 test results 

should not be used in the manner that ECM employs. ASTM advises that an ASTM D5511 test 

does not substantiate an unqualified biodegradability claim. The test protocol expressly states: 

“Claims of performance shall . . . not be used for unqualified ‘biodegradable’ claims.” CCX-84 

at 1 (ASTM D5511 §1.4). Results may not be supplemented or adapted to better suit marketing 

strategies or applied generally to landfills;62 rather, “Claims of performance shall be limited to 

the numerical result obtained in the test . . . .” Id. “Furthermore,” the protocol continues, 

“results shall not be extrapolated past the actual duration of the test.” Id. If ECM’s ASTM 

D5511 test results are not extrapolated, e.g., using test results that show 2% biodegradation in 30 

days to imply 100% biodegradation in 1500 days, the tests do not support a claim that ECM 

Plastics fully biodegrade. 

ECM personnel have suggested that the limitations ASTM places on the use of ASTM 

D5511 test results apply only to scientific test reports and that results can be extrapolated when 

they are presented to purchasers. See Sinclair, Tr. 1683-84. We disagree. The ASTM protocol 

addresses “[c]laims of performance,” a limitation much more suggestive of marketing efforts 

than laboratory presentations to test sponsors. Moreover, the experts in this case do not believe 

the limitations of the ASTM D5511 protocol can be ignored. Dr. McCarthy explained that 

ASTM D5511 tests can be used as a screening level test, but cannot provide support that a 

biodegradable plastic will biodegrade to completion. CCX-891 at 21. Similarly, ECM’s expert, 

Dr. Barlaz, opined that ASTM D5511 is designed only to measure “intrinsic biodegradability,” 

RX-853 at 8; see also id. at 10 (“there is not a uniformly utilized method to extrapolate rate data 

as measured at laboratory-scale to field-scale landfills”). Dr. Sahu, another ECM expert, also 

testified that from his review of peer-reviewed literature and his experience, he had not seen a 

study that extrapolated a rate from a test to determine a time for complete biodegradation. IDF 

714-15. Indeed, at oral argument, counsel for ECM agreed that ASTM D5511 tests do not 

permit extrapolations on biodegradation rates. Tr. Oral Arg. 20. 

ECM argues that Complaint Counsel have not identified a test methodology that would 

provide scientific evidence sufficient to support claims that ECM Plastics biodegrade fully in 

landfills within a specific period of time. RAnsB 51; Tr. Oral Arg. 20. Similarly, the ALJ 

concludes that no one test can support a rate of biodegradation of plastics in landfills. ID 239-

40. This misses the point. Substantiation requirements are not static; they are driven by the 

specific claim that an advertiser chooses to make. Here, ECM tells its customers that the ASTM 

D5511 test (and particular aerobic tests) “determine the rate and extent of biodegradation of 

plastic materials” and show ECM Plastics will biodegrade in most landfills. See, e.g., CCX-14. 

 

62ASTM’s protocol suggests potential applicability only to “some conditions in biologically active landfills where 

. . . biogas production is actively promoted by inoculation (for example, codeposition of anaerobic sewage sludge, 

anaerobic leachate recirculation), moisture control (for example, leachate recirculation), and temperature control (for 

example, short-term injection of oxygen, heating of recirculated leachate).” CCX-84 at 1. 
45 

ECM is presenting tests and test results that do not support its claims. An advertiser is not given 

license to make particular claims that go beyond the substantiation it possesses and then ask the 

Commission to excuse the inadequacy of its support by asserting that the advertiser did the best it 

could because the proper substantiation for the actual claim would be unavailable. See POM 

Wonderful, 777 F.3d at 496-97 (rejecting argument that substantiation requirement of 

randomized clinical trials for disease claims was “too onerous” because of “practical, ethical, and 

economic constraints” and recognizing that the level of required substantiation required was 

driven by the nature of the claims the advertiser chose to make). Rather, where there are 

constraints on the available substantiation, “the advertiser must generally limit the claims it 

makes for its data or make appropriate disclosures to insure proper consumer understanding.” 

Kroger Co., 98 F.T.C. 639, 737 (1981). 

ii. ECM Does Not Possess the Competent and Reliable 

Scientific Evidence Needed to Substantiate its Claims

To support its position that its claims are substantiated with the requisite science, ECM 

first describes the mechanism through which its additive purportedly alters conventional plastic 

and accelerates biodegradation. Then ECM identifies test results that it contends substantiate its 

claims. 

Mechanism of Operation: ECM argues that the ECM Additive attracts microbes and 

other microorganisms to areas on and within the plastic where the additive is located. RX-855 at 

27-28 (Sahu Expert Report); RX-854 at 21-23 (Burnette Expert Report). According to ECM, 

this fosters the formation of biofilms (a group of microorganisms that stick together on a surface) 

near the additive sites, which promote the growth of bacteria that metabolize both the additive 

and the conventional plastic into which it is integrated. Id. ECM maintains that the additive may 

weaken the carbon-carbon bonds of the plastic, RX-854 at 22, or introduce additional weak 

points, thereby enabling the microorganisms to break down the high-molecular-weight 

conventional plastic. RX-855 at 17-18, 27. Based on this analysis, the ALJ found that inclusion 

of the ECM Additive contributes to the acceleration of biodegradation. See IDF 910-11, 917-18, 

935. 

However, there are important limits on ECM’s presentation and considerable contrary 

evidence. Evidence of the ECM Additive’s mechanism of action comes from ECM’s expert, Dr. 

Sahu. Yet, by his own admission, Dr. Sahu did not analyze or conduct tests on ECM Plastic. 

Sahu, Tr. 1952.63 Dr. Sahu’s opinion about the mechanism of action for the ECM Additive is 

based only on a review of the published literature. See RX-855 at 28 (“Some variant of this 

overall mechanism . . . is widely reported in the literature . . . .”); see also id. at 24-40. But that 

literature does not address the ECM Additive, and the only peer-reviewed article discussing 

plastic amended with the ECM Additive,64 is not cited in this portion of Dr. Sahu’s opinion. 

Indeed, the literature that Dr. Sahu claims to describe ECM’s method of action only describes the 

 

63 Similarly, Dr. Burnette, ECM’s microbiology expert, did not specifically study or analyze the ECM Additive or 

ECM Plastic. Burnette, Tr. 2448-49. 

64 See CCX-895 at 13 (Michel Expert Report) (stating that an article by E.F. Gomez and F.C. Michel is the only 

peer-reviewed scientific publication to report on the biodegradation of ECM amended plastic). 
46 

formation of biofilms and the ingestion of the material by microbes that occurs whenever any

product biodegrades. Moreover, the particular articles cited by Dr. Sahu to support his opinion 

that conventional plastic can be biodegradable only discuss plastics with structural types known 

to be biodegradable or that have been pretreated or that are treated in specialized environments. 

See CCX-892 (McCarthy Rebuttal Expert Report) at 5 n.3 (1978 study by Albertson was 

conducted in a super-oxygenated environment, which is unlike landfills), 6 (articles by Tilstra & 

Johnsonbaugh and Shah discuss plastics with molecular structures known to be similar to 

biodegradable polymers), 6-7 (Tokiwa article discusses biodegradability of low-molecularweight plastic), 7 (Shah article concludes polyethylene can be degraded only following 

“photodegradation and/or chemical degradation”). In short, the articles cited by Dr. Sahu do not 

address, under customary disposal conditions, the conventional, high-molecular-weight plastics 

that resist biodegradation and that are the plastics ECM claims its additive will alter to become 

biodegradable. 

Moreover, other evidence raises troubling questions regarding the purported mechanism 

of action. While the experts agreed that the ECM Additive is biodegradable and that 

microorganisms gather and ingest the additive when an ECM Plastic is disposed of, questions 

remain regarding the subsequent steps. Formation of a biofilm – a key step in ECM’s claimed 

mechanism of action – is not necessarily an indication of degradation of the plastic.65 Even 

ECM expert, Dr. Burnette, distinguished between forming a biofilm and degrading the material. 

See Burnette, Tr. 2453-57 (explaining that his references only address biofilm formation and do 

not address whether the microorganisms are using the plastic as a food source). The ALJ 

accepted that the formation of biofilms resulted in biodegradation of the plastic, see IDF 913, but 

formation of biofilms does not amount to competent scientific evidence that the ECM Additive 

actually promotes biodegradation of conventional plastics. 

Laboratory Tests: Experts testified that gas evolution tests are the most practical and 

widely used scientific tests of biodegradation. If they are appropriately designed, conducted, and 

controlled, they can provide competent and reliable evidence of biodegradation. IDF 743, 748. 

The record in this case includes reports or descriptions of 44 tests of plastic containing 

the ECM Additive. ECM identifies a subset of these 44 tests that it contends provides support 

for its claims. Complaint Counsel and their experts challenge whether the methodology and 

results of those tests provide adequate substantiation. Complaint Counsel also assert that a 

different subset of the 44 tests affirmatively shows that ECM’s biodegradability claims are false. 

