2

5 The characteristics that make conventional 

plastics commercially useful—strength, 

durability, synthetically derived from 

petrochemicals—make them highly resistant to 

biological attack.

CCX-891, ¶ 33

CCX-880 at 2

(McCarthy, Tr. 397-99) (defining 

“conventional plastic” and stating that 

commodity plastics, PE, polypropylene, 

are polystyrene are generally considered 

nonbiodegradable)).

(Burnette, Tr. 2432-2433 (“[P]lastics are 

designed to be stable. Their product 

integrity is important. They have an 

intended use. Their product integrity is 

important. They have an intended use. 

They're intended to be stable. That means 

that at a molecular level these are stable 

compounds.”))

6 Biodegradation is described as the chemical 

process by which microorganisms such as 

bacteria and fungi use the carbon found in 

organic materials as a food source. 

CCX-891, ¶ 22

CCX-893, ¶18

RX-854, ¶ 1

RX-855 at 12, 13

CCX-880 at 2

(Tolaymat, Tr. 130).

(McCarthy, Tr. 372-373).

(Sahu, Tr. 1976 (confirming he defines 

biodegradation as breakdown of the 

plastic substrate through biological 

means)).

(Burnette, Tr. 2374-75)

7 Given enough time, all things are 

“biodegradable.” However, conventional 

plastics are not considered susceptible to 

biological attack. This process could take 

hundreds, if not thousands, of years. Therefore, 

it is commonly understood in the scientific 

community that conventional plastics are not 

biodegradable.

CCX-891, ¶¶ 33-34

CCX-892, ¶¶ 2-5

(McCarthy, Tr. 375) (polymers formed 

through addition polymerization are not 

considered biodegradable)).

(McCarthy, Tr. 397-399 (defining 

“conventional plastic” and stating that 

commodity plastics, PE, polypropylene, 

are polystyrene are generally considered 

nonbiodegradable)).

(Sahu, Tr. 1758-1759 (conventional 

plastics last for “a very long time” in the 

environment after customary disposal, 

perhaps 10,000 or more years)).

(Barlaz, Tr. 2292 (traditional plastics in 
3

general do not biodegrade at all)).

(Michel, Tr. 2869 (“[d]oes polyethylene 

biodegrade over thousands of year. 

Well, yes, it does, but so do many other 

things, you know, which we would not 

consider biodegradable.”))

8 There are some plastics that are susceptible to 

biological attack, however these generally do 

not have the same durability and low cost of 

most commodity conventional plastics. 

CCX-891, ¶¶ 34-35

See generally CCX-892

RX-855 at 9, n.6.

(McCarthy, Tr. 399 -404 (explaining 

that some plastics are biodegradable and 

that conventional plastics dominate the 

market due to price)).

9 The high-molecular weight and chemical 

structure of most conventional plastics prevent 

naturally occurring microorganisms from 

accessing the carbon.

CCX-891, ¶¶ 30, 32

(McCarthy, Tr. 375 (polymers formed 

through addition polymerization are not 

considered biodegradable because of 

their “carbon backbone . . . that doesn’t 

have any of these linkages that can be 

broken by the enzymes”)).

10 Petroleum-based conventional plastics have 

only existed for a hundred years or so, not long 

enough for microorganisms to have evolved to 

degrade them.

CCX-891, ¶ 33

CCX-880 at 2 (referring to plastics as 

xenobiotic)

(McCarthy, Tr. 375).

11 Americans generate about 32 million tons of 

plastic waste every year, more than half of 

which ends up in landfills.

CCX-893, ¶¶ 15-16

CCX-880 at 1.

(Tolaymat, Tr. 129 (in 2012 “plastic 

constituted over 12 percent of the total 

municipal solid waste generated or 

about 31.7 million tons of plastic”)).

12 Landfills continue to be the dominant method 

for managing discarded waste (MSW) in the 

United States. Biodegradation in landfills is 

remarkably slow because typical U.S. landfills 

are primarily anaerobic environments with lowmoisture. U.S. landfills are anaerobic, 

temperate, “dry tombs” by design; these 

conditions are engineered (and largely 

mandated by federal law) to facilitate the 

containment rather than stabilization of MSW. 

The life of organic biodegradable materials in 

landfills is anywhere from 12 to 70 years. 

CCX-893, ¶ 16; 

CCX-819 at 9 (Sinclair Dep.) 

(Q. But you would agree that most

plastics are disposed of in landfills? A.

Most plastics are at this time intended to 

end up in a landfill, or in other words, 

would more likely than not end up in a

landfill.”).

(Tolaymat, Tr. 126 (“Landfilling is by 

and large the largest management option 

for municipal solid waste in the United 
4

States. About 54 percent of solid waste 

is managed in that capacity.”)).

(Tolaymat, Tr. 133-134 (describing slow 

biodegradation process in landfill 

conditions)).

(Tolaymat, Tr. 333-35 (the majority of 

landfills in the U.S. are “dry tomb” 

landfills)).

13 Due to their recalcitrant nature, plastics pose a 

growing disposal and environmental pollution 

problem.

CCX-895 at 11 (observing “[t]he 

massive islands of plastic pollution now 

collecting in the world’s oceans . . . , 

plastic particle pollution in 

naturalbodies of water like the Great 

Lakes . . ., and the plastic that pollutes 

many of the world’s beaches and natural 

areas . . . .”).

RX-855 at 9 (“The parties can agree that 

conventional plastics are a large and 

growing portion of the solid waste 

disposal stream . . . persistence of plastic 

was products poses such an enormous

environmental threat.”)

14 Many consumers are concerned about 

environmental harms caused by plastic 

pollution: in a relatively recent survey, 62% of 

consumers said that they would be willing to 

pay a higher price for a product that is less 

burdensome on the environment.

CCX-865, ¶ 29. 

CCX-809 (Flexible Dep. 72:10-12)

(“There is a lot of backlash against 

plastic bags. A lot of people don’t like 

plastic bags.”); 

CCX-800 (BER Dep. 18:5-9) 

(“[Customers] were looking for a 

product they could mark as degradable 

to say that they were being, you know, 

environmentally sensitive. It’s very 

important in their packaging, that they 

could...print it right on the package, you 

know, biodegradable.”); 

CCX-822 (ANS Dep. 13:15-17) 

(“People . . . don’t want to pollute the 

environment and this [biodegradable 

plastics] is what they choose to buy.”).

15 In response to consumer demand, various 

materials have been introduced to improve the 

biodegradability of plastics. These include 

conventional plastics amended with additives 

meant to enhance biodegradability (e.g., 

CCX-891, ¶¶ 26, 34, 36

CCX-880 at 3
5

photodegradable, oxodegradable, and 

biodegradable additives), bio-based plastics, 

and natural fiber composites.

17 ECM exploits consumers’ environmental 

consciousness. “Green impact” is ECM’s sales 

pitch. For example, its website lists statistics 

on the environmental impact of plastic waste. 

CCX-19 at 2. 

CCX-20 at 3 (“Who’s winning the war 

on plastics?”)

RX-138

CCX-7 (sustainability brochure)

CCX-21 (presentation)

18 ECM claims to have a “revolutionary additive 

technology” that “renders. . . plastic products 

biodegradable . . . .” and ECM advises its 

customers that mixing 1% ECM Additive to 

non-degradable plastic, i.e., conventional 

plastic, “transforms” it into a biodegradable

plastic (“ECM Plastic”).

CCX-3

CCX-15

CCX-19 (ECM website screenshots)

CCX-20 (ECM website screenshots)

CCX-24 (ECM website screenshots)

CCX-25 (ECM website screenshots)

(Sinclair, Tr. 767 (Q: “What do you tell 

customers that the ECM additive will 

do?” A: “It makes their plastic product 

that they use it in biodegradable.”)).

19 ECM sells its additive to plastic producers. CCX-818 (Sinclair Dep. 62:10-14).

CCX-818 (Sinclair Dep. 217:9-23)

(discussing distribution chain).

(Sinclair, Tr. 758, 759, 787).

20 A company called Microtech Research, Inc.

owns the ECM additive technology, and ECM 

licenses the technology from Microtech.

CCX-818 (Sinclair Dep. 21:8-13)

(explaining ECM-Microtec 

relationship).

CCX-241 (ECM-Microtec licensing 

agreement).

(Sinclair, Tr. 1000 (Microtech owns the 

rights to the ECM additive)).

21 Some of these manufacturers use the additive to 

make “biodegradable” products for purchase by 

retailers or end-use consumers. Other 

manufacturers simply make plastic (such as 

plastic “film”) that they sell to product and 

package manufacturers, who in turn sell to 

packagers, retailers, or end-use consumers.

CCX-818 (Sinclair Dep. 217:9-23).

 

See also CCX-800 (BER Dep. 10:17-

11:13). 

22 Customers buy the ECM additive because they 

want biodegradable plastic—and they want to 

CCX-800 (BER Dep. 17:10-18:11).
6

be able to advertise their plastic as 

biodegradable.

CCX-801 (D&W Dep. 19:14-22:7).

CCX-803 (DTE Dep. 39:1-40:5; 42:8-

43:9; 45:19-46:9).

CCX-804 (Eagle Dep. 15:9-16:12).

CCX-809 (Flexible Dep. 13:25-18:13).

CCX-810 (FP Int’l Dep. 15:9-16:19).

CCX-811 (IPB Dep. 11:13-12:1; 12:14-

16).

CCX-812 (Kappus Dep. 14:15:19).

CCX-817 (Quest Dep. 19:9-24; 26:11-

18).

CCX-822 (ANS Dep. 12:16-13:5).

(Sinclair, Tr. 774-75 (ECM customers 

buy the additive because “they want 

biodegradable products.”)).

23 ECM has sold its product to approximately 300 

customers.

CCX-747 at 7-68

24 ECM’s “biodegradable plastic” has reached 

millions of end-use consumers.

CCX-822 (ANS Dep. 26:2-9)

(“millions” of shopping bags)

CCX-803 (DTE Dep. 48:23-49:3) (3.5 

million grocery bags);

CCX-811 (IPB Dep. 74:14-75:1) (12-13 

million shopping bags).

25 ECM’s “biodegradable plastic” claims have 

also reached millions of consumers through 

advertising for a host of products and 

packages—ranging from grocery bags to 

shampoo bottles, Frisbees, golf tees, 

highlighters, storage cases, shoe soles, mailers, 

zippers, plastic cutlery, straws, and more.

CCX-30 (ad for biodegradable plastic 

bags); 

CCX-32 (apple bag with biodegradable 

logo); 

CCX-36 (biodegradable logo for bags 

and marketing material); 

CCX-37 (website ad for biodegradable 

cards); 

CCX-39 (website ad for biodegradable 

golf tees); 

CCX-40 (ad for biodegradable 

packaging); 
7

CCX-41 (ad for biodegradable bags and 

film); 

CCX-44 (art for bags with 

biodegradable logo); 

CCX-46 (biodegradable conditioner 

bottle); 

CCX-47 (biodegradable label for 

shampoo); 

CCX-52 (labels for “certified” 

biodegradable bags and cases); 

CCX-56 (ad for biodegradable bags and 

cutlery); 

CCX-59 (ad for biodegradable supply 

bags); 

CCX-61 (ad for biodegradable bottle); 

CCX-63 (biodegradable cold packs); 

CCX-64 (ad for biodegradable mailers); 

CCX-65 (ad for biodegradable trash 

bin); 

CCX-69 – 75 (various types of 

biodegradable plastic bags; 

CCX-76 (biodegradable credit card); 

CCX-79 (biodegradable zipper ad); 

CCX-96 (biodegradable straws); 

CCX-97 (biodegradable cutlery); 

CCX-98 (biodegradable foam 

clamshells for food); 

CCX-103 (biodegradable Frisbee); 

CCX-112 – 122 (various types of 

biodegradable bags); 

CCX-126 (biodegradable highlighter); 

CCX-139 (biodegradable shoe soles); 

CCX-142 (ad for biodegradable air 

cushions).

26 Every page of ECM’s website, 

ecmbiofilms.com, has displayed the repeating 

tagline, “Additives for Manufacturing 

Biodegradable Plastic Packaging and 

Products,” with a description of ECM’s 

allegedly groundbreaking technology for 

biodegradable plastic.

CCX-22

CCX-19

CCX-24

27 ECM has distributed brochures aimed at “green 

business” promising that its technology yields 

“biodegradable plastic products” that are 

“priced competitively with, and have the same 

mechanical characteristics as, traditional nonCCX-7 at 5.

RX-138
8

degradable products.”

28 ECM’s flyers have called ECM Plastics 

“Biodegradable” or “100% Biodegradable”

CCX-3.

CCX-12.

CCX-15

CCX-17

29 ECM’s letters have certified the

biodegradability of plastics made with ECM 

Additive.

CCX-10.

CCX-11.

30 ECM’s emails with customers have echoed and 

expanded on unqualified biodegradable claims 

made in marketing materials.

CCX-317; CCX-341; CCX-342; CCX344

31 ECM is not the only company that offers a 

biodegradable additive. 

CCX-6 (ECM marketing flyer 

explaining differences between ECM’s 

additive and competing technology); 

CCX-12 (same); CCX-17 (ECM 

webpage with same); 

CCX-21 (presentation comparing 

compostable technologies with ECM 

additive).

(Sinclair, Tr. 775 (ECM sells its additive 

in a competitive market)).

32 ECM claimed that its additive causes plastic to 

completely biodegrade in nine months to five 

years. This claim has pervaded ECM’s 

marketing materials and customer 

communications. 

CCX-3; CCX-5; CCX-6; CCX-7 at 6; 

CCX-10; CCX-19 at 5; CCX-242 at 15; 

CCX-245; CCX-269; CCX-275-CCX280; CCX-283; CCX-296; CCX-299; 

CCX-303; CCX-326; CCX-384. CCX809 (Flexible Dep.) 20:3-10; CCX-800 

(BER Dep.) 19:5-9; CCX-822 (ANS 

Dep.) 13:6-9; CCX-812 (Kappus Dep.)

14:15-25.

(Sinclair, Tr. 768 (“We certainly have, 

you know, used those words out there . . 

.”)).

(Sinclair, Tr. 974-975 (discussing 

Sinclair email characterizing 9 month to 

5 year time frame as “a window of 

biodegradation”)).

(Sinclair, Tr. 983 (discussing CCX 

1008, 2009 Sinclair email claiming that 

biodegradation time for most products 

will be nine months to five years)).

(Sinclair, Tr. 1606 (discussing 2007 
9

Sinclair affidavit)).

(Sullivan, Tr. 716 (testifying that ECM 

told customers its additive would cause 

plastics to biodegrade in a landfill in 

nine months to five years)).

RX-135 at 1, 5, 

33 ECM claims that plastics treated with its 

additive will biodegrade in a landfill.

CCX-3; CCX-6; CCX-7 at 6; CCX-11; 

CCX-12; CCX-15; CCX-19 at 5; CCX242 at 15; CCX-276; CCX-372.

34 Competing technologies do not work in 

anaerobic environments like landfills.

CCX-818 (Sinclair Dep.) 77:21-78:9

35 ECM’s claims that ECM Plastics completely 

biodegrade in 9 months to 5 years and in 

landfills are material to its customers.

CCX-819 (Sinclair Dep.) 231:2-5; 

231:17-22; 292:5-8.

Sinclair Tr. 829 (“But the 

biodegradability is important to them 

[customers] in one fashion or another; 

otherwise,they wouldn't be coming to 

us.”)

Sinclair Tr. 922 (“Rate wasn’t that big a 

deal for most people. And now we’ve 

progressed where we saw that you and 

others are all concerned with the rate, 

and so we had to make different 

anaologies and talk to him and others in 

other ways.”)

(Frederick, Tr. 1157-1158 (stating, 

generally, that studies indicate that 

biodegradable claims matter to 

consumers)).

(Sullivan, Tr. 721 (testifying that ECM 

customers often asked ECM how 

quickly its additive caused plastics to 

biodegrade)).

RX-135 at 5-6 (customer asks “how 

long in typical landfills does your plastic 

break down?”)

36 ECM’s customers pass on the same or similar 

claims to ECM’s nine month to five year claim 

in their own advertising.

CCX-33 (9 months to 5 years claim in 

ad for AirPouch biodegradable air 

pillows); 

CCX-34 (9 months to 5 years and 
10

landfill claims in AirPouch “Sales and 

Marketing Alert”); CCX-37 (website ad 

for biodegradable cards claims 9 months 

to 5 years); 

CCX-38 (biodegradable packing ad 

claims 9-5 in landfill); 

CCX-38 (Customer’s FAQs for “Good 

Earth packaging” claim biodegradation 

in landfill); 

CCX-41 (Customer ad for 

biodegradable film and bags claim 

biodegradation in landfill); 

CCX-43 (landfill claim in ad for 

“enviroware”); 

CCX-44 & 45 (9 months to 5 years and 

landfill claims on art for grocery bag); 

CCX-50 at 2 (landfill claim in ad for 

storage cases and boxes); 

CCX-57 (9 months to 5 years claim in 

fact sheet for biodegradable vinyl); 

CCX-61 (landfill claim in ad for 

biodegradable bottle); 

CCX-105 (9 months to 5 years claim on 

ad for film); CCX-134 (9 months to 5

years and landfill claims on bag); 

CCX-563 (9 months to 5 years and 

landfill claims on ad for air cushions); 

CCX-565 (9 months to 5 years and 

landfill claims on ad for loosefill); 

CCX-627 (9 months to 5 years and 

landfill claims on fact sheet for “Bio 

Ultra Blend Liners”);

CCX-811 (IPB Dep.) 40:16-20 

(customer acknowledging passing of 9

months to 5 years and landfill claims to 

downstream customer).

