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

ORDER GRANTING RESPONDENT’S APPLICATION

TO STAY FINAL ORDER PENDING JUDICIAL REVIEW

In an October 15, 2015 decision, the Commission found Respondent ECM BioFilms, Inc.

(“ECM”) liable under Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45 for

making deceptive claims about the biodegradability of plastics treated with its additive. The 

Commission’s Final Order enjoins ECM from making an unqualified claim that a plastic product 

is degradable unless the claim is truthful and not misleading, ECM has competent and reliable 

scientific evidence substantiating the claim, and the item will completely decompose within five 

years after customary disposal. The order allows qualified degradability claims that are truthful 

and not misleading if (i) ECM has competent and reliable scientific evidence that substantiates 

the claim; and (ii) the claim is qualified by either the time to complete decomposition, or the rate 

and extent of decomposition; and, if the product will not decompose in a customary disposal 

facility or by a customary disposal method, information about the non-customary disposal

facility or method.1 On November 9, 2015, ECM applied for a stay pending judicial review of 

the Final Order. Complaint Counsel oppose the granting of a stay. On December 4, 2015, ECM 

filed a petition for review with the Sixth Circuit Court of Appeals. For the reasons stated below, 

the Commission stays enforcement of its Final Order, effective immediately and until the Sixth 

Circuit issues a ruling disposing of ECM’s petition for review.2

Applicable Standard

Section 5(g) of the FTC Act provides that the Commission’s cease and desist orders 

(except divestiture orders) will take effect “upon the sixtieth day after such order is served,” 

 1 The Commission’s opinion in this matter is available at 

https://www.ftc.gov/system/files/documents/public_statements/819651/151019ecmbiofilmsopinioncomm.pdf. The 

order is available at https://www.ftc.gov/system/files/documents/cases/151019ecmorder.pdf. 2 ECM filed a motion for in camera treatment of certain information contained in its application for a stay. The 

Commission also grants that motion.
2

unless “stayed, in whole or in part and subject to such conditions as may be appropriate, by . . . 

the Commission” or “an appropriate court of appeals of the United States.” 15 U.S.C. §

45(g)(2). Service of the Commission’s Opinion and Final Order was accomplished on October 

19, 2015. Thus, absent a stay, the Final Order will become effective on December 18, 2015.

Under Commission Rule 3.56(c) an application for stay must address the following four 

factors: (1) the likelihood of the applicant’s success on appeal; (2) whether the applicant will 

suffer irreparable harm absent a stay; (3) the degree of injury to other parties if a stay is granted; 

and (4) whether the stay is in the public interest. See 16 C.F.R. 3.56(c); McWane, Inc., 2014 WL 

1630460, at *1 (FTC Apr. 11, 2014). The required showing of the likelihood of success is 

“inversely proportional to the amount of irreparable injury suffered absent the stay.” See, e.g., 

North Texas Specialty Physicians, 141 F.T.C. 456, 457-58 & n.2 (2006). We consider these 

factors below.

Analysis

Addressing the first factor, ECM focuses solely on the Commission’s determination that 

ECM’s unqualified claim that its additive makes plastics “biodegradable” (without reference to 

time period) is false and unsubstantiated.

3

 ECM first argues that the Commission erroneously 

construed this claim as implying complete biodegradation in a landfill within a reasonably short 

period of time (five years or less). It also contends that the Commission’s Final Order violates

the First Amendment because it bars ECM from making what ECM maintains are scientifically 

verifiable claims that its additive accelerates biodegradation of plastic products. Third, ECM 

argues that the Commission violated its due process rights by failing to provide prior notice that 

an implied claim of biodegradation within five years was at issue in this case. Finally, ECM also 

asserts that a stay is warranted because this case is complex and involves novel issues. 

ECM made similar arguments in its appeal to the Commission, and the Commission 

carefully considered and rejected them, for the reasons explained at length in our opinion. 

Although ECM now relies on the partial dissent by Commissioner Ohlhausen in support of its 

stay application, its repetition of the dissent’s views neither changes the Commission’s 

conclusions that ECM’s unqualified biodegradable claim was misleading and unsubstantiated nor 

establishes a likelihood of success on appeal. However, while we are not persuaded that ECM is 

likely to succeed in its appeal, we do find that the issues in this case are sufficiently complex to 

tend to support a stay pending appeal. 

With regard to the equities, ECM argues that issuance of a stay would risk no harm to 

consumers and is in the public interest because there is no evidence that the purchasers of its 

additive (as opposed to end-use consumers) were deceived by its implied biodegradability 

claims. We are not persuaded. The Commission found that ECM’s customers purchased its 

additive because they wanted to make biodegradability claims to their own customers – that is, 

 3 Commissioner Ohlhausen agreed with the majority that ECM was liable for the express “nine months to five 

years” claim and the “some period greater than a year” claim, but she disagreed on the unqualified “biodegradable” 

claim. Her partial dissent is available at 

https://www.ftc.gov/system/files/documents/public_statements/819661/151019ecmbiofilmsmkopartialdissent.pdf. 

Therefore, she supports the grant of this stay, but rejects the majority’s reasoning on factors one, three, and four to 

the extent that reasoning conflicts with her partial dissent.
3

ECM’s claims were important to the purchasing decisions of those in ECM’s commercial supply 

chain. Allowing marketing claims that the Commission found to be misleading, unsubstantiated, 

and material to purchasing decisions is not in the public interest.4

On the issue of harm absent a stay, ECM claims that it will suffer two types of irreparable 

injury: first, damage to its business that will leave it financially unable to pursue its appeal and, 

second, injury to its First Amendment right to make truthful claims about its product. As noted 

above, the Commission already rejected ECM’s claim of First Amendment harm in its decision 

on the merits and ECM’s argument fares no better now. ECM, moreover, overstates the order’s 

prohibitions: the Final Order does not prohibit all claims of biodegradability. ECM remains free 

to market its product provided that it adequately qualifies its claims so that they are not 

misleading. 

Nonetheless, ECM makes a credible claim, supported by the declarations of its President

and Chief Financial Officer, that in its unique circumstances it will be unable to fund an appeal 

of the Commission’s decision if the Final Order is not stayed. Complaint Counsel do not 

seriously challenge that assertion. Because ECM’s day in court may be foreclosed in the absence 

of a stay, we find ECM has made an adequate showing of irreparable injury that, along with the 

complex issues presented by this case, justifies the exercise of our discretion to stay the Final 

Order.

Conclusion

Our decision to stay the Final Order is a close one. But ECM has shown unique 

circumstances that, in our view, justify a stay pending appellate review. We therefore grant the 

stay. Accordingly,

IT IS ORDERED THAT Respondent ECM BioFilms’ Application for Stay Pending 

Judicial Review and Motion for In Camera Treatment of Information in ECM’s Application for 

Stay are GRANTED.

By the Commission.

Donald S. Clark

Secretary

SEAL:

ISSUED: December 8, 2015

 4 Although ECM asserts that it will not continue to make unqualified biodegradability claims if the Commission 

stays the Final Order, see ECM Reply Br. at 18, we have found that its proposed qualifier – that there is no known 

precise rate of biodegradation – is inadequate to prevent consumer deception. See Opinion at 57.