Tests Relied Upon by ECM as Showing Biodegradation: In accord with the ALJ’s 

analysis, we limit our review to anaerobic tests; aerobic tests are not competent and reliable 

evidence of biodegradation in landfills, which are anaerobic environments. See IDF 1045 (citing 

 

65 See CCX 895 at 16 (Michel Rebuttal Expert Report) (“The presence of a biofilm on a surface does not necessarily 

lead to the biodegradation of the surface upon which it is attached.”) (citing N. Cerca, G.B. Pier, M. Vilanova, 

Quantitative Analysis of Adhesion and Biofilm Formation on Hydrophilic and Hydrophobic Surfaces of Clinical 

Isolates of Staphylococcus Epidermidis, 156 RES. MICROBIOL. 506, (2005); J.C. Araujo, R. Mortara, JR Campos, & 

RF Vazoller, Development and Analysis of Anaerobic Biofilms onto Hydrophobic and Hydrophilic Surfaces, 25 

ENVTL. TECH. 809 (2004)); Michel, Tr. 2865 (explaining that biofilms form inside bathroom pipes but do not 

degrade the pipe). 
47 

Barlaz, Tr. 2300, RX-853 at 7 (Barlaz Expert Report)); ID 240-41 & 241 n.43. We also do not 

consider tests that rely on methods such as weight loss or informal backyard experiments that 

scientists in the field would not consider sufficient to determine biodegradation. See IDF 741; 

ID 240. After excluding these tests, ECM’s support comprises eight tests conducted by Eden 

Research Laboratories (“Eden”), IDF 1080-1216, ten tests conducted by Northeast Laboratories 

(NE Labs), IDF 1267-1424, and a BMP test conducted at North Carolina State University. IDF 

1437-47. 

Our review of these tests and the testimony by Dr. Barlaz regarding the test results leads 

us to conclude that ECM has not provided adequate substantiation for its claims. None of the 

tests even purports to demonstrate complete biodegradation in landfills within five years. 

Moreover, the tests often fall short of the well-designed, well-conducted, well-controlled, and 

appropriately analyzed testing that would satisfy the relevant scientific community. ECM’s 

evidence is fraught with gaps and methodological inadequacies that lead us to question any 

assertion that the ECM Additive enhances the biodegradation of plastic products. Indeed, taking 

account of the contrary evidence presented by Complaint Counsel as well, we find it as likely 

that the ECM Additive has no meaningful effect on the biodegradation of plastic products as that 

it does. 

To begin with, test procedures often were problematic because many of the tests diverged 

from accepted methodologies. For instance, in conducting long-term extension testing, NE Labs 

employs a unique methodology that refreshes the inoculum after the generation of biogases for 

the positive control has plateaued. See Johnson, Tr. 1583 (ASTM protocol does not allow for 

extended testing up to 365 days). In these tests, NE Labs removes the test material from the 

testing environment and places it in new canisters with fresh inoculum. IDF 1252. During this 

transition, however, the test material is exposed to oxygen, even if the new canisters are sparged 

with nitrogen to remove excess atmospheric gases. Johnson, Tr. 1574. Thus, these longduration extension tests are not strictly anaerobic. See Barlaz, Tr. 2334 (explaining that test 

results would be “questionable” if there was continuous variation between anaerobic and aerobic 

conditions). The test results and reports do not indicate when inoculum is refreshed and the test 

material is exposed to oxygen, Johnson, Tr. 1594, so results for the extension testing cannot be 

appropriately interpreted. 

Moreover, although ECM asserts that Dr. Barlaz’s analysis establishes that the plastic 

generated a statistically significant amount of methane, RAnsB 42, 45, ECM failed to present 

evidence sufficient to allow confident conclusions that methane was generated from the plastic at 

issue rather than from the ECM Additive. The chemical content of ECM’s additive is protected 

as a trade secret, but it nonetheless is acknowledged to be biodegradable. IDF 159-60. Thus, 

tests of the efficacy of ECM’s additive must consider whether evidence of biodegradation of the 

test sample (i.e., methane produced in a gas evolution test) shows more than biodegradation of 

the additive. CCX-891 at 15-16 (McCarthy Expert Report). In other words, the tests must 

identify biodegradation from the plastic, not just from the ECM Additive. 
48 

For roughly half of the studies (three tests by Eden and six tests by NE Labs), however, 

the test reports do not reveal the percentage of ECM Additive in the test article.66 Dr. Barlaz 

nonetheless concludes that the underlying plastic is biodegrading in these nine tests because the 

quantity of methane generated by the sample exceeds the quantity that he calculates could have 

been attributable to biodegradation of the additive. Yet, because the percentage of ECM 

Additive in the sample is unknown, the calculated quantity of methane attributable to the 

additive is only a guess, and any conclusions that some portion of the methane is attributable to 

the underlying plastic are based only on assumptions. 

Beyond this, because the necessary underlying data often were not reported, Dr. Barlaz 

was unable in most instances to calculate t-statistics that might show that the methane generated 

was statistically significant.67 In those instances, Dr. Barlaz instead relied on the ratio of 

methane generated by the test article to the methane generated by the inoculum to confirm that 

the test article was biodegrading. Barlaz, Tr. 2248-49, 2261. But this ratio only tends to 

demonstrate that the test article – the plastic/additive mix – is biodegrading; it does not 

distinguish between biodegradation of the ECM Additive and biodegradation of the underlying 

plastic.68

In six instances Dr. Barlaz calculated t-statistics to show that the measures of methane 

were statistically significant.69 Here again the record lacks analysis of the significance of the 

methane generated by the plastic alone. Dr. Barlaz’s t-statistics establish only that 

biodegradation of the test article – the combination of plastic plus the additive – was statistically 

significant, i.e., that the additional methane generated by the plastic/additive mix over the 

methane generated by the inoculum was statistically significant. He subtracts the methane 

potentially derivable from the ECM Additive, but only after performing his t-test analysis. See

IDF 1012; Barlaz, Tr. 2255 (calculations based on methane produced from the additive do not 

affect his statistical analysis, but rather, affect what comes after that analysis); see also id. at 

2247-49, 2252-60. So even for the minority of tests that ECM claims present a statistically 

 

66 See IDF 1159 (RX-859, Eden FP International), 1188 (RX-861, Eden MicroTek), 1205 (RX-862, Eden EcoLab), 

1344 (RX-396, NE Labs 1048819 (EcoSmart Plastics II)), 1360 (RX-395, NE Labs 1150851 (Sweet Tape 

Enterprise)), 1376 (RX-394, NE Labs 1150851 (TycoPlas Sdn. Bhd.)), 1399 (RX-393, NE Labs 1253020 (National 

Tree Co.)), 1414 (RX-392, NE Labs 1048036 (Transilwrap Co.)), 1421 (RX-399, NE Labs N0843980 (Bio-Tec 

Environmental, LLC)). 

67 Dr. Barlaz reported t-statistics for only six of ECM’s laboratory tests. RX-472 at column N. 

68 ECM also has cited the 1999 McLaren/Hart Report, CCX-266E, to its customers. IDF 277. That report relied on 

one anaerobic gas evolution test, conducted by Organic Waste Systems Inc. Id. at 6-7; see RX-265. The substance 

tested was the ECM pellets themselves, not a separate plastic product treated with the ECM Additive. IDF 1451. 

The test found the pellets had experienced 24 percent biodegradation after fifteen days, at which point the test was 

terminated. IDF 1456-57; CCX-266E at 6; RX-265 at 17. Because the pellets consisted of at least percent 

ECM Additive, which was biodegradable, CCX-818 (Sinclair Dep.) at 163-64, the test provides no basis for 

concluding that anything other than the ECM Additive had biodegraded. 

69 Dr. Barlaz’s calculations were needed because the test reports generally do not report the statistical significance of 

the level of methane generated, although this is generally required by the ASTM D5511 protocol. See Poth, 

Tr.1512-14 (Eden reports do not include reports of statistical significance except on special request); see also RX248, RX-839, RX-403, RX-402, RX-859, RX-860, RX-861, RX-862; Johnson, Tr. 1535-36 (NE Labs conducts 

statistical analysis only on special request),1538, 1587-88 (NE Labs does not report confidence limits or standard 

errors and has no way of knowing whether the results are statistically significant). 
49 

significant showing, ECM presents no calculations to establish the statistical significance of 

methane generated from the plastic itself. 

Most importantly, not one of ECM’s tests shows complete biodegradation of plastics in 

landfills within five years. The other deficiencies are significant, but even if they were not 

present, the tests relied upon by ECM entirely fail to substantiate the claims at issue. 

Tests that Show No Biodegradation: We view ECM’s test results in light of the 

complete record, which includes gas evolution testing that yields contrary results. Competent 

and reliable scientific evidence in support of efficacy claims “should be sufficient in quality and 

quantity based on standards generally accepted in the relevant scientific fields, when considered 

in light of the entire body of relevant and reliable scientific evidence, to substantiate that each of 

the marketing claims is true.” FTC Green Guides, 16 C.F.R. § 260.2. Similarly, for nonspecific 

establishment claims, the advertiser “must possess evidence sufficient to satisfy the relevant 

scientific community of the claim’s truth.” POM Wonderful, 777 F.3d at 491 (quoting BristolMyers, 102 F.T.C. at 321). Certainly, experts in the field would interpret particular test results in 

the context of other relevant evidence. 

Again, limiting our review to tests that investigated anaerobic biodegradation, the record 

includes three BMP tests conducted at North Carolina State University (CCX-946, CCX-951, 

CCX-954), three tests by Stevens Ecology (CCX-174, CCX-175, CCX-176), a test by Advance 

Material Center (CCX-173), tests by Organic Waste Systems, Inc. (OWS) (CCX-156, CCX-157, 

CCX-163, CCX-169, CCX-171), and a test conducted at Ohio State University by Eddie Gomez 

and Dr. Michel (CCX-164). As the ALJ explained, test reports for several of these tests were 

admitted into the record without explanation or discussion by a fact or expert witness. ID 256-

62. Consequently, the ALJ gave them little weight. Id. We examine the tests more closely. 

Many of the test reports showing no biodegradation fall short of the standard that experts 

in the field expect. As the ALJ explained, in two of the tests conducted by Stevens Ecology and 

one test by OWS, the positive control did not biodegrade sufficiently to establish that the test 

environment was suitable. See ID 256-57, 259. There is evidence that the third Stevens Ecology 

test did not permit continuous contact between the test article and the inoculum. Id. at 256-57. 