37 After the Green Guides were issued, ECM 

removed many of its nine-month-to-five-years 

claims, replacing them with a disclaimer stating 

that “Plastic products produced with our 

additives will biodegrade in biologically-active 

environments (including most landfills) in 

some period greater than a year.”

CCX-819 at 53 (discussing pulling the 9 

month to 5 year claim off of website at 

the end of 2012);

CCX-231 (voluntary access letter dated 

8/30/2011).

CCX-20 at 2 (ECM website in March 

2013). 

(Sinclair, Tr. 770-771 (discontinued the 
11

claim when the revised Green Guides 

were released because to make a 

biodegradable claim “it had to be a year 

or less. And we knew, you know, our 

stuff isn’t going to be in a year or less . . 

. so we just said we’re more than a 

year.”)).

38 ECM did not change its claim until at least 

October 2012, even though ECM’s claims had 

been the subject of an FTC investigation since 

August 2011, and it did not completely remove 

the 9 months to 5 years claim until the end of 

2013. 

CCX-819 at 54 (discussing pulling the 9 

months to 5 year claim off of website at 

the end of 2013);

CCX-231 (voluntary access letter dated 

8/30/2011).

39 ECM continued to make the nine-month-tofive-year and landfill claims on its website even 

after it added its disclaimer.

CCX-25 at 104, 117, 203, 208.

40 ECM continued to make the nine-month-tofive-year and landfill claims in its marketing 

materials that ECM distributed to customers,

even after ECM added its disclaimer.

RX-138 at 9.

41 ECM continued to make the nine-month-tofive-year and landfill claims in emails to 

customers even after it added its disclaimer.

CCX-259 (attaching flyer with 9 months 

to 5 years and landfill claims); 

CCX-281 (April 2013 email describing 

“time frame of nine months to five 

years” in a landfill); 

CCX-282 (October 2013 email 

describing biodegradation “in a period 

of 9 months to 5 years” in landfills); 

CCX-286 (May 2013 email stating, “we 

say nine months to five years for 

biodegradation to take place”); 

CCX-321 (July 2013 email explaining 

“time period of nine months to five 

years”); 

CCX-423 (October 2013 email 

describing 9 months to 5 years as the 

“typical” range);

CCX-813 (Nealis Dep.) 244:15-241:1 

(Nealis acknowledging that he 

continued to send customers marketing 

flyer with 9 months to5 years claim).

42 62% of respondents to the Synovate study agree 

with the statement: “If products I currently 

purchase were made less burdensome on the 

environment, I would be willing to pay a higher 

price.”

See RX-856 at 24; CCX-865, ¶ 29.
12

43 ECM’s disclaimer did not change its 

customers’ understanding of the additive’s 

function.

CCX-809 (Flexible Dep.) 38:22-29:2 

(“Q. Is it your understanding that there 

was a change in how the product 

worked? A. No. My understanding was 

a change in the rules, in terms of what 

we could call biodegradable . . . There 

wasn’t any change in the product.”); Id. 

29:10-19 (“Q. How quickly did you 

understand the product would cause 

your product to break down when you 

made the greater than one year 

qualifier? A. ...That was our belief, was 

that in that range of nine month to five 

year, that that would fully degrade.”); 

CCX-800 (BER Dep.) 33:7-15 (“Q. 

During that time [“approximately 2009 

to the beginning of 2014”], BER 

understood that plastic treated with the 

ECM additive should biodegrade in nine 

months to five years? A. Yes.”)

44 ECM claimed that independent tests proved its 

additive caused ECM Plastic to biodegrade in 9 

months to 5 years in a landfill in its marketing 

materials.

CCX-4; CCX-5; CCX-6; CCX-10; 

CCX-11; CCX-21 (presentation)

45 ECM claimed that independent tests proved its 

additive caused ECM Plastic to biodegrade in 9 

months to 5 years in a landfill in its

communications with customers.

CCX-266; CCX-270 at 2; CCX-277 at 

4; CCX-281; CCX-296 at 2; CCX-298; 

CCX-300; CCX-302; CCX-303; CCX332; CCX-333; CCX-334; CCX-335; 

CCX-336; CCX-337; CCX-338; CCX339; CCX-340; CCX-404 at 2.

46 ECM issued a “Certificate of Biodegradability 

of Plastic Products” to its customers.

CCX-1; CCX-446; CCX-454; CCX455; CCX-492; CCX-509; CCX-557; 

CCX-567; CCX-612; CCX-613; CCX837; CCX-727; CCX-756; CCX-824

CCX-800 (BER Dep.) 29:11-21

CCX-802 (D&W Dep.) 20:15-23-16

CCX-803 (DTE Dep.) 25:17-26:11

CCX-804 (Eagle Dep.) 23:15-24:20

CCX-809 (Flexible Dep.) 40:16-41:5

CCX-810 (FP Int’l Dep.) 33:6-18

CCX-811 (IPB Dep.) 12:20-18:4

CCX-812 (Kappus Dep.) 24:15-25:7

CCX-817 (Quest Dep.) 29:2-10

CCX-821 (3M Dep.) 33:5-18; 11:35:4

CCX-822 (ANS Dep.) 17:19-18:13
13

(Sinclair, Tr. 783).

47 ECM’s “Certificate of Biodegradability” claims 

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 . . . .”

CCX-1 and CCX-14.

(Sinclair, Tr. 890-891 (certificate issued 

to SL Plastic Company Limited states 

that the “biodegradation of submitted 

plastic samples were tested using ASTM 

D5209-91 . . . and then ASTM 

D5338.”)).

48 ECM’s Certificate of Biodegradability states 

that the tests “certifies [sic] that plastic products 

manufactured with ECM additives can be 

marketed as biodegradable” and the certificate 

itself can be “used by [customer] to validate its 

claims to the biodegradability” of ECM Plastic.

CCX-1 and CCX-14.

49 Microtech commissioned the McLaren/Hart 

report.

(Sinclair, Tr. 1702-1703).

50 ECM often provided the “McLaren/Hart” or 

“ChemRisk” assessment to its customers.

CCX-732 (“Ecological Assessment of 

ECM Plastic,” Prepared by ChemRisk, 

A Service of McLaren/Hart Inc., Feb. 

16, 1999). 

CCX-266; CCX-322; CCX-333; CCX334; CCX-335; CCX-336; CCX-337; 

CCX-338; CCX-339; CCX-340;

CCX-818 (Sinclair Dep.) 125:8-11 (“Q. 

And do you provide copies of this test to 

your customers? A. I think so. Yes, I 

believe we have many, many times.”).

(Sinclair, Tr. 1010 (Sinclair “absolutely” 

sent the McLaren/Hart report to 

customers)).

(Sinclair, Tr. 1702).

(Sinclair, Tr. 1000-1001).

51 The testing claim was essential to ECM’s 

business, giving ECM credibility with its target 

audience, plastic manufacturers and other 

businesses.

CCX-818 (Sinclair Dep.) 93:5-6 

(“[Customers] want to see data from an 

outside lab.”); CCX-813 (Nealis Dep. 

20:3-11) (Q: What is the purpose of that 

certificate? A: To give to our customers 

to show that we have tested. It states in 

there that we have tested it to three 

different standards, ASTM standards. Q: 

And why is that important? A: To show 

that our product is biodegradable.”)

52 And ECM’s customers passed the testing ECM 

gave them (or ECM’s testing claims) on to their 

CCX-35 (Customer’s FAQs for 

“EarthAware Biodegradable Film” 
14

customers. claim “independently tested” and offer 

certificate as proof); CCX-38 

(Customer’s FAQs for “Good Earth 

packaging” claim that “[i]ndependent 

labs...have substantiated all our 

claims”); CCX-41 (Customer ad for 

biodegradable film and bags claim 

“thoroughly tested by independent 

laboratories”); CCX-64 (Customer ad 

for “Cool Stuff Mailers” claims 

“certified biodegradable”); CCX-246 

(customer passing testing claims to 

downstream customer); CCX-257 

(same); CCX-258 (same); CCX-261 

(same); CCX-491 (same).

53 ECM routinely provided the biodegradability 

certificate to its customers.

CCX-813 (Nealis Dep. 20:3-11)

(explaining that ECM routinely 

provided the certificate)

(Sinclair, Tr. 783).

(Sinclair, Tr. 784).

54 ECM routinely told its customers that ECM had 

“proof” of its claims.

CCX-329 (“I would think your 

customers want proof the product is 

biodegradable and ECM Biofilms offers 

that proof.”); CCX-301 (“We have done 

testing to prove the biodegradation...”); 

CCX-298 (“[W]e already proved what 

we needed to prove...”).

55 ECM stood behind its claims. CCX-323 (“We stand behind every 

product sold with our additives as 

‘biodegradable’ and have successfully 

been doing this in the marketplace 

around the world for over 10 years”); 

CCX-331 (“We fully stand behind our 

products’ efficacy based on the [testing] 

that we have and so can your 

customer.”); CCX-380 (“[W]e have 

tested the mentioned ASTM test 

standards and we stand behind the 

biodegradation of our product with the 

ECM BioFilms additive.”)

56 The Certificate of Biodegradability was a 

means of assuring customers and ECM’s 

customers’ customers that ECM’s additive 

worked as advertised.

CCX-272 (ECM providing customer 

with certificate “assuring you and your 

customers that the products made with 

our additives are fully biodegradable”); 

CCX-200 (same); CCX-341 (same); 
15

CCX-344 (same); CCX-346 (same); 

CCX-347 (same); CCX-348 (same). 

See also CCX-273; CCX-278; CCX282; CCX-290; CCX-304; CCX-305; 

CCX-306; CCX-321 (ECM advising 

customer to “use” the certificate to 

prove claims); CCX-343 (ECM 

attaching certificate in response to 

request for “written validation” that 

additive will cause biodegradation in a 

landfill); CCX-419 at 3. CCX-681 

(“Now in order to use in in [Palace’s] 

products, they need your help in 

receiving a certification that their 

product is biodegradable. They need an 

official certificate that they can show 

whenever it is necessary and that none 

can sue them for fraud.”) See also CCX818 (Sinclair Dep.) 183:24-25 (“[I]t’s 

like having a guarantee on your box.”)

(Sinclair, Tr. 783-784 (“we then fill out 

one of these biodegradable certificates 

that we send to them, saying that, okay, 

to you and to your customers, here is 

our statement that says, because you’re 

complying with us, that your plastic 

products with our additives are going to 

be fully biodegradable.”)).

57 ECM also used testing claims and the 

certificate to convince customers to purchase 

the additive without doing their own testing. 

ECM repeatedly told customers that testing was 

unnecessary due to ECM’s own testing and its 

assurances in the certificate; testing would only 

create unnecessary costs and delay.

CCX-298; CCX-300 (thanks to the 

ECM certificate, no “need to incur the 

expense of duplicating our test results”); 

CCX-301 (“Due to the high cost and 

time needed we don’t send samples out 

for testing. These tests can cost up to 

$25,000 and take over a year. We have 

done testing to prove the biodegradation 

and I have attached those for your use 

and review.”); CCX-302 (“We do have 

concerns regarding how to test to 

confirm the biodegradability . . . To 

address your concerns about testing, 

because we have third party independent 

testing of our additive in plastic ECM 

BioFilms certifies that when used at a

minnimum [sic] of 1% the product is 
16

biodegradable.”); CCX-303; CCX-304 

(“First remember that none of this 

[testing] needs to be done as we certify 

your products...”); CCX-305 

(“Concerning testing, yes it is very 

expensive which is why most all 

customers rely on our certification from 

our hundreds of thousands of dollars of 

testing over the years rather than going 

through the expense themselves”); 

CCX-304 (Sinclair to Shields: “First 

remember that none of this [testing] 

needs to be done as we certify your 

products with our additives . . . .”); 

CCX-306; CCX-390 (“Testing is very 

expensive, which is why most customers 

rely on our certification”); CCX-394 

(“Asked about testing – not necessary”). 

See also CCX-818 (Sinclair Dep.)

185:15-17 (“Q. Does ECM encourage 

its customers to rely on its certificate in 

lieu of testing? A. Again, we want as 

fast and quick a sale as we can possibly 

get.”).

58 ECM’s customers relied on ECM’s 

representations about its proof, i.e., the testing 

and the Certificate of Biodegradability.

CCX-822 (ANS Dep.) 16:18-20 (“Q. 

Did you rely on ECM’s testing as the 

evidence that the product worked as 

advertised? A. Yes.”); 

CCX-800 (BER Dep.) 24:10-12 (“Q. 

Did BER rely on ECM’s testing as proof 

that its additive worked? A. Yes.”); 

CCX-803 (DTE Dep.) 28:24-29:1 (“Q. 

Did that fact [that ECM claimed to have 

tested] give Down to Earth comfort that 

ECM’s product would perform as 

advertised? A. Yes.”); 

CCX-804 (Eagle Dep.) 32:13-16 (“Q. 

Did your company rely on ECM’s 

claims relating to the alleged 

biodegradability of plastics containing 

its additive? A. Yes.”); 

CCX-809 (Flexible Dep.) 34:21-25; 

38:6-7; 51:9-14 (explaining that he 

understood the certificate’s purpose to 

be “so that we can certify that that...if 

somebody wants to see evidence that 
17

our bags are biodegradable, this is what 

I would provide them.”); 

CCX-811 (IPB Dep.) 40:7-9 (“Q. Island 

Plastic bags was relying on ECM for its 

interpretation of the McLaren/Hart 

report. A. Yes.”); 

CCX-812 (Kappus Dep.) (“Q. Did 

Kappus rely on ECM’s testing as proof 

that its additive worked? A. Yes, 100 

percent.”)

59 ECM customers posted the Certificate of 

Biodegradability on their websites.

CCX-39 (excerpt from customer website 

displaying certificate); CCX-265 (email 

regarding downstream customer interest 

in posting certificate on website).

60 ECM customers provided the Certificate of 

Biodegradability to their downstream 

customers.

CCX-822 (ANS Dep.) 18:1-11; 28:14-

28; CCX-800 (BER Dep.) 30:5-16 (“Q. 

Why did you give [the certificate] to 

each customer that purchased the 

product? A. To certify that it was 

biodegradable . . . .”); CCX-800 (BER 

Dep.) 18:1-6 (“Originally one of my 

customers asks how can you prove that 

my bag is biodegradable, they get the 

certificate...”); CCX-804 (Eagle Dep.)

25:12-26:11 (“Q. And is this a 

certificate that you forward to your own 

customers who are interested in buying 

blown film containing the ECM 

additive? A. Yeah.”); CCX-811 (IBP 

Dep.) 18:11-17 (“Q. In fact, IPB 

regularly sent copies of the certificate to 

prospective customers of Island Plastic 

Bags. A. Yes. Q. IPB did that to 

provide prospective customers with 

assurance that ECM bags would in fact 

biodegrade. A. Yes.”); CCX-34 

(“Airpouch Sales & Marketing Alert” 

stating that “[s]ending this [certificate] 

to your customer should be your first 

response for validation”); CCX-257 

(ECM customer providing certificate to 

its customer); CCX-258 (same); CCX261 (same); CCX-345 (customer asking 

ECM for certificate because it “[h]elps 

me with sales.”); CCX-351 (customer 

asking ECM for certificate “hot rush 
18

back to me as my customer in California 

is going to drop our products without 

some sort of proof that our products 

[are] biodegradable”).

61 ECM customers copy the language from the 

Certificate of Biodegradability verbatim in their 

own marketing materials.

CCX-812 (Kappus Dep.) 22:8-14 (“We 

basically took the information that ECM 

had on their paperwork and moved it to 

our letterhead, transposed it on our 

letterhead . . . .”); 26:24-27:2 

(explaining that most of the language 

from CCX-837 and CCX-838 was taken 

from ECM’s marketing materials); 

CCX-62, CCX-458, CCX-459 

(customer certifications with ECM 

certification language).

62 ECM sells the right to make a “biodegradable” 

advertising claim.

CCX-819 (Sinclair Dep.) 277:21-23 

(stating that he advised customers to 

market biodegradability); CCX-21 at 30

(“Conclusion” of ECM marketing 

presentation is that “Products can be 

marketed as ‘biodegradable’...”); CCX330 (Email from ECM Sales Director to 

potential customer: “If you or your 

customers want an additive to make 

your bags totally biodegradable and they 

want to say so on the bags let me 

know.”).

63 ECM provides its customers with the ECM 

biodegradable logo to place on their products, 

packaging, and advertisements.

CCX-819 (Sinclair Dep.) 432:8-10 (Q. 

What claims did you intend to convey 

with the old logo to end-use consumers? 

A. That the product is biodegradable.); 

Flexible Dep. 24:22-25:10 (explaining 

that he provided logo that ECM sent 

him to his customers so that they could 

use it as a “sort of label on the box for, 

you know, for customers to see.”) 

CCX-308 (email in which ECM advises 

customer on use of its logo); CCX-309 

(same); CCX-316 (same); CCX-317 

(same); CCX-319 (same); CCX-320 

(same); CCX-322 (same); CCX-358 

(ECM providing logo); CCX-359 

(same); CCX-361 (same); CCX-362 

(same);

CCX-364 (same); CCX-374 (same); 

CCX-403 at 1 (same); CCX-411 at 
19

ECM-002256 (same).

63 ECM biodegradable logo is a picture of a green 

tree with the words “ECM” and 

“Biodegradable.”

CCX-8 and CCX-13.

64 Many customers use the ECM logo, especially 

on plastic bags.

CCX-816 (Poje Dep.) 52:14-20; CCX822 (ANS Dep.) 24:13-15; CCX-803 

(DTE Dep.) 42:8-13; CCX-307 at 2 

(customer explaining to ECM employee 

that he wanted to use the ECM logo on 

his bag); CCX-32 (portion of 

“biodegradable” apple bag with ECM 

logo); CCX-39 (excerpt from CHAMP 

website advertising biodegradable gold 

tees with ECM logo); CCX-44 

(“biodegradable” grocery bag with ECM 

logo); CCX-47 (“biodegradable” 

shampoo container with ECM logo); 

CCX-73 – CCX-75 (“biodegradable” 

shopping bags with ECM logo); CCX118 (“biodegradable” detergent bag with 

ECM logo); CCX-134 (bag with ECM 

logo); CCX-621 (kitchen bags with 

ECM logo); CCX-623 (restaurant bag 

with ECM logo). Less frequently, 

customers used the ECM leaf logo. See, 

e.g., CCX-46; CCX-114; CCX-123.

65 ECM provides its customers with marketing 

materials for the customer to use when selling 

ECM “biodegradable” plastic.

CCX-816 (Poje Dep.) 37:14-20; CCX822 (ANS Dep.) 20:17-21:2.

CCX-350 (ECM providing flyers that 

“may be used for marketing”); CCX364 (“You and your customers can use 

the attached logos...and their related 

promotional material.”); CCX-368 

(giving customer’s “marketing 

department” permission to use ECM’s 

flyer “as they see fit”); CCX-369 

(recommending making sales “using the 

tools that we have given you”); CCX370 (attaching “sales tools you may find 

helpful for your sales team”); CCX-373 

(attaching “a good tool for your sales 

team”); CCX-387 (attaching marketing 

materials “for your sales team”); CCX390 at 2 (attaching “flyer that might be 

useful for your sales people”). 
20

66 ECM’s Director of Sales, Thomas Nealis, 

specifically advised customers to refer 

consumers to the ECM website.

CCX-308; CCX-320. 

67 ECM’s Director of Sales, Thomas Nealis, 

specifically advised customers to use ECM’s 

flyer for marketing.

CCX-3; CCX-15; CCX-259; CCX259A; CCX-266; CCX-266C; CCX267; CCX-267E; CCX-271; CCX271D; CCX-368; CCX-373; CCX-387; 

CCX-390 at 2; CCX-492 at 6.

68 ECM instructed customers to make unqualified 

biodegradable claims.

CCX-818 (Sinclair Dep.) 42:15-43:14

(testifying that biodegradable would be

a very reasonable claim for putting on 

an item in response to the question 

whether ECM advised its customer to 

use the biodegradable claim); 

CCX-819 (Sinclair Dep.) 277:21-23 

(“Q. So you advised your customers to 

use the term biodegradable in their 

marketing? A. Right.”). 

CCX-260 (customer informing 

downstream customer of ECM’s 

feedback on marketing claims: “This 

bag is Biodegradable” or “This bag is 

manufactured from 100% 

Biodegradable plastic”); 

CCX-315 (advising customer “you do 

not need to mince words with our 

additives”); 

CCX-316 (advising customer to use 

ECM logo and “state ‘totally 

biodegradable’”); 

CCX-317 (advising customer on color 

and language for claim such as 

“Biodegradable” or “This Liner Is 

Totally Biodegradable”); 

CCX-319 (suggesting that bag be 

labeled “Biodegradable/Recyclable”); 

CCX-320 (recommending “‘packaging 

and product biodegradable’ or simply 

biodegradable’”); 

CCX-321 (recommending using logo or 

printing “biodegradable” on bag).

69 ECM provided detailed guidance on a 

customer’s specific ad copy.

CCX-283 (offering to customer to 

“work together on particular language 

that [downstream customer] would 
21

want”); CCX-307 at 1 (correcting 

advertising claim); CCX-308 

(suggesting specific copy for 

biodegradable claim on bags); CCX-309 

(same); CCX-397 (correcting 

customer’s claim); CCX-408 at ECM002014 (sending ECM’s “rewriting” of 

customer’s website page); CCX-562 

(suggesting specific advertising 

language to place on bag made of ECM 

plastic); CCX-1095 .

70 ECM was integrally involved in developing and 

approving the marketing claims for 

“biodegradable” grocery bags used by a 

Hawaiian grocery store chain called Down to 

Earth All Natural and Organic (“Down to 

Earth”). ECM offered its approval of Down to 

Earth’s biodegradable claims in its press 

releases and on its bags. ECM recommended 

that specific, technical language about 

biodegradability be included in Down to 

Earth’s claims.

CCX-497 (approving 2009 press 

release);

CCX-498; CCX-803 (DTE Dep.) 54:15-

25; 55:18-56:7.

71 Robert Sinclair is the President of ECM. CCX-818 (Sinclair Dep.) 9:3-5; 62:10-

14; 63:21-24;

CCX-819 (Sinclair Dep.) 378:19-

379:22.

(Sinclair, Tr. 745).

72 Mr. Sinclair is ECM’s “main sales contact” and 

takes responsibility for ECM’s claims.

CCX-350 (email from A. Poje to 

customer describing Sinclair’s role).

CCX-818 (Sinclair Dep.) 194:14-18

(testifying“ . . . but certainly everything 

in this company that has to do with 

claims or anything else about the 

product, you know, comes directly from 

me. I'm the final say on everything.”)

(Sinclair, Tr. 915 (Sinclair agrees he is 

the “only person at ECM who is 

responsible for reviewing and approving 

claims”)).

73 Mr. Sinclair advises customers on both 

marketing and the “science” behind ECM’s 

technology.

CCX-813 (Nealis Dep.) 56:24-57:20; 

CCX-816 (Poje Dep.) 222:8-17; 223: 

14-22;

CCX-819 (Sinclair Dep.) 343:2-9 (“Q. . 

. .Is there anyone in your staff who has 
22

in-house expertise on scientific testing? 

A. I am the person that handles all 

claims, everything to do with scientific 

testing and everything to do with 

anything of that sort.”).

(Sinclair, Tr. 908 (Sinclair is the one 

who is “ultimately responsible at ECM 

BioFilms for addressing issues that 

come up with . . the science”)).

74 Mr. Sinclair is a lawyer by training. CCX-818 (Sinclair Dep.) 7:23-8:4;

CCX-819 (Sinclair Dep.) 393:8-394:8.

(Sinclair, Tr. 745-746).

(Sinclair, Tr. 912).

75 Mr. Sinclair does not have any formal science 

training beyond a smattering of high school and 

undergraduate science classes, some time 

teaching science in the Cleveland Public 

Schools, and reading Scientific American.

CCX-818 (Sinclair Dep.) 149:16-

150:16.

(Sinclair, Tr. 746 (Q: “Are you a 

scientist?” A: “No, I’m not. I’m a 

layperson that has a good background in 

science and I’ve very much read a lot of 

science and think about it, and so forth, 

all the time, but no, I’m not a 

scientist.”)).

76 ECM’s Director of Sales is Thomas Nealis CCX-819 (Sinclair Dep.) 14:17-19 (“Q. 

Again, who is Tom Nealis? A. Tom 

Nealis is the Director of Sales located in 

Indiana”).

CCX-813 (Nealis Dep.) at 9:24-10:3

(“Q. Do you have a particular job title? 

A. My title is Director of Sales. You can 

call me anything you want, but bottom 

line, I’m a salesman.”)

(Sinclair, Tr. 761).

77 Mr. Nealis disavows knowledge about most 

aspects of ECM’s business and customer 

relationships.

See CCX-813 at 10-12.

78 Mr. Nealis claimed that he did not know how 

many customers ECM had.

CCX-813 (Nealis Dep.) 10:23-25.

79 Mr. Nealis claimed that he did not know why 

they wanted to buy the ECM additive.

CCX-813 (Nealis Dep.) 12:11-13.

80 Mr. Nealis claimed that he did not know the 

size of ECM customers.

CCX-813 (Nealis Dep.) 13:1-3.
23

81 Mr. Nealis does not have any college degree. CCX-813 (Nealis Dep.) 53:1-3.

82 Until mid-2013, ECM’s Regulatory Specialist 

was Alan Poje.

CCX-816 (Poje Dep.) 11:1-5; 31:4-8.

(Sinclair, Tr. 843 (Poje worked as 

ECM’s regulatory affairs specialist)).

83 Mr. Poje advised customers on plastics 

extrusion (the mechanics of adjusting the 

manufacturing process to incorporate the ECM 

additive).

CCX-816 (Poje Dep.) 22:23-24

84 Mr. Poje had business cards describing himself

as ECM’s “Vice President for Engineering 

Development” and he described himself this 

way to at least one customer

CCX-816 (Poje Dep.) 32:18 – 33:22 

(discussing CCX-677, an email in which 

Mr. Poje described himself to a 

customer as Vice-President of 

Engineering Development).

85 Mr. Poje claimed that he never actually filled 

the role of “Vice President for Engineering 

Development.”

CCX-816 (Poje Dep.) 31:9-11; 32:25-

34:5.

86 Many of ECM’s customers and downstream 

users are relatively small companies—“mom 

and pop”-type businesses.

CCX-819 (Sinclair Dep.) 304:18-23;

CCX-813 (Poje Dep.) 14:20-15:3.

87 ECM’s customers show that they did not have 

the resources or know-how to evaluate ECM’s 

biodegradability claims (beyond seeking 

information from ECM itself) or conduct their 

own testing.

CCX-809 (Flexible Dep.) 34:21-38:10 

(answering series of questions about 

resources and ability to evaluate ECM’s 

additive with uniform answers: 

insufficient resources and ability to 

independently evaluate); CCX-800

(BER Dep.) 21:6-24:12 (same); CCX822 (ANS Dep.) 14:5-15:15; 16:5-7; 

16:15-20 (same); CCX-803 (DTE Dep.)

13:9-19:9 (same); CCX-811 (IPB Dep.)

34:7-38:14 (same); CCX-812 (Kappus 

Dep.) 18:19-21:18 (same); CCX-804

(Eagle Dep.) 31:4-32:19 (same); CCX817 (Quest Dep.) 34:2-12 (same).

88 Island Plastic Bags is still a small company—

only about 16 employees and, as such, does not 

employ anyone with any expertise related to 

biodegradability.

CCX-811 (IPB Dep.) 33:25-38:14.

89 Island Plastic Bags reviewed ECM’s testing 

(the McLaren/Hart Report), but had no way to 

evaluate whether the testing had been properly 

conducted and could reliably support its 

conclusions.

CCX-811 (IPB Dep. 38:15-40:6).

90 Despite its sophistication in manufacturing, 

Island Plastic Bags needed to rely—and did, in 

CCX-811 (IPB Dep. at 40). 

CCX-804 (Eagle Dep. at 25).
24

fact, rely—on ECM when it came to 

understanding biodegradability. Island Plastic 

Bag’s story is not unique. For example, the 

deposition of Eagle film extruders shows that 

the company “couldn’t perform” any testing 

because it doesn’t “have any of that testing 

equipment internally....Way too big of a thing 

for us to manage, being a small company.”

91 Other customers did have the resources to 

conduct or commission their own testing.

CCX-172 (email between employees of 

potential ECM customer, identifying 

inadequacies in each of ECM’s tests); 

CCX-173 (test on ECM plastic 

commissioned by potential ECM 

customer).

92 3M is a global manufacturer with 

approximately $30 billion in sales (employing 

75-80,000 people).

CCX-821 (3M Dep.) 12:8-21.

93 3M has its own environmental laboratory, with 

ready capacity to conduct its own testing of 

ECM’s additive.

CCX-821 (3M Dep.) 18:12-19:8.

94 3M conducted a biodegradation study that

showed no biodegradation of plastic containing 

the ECM additive. 3M is not unique. Other 

companies had sufficient sophistication in 

evaluating biodegradation to test and reject 

ECM’s additive. For example, Covidien 

identified the potential issues related to the 

additive, and sent plastic with the ECM 

additive to an independent laboratory, Organic 

Waste Systems, for testing—which showed no 

biodegradation of ECM plastic.

CCX-153; 

CCX-154 and CCX-155 (project outline 

and data collection showing the rigor of 

3M’s testing process);

CCX-230; 

CCX-254-256;

CCX-157 (test); 

CCX-158 (presentation summarizing 

test);

CCX-821 (Joseph at 66, Ex. 17).

95 Some companies had the resources to 

commission testing—but did not have the 

expertise to meaningfully evaluate the results.

CCX-802 (D&W Dep.) 65:16-25; 

94:10-95:4

CCX-801 (D&W Dep.) 16:23-17:17; 

18:8-17; 25:8-16.

96 ECM customers turned to Mr. Sinclair, ECM’s 

president, for guidance in understanding 

negative results.

CCX-323-CCX-325 (Sinclair explains 

away bad test results); 

CCX-954.

97 Correspondence with these customers shows 

that Mr. Sinclair is adept at explaining away 

negative test results by assuming testing flaws

and bias.

CCX-325 (explaining negative results 

because of testing has “fundamental 

problems”) CCX 575; CCX-422.

99 Mr. Sinclair also learned to steer potential 

customers away from testing labs that provided 

CCX-422 at 53-61.
25

negative results and towards labs whose 

dubious testing protocols could produce a 

semblance of positive results.

100 Intentionally Left Blank

101 Intentionally Left Blank

102 ECM’s spurious claims have not gone 

unnoticed; repeatedly, customers, distributors, 

and others informed Mr. Sinclair and ECM that 

ECM’s testing did not substantiate its claims.

CCX-250; CCX-253 (“We chose ECM 

because of your strong claims for 

biodegradability, and now it seems we 

are unable to defend them.”); CCX-323; 

CCX-327; CCX-328; CCX-375; CCX381; CCX-382; CCX-386; CCX-391; 

CCX-400; CCX-402; CCX-409; CCX428 (“Every scientist we have spoken to 

tell us that your claims are false and 

impossible to prove. We cannot put our 

name on a product that we cannot stand 

behind.”).

103 Mr. Sinclair knew that the National Advertising 

Division of the Better Business Bureau and at 

least two foreign tribunals had found that 

several ECM customers had made false and 

unsubstantiated biodegradability marketing 

claims (that used the very language that ECM 

assured its customers was backed by testing) 

concerning products containing the ECM 

additive.

CCX-26; CCX-27; CCX-28; CCX-177; 

CCX-178; CCX-179; CCX-180; CCX 

181; CCX182; CCX-183; CCX-184; 

CCX-185; CCX-186; CCX-187; CCX188; CCX-189; CCX-190; CCX-191; 

CCX-375; CCX-471.

CCX-203-CCX207; CCX-214-215; 

CCX-219; CCX; 225; CCX-222; CCX570; CCX-810 at 47-49; CCX-184; 

CCX-188-CCX-193; CCX-696

(Sinclair, Tr. 1625 (upon receipt of the 

Masternet NAD decision, Sinclair 

offered to prepare a point-by-point 

refutation)).

(Sinclair, Tr. 1630-1634 (admitting 

receiving copy of NAD decision against 

FP International)).

(Sinclair, Tr. 1636-1637 (Sinclair was 

aware of the Dispoz-o NAD decision)).

104 ECM continued making its claims and routinely 

dismissed criticisms as nothing more than bias 

against the company.

CCX-323; CCX-324.

105 Mr. Sinclair has referred to Professor Narayan 

as, among other things, “very biased,” and a 

“paid proselytizer.”

Sinclair Dep. 284:4-289:14; CCX-251; 

CCX-253; CCX-289; CCX-294.

106 Mr. Sinclair has also accused entities such as 

the Biodegradable Products Institute (“BPI”) 

and Organic Waste Systems, Inc. (“OWS”) of 

Sinclair Dep. 260:7-10 (describing BPI 

as “rabid opponents of us”); 262:20-

281:21; 362:18-22; CCX-21 (describing 
26

being biased opponents of ECM. BPI as “prime mover in the obfuscation 

campaign” conflating biodegradable and 

compostable technologies); CCX-251; 

CCX-253; CCX-273; CCX-290; CCX295; CCX-297.

CCX-422 at 54-63 (Sinclair accusing 

OWS of bias and skewing test results 

due to politics); (Sinclair, Tr. 1692-

1697 (discussing OWS’s perceived bias 

and involvement with the “corn 

lobby”)).

107 ECM advertises on its website, www. 

ecmbiofilms.com.

CCX-25; CCX-726.

108 The ECM website is publicly available and has 

been visited by at least some end-use 

consumers.

CCX-326; CCX-819 (Sinclair Dep.) 

312:18-314:10.

109 Landfill conditions do not support short 

degradation times in a landfill.

CCX-893 at 10-12 (“Biodegradation in 

landfills is remarkably slow because 

typical U.S. landfills are primarily 

anaerobic environments that are 

relatively cool with low-moisture.”); 

RX-853 at 3 (“[T]he 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 

[landfills].”).

(Tolaymat, Tr. 133-134).

(Tolaymat, Tr. 145).

(Tolaymat, Tr. 155-156 (“it’s going to 

take obviously more than five years for 

a – even the most biodegradable 

material to completely decompose in a 

landfill environment, even under the 

optimum conditions of wet landfills”)).

110 Since the Green Guides’ revision in October, 

ECM has developed a version of its logo with 

the “some period greater than a year” 

disclaimer. However, ECM never told 

customers to stop using the old logo and 

customers have continued to use the old logo. 

CCX-819 (Sinclair Dep.) 277:11-

278:16; 407:13-24; 412:9-413:5.