Several of the OWS reports do not disclose the underlying data, such as the amount of methane 

generated or the percentage of ECM Additive. Id. at 258-61; see CCX-156, CCX-157, CCX169, CCX-171. In addition, two of the OWS tests did not include appropriate controls. ID at 

260-61; see CCX-163, CCX-171. 

Other tests, however, meet the standards that experts in the field would accept to support 

conclusions regarding biodegradability. One of the NCSU BMP tests showed no methane 

production, and two tests produced only negligible amounts of methane. IDF 1434 (citing CCX951), 1435 (citing CCX-946, CCX-954). Although these BMP tests were conducted in a liquid 

environment, Dr. Barlaz, who supervised the tests, explained that a BMP test is a screening test 

that would determine if any biodegradability is possible and that the actual volume of methane 

generated in a landfill may be less than the amount shown in the BMP test. CCX-952 at 1. 

The test conducted by Gomez and Michel at Ohio State University is the only published, 

peer-reviewed study to address whether ECM Plastic is biodegradable. ID 254; see CCX-164 
50 

(E.F. Gomez & F.C. Michel, Jr., Biodegradation of Conventional and Bio-Based Plastics and 

Natural Fiber Composites During Composting, Anaerobic Digestion and Long-Term Soil 

Incubation, 98 J. POLYMER DEGRADATION & STABILITY 2583 (2013)). The study ran an ASTM 

D5511 test on two plastics treated with the ECM Additive and also ran a soil test on the 

materials. The study found, based on statistical analysis, “There was no significant difference in 

the carbon conversion of the negative control (PP) and the plastic containing the additive.” 

CCX-164 at 8. The study found that “[c]onventional plastics and those containing additives did 

not degrade at all under any of the three conditions.” Id. The study concludes, “[P]lastics 

containing additives that supposedly confer biodegradability to polymers such as polyethylene 

and polypropylene did not improve the biodegradability of these recalcitrant polymers.” Id.

ECM argues that the study by Gomez and Michel should not be credited for several 

reasons. First, the study was funded by Myers Industries, which ECM contends is a competitor 

because it sells compostable gardening pots. Myers provided the ECM Plastic that was used in 

the test, and ECM suggests that Myers might have improperly incorporated the ECM Additive 

when it prepared the plastic sample. ECM also critiques the value of the publication because 

peer reviewers did not see the raw test data and, contrary to the conflict of interest standards of 

the publisher, the authors did not disclose the study’s funding. RAnsB 9, 36. ECM’s arguments, 

however, do not undermine the significance of the study. The record indicates that Myers 

Industries wished to sell biodegradable gardening pots in addition to compostable pots. See

Michel, Tr. 2934; CCX-417 (log summarizing ECM/Myers communications regarding possible 

sales of the ECM Additive to Myers). Unless we assume that Myers’ stated objectives in 

sponsoring the test were a ruse – and that a gardening pot seller sponsored and biased a scientific 

study for the purpose of undermining the credibility of an upstream producer of plastic additives 

– Myers had reason to prepare the sample properly. Moreover, the record shows that ECM 

advised Myers on proper preparation of ECM Plastics. See CCX-417 at 2-4. Although the raw 

data were not provided to reviewers when the article was submitted for publication, the data 

appear in the article in a graphical format. Michel, Tr. 2940-41. ECM has not shown that the 

failure to disclose funding of the study, while contrary to the publication’s requirements, was 

likely to have created a conflict of interest that would have influenced peer reviewers. 

More generally, ECM argues that the tests that show no evidence of biodegradability of 

ECM Plastics are merely inconclusive, not affirmative evidence that the ECM Additive does not 

work. See RAnsB 8-9. ECM’s experts identified reasons why a gas evolution test performed on 

ECM Plastics might not show positive results, including a problem with the pH in the test 

environment; an inoculum that is not viable for extended testing in a closed system; another 

additive in the plastic that is antimicrobial; or improper preparation of the amended plastic (i.e., 

scorching when the plastic was melted) that rendered the ECM Additive inefficacious. See

Sahu, Tr. 1939-40; Barlaz, Tr. 2232, 2273. Although we acknowledge the possibilities, we also 

recognize the limits of ECM’s argument. When ECM’s expert indicated that pH problems or 

unsuitable inoculum could explain test results that showed no biodegradability, the expert also 

testified that he was only suggesting theoretical possibilities; he did not see any reason to believe 

these issues affected any tests in the record. Barlaz, Tr. 2335-37 (adding that biodegradation of 

the tests’ positive controls indicated that the inoculum was viable). As to the hypothetical 

presence of antimicrobial additives, we observe that ECM’s claims that its additive renders 

plastic biodegradable do not disclaim efficacy if other additives are also included. Finally, we 

find the possibility that the test material was improperly prepared in ways that undermined the 
51 

ECM Additive’s performance too speculative. The tests were conducted for potential ECM 

customers with a business interest in accurate results, and these potential customers had been 

advised by ECM about the proper process to ensure that the additive was properly distributed 

throughout the plastic and that it was not scorched. IDF 216-18, 230. 

We find that ECM’s efficacy claims – that ECM Plastics will fully biodegrade in a 

landfill within 5 years – are unsubstantiated, and therefore, misleading. Our conclusion is based 

on ECM’s failure to appeal the ALJ’s finding that ECM lacked substantiation for its 9 month to 5 

year claim, agreement among the scientific experts in this proceeding that they have not seen 

evidence that ECM Plastics fully biodegrade in a landfill in less than 5 years, and our review of 

the gas evolution and other tests in the record. We also find that ECM’s establishment claims – 

that scientific testing, including ASTM D5511 tests, demonstrate that ECM Plastics will fully 

biodegrade in less than 5 years – are false. As ECM readily acknowledges, the ASTM D5511 

test methodology does not support the claims alleged in the Complaint. 

C. ECM’s Rate Claims Are Material. 

Thus far we have found that ECM made the express claim that ECM Plastics will 

completely biodegrade in a landfill within nine months to five years; ECM made the implied rate 

claim that ECM Plastics will fully biodegrade in landfills in a reasonably short period of time; 

ECM made the claim that scientific tests prove its rate claims; and ECM’s claims are false and 

unsubstantiated. The remaining liability issue is whether the express and implied claims are 

material – whether they would likely be important to a reasonable purchaser and affect his/her 

purchasing decision or other conduct.70 Deception Statement, 103 F.T.C. at 175-76; see, e.g., 

Kraft, 970 F.2d at 322 (“a claim is considered material if it ‘involves information that is 

important to consumers and, hence, likely to affect their choice of, or conduct regarding a 

product’”) (quoting Cliffdale Assocs., 103 F.T.C. at 165). 

In most cases, the very existence of an express claim is sufficient to demonstrate that the 

claim is material. Accordingly, we typically apply a presumption of materiality to express 

claims. We also typically apply the presumption to implied claims when there is evidence that 

the seller intended to make the claim, as well as to claims that significantly involve health, 

safety, or other areas with which reasonable consumers would be concerned. Cliffdale, 103 

F.T.C. at 182; Deception Statement, 103 F.T.C. at 182. The presumption also applies when the 

claim pertains to the central characteristics of the product, such as those relating to its purpose, 

efficacy, or cost. See, e.g., Telebrands, 140 F.T.C. at 292; Thompson Med. Co., 104 F.T.C. at 

 

70 In most false advertising cases the “consumer” is synonymous with the “purchaser” of the product at issue. Here, 

however, the consumer typically does not “purchase” the final plastic product (such as a grocery bag or plastic 

packaging material) made with the ECM Additive. Rather, the purchasing decision is made by plastics 

manufacturers, who are motivated to produce and sell environmentally-friendly products based on perceived 

demand for such products by their own customers, who in turn are motivated to provide such products because of 

end-use consumer preference for environmentally-friendly products. See IDF 205. Thus, the appropriate focus of 

the materiality inquiry in this case is on the importance of the rate claim to ECM’s customers and to others in the 

supply chain who purchase the ECM Additive and the plastics made with it, which reflects the importance to the 

end-use consumer. See, e.g., FTC v. Wash. Data Res., 856 F. Supp. 2d 1247, 1272 (M.D. Fla. 2012) (“A 

representation is material if likely relied upon by a reasonable prospective purchaser.”). 
52 

816-17. However, a respondent may rebut this presumption by providing evidence that the claim is 

not material – i.e., “evidence that tends to disprove the predicate fact from which the presumption 

springs (e.g., that the claim did not involve a health issue) or evidence directly contradicting the 

initial presumption of materiality. Novartis, 127 F.T.C. at 686 (adding, “[t]his is not a high hurdle”); 

see also Jerk, LLC, 2015 WL 1518891, at *12 (F.T.C. Mar. 13, 2015). If the respondent does so, 

we proceed to weigh all of the evidence provided by the parties, including, where appropriate, 

the predicate facts that gave rise to the presumption. Novartis, 127 F.T.C. at 686-87.71

In his Initial Decision, the ALJ concluded that “a weigh[ing] of all of the evidence 

presented by the parties on the issue shows that Respondent’s claims that ECM Plastics will fully 

biodegrade in a landfill within nine months to five years, and that tests prove such claim, are 

material to the purchasing decisions of ECM customers, and to downstream customers.” ID 288 

(internal quotation omitted). He cited abundant evidence in support of his conclusion that the 

express claim was material to direct and indirect customers, and concluded that evidence of the 

materiality of that claim to end-use consumers was not required. ID 288-91 & n.55. With 

relevance to the implied claim, he noted “there is no dispute between the parties that ECM 

Customers buy the ECM Additive because they want to provide ‘biodegradable’ plastics to meet 

their customers’ demand for such products, or that biodegradable products are ‘important,’ at 

least in a general sense, to consumers.” ID 285; see also IDF 1503-07. We agree and affirm the 

ALJ’s rulings. 