111 ECM’s marketing materials contrast the 

“hundreds or thousands of years” that it takes 

CCX-19; 

CCX-21 (“[A]ll of the commodity 
27

for conventional plastics to biodegrade with 

ECM Plastics as biodegradable in a 

“hundredth” of that time or less.

plastics used in the world today will 

take hundreds of thousands of years or 

more to degrade naturally in the 

environment; Plastic productions with 

the ECM [Additive] will biodegrade . . . 

in a hundred thousandth of that time or 

less.”).

112 ECM’s marketing materials repeatedly 

reference landfills.

See CCX-3; CCX-6; CCX-7 at 7; CCX10 at 2; CCX-12; CCX-15; CCX-21 at 

22; CCX-25 at 1.

113 ECM’s marketing materials specifically 

contrast its technology as working in landfills 

with other degradable alternatives that do not.

CCX-17.

114 ECM’s marketing materials with the new claim, 

“biodegrades in sometime greater than one 

year,” still contrasted long biodegradation times 

for untreated plastic to the fraction of time for 

ECM Plastic.

See CCX-25 at 104 (“Petrochemical 

plastics would normally take hundreds 

or thousands of years or even longer to 

biodegrade; with our additives, these 

same plastic formulas biodegrade in a 

hundredth of that time or less.”)

115 Intentionally Left Blank 

116 Intentionally Left Blank 

117 Intentionally Left Blank 

118 Intentionally Left Blank 

119 Intentionally Left Blank 

120 Intentionally Left Blank 

121 Intentionally Left Blank 

122 Intentionally Left Blank 

123 Intentionally Left Blank 

124 Intentionally Left Blank 

125 Intentionally Left Blank 

126 Intentionally Left Blank 

127 ECM’s experts have opined that it would be 

unreasonable to believe that plastic products 

will biodegrade in one year or even five years 

because these times are inconsistent with even 

the shortest expected degradation times.

See, e.g., RX-853 at 3 (“[T]he

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.”)

RX-855 at 8 (“[T]he expectation that all 
28

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.”).

128 Dr. McCarthy is a professor of Plastics 

Engineering at the University of Massachusetts 

Lowell with more than thirty years’ experience 

studying both the chemical and mechanical 

behavior of polymers, including their 

biodegradability.

CCX-891 at 3-5.

(McCarthy, Tr. 359, 361).

129 ECM recommends that a small concentration, 

1% to 5%, of its Additive be melt-batch 

blended with a non-biodegradable conventional 

plastic, such as polyethylene.

CCX-4; CCX-17; CCX-818 (Sinclair 

Dep.) 164:18-166:8.

(Sinclair, Tr. 787-788 (1% ECM 

additive must be added during the 

manufacturing process to ensure that the 

additive remains viable in the finished 

product)).

(Sinclair, Tr. 790 (if a manufacturer 

adds less than 1% by weight, the 

product will not biodegrade at all)).

(Sinclair, Tr. 797-798).

(Sahu, Tr. 1813 (ECM additive is added 

to plastics by “blending through melting 

and then recooling afterwards”)).

130 A physical blend of a biodegradable polymer 

with a conventional plastic does not alter the 

chemical structure of the conventional plastic, a 

view resoundingly supported by the literature 

cited by ECM’s own experts.

CCX-891, ¶ 64.

CCX-895 at 13 (“Addition of additives 

into conventional plastics does not 

increase the carbonyl content of the 

plastic nor does it reduce the molecular 

weight of the high molecular weight 

polymers or add hydrolysable linkages 

or unsaturated carbon bonds.”)

CCX-895 at 13-14 (“Consistent with 

this fact [that additives do not affect the 

chemical structure of the conventional 

plastic], studies in which even large 

percentages of starch have been 

incorporated into PE (50% to >80%) do 

not show any improvement in the 

biodegradation of the PE fraction 

(Nakashima et al., 2002). For example 
29

blends of 50% and 83% starch added to 

polyethylene displayed a maximum of 

49% and 78% weight loss upon 16 

months incubation in soil (Nakashima et 

al., 2002).”).

(McCarthy, Tr. 387).

CCX-892 ¶¶ 10-16 (explaining why the 

articles cited by Dr. Sahu are irrelevant 

to ECM’s claims)

(Michel, Tr. 2873-2875)

131 Because the additive does not alter the chemical 

characteristics that make conventional plastics 

resistant to biodegradation, the nonbiodegradable plastic component is no more 

susceptible to biodegradation after blending 

than it was before.

CCX-891, ¶ 64.

(McCarthy, Tr. 387).

132 Even assuming ECM Plastic degrades faster 

(e.g., by breaking the plastic into smaller 

pieces), the amount of time it would take for 

the conventional plastic to completely 

biodegrade would not be reduced to five years 

or even decades in any environment.

CCX-891, ¶ 65.

(McCarthy, Tr. 385).

(Sahu, Tr. 1953-1954 (ECM plastic 

would take 30 years to completely 

biodegrade, possibly up to 100 years on 

the “very, very high side”)).

133 ECM Plastic could take as long as the 

conventional plastic to biodegrade (because it 

still consists of 99% conventional plastic), or 

even longer (if the fragmented pieces become 

recalcitrant to biodegradation).

CCX-891, ¶ 65.

(McCarthy, Tr. 386 (“ECM plastics will 

not completely break down in an 

appreciably faster rate than conventional 

plastics without the ECM additive”)).

(McCarthy, Tr. 681-82 (testifying that 

conventional nondegradable plastics 

treated with 1% ECM additive will not 

completely break down into elements 

found in nature within one year)).

(McCarthy, Tr. 682 (testifying that 

conventional plastics treated with 1% 

ECM additive will not completely break 

down into elements found in nature 

within 5 years)).

134 The Competent and Reliable Scientific 

Evidence standard is consistent with the level 

of substantiation expected from experts in the 

(CCX-891, ¶ 37; see also CCX-892).
30

field, who view claims of biodegradable 

conventional plastic with great skepticism

135 To satisfy polymer scientists that 1% additive 

will make conventional plastics biodegradable 

in a stated timeframe and disposal condition, 

the claimant should provide the results of 

appropriately-analyzed independent, welldesigned, well-conducted, well-controlled 

testing. The testing should use the appropriate 

plastic application, load rate, inoculum, test 

conditions, and sample weight, over an 

appropriate duration of time.

CCX-891, ¶ 38.

(McCarthy, Tr. 412).

136 Dr. Tolaymat states that tests must simulate 

landfill conditions if the claim is disposal in 

such conditions. Our experts independently 

conclude that ECM’s evidence falls short of 

these requirements for several reasons.

CCX-891, ¶ 81;

CCX-893, ¶¶ 50, 59-85.

(Tolaymat, Tr. 176).

(Tolaymat, Tr. 202 (faulting ASTM 

D5511 tests because they do “not 

simulate a landfill environment”)).

(Tolaymat, Tr. 296-297).

137 The tests conducted by Dr. Barber rely on a 

weight loss methodology. 

CCX-892, ¶ 24.

(Barber, Tr. 2100 (Dolco tests primarily 

involved a weight loss methodology to 

determine biodegradation)).

(Barber, Tr. 2106-2109 (Dispoz-o, EDS, 

FP International tests primarily involved 

a weight loss methodology to determine 

biodegradation)).

138 The scientific community does not consider 

weight loss tests alone sufficient for 

determining biodegradation.

CCX-892, ¶¶ 24-26.

RX-855 at 41 (“It is conventional 

wisdom, now, with some justification, 

that the only true indicator of 

biodegradation is, in fact, gas evolution. 

. . .”); RX-855 at 42.

(McCarthy, Tr. 414, 457).

139 Our experts criticize ASTM D5511 as a basis to 

support ECM’s claims.

CCX-891, ¶¶ 51-53;

CCX-892, ¶ 21;

CCX-893, ¶¶ 77-84.

(Tolaymat, Tr. 202-212).

(McCarthy, Tr. 452 (most problematic 

tests on ECM plastics were the 5511 

tests)).

140 ECM’s experts and Tom Poth of Eden RX-853, at 8 (Dr. Barlaz stating 
31

Laboratories criticized ASTM D5511. “[M]any of the tests used to measure 

biodegradability, e.g., ASTM D5511, 

are designed to measure

intrinsic biodegradability.”);

RX-854, ¶ 65 (Dr. Burnette stating “The 

ASTM D5511 test is not

representative of all possible MSW 

landfill conditions.”).

(Poth, Tr. 1522-1523 (confirming that 

the witness told Sinclair that the 5511 

test was “on its way out” and “a cheapand-dirty test”)).

141 Timothy Barber’s tests are unreliable. CCX-891;

see also RX-854, ¶ 71(referring to the 

tests as inconclusive)

142 Northeast Lab’s tests of ECM plastic are 

unreliable.

CCX-891, ¶ 88.

143 Eden Lab’s tests of ECM plastic are not 

competent and reliable.

CCX-891, ¶ 89.

(McCarthy, Tr. 687-88 (testifying that 

the D5511 tests conducted by Eden 

Laboratories are not competent and 

reliable)).

(McCarthy, Tr. 465-466 (testing he 

reviewed related to ECM additive 

yielded unreliable results)).

144 Stevens Ecology, O.W.S., North Carolina State 

University, and Ohio State University tests

show very little (or in some cases no) 

biodegradation of ECM Plastics under a variety 

of conditions. 

CCX-891, ¶¶ 75-86.

145 ECM claimed to render conventional plastics 

“totally,” “completely,” “fully,” and “100%”

biodegradable.

CCX-3 (“fully”); CCX-7 at 7 (“fully”); 

CCX-10 (“completely”); CCX-12

(“100%”). CCX-316 (“totally”); CCX317 (“totally”).

146 ECM conveyed that plastics completely 

biodegrade in most landfill environments.

CCX-15; CCX-25 at 1.

147 Tests must be conducted for a sufficient length 

of time to demonstrate that the entire treated 

plastic, not just the biodegradable additive, will 

be consumed.

CCX-891, ¶ 38f.

148 Biodegradation tests must show at least 60% CCX-891 ¶ 38f.
32

biodegradation to support a claim of complete 

biodegradation.

149 ECM rests its claim of complete biodegradation 

on the assumption that once started, 

biodegradation will go to completion.

CCX-15 (“The process continues until 

the plastic products become part of the 

organic components of the soil just like 

biodegraded sticks or other pieces of 

wood become part of the soil.”).

150 The scientific community rejects extrapolation 

of biodegradation results.

CCX-891, ¶ 55;

CCX-892, 892, ¶¶ 22, 23.

CCX-83 (ASTM D5511 precludes 

extrapolation of results)

(McCarthy, Tr. 477-478).

(Sahu, Tr. 1795-1796 (testifying that it 

would be “unusual” for to extrapolate a 

time to complete biodegradation from a 

rate derived from a test).

See also (Barber Tr. 2081-2082 

(conceding that rates of biodegradation 

cannot be extrapolated beyond the 

precise environmental conditions or to 

other plastics)).

151 Mechanism of action to explain how ECM 

Plastics will biodegrade to completion

CCX-4.

153 ECM’s expert concedes that the presence of a 

biofilm does not indicate that the 

microorganisms are using the plastic as a food 

source.

RX-840 at 41-43.

154 To support claims of biodegradation in landfill 

conditions, the experts agree that tests should 

be run at appropriate temperatures with 

appropriate anaerobic bacteria.

CCX-893, ¶ 51.

CCX-891, ¶ 38c. and d.

RX-853 at 7-9.

(Tolaymat, Tr. 203 (faulting ASTM 

D5511 for calling for a temperature that 

is “much higher than what you would 

expect to see in a municipal solid waste 

landfill”)).

(McCarthy, Tr. 391-392).

(McCarthy, Tr. 442-443 (5526 tests are 

preferable to 5511 tests for longer-time 

degradation results, in part, because they 

simulate “slower-degrading materials at 

a temperature that’s closer to landfill 
33

conditions”)).

(Barlaz, Tr. 2300 (testifying that for the 

purpose of determining whether a 

material is biodegradable in a landfill, 

only anaerobic testing conditions are 

relevant)).

155 Hot temperatures could cause abiotic 

degradation of plastic that would not occur at 

more typical landfill temperatures of 37oC.

RX-943 (Barlaz, Dep. Tr. 82); RX-843 

at 142.

156 The types of anaerobic bacteria that survive at 

the hotter temperatures are not the same types 

of anaerobic bacteria that operate at the cooler 

landfill temperatures.

RX-943 (Barlaz, Dep. Tr. 82); CCX893, ¶54.

(Tolaymat, Tr. 141).

157 In tests conducted under the appropriate 

temperature range, virtually no biodegradation 

was observed.

CCX-946; CCX-951; CCX-954.

158 At least a significant minority of consumers 

extrapolate rate and extent information 

concerning biodegradation times.

CCX-860, ¶¶ 43-44.

159 Robert Sinclair knew the 9 month to five year 

claim was false.

CCX-818 (Sinclair Dep.) 75:11-12 (“Q. 

Are you the only person at ECM who is 

responsible for reviewing and approving 

[] claims? A: “At this point, yes.”); 

81:5-12 (“Q. “[W]hen you came up with 

the nine-month-to-five-year claim, what 

did you base that on? A. Again, nine 

months to five years is not really the 

claim. It’s only when you guys brought 

it up that it really like comes down to, 

Oh, what do you base that on and so 

forth, what’s all this.”); 81:5-82:20 

(testifying that the 9 months to 5 years 

claim “was simply a frame of reference 

to get things out of the 6400 realm, that 

we’re not talking about that, that we’re 

talking about true biodegradation of 

things like a piece of wood.”). 

(Sinclair, Tr. 986-988).

163 ECM knew that the ASTM 5511 protocol was 

not a pass/fail standard.

CCX-963.

164 ECM routinely conveyed to its customers that 

ECM Plastics were “certified to”; “passed”; or 

met the ASTM 5511 standard.

CCX-288.
34

165 ECM customers made unqualified claims. CCX-308; CCX-50.

166 Even in landfills that are considered to be the 

most conducive to biodegradation (so-called 

“bioreactors”), Dr. Barlaz reports a range of 

degradation times for MSW anywhere from 24 

(for rapidly biodegrading food waste) to over 

200 years.

RX-853 at 3, 14.

(Barlaz, Tr. 2297 (explaining that even 

under accelerated biodegradation 

conditions, readily degradable municipal 

solid waste will not completely 

biodegrade in less than five years)).

167 Dr. Barlaz conducted at least four 

biodegradation tests of ECM Plastics under the 

Biochemical Methane Potential Test (BMP).

CCX-946-CCX-948; CCX-952; CCX933; CCX-946; CCX-951; CCX-953; 

CCX-954.

(Barlaz, Tr. 2306-20).

168 The results of one of Dr. Barlaz’s BMP tests 

showed no methane production.

CCX-951.

169 The results of three other BMP tests by Dr. 

Barlaz showed negligible amounts of methane 

production.

CCX-952; CCX-946; CCX-954

170 Landfill conditions do not support rapid 

degradation times.

RX-853 at 3, 14; RX-855 at 8.

171 The ECM Additive is mostly a synthetic 

biodegradable polymer like polycaprolactone 

(PCL).

CCX-891 ¶61.

172 The amount of methane generated in Dr. 

Barlaz’s tests exceed the amount of methane 

attributable to the additive

Compare CCX-951 and CX-954 with

CCX-946 (determining the methane 

potential of the ECM Additive alone).

173 Dr. Barlaz offers no opinion in his expert report 

regarding the biodegradability of ECM Plastics.

RX-853

174 There are several tests that also report no 

biodegradation was observed at the conclusion 

of the test.

CCX-164; CCX-174-CCX-176; CCX156; CCX-157; CCX-163; CCX-169-

CCX-171. 

175 According to Dr. Barlaz, the “BMP is an 

appropriate screening tool for biodegradability 

in landfills although the actual volume of

methane generated in a landfill may well be 

less than that measured by a BMP test.”

CCX-952 at 1.

176 ECM experts Drs. Burnette and Barlaz concede 

that they are not polymer scientists and do not 

have the expertise to opine specifically on the 

biodegradability of plastics.

See RX-840 at 65-66, 68, 204-5 (Dr. 

Burnette: (1) admitting he does not 

understand the role crystallinity plays in 

polymer biodegradation; (2) identifying 

“oxobiodegradable” as a “slang term”;

and (3) admitting not being offered as a 

polymer expert); 
35

CCX-943 at 26-27, 142 (Dr. Barlaz 

discussing (1) that he is not a polymer 

chemist, so he cannot speak to whether a 

non-homogenous polymer could be 

considered biodegradable; and (2) how 

one would need to be a polymer chemist 

to understand whether a plastic could be 

abiotically transformed at the 

temperatures of the ASTM D5511).

177 Dr. Barber’s test looks to measurements of free 

chloride as an indicator of biodegradation.

CCX-892 at 12.

178 Dr. Barlaz stated that he was skeptical of the 

ASTM D5511 test.

CCX-948

179 ECM expert Dr. Burnette concedes that the 

presence of a biofilm does not indicate that the 

microorganisms are using the plastic as a food 

source.

RX-840 at 41-43.

180 Dr. Stephen Joseph, a 3M chemist, consulted 

with colleagues who were immediately 

suspicious of ECM’s claims.

CCX-821 (Joseph at 43, Ex. 7).

181 Based on their suspicions of ECM’s claims, 3M 

conducted its own test to determine if ECM’s 

additive would make a plastic blend biodegrade 

to any extent.

CCX-821 (Joseph at 60, Ex. 17).

182 ECM’s expert concedes aerobic tests (with 

oxygen) are irrelevant to claims of 

biodegradation in landfills. 

RX-853 (Barlaz Report at 7) (“To begin, 

for purposes of biodegradability under 

landfill conditions, only anaerobic 

biodegradability is of relevance.”)

183 ECM expressly claims that its additive enables 

conventional, non-degradable plastic to fully 

biodegrade in nine months to five years in a 

landfill since at least 2005. 

CCX-274A; CCX-701

184 ECM’s technical data sheets contained the 

unqualified biodegradable claim.

RX-683; RX-327 at 3; RX-326 at 5.

185 ECM’s pricing sheets contain the unqualified 

biodegradable claim.

RX-330; RX-331.

186 ECM’s customers used unqualified 

biodegradable claims to market their products.

CCX-30-31 (APM marketing); CCX-33 

(Earth Aware marketing materials); 

CCX-39 (CHAMP marketing 

materials); CCX-40 (Good Earth 

marketing materials); CCX-41 (Crayex 

marketing materials); CCX-43 (D&W 

marketing materials); CCX-46 (photo of 

Green Natura bottle with unqualified 

biodegradable claim); CCX-47 (photo); 
36

CCX-49 (Epsilon Plastics marketing 

materials); CCX-50 at 2 (Flambeau); 

CCX-51 (Flexible Plastic); CCX-52; 

CCX-56, RX-229, RX-15, RX-16 (IPB); 

CCX-59 (Medical Arts Press); RX-00 

(AMPAC); RX-02 (Sentry Green); RX26 (Eaton)

187 ASTM D5511 is a screening-level test designed 

to evaluate whether the test specimen is capable 

of biodegrading under optimal conditions.

CCX-891 ¶¶ 51-53 (ASTM D5511 is 

conducted under optimal conditions). 

188 Dr. Sahu’s report and testimony estimate 

biodegradation times anywhere from 30 years 

to as long as 100 years for the thinnest of 

plastic films that contain ECM Additive.

RX-855 at 44; Sahu Tr., 1953-1954.

189 ECM concedes that conventional plastics are 

not biodegradable.

CCX-818 (Sinclair Dep. Tr. at 56).

190 Scientists view claims of biodegradable plastic 

with great skepticism.

(CCX-891, ¶ 37; see also CCX-892).

191 ECM’s expert David Stewart testified as 

follows:

QUESTION: Assume that plastics 

manufactured with the ECM additive 

will not in fact biodegrade in landfills in 

less than five years. . . . Given that 

assumption, you would agree with me, 

wouldn’t you, that prohibiting that 

claim would serve consumer welfare? 

STEWART: If it’s not true, yes, 

prohibiting that specific claim would 

serve consumer welfare. 

QUESTION: Assume that plastics 

manufactured with the ECM additive 

will not in fact biodegrade in landfills in 

less time than plastics made without the 

additive. . . . Given that assumption, 

you would agree with me, wouldn’t 

you, that allowing that claim would not 

serve consumer welfare; correct?

STEWART: I would agree with that, 

yes. 

QUESTION: . . . . In this regard, you 

views with respect to policy really turn 

on the science; correct? 

(Stewart, Tr. 2804-2805). 
37

STEWART: That is correct, yes. 

192 “Convergent validity” refers to the 

degree that studies employing different 

methodologies yield similar results. 

(Frederick, Tr. 1057-1058).

See also CX-865 at 13. 

193 Professor Shane Frederick gave the following 

example regarding convergent validity:

There’s a genuine question [in fisheries 

about whether tuna fish] have a body 

temperature which is higher than the 

external water in which they swim. 

And so one could imagine trying to 

ascertain the [answer] to this by 

embedding thermometers . . . inside of 

a live tuna fish. And suppose that you 

had three different thermometers 

constructed by three different 

companies using three different 

designs, and you embedded all three in 

the tuna fish, and . . . . suppose that 

you got back the results from these 

three different designs: 75 degrees, 73 

degrees, 74 degrees. You can conclude 

with a considerable degree of certainty 

that that tuna fish’s temperature is 

around 74 degrees because . . . they are 

different[ly] designed thermometers. 

They’re all yielding essentially the 

same result. That’s convergent 

validity. 

(Frederick, Tr. 1058-1059). 

194 In 2006, the American Plastics Council 

(“APCO”) conducted an approximately 1000- respondent telephone survey. 

(Frederick, Tr. 1037).

CCX-860 at 7.

195 The survey focused primarily on plastic 

products; and 60% said that packages labelled 

“biodegradable” should biodegrade within one 

year or less. 

(Frederick, Tr. 1037).

RX-597 at 2. 

196 In 2010, a company (EcoLogic) manufacturing 

a plastic additive similar to ECM’s product 

engaged a survey firm (Synovate) to conduct a 

2000-respondent internet panel survey. 

(Frederick, Tr. 1046-1047). 

197 In the Ecologic study, 25% stated that “less 

than one year” was a reasonable amount of time 

for a “biodegradable” package to decompose in 

a landfill. 

RX-673 at 4.

CCX-860 at 11.

198 In 2014, Complaint Counsel engaged Professor 

Frederick to conduct surveys through Google 

Consumer Surveys (“GCS”) to assess how 

much time consumers believe plastic products 

labelled “biodegradable” will take to 

biodegrade. 

(Frederick, Tr. 1114). 
38

199 Professor Frederick conducted twelve GCS 

surveys addressing this issue—each employing 

different wording an images—and the results 

ranged from 20%-52%. 

CCX-860 at 30-32. 

200 Professor Frederick estimated that, overall, 

35% believe plastic products will biodegrade in 

one year or less. (“Q: Based on your research 

and expertise, in your professional opinion, 

what percentage of American consumers 

believe that a plastic product labelled 

‘biodegradable’ will biodegrade completely 

within a year in a landfill?” A: I would say 35 

percent.”). 

(Frederick, Tr. at 1180-1081).

201 In 2014, ECM’s expert, Dr. Stewart, supervised 

a 400-participant landline survey. 

(Stewart, Tr. 2687).

RX-856 at 18, 23. 

202 Dr. Stewart never asked respondents to estimate 

how long it would take plastic products labelled 

“biodegradable” to biodegrade. 

(Stewart, Tr. 2629-2630).

203 Dr. Stewart’s landline callers asked (without 

specifying a material or that the product was 

labelled “biodegradable”): “If something is 

biodegradable, how long do you think it would 

take for it to decompose or decay?” 

(Stewart, Tr. 2777). 

204 Of the 400 respondents, 206 gave codeable 

estimates, and of those 206, 33% gave 

estimates of one year or less. 

(Stewart, Tr. 2790). 

205 Many respondents gave nonspecific responses 

such as “I don’t know,” “it depends,” or other 

responses not quantifiable as a specific 

biodegradation time estimate. 

(Stewart, Tr. 2790). 

206 Dr. Stewart’s landline callers read ECM’s 

“some period greater than a year” disclaimer to 

respondents, and asked: “In your own words, 

what does this claim mean to you?” 

(Stewart, Tr. 2796). 

207 Although Dr. Stewart did not ask respondents 

to estimate biodegradation times, 150 

respondents still gave estimates. Of those 

respondents—and notwithstanding the 

disclaimer—50% (75 respondents) gave 

estimates of a year or less. 

(Stewart, Tr. 2796).

(Stewart, Tr. 2804).

208 Professor Frederick cited the convergent 

validity between these different studies to 

conclude that, overall, the conclusion that at 

least a substantial minority of consumers 

believe that plastic products labelled 

“biodegradable” will biodegrade within one 

year. 

(Frederick, Tr. 1043-1044 (“[O]ften in 

cases like this where the construct of 

interest is not something readily 

determinable by some other method, 

you need to compare the results of one 

survey to the results of other surveys 

and see whether . . . those results are 

giving you the same result, the same 

fact. That’s sort of known as 

convergent validity. And as you do 
39

different surveys—if different surveys 

using different designs conducted by 

different people at different times, 

independent surveys, are yielding the 

same results, then you can gain 

confidence that those results are valid, 

that they’re measuring what they intend 

to measure.”)).

(Frederick, Tr. 1145 (“[T]his is a study 

that was done at a different time using a 

different methodology. We call it 

APCO. It was a telephone study. This 

is a Google Consumer Survey. I did this 

survey, not APCO. It was done eight 

years later, and so forth, and yet you’re 

getting responses that are not too 

different from the ACPO study.”)).

(Frederick, Tr. 1155 (“Q: How [do the 

results of your GCS study] relate to . . . 

convergent validity? . . . . This can be 

an illustration [] that when you have 

different studies using different 

methodologies conducted by different 

investigators at different times using

slightly different question wording, 

different images, and so forth, and yet in 

all these cases you’re getting estimates 

that are on the order of a third [of yearor-less responses]”)).

(Frederick, Tr. 1173 (“We have an issue 

again where there’s three different 

studies conducted independently by 

different people using different 

designs—phone, Internet survey, 

Google Consumer Surveys—that are 

yielding results which are qualitatively 

comparable to one another and therefore 

I think providing evidence of 

convergent validity of the results 

obtained.”)).

209 An already overwhelming argument becomes 

even stronger if one moves the benchmark to 

five years. In APCO, 65% of respondents 

believe that packages labelled “biodegradable” 

RX-597 at 2. 
40

should biodegrade within four years. 

210 Of 206 respondents in Dr. Stewart’s survey 

who gave specific estimates about how long an 

unspecified material would take to biodegrade, 

58% estimated within five years. 

(Stewart, Tr. 2791).

211 According to Synovate, 45% of consumers 

believe that “less than five years” is a 

reasonable amount of time for a 

“biodegradable” package to decompose in a 

landfill. 

RX-673 at 4.

CCX-860 at 11. 

212 In Professor Frederick’s GCS research, 

depending on the type of question and the 

wording, from 40% to 76% of respondents 

understood that a plastic product labelled 

“biodegradable” would biodegrade within five 

years. 

CCX-860 at 30-33.

213 Of the twelve questions Professor Frederick 

asked directly addressing this subject, more 

than 50% of respondents understood that a 

plastic product labelled “biodegradable” would 

biodegrade within five years in nine of twelve 

cases. 

CCX-860 at 30-33. 

214 Dr. Stewart’s attempt to rebut 

convergent validity reflects his 

confusion:

QUESTION: Is it, in your view, 

possible to rehabilitate a survey that is 

flawed by reliance on another survey 

you regard as also flawed?

. . . . 

STEWART: Two surveys that are 

both flawed don’t produce an unflawed 

and valid survey. Two flawed surveys 

are still both flawed, and the fact that 

they might reflect something similar 

may simply reflect the fact that they 

share the same flaw.

QUESTION: What if I gave you three 

flawed surveys? Would that make a 

difference?

STEWART: You could give me three, 

four, five. If they’re all flawed, 

they’re—you know, they’re not valid. 

They may all even produce the same 

outcome, but that outcome could be 

produced because they all share the 

same flaw. 

(Stewart, Tr. 2619-2620). 
41

215 Dr. Stewart acknowledged that “[n]o study is 

perfect.” 

(Stewart, Tr. 2766). 

216 Professor Frederick is an academic who has not 

testified before, and who focuses primarily on 

research and teaching. 

(Frederick, Tr. 1026). 

217 When asked, on cross-examination, “[w]hat do 

you consider to be the generally accepted 

survey principles that define a valid survey?,” 

Professor Frederick responded: “A valid 

survey is one which produces accurate results.” 

(Frederick, Tr. 1187). 

218 Professor Frederick collected approximately 

29,000 responses to approximately sixty 

different questions he designed and paid GCS 

to pose. As he explained at trial, Google pays 

approximately 340 mainstream internet content 

providers to present survey questions to internet 

users who would otherwise need to pay to 

receive the content. Put differently, GCS gives 

internet users the opportunity to obtain content 

from behind a paywall in exchange for 

answering the GCS survey question. To the 

extent possible, GCS then infers certain 

demographic information (gender, approximate 

age, geographic region, urban density (whether 

the respondent resides in an urban, suburban, or 

rural area), and income range based on the 

respondent’s IP address and browsing history. 

GCS then reports this demographic 

information, along with the exact results of the 

survey, back to the researcher (in this case, 

Professor Frederick). 

(Frederick, Tr. 1062-1064).

CCX-863 (results).

CCX-867 (product overview).

CCX-868 at 3 (product summary).

CCX-976 (GCS illustration Professor 

Frederick prepared and testified about).

CCX-1074 (Google promotional video 

explaining GCS).

CCX-865 at 3 (discussing Professor 

Frederick’s teleconferences with 

Google).

219 Every piece of data collected in response to 

each of Professor Frederick’s questions is the 

record (in Excel format). 

CCX-863.

220 Based on this data, and as noted above, 

Professor Frederick opined that 35% of 

consumers believe that a plastic product 

labelled ‘biodegradable’ will biodegrade 

completely within a year in a landfill.” 

(Frederick, Tr. at 1180-1081). 

221 “Psychographic representativeness” means that 

the sample reflects the psychological 

characteristics (such as beliefs, opinions, or 

attitudes) of the population at large. 

(Frederick, Tr. 1395). 

222 Although demographic representativeness is 

correlated with psychographic 

representativeness, the differences between the 

two measures are particularly important in 

survey because a survey sample may match the 

demographics of American consumers 

perfectly, yet come nowhere close to matching 

the beliefs and attitudes of American 

consumers. 

(Frederick, Tr. at 1066).

(Frederick, Tr. 1065-1066).

223 The differences between psychographic and (Frederick, Tr. 1395-1396 (opining that 
42

demographic representativeness is pertinent 

because people who use the internet and are 

willing to respond to a single Google survey 

question are more likely to be 

psychographically representative than people 

with landlines who are willing, without 

compensation, to take an approximately twelveminute survey. 

GCS has greater psychographic 

representativeness than telephone 

surveys, in-person research, or internet 

panel studies)).

(Stewart, Tr. 2698-2699) (testifying 

that, in his study, the average call length 

was twelve minutes, with an 

approximate range from five to twenty 

minutes)). 

224 The population of American internet users is 

more demographically and psychographically 

representative of the population of American 

consumers than other potential survey media, 

such as internet panels, landline surveys, or 

“mall intercept”-style face-to-face interviews. 

(Frederick, Tr. 1395-1396). 

225 This is true partly because the survey 

mechanism is much less intrusive than other 

types of surveys, and partly because the 

percentage of the population that uses the 

internet is enormous (85% in 2013). 

(Frederick, Tr. 1067).

CCX-865 at 4. 

226 40% of Americans do not have a landline. CCX-865 at 4.

227 Shortly after Google introduced GCS in 2012, 

the independent Pew Research Center 

compared the results of its own telephone 

survey of internet users with GCS respondents. 

CCX-874. 

228 Pew concluded: “A comparison of several 

demographic questions asked by Pew Research 

indicates that the Google Consumer Surveys 

sample appears to conform closely to the 

demographic composition of the overall 

internet population.” 

CCX-874 at 2. 
43

229 Pew reported the following demographic data:

Pew GCS

(percentage

s)

Gender

Male 49 53

Female 51 47

Age

18-24 16 20

25-34 24 20

35-44 43 53

45-54

55+ 26 28

Race-ethnicity

White 69 68

Black or African 

American

11 10

Asian or Asian 

American

3 5

Hispanic or Latino 13 10

Other or mixed race 4 7

Marital Status

Married 52 48

Widowed 4 5

Divorced/Separated 12 12

CCX-874 at 5. 
44

Never married 25 27

Living with a partner 6 8

Don’t know 1 --

Homeownership

Own 63 63

Rent 33 37

Other/Don’t know 4 --

Church Attendance

Weekly or more 38 35

Less often 60 65

Don’t know 2 --

230 As a practical matter, the demographics of 

Pew’s respondents and the demographics of 

GCS respondents are the same. 

(Frederick, Tr. 1070). 

231 PEW compared its telephone survey 

respondents with GCS respondents along 

dozens of different measures of opinions and 

attitudes. 

(Frederick, Tr. 1069).

CCX-874 at 2. 

232 Although PEW noticed differences depending 

on the precise question, “the median difference 

between 43 results obtained from Pew Research 

surveys and using Google Consumer Surveys 

was 3 percentage points,” and mean difference 

was six points. 

CCX-874 at 2. 
45

233 In general, the percentage who said they owned 

particular devices and engaged in various 

online activities were fairly similar in Pew 

Research surveys and the Google Consumer 

surveys. 

CCX-874 at 6. 

234 “Views about the size and role of government 

were similar in a Pew Research survey and the 

Google survey.” 

CCX-874 at 7. 

235 “Reported frequency of voting also was little 

different in the Google Consumer Surveys and 

the Pew Research survey.” 

CCX-874 at 7. 

236 With respect to opinion about the health care 

legislation passed by Obama and Congress in 

2010, the results of the two surveys were 

similar. 

CCX-874 at 8.

237 “[T]he percentage of people saying that 

[global] warming is occurring mostly because 

of human activity was similar in the two 

surveys.” 

CCX-874 at 8.

238 “Across a variety of foreign policy issues, 

results from the Pew Research surveys and 

those obtained using the Google Consumer 

Surveys method were quite comparable.” 

CCX-874 at 8. 

239 ECM’s expert, Dr. Stewart, never questioned 

PEW’s findings. 

See

(Stewart, Tr. 2491-2820).

RX-856.

RX-843.

(Stewart, Tr. 5-308). 

240 With respect to the 2012 presidential election in 

particular, Pew noted: “In a series of tests after 

each presidential debate, the Pew Research 

surveys and Google Consumer surveys 

produced similar reactions.” 