All of ECM’s claims are presumptively material. The claim that ECM Plastics will 

biodegrade in nine months to five years was express. Both the express and implied claims were 

an important, intended feature of ECM’s marketing. Indeed, the sole purpose of the ECM 

Additive is to hasten the biodegradation of plastic and the claims announce the product’s 

effectiveness in achieving that purpose. The express claim, the implied claims, and the 

contention that tests prove these claims all relate to this central characteristic of the ECM 

Additive. 

Even apart from any presumption, however, the evidence clearly demonstrates 

materiality. We noted at the outset of our opinion the importance of the time element to potential 

customers that is reflected in contemporaneous ECM business documents, where ECM 

acknowledged the importance of its being able to certify that ECM Plastics biodegrade within “a 

reasonable period of time.” CCX-826. Indeed, ECM asked its customers to sign a Certificate of 

Assurance that they would always use ECM Additive in an amount representing at least one 

percent of weight for the very reason that “ECM’s reputation can be materially and, perhaps, 

irreparably damaged when products claiming to use ECM MasterBatch Pellets fail to biodegrade 

with[in] a reasonable period of time.” Id. In short, ECM for many years touted the short period 

of time it would take for ECM Plastic to biodegrade, handed out certificates to its customers 

 

71 ECM contends that all of the evidence the ALJ cited was insufficient to show materiality because Complaint 

Counsel failed to present direct testimony or other evidence that any plastic company or end-use consumer altered a 

purchasing decision based on the nine months to five years claim and that such evidence is required for finding the 

rate claim material. RAppB 21, 24-25, 39. While direct evidence of actual reliance or injury may be probative on 

the issue of materiality, it is not required. See Novartis, 127 F.T.C. at 685; Kraft, 114 F.T.C. at 134. Rather, the 

materiality inquiry focuses on whether the claim is likely to affect the consumer’s choice of, or conduct regarding, a 

product and therefore likely to cause injury if it is false. See Cliffdale, 103 F.T.C. at 165-66. 
53 

certifying that scientific testing proved both the “rate and extent” of biodegradation, and stressed 

to its customers the importance to its reputation that biodegradation occur within a reasonable 

amount of time. 

Further, ECM’s litigation contention – that rate claims were not material because 

customers cared only about “intrinsic” biodegradability – is belied by its contemporaneous 

business conduct, and we find the argument unpersuasive.72 ECM made the rate claims in a wide 

variety of its marketing materials and then often repeated the express claims in one-on-one 

communications with potential customers. IDF 245-47, 253, 256, 1498, 1501.73 As the ALJ 

explained, “[i]t is logical to conclude . . . that [ECM] would not promote the ECM Additive with 

these claims unless it was likely to have an effect on the purchasing decisions of its Customers.” 

ID 288 (referencing the “9 months to 5 years” claim); see IDF 1500 (same). We agree. 

Many of ECM’s customers and potential customers asked ECM specific questions about 

the rate claims, which, as the ALJ explained, “is further proof that this claimed characteristic of 

ECM Plastics was an important factor to ECM Customers in determining whether to purchase 

the ECM Additive.” ID 288-89 (referencing the “9 months to 5 years” claim); see IDF 1502 

(same).74 Indeed, Mr. Sinclair, ECM’s President, acknowledged that potential customers 

frequently asked about the rate claim. CCX-423 at 9 (stating, in advising purchaser regarding 

the nine month to five year time frame, ). ECM’s 

 

72 ECM also argues that features of the ECM Additive other than the rate of biodegradation (e.g., cost, adaptability 

to manufacturing process) were important to customers. However, rate need not be the only factor or even the most 

important factor in the customer’s purchasing decision; all that is required is that it be an important factor, which it 

clearly is. Novartis, 127 F.T.C. at 695. 73 Similarly, ECM disseminated its claim that tests prove its rate claims. The Certificate of Biodegradabilty that 

ECM issued to its customers states that “numerous plastic samples, submitted by ECM BioFilms, Inc., have been 

tested by independent laboratories in accordance with standard test measures approved by ASTM, ISO and other 

such standardization bodies to determine the rate and extent of biodegradation of plastic materials.” IDF 266, 269. 

74 ECM argues that the ALJ referenced only four such inquiries in his opinion, and that “only four such party queries 

out of a universe of 300 proves . . . that the matter was not material . . . .” RAppB 23. However, as Complaint 

Counsel point out, the four inquiries referenced by the ALJ were only examples, and the record contains evidence of 

many additional inquiries from customers and potential customers about the rate claims. CCAnsB 8 & n.7; see, e.g., 

CCX-283 at 2 (asking if ECM can provide a “statement of certainty” that ECM Plastic will “break down in 

approximately 9 months to 5 years”); CCX-275 at 3 (“Do you have any literature explaining the time (5 years or 

less) process?? [sic] I know you told me 9 months – 5 years . . . we are trying to use the proper language in our 

company literature.”); CCX-307 at 2 (asking ECM to review “a statement explaining the attributes of interest to 

consumers,” i.e., that ECM Plastic would “fully biodegrade in 9 months to 5 years”); CCX-378 at 1 (expressing 

concern about evidence “to support a claim that the material will biodegrade in 9 months to 5 years”); CCX-423 at 9 

(asking whether ); 

CCX-452 at 1 (“Where do you derive the 9 months to 5 years time frame for biodegradation?”); CCX-277 at 5 

(asking ECM to advise on what “claims can be made” such as “plastic breaking down in 5 years or whatever?”); 

CCX-397 at 1 (asking ECM to confirm the accuracy of the statement: “Full Circle bags will decompose anywhere 

that natural organic material will in nine mo[]nths to five years”); RX-135 at ECM-097628 (“Please provide your 

synopsis supporting the 9 month to 5 years claim for degradation ASAP”); RX-135 at ECM-011174 (“How quickly 

will film using the ECM additive fully biodegrade? Your flyer states 9 months to 5 years. That seems pretty broad. 

Have you been able to narrow that down?”); RX-135 at ECM-027525 (“[O]ur customer is requesting . . . 

information regarding the actual timeline or lifeline of the biodegradable material.”); RX-135 at ECM-057836 

(“[W]hat time and condition . . . [for] the degradation?”). 
54 

CFO, Mr. Sullivan, likewise testified that potential customers “often ask[ed] how quickly” ECM 

Plastics would biodegrade. Sullivan, Tr. 721, 738-39.75 

The record also shows that ECM not only provided its customers with the ECM 

marketing materials, including those containing the rate claims, but also encouraged those 

customers to use the materials for marketing ECM Plastics to their own customers. IDF 280. 

ECM also offered to provide, and often did provide, guidance to both direct and indirect 

customers on their advertising, including the rate claims. IDF 281; see, e.g., CCX-397 at 1 

(approving customer’s claim that bags will decompose in nine months to five years). In some 

cases, ECM customers forwarded the ECM marketing materials to their own customers, and 

directed them to contact ECM directly to answer any questions they might have. IDF 287-88. In 

other cases, the ECM customer would direct its own customers to the ECM website, which also 

contained the rate claims. IDF 291, 293. 

Likewise, there is evidence showing that ECM customers actually used the rate claim in 

advertising to their own customers, often in the same language as that used by ECM. IDF 286, 

1512.76 For example, Island Plastic Bags (“Island”), one of ECM’s customers, stated in its 

advertisement for its “Bio Ultra Blend” trash liners, that it was using “ECM BioFilms’ 

technology” which will cause the liners to “completely degrade . . . in 9 months to 5 years 

depending on conditions.” IDF 292. Island and one of its distributors met with Down to Earth, a 

grocery store chain in Hawaii, and told Down to Earth that ECM Plastics would biodegrade 

within nine months to five years. IDF 293. 

Beginning on April 22, 2009, Down to Earth featured ECM’s logo, along with a claim of 

complete biodegradation within nine months to five years in a landfill, on its grocery bags, which 

were placed at the checkout counter for use by its customers in packing their groceries. IDF 297. 

Before doing so, Down to Earth advised ECM of the text that it intended to have printed on the 

 

75 ECM argues that its customers were sophisticated firms that decided to purchase the ECM Additive only after 

extended discussions, in which they discussed with ECM “the fact of environmental variability,” and, in some cases, 

also did their own testing. RAppB 15, 28-29. The record, however, shows that many of ECM’s customers have no 

expertise in biodegradation and relied on ECM precisely because they lacked both the facilities and expertise 

required to evaluate biodegradability. See ID 290. Even firms with substantial plastics expertise often lack 

expertise or facilities pertinent to biodegradability issues. IDF 1513-15, 1518, 1520-22, 1524-29. Further, even if 

ECM sometimes “softened” the rate claims in lengthy negotiations with customers, as it now asserts, the fact 

remains that ECM expressly, repeatedly, and prominently made the rate claims to potential customers over a long 

period of time. It is well-established that an advertiser cannot “cure the deception” in one advertisement with 

different statements in another. See, e.g., In re Chrysler Corp., 87 F.T.C. 719, 751-52 (1976); Removatron Int’l 

Corp., 884 F.2d at 1496-97. 

76 ECM argues that because the Initial Decision lists only 7 of its 300 customers as placing the 9 years to 5 months 

claim on their own advertising or products, the claim was not material to its other customers. RAppB 22, 33. 