CCX-874 at 8.

241 Nate Silver studied GCS’s impressive 

performance in predicting the 2012 presidential 

election results. 

(Frederick, Tr. 1071-1075). 

242 In his well-known New York Times column, 

Silver compared the accuracy of twenty-three 

polling entities that had conducted at least five 

polls in advance of the 2012 election. 

CCX-872 at 2.

243 GCS tied for second place overall, conducting 

twelve pre-election polls with an average error 

relative to the actual results of only 1.6%. 

CCX-872 at 2. 

244 GCS finished ahead of better-known entities 

including CNN, Reuters, and Gallup. 

CCX-872 at 2. 

245 Mr. Silver wrote: “The final poll conducted by 

Google Consumer Surveys had Mr. Obama 

ahead in the national popular vote by 2.3 

percentage points—very close to his actual 

margin, which was 2.6 percentage points. . . . 

Perhaps it won’t be long before Google, not 

Gallup, is the most trusted name in polling.” 

CCX-872 at 3, 6.
46

246 Professor Frederick explained the importance 

of Google’s performance in the 2012 election: 

“[T]he fact that Google Consumer Surveys is 

doing so well [compared] with all these other 

opinion polling firms in predicting the 

presidential election across twelve different 

tests [] suggests to me . . . that the population is 

both psychographcialy and demographically 

representative. Otherwise, I don’t think they’d 

be able to accurately predict who people are 

going to vote for.” 

(Frederick, Tr. 1074-1075). 

247 ECM’s expert, Dr. Stewart, offered no 

testimony regarding Mr. Silver’s conclusions, 

or Professor Frederick’s evaluation of them. 

See

(Stewart, Tr. 2491-2820)

RX-856.

RX-843.

(Stewart, Tr. 5-308). 

248 Google engaged two different survey research 

firms to administer identical questionnaires to 

internet panels intended to represent American 

adults. Google also administered the same 

survey thirteen times through GCS. 

CCX-872 at 5. 

249 The results of the three surveys were compared 

to established benchmarks related to media 

usage (established by a 200,000 respondent 

survey) and health data (established by Centers 

for Disease Control (“CDC”) surveys with 

response rates above 80%). 

CCX-872 at 5. 

250 Significantly, the GCS surveys performed as 

well or better than the internet panel surveys, 

and—perhaps most important—the GCS 

surveys deviated from the established 

benchmarks by only approximately 4%. 

CCX-872 at 5. 

251 Dr. Stewart’s report apparently references 

Google’s study, and dismisses it solely on the 

grounds that Google has an interest in 

promoting its product. 

RX-856 at 17. 

252 ECM’s expert, Dr. Stewart, did not testify 

regarding this study. 

See

(Stewart, Tr. 2491-2820).

RX-843.

(Stewart, Tr. 5-308). 

253 Through direct communications with Google, 

Professor Frederick verified GCS’ bona fides

himself. Specifically, Professor Frederick 

conferred telephonically with Google’s 

representatives twice to confirm the mechanics 

and methodology GCS employs. 

(Frederick, Tr. 1261)

CCX-865 at 3 (“Such interviews with 

data collectors are regularly conducted 

in my field to ascertain the reliability of 

data-gathering techniques.”).
47

254 Although relying on GCS is relatively new, 

relying on a third party to ask questions and 

gather data from a representative sample is not. 

As ECM’s expert opined, “it’s quite common to 

make an assumption that a research 

organization follows a particular protocol or 

procedure.” 

(Stewart, Tr. 2663).

(Stewart, Tr. 2664) (agreeing that “[i]t is 

typical in survey research” to rely “on 

the belief that a survey research firm is 

operating as you would expect them to 

operate with respect to the gathering of 

data”)). 

255 Through his conversations with Google, 

Professor Frederick concluded that, “[b]ased on 

Internet protocol (IP) addresses and browsing 

history, GCS uses dynamic imputation 

algorithms to help ensure [the] demographic 

representativeness of [its] sample data.” 

CCX-865 at 3. 

256 Dr. Stewart never communicated with anyone 

associated with GCS. 

RX-843 at 162.

257 Dr. Stewart never testified that, as an expert in 

the survey research field, it was somehow 

inappropriate for Professor Frederick to rely on 

his communications with Google regarding 

GCS’ methodology. 

See

(Stewart, Tr. 2491-2820).

RX-843.

(Stewart, Tr. 5-308). 

258 Because Google delivers advertising to users 

partly based on their demographic information, 

Google has high incentives to get that 

information reasonably correct. 

(Frederick, Tr. 1398). 

259 Professor Frederick opined that “[a]dvertisers 

value online advertising only to the extent that 

it works, which give Google strong incentives 

to accurately ascertain the demographic 

characteristics of respondents advertisers 

target.” 

CCX-865 at 3. 

260 GCS is highly representative both 

demographically and psychographically. 

(Frederick, Tr. 1410). 

261 APCO, Synovate, and Dr. Stewart’s studies 

each surveyed ostensibly representative 

samples in various ways. Accordingly, the 

conformance between those results and GCS 

further supports the conclusion that GCS 

respondents are representative. 

(Frederick, Tr. 1369). 

262 Dr. Stewart’s report repeatedly uses scare 

quotes when discussing Professor Frederick’s 

GCS research (referring to it as a “survey”). 

RX-856 at 8, 13-14.
48

263 Dr. Stewart testified about Professor 

Frederick’s article, The Limits of Attraction. 

(Stewart, Tr. 2681-2682). 

264 Dr. Stewart initially denigrated the portion of 

the article reporting GCS as a “footnote” 

involving a “partial replication” on GCS of data 

obtained through other sources; he later 

conceded that the article contained a table of 

GCS data, and that the article itself (containing 

GCS data) was published in a well-regarded 

peer-reviewed journal, THE JOURNAL OF 

MARKETING RESEARCH. 

(Stewart, Tr. 2682).

(Stewart, Tr. 2818).

(Stewart, Tr. 2681).

265 Dr. Stewart also emphasized criticisms of the 

article (Stewart, Tr. 2681), but later conceded 

that “[n]one of those criticisms of th[e] article 

had anything to do with its use of GCS.” 

(Stewart, Tr. 2816). 

266 Dr. Stewart also pronounced that no “serious 

scholar” would conclude that GCS is “in the 

legitimate market research business.” 

(Stewart, Tr. 2683-84).

267 ECM also compiled blog posts criticizing GCS. 

Most of the blog posts are from other survey 

researchers (i.e., competitors), the 

overwhelming majority have nothing to do with 

whether or not GCS is reasonably 

representative, and nineteen were compiled by 

ECM’s counsel approximately one week before 

trial). 

RX-823

RX-877-95.

See also RX-877 at 5 (evidence of 

collection by counsel and July 27, 2014 

retrieval date). 

268 Dr. Stewart’s report referenced alleged 

instances in which GCS “has been far off the 

mark.” 

 

RX-856 at 17.

269 Dr. Stewart admitted at trial that his source for 

the claim that GCS “has been far of the mark” 

is a tweet (and, indeed, he acknowledged that 

his report failed to disclose that the source was 

a tweet). 

(Stewart, Tr. 2687). 

270 Dr. Stewart also admitted that he had never 

“done any type of systematic analysis” to 

determine GCS’ accuracy. 

(Stewart, Tr. 2685-2686). 

271 Consistent with basic survey research 

principles, precise demographic information 

about each individual survey respondent is 

unnecessary if the sample is representative. 

(Frederick, Tr. 1079-80; 1360-1363).

272 Professor Frederick testified: (Frederick, Tr. 1079-80; 1360-1363).
49

QUESTION: Speaking in general, to 

what extent, if any, is it necessary to 

know the demographic characteristics of 

individual respondents in order to be 

able to draw valid conclusions [] about a 

population as a whole? 

FREDERICK: No, that’s—it’s not 

necessary.

. . . . 

QUESTION: Does the absence of 

[demographic] information impair your 

ability to draw reasonably valid 

conclusions about the population as a 

whole? 

FREDERICK: No, it does not.

QUESTION: [W]hy is that?

FREDERICK: That’s the essence of 

random sampling, because we have no 

reason to believe that those 

characteristics differ between the 

sample and the population at large as 

long as the same has been randomly 

selected or something very close to that.

QUESTION: . . . . [T]o what extent, if 

at all, does it matter if you do not know 

anything else about an individual 

Google Consumer Survey respondent as 

long as you know that he or she was 

drawn from a pool that is reasonably 

representative of the population you are 

attempting to sample? 

FREDERICK: It makes no 

difference whatsoever. 

273 When possible, GCS infers five important 

demographic features (gender, approximate 

age, geographic region, urban density (whether 

the respondent resides in an urban, suburban, or 

rural area). With respect to age and gender, 

Google infers demographic information based 

on the respondent’s browsing history as 

recorded in a DoubleClick advertising cookie. 

CCX-874 at 3.

CCX-868 at 3. 

274 Google infers the respondent’s location based 

on the computer’s IP address, and then infers 

the respondent’s income and urban density “by 

mapping the location to census tracts and using 

CCX-868 at 3.

See also CCX-874 at 3. 
50

the census data to infer income and urban 

density.” 

275 GCS then uses this information “to ensure each 

survey receives a representative sample.” . 

CCX-868 at 3. 

276 In Professor Frederick’s data, when GCS 

lacked sufficient information about a particular 

respondent to draw an inference regarding a 

given demographic characteristic, GCS (and 

Professor Frederick) reported that characteristic 

as “unknown.” 

See CCX-863 (data set).

277 “For approximately 30-40% of [GCS] users, 

demographic information is not available—

either because their cookies are turned off but 

more often because the [GCS] algorithm cannot 

determine a trend from the websites visited as 

recorded in their DoubleClick advertising 

cookie that would suggest what gender or age 

they are.” 

CCX-874 at 3. 

278 Geographic information is potentially 

significant because—as Dr. Stewart 

conceded—“beliefs regarding the importance 

of purchasing environmentally-friendly 

products might vary” between people “living in 

cities and people living in rural environments,” 

or between people living in different regions of 

the country. 

(Stewart, Tr. 2742). 

279 In contrast to Professor Frederick’s GCS 

survey, Dr. Stewart’s 400-respondent landline 

survey collected no data at all regarding 

income, geography, or urban density. 

(Stewart, Tr. 2739, 2742-2743, 2745). 

280 Put differently, each of those three 

demographic characteristics (income, 

geography, and urban density) is entirely 

unknown regarding 100% of Dr. Stewart’s 

respondents. 

(Stewart, Tr. 2739, 2742-2743, 2745). 

281 Dr. Stewart testified “that consumers’ views 

regarding biodegradation times don’t vary 

much based on gender[.]” 

(Stewart, Tr. 2738).

282 Regarding gender, there was no evidence 

presented at trial that Dr. Stewart’s callers 

asked respondents to provide their gender when 

the callers were uncertain based on a particular 

respondent’s voice. 

(Stewart, Tr. 2735). 
51

283 Without an inquiry in such situations, the error 

rate is about 5%. 

(Stewart, Tr. 2735). 

284 Dr. Stewart also did nothing to verify that the 

gender “recorded by observation” over the 

phone was correct. 

(Stewart, Tr. 2735). 

285 Although Dr. Stewart conceded that 

“[s]ometimes people lie about their age,” he did 

nothing to verify that his landline respondents’ 

self-reported age was correct. 

(Stewart, Tr. 2739). 

286 Dr. Stewart testified: 

QUESTION: Overall then, for 100 percent of 

respondents in your survey, with respect to the 

five demographic characteristics we’ve been 

discussing, two of the demographic traits were 

assessed but without any secondary 

verification, and three are unknown, correct? 

STEWART: That’s correct.

QUESTION: It’s still possible for such a 

survey to produce valid results, isn’t it?

STEWART: Yes, it is. 

(Stewart, Tr. 2745). 

287 Respondents’ individual demographic traits are 

irrelevant as long as the overall pool is 

reasonably representative. 

(Frederick, Tr. 1079-1080; 1357-1363). 

288 ECM did not challenge the wording or structure 

of any specific question Professor Frederick 

asked. 

See 

(Stewart, Tr. 2491-2820).

RX-856.

RX-843.

(Stewart, Tr. 5-308). 

289 Professor Frederick asked more than sixty 

different questions. 

(Frederick, Tr. 1060). 

290 Professor Frederick’s questions included twelve 

open-ended questions that asked respondents to 

estimate the time it would take for a plastic 

product labelled “biodegradable” to biodegrade. 

CCX-860 at 30-33. 

291 The number of different questions is significant 

because it enabled Professor Frederick to test 

what effect, if any, the wording of particular 

questions has. 

(Frederick, Tr. 1061 (“[M]y research is 

on framing effects . . . and I was 

interested in whether those things 

mattered. Again, this is part of the 

concept of convergent validity. It’s also 
52

called robustness. If you ask the 

questions a bunch of different ways, 

which things matter, which things don’t 

matter, those kinds of things can be 

tested by asking [] different 

questions.”)). 

292 As Professor Frederick explained, “if it’s the 

case that you get the same result despite asking 

questions in different ways, that . . . increases 

your sense of construct validity.” 

(Frederick, Tr. 1061-1062). 

293 Professor Frederick found that substantial 

minorities (or, sometimes, majorities) of 

consumers estimated that plastic products 

labelled “biodegradable” would biodegrade in 

one year or less—no matter how the question 

was presented. 

CCX-860 at 27-35. 

294 Some of Professor Frederick’s questions 

involved the “ECM Biodegradable logo,” some 

questions involved other “biodegradable” 

logos, and some involved only words. 

CCX-860 at 27-35. 

295 Sometimes the questions referred to “plastic 

products,” sometimes to “plastic packages,” 

sometimes to a specific object referenced in 

words (“a plastic water bottle”), and sometimes 

to an image of a plastic object (a plastic bag, or 

a plastic container). 

CCX-860 at 30-33. 

296 Some questions asked “how long” the object 

would take to biodegrade, whereas some asked 

“how much time” it would take. 

CCX-860 at 30-33. 

297 Some questions asked “how much time” it 

would take, whereas some questions asked 

“how much time do you think” it would take. 

CCX-860 at 30-33.

298 For nine of the twelve questions asking 

consumers to estimate biodegradation times for 

plastic materials labelled “biodegradable,” at 

least 30% of consumers estimated the product 

would biodegrade in one year or less—and in 

no case did fewer than 20% of consumers give 

such an estimate. 

CCX-860 at 30-33. 

299 Depending on phrasing of the question, a 

majorities ranging from 53% to 68% of 

consumers would consider it misleading if a 

plastic product labelled biodegradable did not 

biodegrade within one year. 

CCX-860 at 35. 

300 When asked: “A company should be allowed 

to label its plastic packaging material as 

‘biodegradable’ if it biodegrades within what 

CCX-860 at 35. 
53

amount of time,” 68% responded with one year 

or less, and only 9% of consumers thought 

periods longer than five years gave numbers 

greater than five years. 

301 Hardly any consumers believe it is appropriate 

for a company to label a product 

“biodegradable” if it takes that long to 

biodegrade. Specifically, if the responses to 

Questions 4A-4E are aggregated, less than 5% 

of consumers believe companies should be 

allowed to label as “biodegradable” products 

that take longer than twenty-five years to 

biodegrade. 

CCX-860 at 35. 

302 Additionally, consistent with the Commission’s 

Green Guides, at least a substantial minority of 

consumers believe that generic “products” (as 

opposed to plastic products) will biodegrade in 

one year or less. Again, Professor Frederick 

asked the relevant question numerous different 

ways, and “one year or less” responses ranged 

from 42% to 74%. 

CCX-860 at 27-28. 

303 This range includes two questions (1I and 1J) 

that Professor Frederick intended to test the 

effect of the use of the word “years” in the 

question, which suggests a longer process. 

Notably, even when consumers were asked: “If 

a package is labelled ‘biodegradable,’ how 

many years will it take to biodegrade,” 25% of 

consumers still estimated one year or less. 

(Frederick, Tr. 1143).

CCX-860 at 28. 

CCX-860 at 28. 

304 Professor Frederick also compared ECM’s prior 

qualifier (“nine months to five years”) with its 

new attempt to qualify its biodegradable claim 

(“some period greater than a year”). 

Significantly, “nearly half, 40%-50%, of 

consumers construe the qualifier ‘some period 

greater than a year’ as implying faster 

biodegradation than the qualifier ‘nine months 

to five years.’” 

(Frederick, Tr. 1161).

CCX-860 at 16-18. 

305 There is a typo in Appendix A to Professor 

Frederick’s expert report. Specifically, the 

results to Question 14A, reproduced at CCX- 860 at 45, should reflect 60% of consumers 

thought “nine months to five years” conveyed 

longer biodegradation times, and 40% of 

consumers thought it conveyed shorter 

biodegradation times. 

(Frederick, Tr. 1159-1160). 

306 Notably, Professor Frederick is an expert on the (Frederick, Tr. 1029-1032).
54

anchoring effect, which is the “assimilation of a 

judgment” toward “a concurrent numeric 

standard,” or toward “a prior numeric standard 

previously presented.” 

 

CCX-860 at 3.

(Frederick, Tr. 1030). 

307 Significantly, Professor Frederick attributed the 

failure of ECM’s new qualifier to produce 

meaningfully longer estimated biodegradation 

times in part due to the anchoring effect, 

because the representation presents consumers 

with “one year” as the starting point, and 

consumers may “infer that [one year] has some 

significance[.]” 

(Frederick, Tr. 1167). 

308 Thus, although the new “some period greater 

than a year” qualifier increases the number of 

estimates above five years, it also “move[s] 

some respondents to give lower estimates.” 