However, there are many examples of customers passing along ECM rate claims to their own customers and end-use 

consumers in addition to the seven cited by the ALJ. See., e.g., CCX-33 at 1 (repeating “nine months to five years” 

in marketing literature for air pillows); CCX-34 at 1 (same in memorandum to distributors for plastic film); CCX-37 

at 1, 2 (same on website advertising rigid cards such as credit cards); CCX-38 at 1, 2 (same on brochure for 

packaging); CCX-40 at 2 (claiming biodegradation “up to 5 years” for packaging); CCX-44 at 1 (same on grocery 

bag); CCX-102 at 1 (stating on marketing card that product is biodegradable in 1-5 years); CCX-961 at 1 (repeating 

“Fully biodegrade in 9 months to 5 years” claim on website’s “Going Green” advertisement for plastic shopping 

bags). 
55 

bags, stating “I’d like to include the ECM logo (which I have) and a statement explaining the 

attributes of interest to consumers,” including the information that the bag will “fully biodegrade 

in 9 months to 5 years, depending on the amount of oxygen they are exposed to,” and asked for 

ECM’s comments. IDF 299. Down to Earth also used language from the ECM marketing 

materials to prepare a press release for the “roll out” of its biodegradable plastic grocery bags on 

Earth Day, 2009, and provided a draft of the press release to both ECM and Island for prior 

review. IDF 303. Down to Earth prepared the press release because it wanted people to know it 

was doing its part to contribute to a more “environmentally sound operation.” IDF 303.

Down to Earth purchased about 700,000 bags reflecting the nine months to five years 

claim, each year, for approximately five years, for a total of 3.5 million bags. IDF 301. Down to 

Earth has approximately 50,000-100,000 customers who, it is reasonable to infer, were exposed 

to the Down to Earth plastic bags containing the nine months to five years claim. IDF 301-02. 

Overall, Island manufactured ECM Plastic bags reflecting the rate claim for 50 to 100 different 

customers – in total approximately 10 million such bags. ID 300. Island explained that the rate 

claim was important because it helped to convey the message that “this is an actual technology . 

. . it’s for real.” CCX-811 at 54-55 (Island Dep.). 

Interestingly, ECM argues that the nine months to five years rate claim could not have 

been material because ECM did not suffer any loss of business after finally discontinuing that 

claim in 2013. RAppB 5, 25, 29. However, we have found that the “some period greater than a 

year” representation with which ECM replaced the nine months to five years language was also 

likely to deceive consumers into believing that ECM Plastics would biodegrade in a reasonably 

short period of time (i.e., within five years). See supra Section III.A.3. Indeed, survey evidence 

suggests that consumers viewed the two representations similarly. See supra Section III.A.3.b. 

Thus the fact that ECM did not lose business likely can be attributed to its substitution of one 

claim for another with similar deceptive content. 

All of this evidence strongly supports the inference that ECM’s rate claims were 

important to the purchasing decisions of those in its commercial supply chain because they knew 

their customers cared about products that could help the environment. See, e.g., IDF 280, 299, 

1503. By contrast, ECM’s rebuttal arguments, all of which the ALJ rejected, are unsupported by 

the record, contrary to applicable law, and unpersuasive. ID 288-91. In sum, Complaint Counsel 

have shown that ECM’s rate claims were material to ECM’s customers and to those customers’ 

own downstream customers. 

D. Means and Instrumentalities Liability 

 The Initial Decision determined that ECM was also liable under the “means and 

instrumentalities” doctrine77 for providing the means for its customers and others in the supply 

chain to themselves engage in deception. ID 292-94, 319. That doctrine provides that “[t]hose 

who put into the hands of others the means by which they may mislead the public, are 

themselves guilty of a violation of Section 5 of the Federal Trade Commission Act.” Waltham 

 

77 While ECM is liable for its direct dissemination of deceptive marketing materials to its customers, it may also be 

held vicariously liable for the conduct of others in passing along the deceptive claim. ID 292 & n.56. 
56 

Watch Co. v. FTC, 318 F.2d 28, 32 (7th Cir. 1963). The doctrine ensures that “[t]he author of 

false, misleading and deceptive advertising may not furnish customers with the means of 

misleading the public and thereby insulate himself against responsibility for its deception.” 

Irwin v. FTC, 143 F.2d 316, 325 (8th Cir. 1944). ECM has not separately appealed the ALJ’s 

means and instrumentalities ruling. 

 As the ALJ found, ECM provided its customers with marketing materials containing the 

claims that ECM Plastics will fully biodegrade in landfills in nine months to five years and that 

tests prove this and encouraged its customers to use those materials in advertising to their own 

customers. See IDF 280, 284, 290, 305, 312. ECM’s customers did so, thereby passing the 

deceptive claim along the supply chain. See IDF 285-86, 289-90, 292-93, 305, 307-10, 312. 

This record amply establishes ECM’s liability under the means and instrumentalities doctrine. 

E. Defenses 

1. First Amendment 

ECM contends that the Order, which prohibits unqualified claims that ECM Plastics are 

degradable unless ECM possesses competent and reliable scientific evidence that shows 

complete decomposition in a landfill within five years, would violate the First Amendment by 

imposing a prospective ban on truthful commercial speech. RAnsB 49, 51-52. ECM contends 

that because “nothing reliably biodegrades within one year in a landfill” and because no expert 

could explain how to reliably substantiate a claim concerning the “time to complete 

decomposition” or the “rate and extent of decomposition,” the Order effectively creates “a 

categorical bar on biodegradable claims.” Id. at 51; see also RRB 20-21. It “would impose a 

prior restraint on truthful speech without reliance on obvious, less speech restrictive alternatives 

(such as a qualification that there is no known precise rate of biodegradation).” RAnsB 51 

(citing Pearson v. Shalala, 164 F.3d 650 (D.C. Cir. 1999)). And it would lack a reasonable 

relationship to the harm found, in violation of the Supreme Court’s ruling in Central Hudson Gas 

& Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557 (1980). Tr. Oral Arg. at 80. According to 

ECM, rather than prohibiting unsubstantiated claims, any remedy must allow a disclaimer that 

there is no scientific test for biodegradation rates. Id. at 80-81, 85-86. 

We disagree. Commercial speech must at least “concern lawful activity and not be 

misleading” to qualify for constitutional protection. Central Hudson, 447 U.S. at 566; see also, 

e.g., In re R.M.J., 455 U.S. 191, 200 (1982) (“False, deceptive or misleading advertising remains 

subject to restraint.”). The governmental “interest in ensuring the accuracy of commercial 

information in the marketplace is substantial.” Edenfield v. Fane, 507 U.S. 761, 769 (1993). In 

this case, following an adjudication that examined the details and facts regarding ECM’s 

representations, we found ECM’s efficacy and establishment claims misleading because they 

were unsubstantiated by the science demanded by experts in the field. An Order that requires 

comparable substantiation 

as a forward-looking remedy is perfectly commensurate with the 

Commission’s assessment of liability for [ECM’s] past conduct: if 

past claims were deceptive in the absence of [particular] 

substantiation, requiring [that level of substantiation] for future 
57 

claims is tightly tethered to the goal of preventing deception. . . . 

For purposes of Central Hudson scrutiny, then, the injunctive 

order’s requirement of some [accepted] substantiation . . . directly 

advances, and is not more extensive than necessary to serve, the 

interest in preventing misleading commercial speech. 

POM Wonderful, 777 F.3d at 501-02. Similarly, a forward-looking order that requires 

qualifications of the type needed to prevent ECM’s prior unqualified biodegradability claims 

from being misleading is directly related to preventing misleading commercial speech and not 

more extensive than necessary. 

 We reject ECM’s contention that the Order effectively prohibits all biodegradable claims 

because we reject ECM’s contention that there is no scientific means to provide a rate or extent 

qualification. In fact, the ASTM D5511 methodology, which ECM explicitly references in some 

of its claims and which ECM provides as substantiation in this case, expressly describes an 

appropriate means to qualify biodegradable claims. ASTM D5511 states: “Claims of 

performance shall be limited to the numerical result obtained in the test . . . and not be used for 

unqualified ‘biodegradable’ claims. Reports shall clearly state the percentage of net gaseous 

carbon generation for both the test and reference samples at the completion of the test. 

Furthermore, results shall not be extrapolated past the actual duration of the test.” CCX-84 at 1 

(ASTM D5511 § 1.4). Consistent with this instruction from ASTM, and despite ECM’s 

argument that such descriptions are impossible, products offered to consumers in the 

marketplace can include descriptions such as “3% biodegradable in 90 days,” provided that the 

descriptions are truthful and are accompanied by warnings making it clear that test results do not 

support extrapolations. 

We similarly reject ECM’s contention that we must accept its proposed qualifier – that 

there is no known precise rate of biodegradation – rather than prohibit ECM from making 

unsubstantiated claims. ECM’s proposal is inadequate to prevent consumers from receiving the 

misleading impression that ECM Plastics will completely biodegrade in landfills within a 

reasonably short period of time, as substantiated by scientific tests. It addresses neither the rate 

nor extent of biodegradation that consumers perceive in ECM’s representations. It offers only a 

vague allusion to variations in conditions and/or the imprecision of available substantiation 

techniques, which is information consumers would not understand or find useful, rather than 

acknowledging ECM’s lack of substantiation.78 Having found that ECM’s claims violated the 

FTC Act, we will not accept remedial language that does not address the deception. 