(Frederick, Tr. 1167).

See also CCX-860 at 18 (“The specified 

minimum value (‘one year’) likely 

functioned as a numeric referent 

towards which some respondents’ 

subsequent estimates assimilate.”)).

309 Specifically, changing the language from “nine 

months to five years” to “some period greater 

than a year” “significantly increases the 

fraction [of consumers] who believe [the 

product] will biodegrade within two years 

(from 17% to 29%[)].” 

CCX-860 at 18.

See also (Frederick, Tr. 1167 (“If you 

compare . . . people who gave estimates 

less than or equal to two years, that 

number increases from . . . 17 percent to 

29 percent, perhaps because the one 

year is functioning as an anchor of 

sorts.”)). 

310 Dr. Stewart did not challenge (or even address) 

Professor Frederick’s conclusion that ECM’s 

“some period greater than a year” language did 

not materially increase consumers’ estimated 

biodegradation times. 

See

(Stewart, Tr. 2491-2820). 

RX-856.

RX-843.

(Stewart, Tr. 5-308)).

311 ECM did not dispute other facts that 

“biodegradable” implies. As Professor 

Frederick testified, his study, APCO, and 

Synovate establish that most consumers believe 

plastic products labelled “biodegradable” will 

biodegrade in landfills. 

(Frederick, Tr. 1172).

CCX-860 at 13 (citing APCO and 

Synovate, as well as GCS). 

312 Additionally, across eight different GCS 

surveys with varied wording and question type, 

between 37% and 50% of consumers 

understood that a plastic product labelled 

“biodegradable” will biodegrade completely 

into elements found in nature. 

(Frederick, Tr. 1172).

CCX-860 at 16. 
55

313 Professor Frederick employed a “bright line” 

coding rule designed to avoid any “value 

judgments about which responses are ‘too 

inaccurate’ to count.” 

CCX-865 at 6. 

314 Professor Frederick’s bright-line rule was that “any response containing both a numeric 

specification and an accompanying temporal 

unit” was coded, and other responses were not. 

CCX-865 at 6.

See also (Frederick, Tr. 1128). 

315 As Professor Frederick explained, five types of 

responses were excluded: (1) numeric 

responses lacking a temporal unit (for instance, 

“1”); (2) responses lacking a specification of 

quality (for instance, “months”); (3) responses 

indicating unwillingness to answer without 

further clarification (“it depends”); (4) 

responses indicating an unwillingness to a aver 

a response about which they are uncertain (“I 

don’t know”); and (5) “bypass” or “protest” 

responses intended to circumvent the survey 

wall (e.g., “go away”). 

CCX-865 at 6.

(Frederick, Tr. 1122-1128). 

316 As Professor Frederick explained, he did not 

code these responses because there is no way to 

translate them into a specific estimate of 

biodegradation time. 

CCX-865 at 6.

(Frederick, Tr. 1122-1128). 

317 The omission of these responses would only 

affect the results if respondents who gave such 

responses hold different views concerning 

biodegradation that the rest of the population, 

but “there is no reason to believe that any of the 

people whose responses [Professor Frederick] 

did not code hold a view of biodegradation that 

differs from the rest of the population[.]” 

CCX-865 at 6.

See also (Frederick, Tr. 1122-1128). 

318 Survey respondents with views as to the correct 

answer sometimes state “I don’t know” because 

they lack sufficient confidence in their view, or 

because they fear embarrassment if they give an 

incorrect response. 

(Stewart, Tr. 2666-2667). 

319 Furthermore, Dr. Stewart conceded it was 

“generally true” that “there’s a literature on the 

(Stewart, Tr. 2669-2670). 
56

‘I don’t know’ response [in survey research], 

and that literature generally finds that you don’t 

change the distribution of responses 

substantially by forcing responses by 

preventing people from saying ‘I don’t know.’” 

320 Similarly, Professor Frederick testified there 

was no reason to conclude “that as a group, 

people who give ‘I don’t know responses’ to 

questions asking for beliefs regarding 

biodegradation time have different beliefs than 

people who gave [specific estimates].” 

Accordingly, omitting “I don’t know” 

responses does not “affect the conclusions of 

the research.” 

(Frederick, Tr. 1125).

321 To provide a second example, Professor 

Frederick compared the distribution of 

(uncodeable) numeric responses that did not 

have an accompanying unit (for instance, “1”) 

with the distribution of (coded) responses that 

had an accompanying unit (“for instance, “1 

year”). 

(Frederick, Tr. 1127).

CCX-865 at 6.

322 As Professor Frederick testified, the 

distribution of responses was “very similar . . . 

[t]herefore, I have every reason to believe that 

these people [who gave uncodable responses] 

have the same distribution of beliefs as the 

people who provided a unit.” 

(Frederick, Tr. 1127).

CCX-865 at 6. 

323 Because the people whose responses Professor 

Frederick excluded very likely have distribution 

of beliefs regarding biodegradation time than 

those who gave codeable responses, excluding 

them does not “affect[] the inferences drawn 

from the data.” 

CCX-865 at 6.

324 Out of approximately 20,000 responses 

Professor Frederick collected to open-ended 

questions, a very small fraction (less than one 

percent) gave insincere “protest” responses 

intended solely to bypass the GCS survey wall. 

Professor Frederick testified that excluding 

such responses would have no material effect 

because there is “no reason to believe that the 

people who [give protest responses] actually 

have different views about biodegradation 

times than the people who g[a]ve responses 

which are codeable.” 

(Frederick, Tr. 1136, 1138).

CCX-865 at 5.

(Frederick, Tr. 1123-1124). 
57

325 Dr. Stewart did not challenge this conclusion. See 

(Stewart, Tr. 2491-2820).

RX-856.

RX-843.

(Stewart, Tr. 5-308). 

326 Professor Frederick also testified that GCS 

takes steps to ensure that people who respond 

randomly do not receive future surveys by 

periodically asking questions with obvious 

answers (for instance, how many states are 

there in the United States?), and removing 

persons who respond incorrectly from the pool 

who may receive future surveys. 

(Frederick, Tr. 1099-1100). 

327 Indeed, there is no reason to think that the less 

than one percent of respondents who react to a 

GCS survey with a bypass response (random 

typing) or a protest response (a snide remark) 

are psychographically different from the 

population at large in any respect relevant here. 

If, for example, the GCS question asked for 

respondents’ views about paywalls limiting 

access to line content, then excluding 

bypass/protest respondents from the data might 

be problematic. In this context, however, there 

is no reason to think that bypass/protest 

responders, as a group, would give different 

biodegradation time estimates than people who 

give sincere responses. 

(Frederick, Tr. 1123-1124).

328 In his report, Professor Stewart briefly alleged 

that a “disinterest bias” exists, wherein GCS 

respondents will allegedly give random answers 

to bypass the survey wall. 

RX-856 at 14. 

329 Dr. Stewart’s report references only a blog post 

from a GCS competitor regarding alleged 

“disinterest bias.” 

RX-856 at 14. 

330 Indeed, Professor Frederick testified that 

alleged “disinterest bias” has not been studied 

in the academic survey research literature, and 

his search for the term produced no results. 

(Frederick, Tr. 1092). 

331 Additionally, the fact that less than one percent 

of respondents gave protest responses provides 

additional evidence that the overwhelming 

majority of GCS respondents gave thoughtful 

answers. 

(Frederick, Tr. 1093) (“The vast 

majority of people gave answers which 

were very reasonable given the 

questions.”)). 
58

332 Furthermore, the fact that average response 

times for GCS respondents were generally 

above 20 seconds (meaning that the average 

respondent took 20 seconds before responding) 

provides additional “evidence that people are 

thinking about the question.” 

(Frederick, Tr. 1152). 

333 As Professor Frederick testified, “[i]t wouldn’t 

make any sense . . .for someone to see a 

question, to sit there and do nothing, and then 

key in a nonsense response [after] 22 

seconds[.]” 

(Frederick, Tr. 1152).

see also CCX-865 at 5. 

334 ECM attempts to account for the response time 

by suggesting that respondents might have 

become distracted between when GCS 

presented the question stem and when they 

responded. 

(Frederick, Tr. 1331-1334). 

335 As Professor Frederick testified, “obviously 

[this] does happen sometimes,” but “I don’t 

think it’s common that people would be 

interrupted between reading the question stem 

and answering[.]” In short, atypical 

distractions might account for a few response 

times of twenty seconds or more, but not 

hundreds or thousands. 

(Frederick, Tr. 1342). 

336 In fact, as Professor Frederick testified, and Dr. 

Stewart conceded, a question in which the 

consumer gives a response in twenty seconds 

much better replicates the actual consumer 

experience when confronted with a 

“biodegradable” claim on a store shelf than a 

telephone interview taking ten minutes or more. 

(Frederick, Tr. 1091 (“[I]f a question is 

embedded at the end of a ten-minute 

survey, that's not replicating . . . the 

decision experience of the consumer 

itself. A consumer in a store might just 

spend a few seconds deciding between 

products.”)).

CCX-865 at 5.

(Stewart, Tr. 2700 (admitting that his 

landline survey “doesn’t simulate the 

shopping experience”)). 

337 ECM characterizes consumers’ short 

biodegradation time estimates (including days 

and weeks) as “absurd” and “ludicrous.” 

(Stewart, Tr. 2749-2755).

RX-856 at 15. 

338 ECM emphasizes extremely small estimates, 

for instance, “a nanosecond.” In reality, out of 

(Frederick, Tr. 1377). 
59

approximately 20,000 responses to open-ended 

questions, only two consumers responded with 

“a nanosecond.” 

339 During his cross-examination, ECM confirmed 

that Professor Frederick coded approximately 

26 responses of seconds, minutes, or hours, but 

this represents only approximately .001% of the 

data collected. 

(Frederick, Tr. 1302-1305).

340 These 26 responses might represent people who 

mistook “biodegradation” for dissolution, 

people who misunderstood the question as 

asking when the biodegradation process begins, 

or people who did not take the question 

seriously. Regardless, the number of these 

responses is too small to affect the data. 

(Stewart, Tr. 2757-2758).

RX-843 at 39.

341 ECM fails to explain why making value 

judgments about consumers’ beliefs is 

appropriate (it is not). 

CCX-865 at 6. 

342 ECM fails to acknowledge that, like Professor 

Frederick, Dr. Stewart coded very short 

biodegradation time estimates and included 

them in his data. 

(Stewart, Tr. 2755-2756).

CCX-865 at 6-7. 

343 ECM fails to note that Professor Frederick 

coded both extremely long responses as well as 

extremely short ones—again, he implemented a 

“bright line” rule intended to avoid value 

judgments.

(Stewart, Tr. 2755-2756).

CCX-865 at 6-7.

344 Neither GCS respondents (who provided data) 

nor GCS itself (who collected the data) knew 

who sponsored Professor Frederick’s study. 

(Stewart, Tr. 2745-2746). (Frederick, 

Tr. 1132). 

345 The coding of numeric responses generally 

does not have any significant subjective 

component. 

(Frederick, Tr. 1132-1133).

346 Professor Frederick produced the entirety of his 

data (including both the original responses and 

how those responses were coded) to ECM. 

(Frederick, Tr. 1133-1134).

CCX-863. 

347 Although ECM criticized Professor Frederick 

for not using so-called “screening questions” to 

(Stewart, Tr. 2764-2770). 
60

exclude people who reported not knowing what 

“biodegradation” was, the evidence at trial was 

clear that such questions are ineffective. 

Initially, the evidence established that, despite 

using screening questions in his survey, Dr. 

Stewart still included dozens of respondents 

who understood that “biodegradable” meant 

that the product was recyclable, that it would 

not degrade, that it would “self-destruct,” and 

even that it was digestible. 

348 In addition, Dr. Stewart admitted that screening 

questions can remove people who do 

understand what “biodegradation” means, but 

who are not confident in their understanding, or 

who have decided that they no longer want to 

participate in the survey. 

(Stewart, Tr. 2761-2763). 

349 Furthermore, as Professor Frederick testified, 

the population of American consumers who 

might be misled by a false biodegradable claim 

includes the many consumers whose 

understanding of “biodegradation” is mistaken 

or incomplete, or consumers who believe 

“biodegradability” is a positive attribute even if 

they do not know precisely why. 

 

(Frederick, Tr. 1422-1424). 

350 Indeed, ECM’s own expert reluctantly 

concurred that a consumer might purchase a 

product “because he or she thinks 

biodegradation is a positive attribute even if his 

or her understanding of the term is scientifically 

incorrect,” and such a consumer “can still be 

misled if the product doesn’t biodegrade has he 

or she understands the term[.]” 

(Stewart, Tr. 2760). 

351 ECM also criticized Professor Frederick for not 

screening out respondents who reported not 

purchasing anything made out of plastic within 

the past month, or who work in the plastics 

industry. Even assuming some minuscule 

number of the 29,000 GCS respondents fall 

within these categories, the presence of a tiny 

number of these outliers would not affect the 

data. 

(Frederick, Tr. 1411 (“Q: To what 

extent is it possible that consumers who 

never purchase plastic products might 

have responded to your survey 

questions? A: I testified yesterday that 

it was possible. Q: And how likely do 

you consider that to be? A: 

Approximately never.”)).

352 In 2014, ECM’s expert, Dr. Stewart, supervised 

a 400-participant landline survey. 

(Stewart, Tr. 2687).

RX-856 at 18, 23. 
61

353 Although Dr. Stewart never asked respondents 

to estimate how long it would take plastic 

products labeled “biodegradable” to 

biodegrade, he did collect data bearing upon 

this issue. 

(Stewart, Tr. 2629-2630).

354 Dr. Stewart’s landline callers asked (without 

specifying a material or that the product was 

labeled “biodegradable”): “If something is 

biodegradable, how long do you think it would 

take for it to decompose or decay?” 

(Stewart, Tr. 2777).

RX-602 at 16.

355 Of the 400 respondents, a majority (206) gave 

codeable estimates, and of those respondents, 

33% gave estimates of one year or less. 

(Stewart, Tr. 2790). 

356 As with all four surveys at issue, many 

respondents gave nonspecific responses such as 

“I don’t know,” “it depends,” or other 

responses not quantifiable as a specific 

biodegradation time estimate. 

(Stewart, Tr. 2790). 

357 Additionally, Dr. Stewart’s landline callers read 

ECM’s biodegradable in “some period greater 

than a year” disclaimer to respondents, and 

asked: “In your own words, what does this 

claim mean to you?” 

RX-602 at 20.

358 Although Dr. Stewart notably did not ask 

respondents to estimate biodegradation times, 

150 respondents still gave estimates. Of those 

respondents—and notwithstanding ECM’s 

disclaimer—50% (75 respondents) gave 

estimates of a year or less. 

(Stewart, Tr. 2804).

359 Notably, Dr. Stewart did not personally check 

the coding of the 400 responses his landline 

callers reported. 

(Stewart, Tr. 2798).

360 Stewart’s landline callers coded 95 responses as 

falling within the category 

“gone/decomposed/biodegrade in one year.” 

 

(Stewart, Tr. 2796).

RX-846 at 27.

361 Complaint Counsel located 75 responses that, 

when properly coded, fell within that category, 

and Dr. Stewart confirmed that the 75 

responses we identified fell within the category 

“gone/decomposed/biodegrade in one year.” 

(Stewart, Tr. 2800). 

362 Dr. Stewart was adamant that the 95 (Stewart, Tr. 2798).
62

respondents was “an accurate count” of those 

who gave responses properly coded as 

“gone/decomposed/biodegrade in one year”, 

that any errors by his coders were “highly 

unlikely”, and that the Court can rely on the 

figure he reported (95 respondents). 

(Stewart, Tr. 2798).

(Stewart, Tr. 2797).

363 However, Complaint Counsel could not locate 

the additional twenty “year or less” responses 

that Dr. Stewart alleges exist. 

See RX-844 (actual responses entered 

into evidence). 

364 Accordingly, at trial, Complaint Counsel asked 

Dr. Stewart to assume that there were only 75 

such responses. 

(Stewart, Tr. 2803). 

365 Before issuing the Green Guides, the 

Commission evaluated two existing studies 

concerning estimates of biodegradation time: 

APCO and Synovate. 

RX-348 at 122. 

366 The 2006 APCO study involved an 

approximately 1000-respondent telephone 

survey that focused primarily on plastic 

products. 

(Frederick, Tr. 1037).

CCX-860 at 7. 

367 Sixty percent of respondents stated that 

packages labeled “biodegradable” should 

biodegrade within one year or less. 

RX-597 at 2. 

368 In 2010, a company (EcoLogic) manufacturing 

a plastic additive similar to ECM’s product

engaged a survey firm (Synovate) to conduct a 

2000-respondent internet panel survey. 

(Frederick, Tr. 1046-1047). 

369 In the Ecologic/Synovate study, 25% stated that 

“less than one year” was a reasonable amount 

of time for a “biodegradable” package to 

decompose in a landfill. 

RX-673 at 4.

CCX-860 at 11. 

370 Professor Frederick opined that APCO and 

Synovate/Ecologic, taken together, provide 

reasonably reliable and valid evidence that at 

least a substantial minority of consumers 

believe plastic products labelled 

“biodegradable” will biodegrade in one year or 

less. 

(Frederick, Tr. 1041, 1059, 1180). 
63

371 In addition to referencing the concept of 

convergent validity generally, Professor 

Frederick testified that that APCO and 

Synovate have opposing biases. 

(Frederick, Tr. 1050, 1059).