2. ECM’s Contentions that an Order is Not in the Public Interest and 

FTC Action is Ultra Vires 

ECM repackages its argument regarding materiality to claim that a remedial order is not 

in the public interest because there is no showing of harm or injury. Relying on cases such as 

 

78 Indeed, ECM’s proposal even falls far short of the qualifiers suggested in Pearson as disclosures that might 

prevent claims from being misleading. See Pearson, 164 F.3d at 658-59 (explaining that the FDA’s concern 

regarding the absence of substantiation for efficacy claims could be effectively remedied by prominent disclaimers 

stating that “the evidence in support of this claim is inconclusive”). 
58 

FTC v. Klesner, 280 U.S. 19 (1929), ECM claims that mere deception, without a showing of 

actual injury, does not satisfy the public interest requirement for an order. See RRB at 18; 

RAppB 39-41. We reject ECM’s contention on both factual and legal grounds. 

We have already explained that biodegradation rate claims shaped the purchasing 

decisions of ECM customers and downstream purchasers. See supra Section III.C. To the extent 

they bought a product they otherwise would not have purchased, they were harmed by ECM’s 

deception. Moreover, the record shows that purchasers paid a premium for ECM Plastics, 

making injury clear. See CCX-35 at 1 (describing a “small” premium charged for ECM 

Plastics); CCX-487 at 3 (describing a 40% premium price for biodegradable plastic relative to 

standard products); cf. RAppB 44 (implicitly conceding that customers pay higher prices for 

what they perceive to be biodegradable products by asserting the need for “market incentives for 

paying higher costs associated with producing those [biodegradable] plastics”). Thus, we reject 

the factual basis for ECM’s claim that injury is absent. 

As a matter of legal analysis, ECM’s reliance on Klesner is inapposite. The Supreme 

Court has explicitly explained that Klesner does not hold that there is no public interest in 

preventing deception about a product’s characteristics. Rather, when “a large number of buyers, 

comprising consumers and dealers, believe” a characteristic of a product is advantageous and 

such purchasers are deceived into purchasing an article which they 

do not wish or intend to buy, and which they might or might not 

buy if correctly informed as to [that characteristic, then] [w]e are 

of opinion that the purchasing public is entitled to be protected 

against that species of deception, and that its interest in such 

protection is specific and substantial. There is nothing in the 

Klesner Case to the contrary. 

FTC. v. Royal Milling Co., 288 U.S. 212, 216-17 (1933) (citations omitted). ECM’s rate claims 

affect purchasing decisions in the manner described in Royal Milling, and ECM’s reliance on 

Klesner is consequently misplaced.79 

Additionally, ECM suggests that the proposed Order’s prohibition on unqualified 

biodegradability claims unless items completely decompose within five years after customary 

disposal dictates rapid biodegradation and constitutes ultra vires agency action by interfering 

with national environmental policy over which the Environmental Protection Agency has 

exclusive authority. RAppB 43-44. The proposed Order does not regulate, or create any 

mandate regarding, the physical properties of any products that are asserted to be biodegradable; 

we are not requiring that products rapidly biodegrade. All that we are insisting upon is a truthful 

qualification to the pertinent marketing or advertising. Nonetheless, ECM maintains that our 

remedy would remove market incentives for paying higher costs associated with producing 

 

79 Klesner was decided in 1929, before the 1938 Wheeler-Lea Amendments to the FTC Act added a proscription of 

“unfair or deceptive acts or practices” to the Act’s original prohibition of “unfair methods of competition.” Klesner

thus reflects the thinking of an era when the Court was hesitant to prohibit deceptive practices without a 

demonstration of adverse effects on competition, see id., 280 U.S. at 28, and ECM errs by disregarding the statutory 

revision. 
59 

biodegradable plastics and will result in landfills receiving either non-biodegradable plastics or 

rapidly biodegrading products that undermine EPA’s initiatives to collect methane. Id. at 44. As 

to the first concern, we have already explained that truthful qualifications are possible, and ECM 

provides no reason to conclude that truthful qualifications will render biodegradable products 

uneconomic. The other hypothesis – that our remedy will somehow fill landfills with products 

whose rapid biodegradation would outpace the installation of methane collection facilities – also 

is contrary to the facts.80 In sum, the proposed order prohibits deceptive advertising; it does not 

create environmental policy.81 

3. Due Process 

ECM contends that various pre-hearing discovery and evidentiary rulings by the ALJ 

violate ECM’s due process rights. RAppB 44-51. Throughout discovery, ECM raised various 

complaints with the ALJ. Judge Chappell considered the complaints and, when he deemed them 

meritorious, provided relief. See, e.g., Order Granting in Part and Denying in Part Respondent’s 

Motion for Sanctions (Mar. 21, 2014). ECM then re-argued the same discovery disputes in its 

post-trial briefs, asserting that their resolution denied ECM due process. Considering the 

arguments anew, the ALJ concluded, “The notion that these same discovery disputes amount to a 

denial of due process is without merit.” ID 296. ECM now “renews and restates” those same 

objections on appeal. RAppB 44. 

The courts and the Commission apply an “abuse of discretion” standard when reviewing 

errors allegedly made in evidentiary rulings at the trial or initial hearing level. See, e.g., General 

Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997) and cases cited therein; Olin Corp., 113 F.T.C. 

400, 601 (1990) (exclusion of expert testimony); Bristol-Myers Co., 102 F.T.C. 21, 363-64 n.89 

(1983) (exclusion of expert studies); Missouri Portland Cement Co., 77 F.T.C. 1643 (1970). 

While this means that the Commission will not routinely disturb an ALJ’s denial of discovery or 

exclusion of evidence, it may reverse such a procedural decision and reopen the record, as 

necessary or appropriate when the ALJ’s ruling is found to have been “unduly restrictive” or 

 

80 ECM relies on testimony that the EPA requires installation of gas collection facilities within five years after waste 

burial and that installation is typical within two years. RAppB 44 (citing Barlaz, Tr. 2285). But ECM Plastics take 

longer than five years to biodegrade. See ID 246 (“both parties’ landfill experts agree that landfill conditions do not 

support the biodegradation times of less than five years”); cf. RAnsB 51 (“nothing reliably biodegrades completely 

within one year in a landfill, not even a tree trunk, a banana, or an orange”). The testimony of ECM’s – that “if a 

polyethylene . . . were to completely biodegrade in a landfill within one year after customary disposal” “that 

material would be a net contributor to global methane emissions at the typical landfill,” Barlaz, Tr. 2289, thus 

employs an unrealistic hypothetical. 

81 ECM’s companion argument – that if its nine months to five years rate claim were deceptive because ECM 

Plastics take more than that time to biodegrade, the salutary effect on the environment from increased capture of 

emissions would render the deception a claim without any injury – fallaciously suggests a trade-off between the 

deception and environmental benefit. But whether or not ECM made a deceptive rate claim, the rate of 

biodegradation of the ECM Plastics, and the corresponding pace of methane generation are unaffected; there is no 

environmental benefit. More importantly, even if there were an actual environmental benefit, that would not justify 

deceptively marketing the ECM Additive. See FTC v. Algoma Lumber Co., 291 U.S. 67, 81 (1934) (rejecting an 

argument that “the public interest will be promoted by increasing the demand for pinus ponderosa, though it be sold 

with a misleading label, and thus abating the destruction of the pine forests of the east,” i.e., that environmental 

benefits could justify deceptive marketing). Though “[t]he conservation of our forests” was “a good of large 

importance,” the Court explained, “the end will have to be attained by methods other than” deception. Id. 
60 

otherwise prejudicial or improper. See, e.g., Foster-Milburn Co., 51 F.T.C. 369, 371 (1954) 

(hearing examiner improperly denied complaint counsel’s request to present scientific rebuttal 

witnesses); cf. Modern Methods, Inc., 60 F.T.C. 309, 339 (1962) (hearing examiner erred in 

denying respondents’ request to present surrebuttal testimony); see also Commission Rule 3.54, 

16 C.F.R. § 3.54 (reserving the Commission’s discretion to exercise all of the powers it could 

have exercised if it had made the initial decision). 

ECM’s complaints fit within five groupings, four of which are efforts to exclude Dr. 

Michel’s study and rebuttal testimony. As discussed below, we find that ECM’s 

characterizations are not supported by the facts, and we concur with the ALJ’s conclusion that 

none of the discovery rulings denies ECM’s due process rights. 

First, ECM argues that the ALJ applied the “rules in a way that permits surprise rebuttal 

witnesses (who have not previously been identified) [, which] violates Due Process.” RAppB 

47. In particular, ECM contends that the ALJ improperly permitted Dr. Michel to appear as a 

rebuttal expert witness after Complaint Counsel and ECM agreed he would not be called as a fact 

witness and after Complaint Counsel had failed to include Dr. Michel on the initial April 2014 

expert witness list. Id. at 45. ECM complains that Complaint Counsel first identified Dr. Michel 

as a rebuttal expert when “Complaint Counsel emailed ECM with Dr. Michel’s report on June 

30, 2014 at 11:46 PM,” id. at 49, which ECM explains was only two days before the close of 

expert discovery. 

Commission Rule 3.31A(a) provides: “Complaint Counsel shall serve respondents with a 

list of any rebuttal expert witnesses and a rebuttal report prepared by each such witness not later 

than 10 days after the deadline for service of respondent’s expert reports.” 16 C.F.R. § 3.31A(a). 

Implementing this rule, the last day for service of the report from any Complaint Counsel 

rebuttal expert witness was June 30, 2014, as specified in the ALJ’s Third Revised Scheduling 

Order. Complaint Counsel e-mailed Dr. Michel’s expert report to ECM on June 30, and were 

not obligated to disclose that Dr. Michel would be a rebuttal expert any earlier than that date.82 

Although Complaint Counsel failed to provide, along with the rebuttal report, a separate list 

identifying Dr. Michel as a rebuttal expert, the failure does not appear prejudicial to ECM, 

particularly given that the ALJ extended the period for ECM to depose Dr. Michel up to “at least 

three (3) business days in advance of the expected date of Dr. Michel’s testimony.” Order on 

Respondent’s Combined Motion at 4. Consequently, we find no denial of due process from 

failure to exclude Dr. Michel’s testimony as that of an improperly identified rebuttal expert 

witness. 

Second, ECM argues that Dr. Michel’s testimony was designed to buttress initial expert 

testimony and to address issues that should have been part of Complaint Counsel’s affirmative 

case and therefore should have been barred as rebuttal. RAppB 46-48. The ALJ disagreed: 

 

82 See ALJ’s Order on Respondent’s Combined Motion for Sanctions, to Exclude Expert Witness, and for Leave at 4 

(July 23, 2014) (“Order on Respondent’s Combined Motion”). Nor does ECM explain how an agreement not to call 

Dr. Michel as a fact witness changes the deadline for identifying him as an expert witness. 
61 

An examination of the rebuttal report shows a point by point 

response to assertions in the reports of [ECM’s] designated 

experts. That Dr. Michel, in drawing his conclusions, may rely on 

certain methodologies that are also used by Complaint Counsel’s 

designated expert witnesses, as argued by Respondent, does not 

take Dr. Michel’s opinions out of the realm of fair rebuttal. 

Order on Respondent’s Combined Motion at 3.83 

Our review of Dr. Michel’s expert report, CCX 895, and corresponding testimony 

confirms that Dr. Michel’s opinions are proper expert rebuttal. The expert report quotes excerpts 

from ECM’s expert reports and then provides rebuttal testimony directly applicable to those 

excerpts. Similarly, Dr. Michel’s testimony responded only to the opinions introduced by 

ECM’s experts. 

Third, ECM asserts that the FTC interfered with a subpoena that was issued to Dr. 

Michel, which delayed evidence requested by ECM for weeks. RAppB 47. ECM criticizes the 

ALJ’s refusal to impose ECM’s requested sanctions, which included censure of Complaint 

Counsel, referral of Complaint Counsel to the DC Bar, and the exclusion of Dr. Michel’s article 

from evidence. 

Our review of the facts shows that ECM issued a subpoena duces tecum to Dr. Michel on 

February 28, 2014. The subpoena directed that the requested documents – including all 

documents responsive to Document Request 20, which sought all correspondence between Dr. 

Michel and the FTC – be provided to ECM by March 17, 2014. At the time Dr. Michel received 

the subpoena, he had not been retained by the FTC in the present case involving ECM, but he 

had been retained as a consultant since December 2012 on two other FTC environmental 

marketing investigations. See Order Denying Respondent’s Motion for Sanctions for 

Unauthorized Dissuasion of Response to Subpoena Duces Tecum at 2 (Apr. 9, 2014). 

On March 12, Dr. Michel contacted an FTC attorney working on the other matters to 

report that he received the subpoena in the present case and that some responsive documents in 

his possession had been submitted to the FTC by third parties in the other matters and had been 

provided to him as part of his consulting work. It was only when Dr. Michel contacted the other 

FTC attorney that Complaint Counsel in this case learned that anyone at the FTC had had contact 

with Dr. Michel. Id. On March 14, the FTC attorney investigating the other matters sent a letter 

to Dr. Michel, with copies to Complaint Counsel and ECM’s counsel, explaining that certain 

third-party documents received by Dr. Michel were governed by a non-disclosure agreement that 

Dr. Michel had signed and Dr. Michel should not divulge those materials before March 28 to 

give the third-party submitters of confidential material an opportunity to seek an appropriate 

protective or in camera order consistent with FTC Rules of Practice. Also on March 14, the 

 

83 When ECM subsequently raised the same argument two more times, the ALJ rejected it with similar rulings. See

Order Denying Complaint Counsel’s Motion for Leave to Call Rebuttal Fact Witnesses and Respondent’s Request to 

Bar Rebuttal Expert Witness at 5-6 (Sept. 5, 2014) (“Dr. Michel’s testimony was limited to matters within the scope 

of his report and to rebutting testimony offered by Respondent’s experts.”) (citing Tr. 2489-91); ID 297 (“Dr. 

Michel’s rebuttal opinions constituted fair rebuttal.”). 
62 

attorney investigating the other matters sent notices to counsel for the third parties to inform 

them of their rights to protect confidential information. 

On March 17, Dr. Michel provided ECM’s counsel with responsive documents, including 

material responsive to Document Request 20, but the accompanying transmittal letter explained 

that responsive third-party documents provided to the FTC for the other matters would be 

produced on March 28, to allow the third parties their opportunity to object to disclosure. On 

March 24 and again on March 28, the FTC attorney handling the other matters informed Dr. 

Michel that particular third parties did not object, and the attorney instructed Dr. Michel that he 

should produce the materials. “There is nothing in the record to indicate that [Dr.] Michel failed 

to provide the Third Party Submissions on or before March 28, 2014.” Id. at 4. 

Judge Chappell did not deny due process by rejecting ECM’s motion for sanctions. As 

the ALJ explained, there is no evidence that Complaint Counsel or other FTC attorneys acted for 

the purpose of interfering with ECM’s rights and no showing that ECM was deprived of relevant 

discovery. Id. at 8. Regarding the personal sanctions, Respondent either erroneously equates all 

FTC attorneys with Complaint Counsel for this case or asserts a conspiracy between Complaint 

Counsel and other FTC attorneys without any facts. As to the evidentiary sanction, ECM fails to 

connect the exclusion of Dr. Michel’s study with the alleged improper conduct; Dr. Michel’s 

study was not obtained from a third-party submitter, so its production to ECM was not delayed. 

We conclude that ECM’s due process rights were not infringed by the denial of its motion for 

sanctions. 

Fourth, ECM claims a denial of due process from the ALJ’s refusal to exclude Dr. 

Michel’s study and testimony as sanctions for Complaint Counsel’s failure to timely disclose the 

study in discovery responses. RAppB 44-45. ECM alleges that Complaint Counsel and the FTC 

knew of Dr. Michel’s study since 2012, but improperly withheld the information in discovery 

responses and first revealed the study on February 19, 2014, as a surprise tactic during the 

deposition of an ECM designee. Id. The ALJ, however, found that, while other attorneys at the 

FTC had engaged Dr. Michel as a consultant on other matters and received a draft of his article 

in 2012, see Order Denying Respondent’s Motion to Sanction Complaint Counsel for Violation 

of Discovery Rules at 3 (Apr. 7, 2014), ECM “failed to demonstrate that, contrary to the sworn 

declarations submitted, Complaint Counsel [in this case] was aware of the Article prior to 

February 14, 2014.” Id. at 5. 

ECM alleges that, even after learning of Dr. Michel’s study, Complaint Counsel failed to 

timely disclose it in supplemental discovery responses, so as to create a “gotcha” moment during 

a deposition. RAppB 50-51. Complaint Counsel contend that they obtained the study on Friday, 

February 14, 2014 after 8 p.m. Explaining that Monday was the President’s Day holiday, 

Complaint Counsel acknowledge that they used the study on Wednesday, February 19 during the 

second day of a deposition of ECM’s designated witness. See CCAnsB 18. Complaint Counsel 

also argue that the Scheduling Order required a supplemental response within three business 

days, which Complaint Counsel contend is consistent with their actions. Id. at n.14. 

The ALJ determined that by delaying production for five days and “presenting the article 

to Respondent for the first time in the midst of the second day of the deposition, when Complaint 

Counsel had clearly determined the relevance and possible use of the Article before the start of 
63 

the deposition, Complaint Counsel did not supplement in a timely manner,” as required by 

Commission Rule 3.31(e). Order Granting in Part and Denying in Part Respondent’s Motion for 

Sanctions at 4 (Mar. 21, 2014). The ALJ imposed sanctions and prohibited Complaint Counsel 

from “using or in any way relying upon any of [the ECM designee’s] deposition testimony 

regarding the [a]rticle.” Id. at 6. The ALJ determined that excluding the article from the trial 

was not warranted because fact discovery was still ongoing, expert discovery continued for an 

additional two months, and the trial was scheduled to begin about a month later. Id.

Commission Rule 3.38(b) states the ALJ “may take such action in regard [to a failure to 

comply with a discovery obligation] as is just.” 16 C.F.R. § 3.38(b). As the Second Circuit has 

indicated, “a judge should inquire more fully into the actual difficulties which the violations [of 

discovery supplementation] causes, and must consider less drastic responses [than preclusion of 

the evidence].” Outley v. City of New York, 837 F.2d 587, 591 (2d Cir. 1988); see also 16 C.F.R. 

§ 3.38(b) (instructing the ALJ to grant relief “sufficient to compensate for withheld testimony, 

documents or other evidence”). Here, ECM’s claim of a “gotcha” moment in a deposition was 

addressed directly by the ALJ’s relief. Without a showing of further prejudice caused by 

Complaint Counsel’s delay in complying with discovery obligations, the ALJ’s choice of 

sanctions did not deny due process to ECM. 

Finally, ECM claims the ALJ erroneously denied its motion to call Dr. Paul Grossman as 

a surrebuttal expert to challenge the testimony of Dr. McCarthy, and that “[t]he relative 

importance of [Dr. Grossman’s] testimony renders the denial . . . a material violation of rights.” 

RAppB 49. ECM argues that “the ALJ denied ECM’s motion for leave to present Dr. 

Grossman’s testimony in pertinent part on a miscalculation of the motion due date,” because the 

ALJ erred when computing the due date for the motion by not excluding the July 4 holiday and 

incorrectly beginning the count before service of Complaint Counsel’s rebuttal expert’s report 

was complete. Id. at 50. ECM maintains that “denial of a motion as ‘untimely’ without any 

evidence of prejudice in the record is an abuse of discretion and clearly erroneous.” Id. at 49. 

The ALJ, however, did not deny ECM’s motion for Dr. Grossman’s testimony solely, or 

even primarily, because of the purported late filing. Commission Rules provide that surrebuttal 

experts may be called only when “material outside the scope of fair rebuttal is presented” by a 

rebuttal report. 16 C.F.R § 3.31A(a). In rejecting ECM’s motion to call Dr. Grossman, the ALJ’s 

primary finding was that ECM had failed to show that any material in Dr. Michel’s report was 

outside the scope of fair rebuttal. See Order on Respondent’s Combined Motion at 4; see also ID 

298 (“Because Respondent failed to demonstrate that matters outside the scope of fair rebuttal 

had been presented, there was no valid basis for allowing a surrebuttal expert witness.”). 

Irrespective of any issue of timeliness, ECM’s failure to establish the essential predicate for 

calling a surrebuttal witness was a sound basis for denying its motion.84 Thus, the ALJ did not 

deny ECM’s due process rights when he denied ECM’s motion. 

 

84 Moreover, the subjects that Dr. Grossman would have addressed, see RAppB 48-49, do not rebut the opinion of 

Dr. Michel, Complaint Counsel’s rebuttal witness, but instead seek to undermine the credibility of Dr. McCarthy, 

who presented expert testimony in support of Complaint Counsel’s case in chief. To testify on these topics, Dr. 

Grossman should have been called as an identified expert witness, rather than a surrebuttal expert. 
64 

IV. The Order 

The Commission’s Order has five principal features. First, it prohibits any unqualified 

representation that a plastic product or package is degradable (or that any product, package, or 

service affects its degradability) unless (i) such representation is true, not misleading, and, at the 

time it is made, ECM possesses and relies upon competent and reliable scientific evidence that 

substantiates the representation; and (ii) the entire item will completely decompose into elements 

found in nature within five years after customary disposal.85

The limitation on unqualified representations that a plastic product is degradable is 

necessary to prevent deception of reasonable consumers who understand an unqualified 

representation of biodegradability to convey the message that a plastic product or package will 

biodegrade completely into elements found in nature within five years after customary disposal. 

It is tailored to the deceptive practices that the Commission has found. 

Second, the Commission’s Order allows qualified representations about degradation of 

plastic products if the representations are: (i) true, not misleading, and substantiated by 

competent and reliable scientific evidence possessed by ECM at the time they are made; and (ii) 

qualified by: the time to complete decomposition into elements found in nature, or the rate and 

extent of decomposition into elements found in nature; and, if the product will not decompose by 

a customary method of disposal, information about the type of non-customary disposal method 

and its availability where the product is sold. Such qualifications must disclose that the stated 

rate and extent of decomposition does not mean that the product or package will continue to 

decompose. The Order prohibits qualified representations such as that a product biodegrades in 

nine months to five years or in some period greater than a year, which we have found to be 

deceptive if unsubstantiated. 

This provision permits ECM to promote the benefit of its products, in ways that are not 

misleading, to the extent, but not beyond, what can be scientifically substantiated. For example, 

ECM could represent that an ECM Plastic exhibits “2% biodegradation in 30 days, under ASTM 

D5511 laboratory conditions,” provided that that representation is truthful and substantiated and 

that ECM states that “decomposition may not continue after 30 days.” Similarly, subject to the 

same provisos, ECM could report findings that tests prove “x percent of biodegradation in y 

days” as opposed to “z percent of biodegradation” over the same period for untreated samples of 

the same plastic. Among other things, any protocol (or combination of protocols) substantiating 

such claims must simulate the physical conditions found in the type of disposal facility or 

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

conditions found in landfills. And, most importantly, the qualifier must not be misleading to 

consumers. 

Third, as fencing-in relief, the Commission’s Order prohibits representations that any 

product, package, or service offers any environmental benefit unless the representation is true, 

 

85 Commissioner Ohlhausen dissents from the Order to the extent it requires that ECM assure complete 

decomposition within five years of any plastic product for which it makes unqualified biodegradable claims or 

qualified biodegradable claims that do not mention a time frame. 
65 

not misleading, and properly substantiated at the time it is made, including with competent and 

reliable scientific evidence where appropriate. The ALJ deleted this relief from his order, 

opining that Complaint Counsel have not shown that ECM misrepresented any “environmental 

benefit” and finding that term vague and overly broad. ID 308-09. The record, however, 

demonstrates that biodegradability mattered to consumers because of their desire for 

environmental benefits.86 And the breadth of the term “environmental benefit” is what prevents 

ECM from repeating its deceptive conduct by wording around specific, prohibited language. 

ECM’s violations were serious, repeated, and deliberate, and they warrant fencing-in 

relief to prevent the company from engaging in deceptive practices that are “like and related” to 

the violating practice “as a prophylactic and preventative measure.” FTC v. Mandel, 359 U.S. 

385, 393 (1959); see also Niresk Indus., Inc. v. FTC, 278 F.2d 337, 343 (7th Cir. 1960) (FTC 

orders may prohibit the use of “related and similar practices”). “The Commission is not limited 

to prohibiting the illegal practice in the precise form in which it is found to have existed in the 

past.” FTC v. Ruberoid Co., 343 U.S. 470, 473 (1952). Rather, the Commission is permitted “to 

frame its order broadly enough to prevent respondents from engaging in similarly illegal 

practices in [the] future.” FTC v. Colgate-Palmolive, 380 U.S. 374, 395 (1965). “[I]t cannot be 

required to confine its road block to the narrow lane the transgressor has traveled,” but “must be 

allowed effectively to close all roads to the prohibited goal.” Ruberoid, 343 U.S. at 473. Here, 

the Order prevents ECM from pursuing different avenues to the same end-point by deceptively 

citing general or alternative environmental benefits rather than using the label “biodegradable.”

The seriousness of ECM’s deceptive conduct is evidenced by both the duration and 

pervasiveness of the biodegradation claims that permeated the company’s marketing efforts,and 

was enhanced by ECM customers’ inability to “readily judge for themselves the truth or falsity” 

of ECM’s claims. Stouffer Foods Corp., 118 F.T.C. at 812. Further, ECM’s violations were 

deliberate. After using unqualified biodegradation claims at the outset, the company began using 

a “nine months to five years” claim after its customers indicated interest in knowing the time 

frame for degradation. Sinclair, Tr. 1613. But then the express “nine months to five years” 

claim came to be questioned by customers who were taking it “literally” and “trying to hold 

[ECM] to . . . certain time frames,” and the company realized it could not revert to the use of an 

unqualified claim under 2012 Green Guides. Sinclair, Tr. 770-71. So ECM decided to use the 

“some period greater than a year” language. See IDF 251-53; Sinclair, Tr. 770-71 (discussing 

ECM’s shift in marketing language). ECM’s awareness of concern with its rate representations 

and the Green Guides’ revision, and its calculated choice of a new representation that literally 

conformed to the new FTC guidance but conveyed essentially the same deceptive, implied claim, 

suggests a deliberateness of conduct that warrants fencing-in. See Stouffer Foods Corp., 118 

F.T.C. at 813-14 (awareness of the potential inappropriateness of a claim and that 

“characterization . . . was a delicate matter” suggests deliberateness of conduct that supports 

fencing-in). Moreover, the limitations on use of ASTM testing were express and available for 

everyone to see, so that ECM knew or should have known that it was misusing the ASTM results 

 

86 Survey evidence shows that consumers saw biodegradation as an environmental benefit. See, e.g., RX-846 at 15 

(95% of Stewart survey respondents answered “yes” to Question 3, “Is the fact that a product is biodegradable 

helpful to the environment?”). See generally supra Section III.C (discussing the importance of biodegradation rates 

to purchasers). 
66 

in certifying that tests proved its claims. Under these circumstances, the modest fencing-in 

described above is appropriate.87

Fourth, the Commission’s Order prohibits ECM from providing to others the means and 

instrumentalities with which to make any false, unsubstantiated, or otherwise misleading 

representation of material fact regarding any environmental benefit. This provision is needed to 

bar future conduct of the type through which ECM has transmitted the means to make deceptive 

biodegradation claims to others. 

Finally, the Commission’s Order prohibits ECM from misrepresenting the existence, 

contents, validity, results, conclusions, extrapolations, or interpretations of any test, study, or 

research. This provision specifically prohibits ECM from misrepresenting the results of testing 

protocols, such as those from ASTM, in ways prohibited by the testing organization. As 

discussed in Section III.B.2.d.i, ECM has departed from ASTM’s express limitations in ways 

that have contributed to its deceptive practices: it has gone beyond the numerical results by 

making performance claims about biodegradation in most landfills; it has used ASTM testing for 

unqualified biodegradable clams; and it has extrapolated test results to make claims about 

complete biodegradation. Barring ECM from repeating its misuse of ASTM D5511 or similarly 

misusing other testing protocols prevents ECM from using the same or similar avenues to repeat 

its deceptive conduct. 

 

87 The ease of transferring a violative claim to other products supports fencing-in. See, e.g., Thompson Med. Co., 

104 F.T.C. at 837. Transferability exists when “other products could be sold utilizing similar techniques.” Jerk, 

LLC, 2015 WL 1518891, at *29; see also Colgate-Palmolive, 380 U.S. at 394-95; Sears, Roebuck & Co. v. FTC, 

676 F.2d 385, 392, 394-96 (9th Cir. 1982). Here, the fencing-in addresses the possibility that similarly deceptive 

environmental claims could be raised with regard to other products. 
Appendix A 

Examples of ECM’s marketing materials 
CCX - 1
CCX - 3
CCX - 14

CCX - 44
CCX - 145