372 Specifically, APCO’s response options 

suggested shorter biodegradation times, 

whereas Synovate’s response options suggested 

longer ones. Indeed, with respect to the 

presence of opposing biases, Dr. Stewart gave 

essentially identical testimony. 

(Frederick, Tr. 1050 (noting that 

Synovate suffers from a “similar type of 

problem” as APCO, but “in the opposite 

direction)).

(Frederick, Tr. 1419-1420 (same)).

(Stewart, Tr. 2515 (“So the same 

problem in terms of the use of the 

closed-ended format [in Synovate], 

same problem with respect to the bias 

and the options offered, but the nature of 

the bias would be in opposite direction, 

in an opposite direction from the APCO 

survey.”)).

(Stewart, Tr. 2520 (“[T]he same 

problem exists in the Synovate survey, 

except the nature of the bias is in the 

opposite direction[.]”)).

(Stewart, Tr. 2637 (same)). 

373 As Professor Frederick testified, the presence of 

opposing biases helps confirm the existence of 

convergent validity with respect to the 

conclusion that at least a substantial minority of 

consumers believe plastic products labelled 

“biodegradable” will biodegrade in one year or 

less. 

(Frederick, Tr. 1420 (explaining that 

“having different designs, especially 

with opposing biases, is actually a good 

thing for convergent validity”)). 

374 Thus, based on convergent validity, and viewed 

together (but without the benefit of either 

Professor Frederick’s research or Professor 

Stewart’s research), APCO and Synovate are 

sufficiently reliable and probative to establish 

that at least a substantial minority of consumers 

believe plastic products labeled 

“biodegradable” will biodegrade in one year or 

less. 

(Frederick, Tr. 1041, 1059, 1180). 

375 When he was deposed, after he wrote his expert 

report in this matter, Dr. Stewart was unfamiliar 

was the product at issue in this case (ECM 

Masterbatch Pellets). 

(Stewart, Tr. 2629). 
64

376 Dr. Stewart also never asked the central 

consumer perception question in this case: how 

much time will it take for plastic labeled 

“biodegradable” to biodegrade? 

(Stewart, Tr. 2629-2630). 

377 At trial, Dr. Stewart stated that he “was not 

interested in that specific issue.” 

(Stewart, Tr. 2630). 

378 He also denied (at trial) that this question was 

probative of the consumer perception in this 

case, although when asked in his deposition 

whether this question was “probative of the 

consumer perception question at issue in this 

case,” Dr. Stewart responded: “It certainly is.” 

(Stewart, Tr. 2630).

RX-843 at 126.

See also (Stewart, Tr. 2634)).

379 In Dr. Stewart’s survey, after respondents were 

on the phone for a considerable period 

answering questions about biodegradation 

generally, Dr. Stewart’s researchers asked a 

final series of questions. 

(Stewart Tr. 2698-2699). 

380 At the beginning of this series, respondents 

were asked: “Do you think that there are 

differences in the amount of time it takes for 

different products to biodegrade, decompose, or 

decay?” 

(Stewart, Tr. 2688).

RX-602 at 17. 

381 Unsurprisingly, almost everyone (98%) 

answered affirmatively. 

(Stewart, Tr. 2689).

RX-614 at 22. 

382 Next, those 98% who answered “yes” were 

asked to expound upon those differences: 

“What differences exist in the time for different 

types of products to biodegrade, decompose, or 

decay?” 

(Stewart, Tr. 2689).

RX-602 at 18. 

383 Immediately thereafter, respondents were asked 

to give their impressions of claims similar to 

ECM’s. 

(Stewart, Tr. 2689).

RX-602 at 19-21. 

384 They were not asked to estimate biodegradation 

times of products labelled “ECM 

biodegradable”; rather, they were merely asked: 

“In your own words, what does this claim mean 

to you?” 

(Stewart, Tr. 2796).

RX-602 at 19-21.

385 Thus, many respondents did not give specific 

estimates of biodegradation times, many gave 

RX-844 (full data set). 
65

“it depends”-type answers, many expressed 

confusion, and many gave answers with no 

direct bearing on this case (for instance, that 

ECM seems like a great product, or that they 

would be interested in learning more about 

ECM). 

386 Although, at trial, Dr. Stewart denied that this 

question series “put in the mind of survey 

respondents that there are differences in the 

amount of time it takes for different types of 

products to biodegrade, decompose, or decay,” 

in his deposition, Dr. Stewart offered this more 

candid response: “Well, I hope we did put that 

in their minds because we’re asking them 

whether or not they think there are those 

differences, yes or no.” 

(Stewart, Tr. 2689-2690).

RX-843 at 74. 

387 Dr. Stewart reported results showing that 

whether a package or product is biodegradable 

is important to 71% of respondents. Dr. 

Stewart interpreted this fact as establishing 

“that while consumers have a conceptual 

understanding of what biodegradability is, it is 

not material to a sizeable minority of 

consumers.” Of course, it is material to a 

sizeable majority. 

RX-856 at 24. 

RX-856 at 24. 

388 The correct number from Dr. Stewart’s data is 

75%, not 71%. 

Compare RX-856 at 24 with RX-614 at 

10. 

389 Dr. Stewart conducted an anachronistic landline 

survey, thereby excluding from the outset the 

40% of the population that no longer has a 

landline. 

(Stewart, Tr. 2687).

(Frederick, Tr. 1086).

CCX-865 at 4.

400 Dr. Stewart’s survey was neither 

psychographically nor demographically 

representative. From a psychographic 

perspective, relatively few consumers are 

willing to take a telephone survey lasting as 

long as twenty minutes without compensation; 

indeed, although Dr. Stewart’s callers 

eventually located 400 participants, more than 

4,000 hung up the phone when the callers 

introduced themselves (before they could even 

ask them whether the potential respondent was 

willing to participate in a survey). 

(Stewart, Tr. 2703-2704).

(Stewart, Tr. 2698-2699). (Frederick, 

Tr. 1090-91). (Frederick, Tr. 1391). 

401 Because people willing to participate in this 

sort of survey likely have different opinions and 

(Frederick, Tr. 1391, 1395-1396). 
66

attitudes than the population at large, Professor 

Frederick testified that landline surveys are less 

psychographically representative than GCS and 

other methods. 

402 Regarding demographics, Dr. Stewart admitted 

that “landline surveys tend to overrepresent 

older Americans[.]” 

(Stewart, Tr. 2725).

See also (Frederick, Tr. 1086). 

403 In fact, a 58% of Dr. Stewart’s respondents 

were age 50 and older.

(Stewart, Tr. 2728). 

404 In reality, only 40% of the population consists 

of persons 15 and above (based on 2010 census 

data ECM offered into evidence). Specifically, 

according to ECM’s data, the total population is 

approximately 308,746,000. Of those persons, 

approximately 61,277,000 are under age 15, 

leaving a population age 15 an older of 

247,519,000. Of that group, approximately 

99,048,000 are age 50 and above. Accordingly, 

persons aged 50 and above represent only 40% 

of persons age 15 and above 

(99,048,000/247,048,000 = .40). 

See RX-867. 

405 Thus, Dr. Stewart oversampled older 

Americans, which—as he admitted—means 

undersampling Hispanics and other minorities, 

because older Americans are disproportionately 

white. 

(Stewart, Tr. 2728-2729). 

406 Dr. Stewart also excluded consumers below age 

18, even though he conceded that someone as 

young junior high school-age “might walk into 

a convenience store and purchase a bottle of 

water,” and “that purchasing decision could be 

influenced by the word ‘biodegradable’ on 

some of the bottles, but not [] others.” 

(Stewart, Tr. 2720). 

407 He testified only that he was “interested” in 

researching the opinions of consumers who had 

reached majority status. 

(Stewart, Tr. 2720). 

408 Intentionally left blank

409 Omitting consumers under 18 is significant 

because—as Dr. Stewart also conceded— (Stewart, Tr. 2723). 
67

consumers may have different opinions about 

the importance of purchasing environmentallyfriendly products than older Americans, 

different levels of cognitive development, and 

different understandings of what 

“biodegradable” means. 

410 Dr. Stewart also conducted a ten-respondent 

pilot survey of ECM’s customers, but ECM 

elected not to conduct a full-scale study, and 

(on direct examination) he emphasized that no 

one should “make any statistical inferences 

based on only ten respondents.” 

(Stewart, Tr. 2587).

(Stewart, Tr. 2588). 

411 In the manufacturer’s pilot study, ECM defined 

the pool of companies and the particular 

persons at those companies whom Dr. 

Stewart’s researchers could contact. 

(Stewart, Tr. 2637-2639).

412 Notwithstanding the fact that Dr. Stewart’s 

researchers spoke only with ten people ECM 

nominated, three of the ten respondents gave 

either responses that were less than a year or 

referenced tests (ASTM D5511 and D6400) 

that are run for less than a year. 

(Stewart, Tr. 2644-2647).

RX-849 at 5.

413 A fourth respondent said “1-3 years.” RX-849 at 5.

414 Dr. Tolaymat did not represent the interest of 

the EPA in this matter. (Tolaymat, Tr. 121).

415 Dr. Tolaymat testified that plastics made with 

the ECM additive will not biodegrade 

completely in five years or less under ordinary 

U.S. landfill conditions. 

(Tolaymat, Tr. 121, 122).

416 Dr. Tolaymat testified that typical U.S. landfills 

are too dry, too cool, and have too little oxygen 

to enable ECM plastics to completely 

biodegrade within five years or less. 

(Tolaymat, Tr. 122-24).

417 Dr. Tolaymat testified that aerobic 

biodegradation occurs at a faster rate than 

anaerobic biodegradation. 

(Tolaymat, Tr. 130).

418 Dr. Tolaymat testified that anaerobic 

decomposition results in the production of 

methane and carbon dioxide. 

(Tolaymat, Tr. 137).

419 Dr. Tolaymat testified that most U.S. landfills 

are required by federal regulations to operate 

with oxygen content below 5%. 

(Tolaymat, Tr. 137-139) (describing 

affects of EPA regulations on landfill 

oxygen levels).

420 Dr. Tolaymat testified that typical U.S. landfills 

operate at mesophilic temperatures. 

(Tolaymat, Tr. 139, 140).

421 Dr. Tolaymat testified that typical U.S. (Tolaymat, Tr. 142, 143).
68

municipal solid waste landfills are generally 

referred to as “dry tomb” or Subtitle D landfills. 

422 Dr. Tolaymat testified that “dry tomb” or 

Subtitle D landfills constitute approximately 

98% of all landfills in the U.S. 

(Tolaymat, Tr. 143).

423 Dr. Tolaymat testified that moisture content in 

typical U.S. landfills is between 15-30%. 

(Tolaymat, Tr. 145).

424 Dr. Tolaymat testified that the vast majority of 

Subtitle D landfills have low moisture content. 

(Tolaymat, Tr. 147).

425 Dr. Tolaymat testified that federal regulations 

prohibit bulk liquid introduction in landfills, 

which makes decomposition in landfills 

extremely slow. 

(Tolaymat, Tr. 142-45).

426 Dr. Tolaymat testified that leachate 

recirculation does not significantly increase a 

landfill’s moisture content. 

(Tolaymat, Tr. 147).

427 Dr. Tolaymat testified that the rate of 

biodegradation in Subtitle D landfills is slower 

than the rate of biodegradation in bioreactor 

landfills. 

(Tolaymat, Tr. 148).

428 Dr. Tolaymat testified that decay constant is the 

rate at which organic matter is converted to 

methane and carbon dioxide. 

(Tolaymat, Tr. 148).

429 Dr. Tolaymat testified that decay constants 

provide an estimate of how quickly materials 

decompose in an anaerobic environment. 

(Tolaymat, Tr. 148, 149).

430 Dr. Tolaymat testified that half-lives provide an 

estimate of how quickly it takes for half of 

organic material to decompose. 

(Tolaymat, Tr. 149, 150).

431 Dr. Tolaymat testified that plastic waste 

generally does not degrade. 

(Tolaymat, Tr. 154, 155).

432 Dr. Tolaymat testified that the most 

biodegradable material would not completely 

biodegrade in a landfill within 5 years even 

under optimum conditions for biodegradability. 

(Tolaymat, Tr. 153-56) (discussing halflives and decay rates of various types of 

waste).

433 Dr. Tolaymat testified that the liner system, 

leachate collection system, gas collection 

system, covering layers, and closure and post- closure procedures for landfills collectively 

reduce the moisture content, oxygen content, 

and temperature of landfills. 

(Tolaymat, Tr. 156-62).

434 Dr. Tolaymat testified that approximately 2% 

of all U.S. landfills have been permitted by the 

EPA to operate as bioreactors. 

(Tolaymat, Tr. 164).

435 Dr. Tolaymat testified that the EPA defines 

bioreactors as Subtitle D landfills that have 

40% moisture content or higher and that 

exclude leachate recirculation and gas 

condensate. 

(Tolaymat, Tr.165).

436 Dr. Tolaymat testified that municipal solid 

waste would not completely biodegrade in a 

bioreactor landfill within 5 years, regardless of 

how the term bioreactor is defined. 

(Tolaymat, Tr. 168, 169).
69

437 Dr. Tolaymat testified that ECM testing data 

are not competent and reliable evidence that 

ECM plastics will fully biodegrade in five years 

or less in most landfills. 

(Tolaymat, Tr. 169).

438 Dr. Tolaymat testified that the Biochemical 

Methane Potential (“BMP”) test can provide 

competent and reliable evidence of 

biodegradation in landfills. 

(Tolaymat, Tr. 171).

439 Dr. Tolaymat testified that weight loss is not a 

good or accurate measurement of 

biodegradation. 

(Tolaymat, Tr. 172, 173).

440 Dr. Tolaymat testified that the Environ study 

relied on by ECM contains at least five flaws 

that individually make the study not competent 

and reliable evidence in support of ECM’s 

claims. 

(Tolaymat, Tr. 183-7) (explaining that 

the study has flawed methodology and 

does not replicate typical landfill 

conditions).

441 Dr. Tolaymat testified that the McClaren/Hart 

study relied on by ECM contains at least five

flaws that individually make the study not 

competent and reliable evidence in support of 

ECM’s claims. 

(Tolaymat, Tr. 187-96) (explaining that 

the study has flawed methodology and 

does not replicate typical landfill 

conditions).

442 Dr. Tolaymat testified that the OWS 

Composting study relied on by ECM contains 

at least two flaws that individually make the 

study not competent and reliable evidence in 

support of ECM’s claims. 

(Tolaymat, Tr. 198-202) (explaining that 

the study has flawed methodology and 

does not replicate typical landfill 

conditions).

443 Dr. Tolaymat testified that the ASTM D5511 

tests relied on by ECM contains are not 

competent and reliable evidence in support of 

ECM’s claims. 

(Tolaymat, Tr. 202-9) (explaining that 

the tests have flawed methodology and 

do not replicate typical landfill 

conditions).

444 Dr. Tolaymat testified that the Ecologica report 

relied on by ECM contains is not competent 

and reliable evidence in support of ECM’s 

claims. 

(Tolaymat, Tr. 209-11) (explaining that 

the study has implausible data and 

insufficient information on 

methodology).

445 Dr. Tolaymat testified that the tests relied on by 

ECM identified in Appendix A of his expert 

report are not competent and reliable evidence 

in support of ECM’s claims. 

(Tolaymat, Tr. 211-12) (explaining that 

the tests have flawed methodology and 

generally do not replicate typical landfill 

conditions).

446 Dr. Tolaymat testified that lysimeter tests can

provide competent and reliable evidence of 

biodegradation in landfills. 

(Tolaymat, Tr. 221, 354, 355).

447 Dr. Tolaymat testified that it is inappropriate 

for a scientist to deviate from the D5511 

protocol and then claim to have followed the 

protocol. 

(Tolaymat, Tr. 250-54).

448 At least a substantial number of consumers 

extrapolate rate and extent information 

concerning biodegradation times.

(CCX-860 at 18-19). 

449 The evidence shows that at least 52

biodegradation studies have been conducted a 

variety of plastics containing ECM Additive. 

CCX-153, 154, 157, 160, 161, 162, 164, 

169, 173, 582, 590, 595, 669, 672, 741, 

742, 743, 929, 946, 947, 952, 954, 970, 
70

1071, 1097

RX-248, 261, 262, 264, 265, 269, 270, 

271, 273, 274, 275, 276, 278, 352, 371, 

394, 395, 398, 401, 402, 403, 406, 835, 

836, 838, 861, 862

450 Of these 52 biodegradation studies of ECM 

Plastic, only 5 were conducted at 37oC. CCX-164, 590, 946, 947, 952

451 Fourteen (14) tests were “qualitative tests” such 

as SEM, GPC, weathering, and toxicity tests. 

CCX-153, 161, 162, 169, 173, 582, 954

RX-264, 269, 270, 271, 274, 275, 278,

406, 835, 861

452 The SEM studies were not conducted by ECM, 

and there is no information in the record 

regarding who prepared the samples, how, with 

what load rate, duration of the test prior to 

examination, or any other details that enable a 

scientist to evaluate the information.

RX-270, 271, 278

453 The studies showing no biodegradation were 

conducted by independent or reputable labs, 

were well-documented, and included other 

necessary information (e.g., statistical 

information) necessary to interpret the results.

(McCarthy, Tr. 465-470);

CCX-164 (Ohio State University); 

CCX-174-CCX-176 (Stevens Ecology);

CCX-173 (Advance Materials Center); 

CCX-156; CCX-157; CCX-163; CCX169-CCX-171 (O.W.S.)

454 None of the biodegradation studies supports 

ECM’s claims, and in fact disprove them. CCX-891 ¶¶ 68-72; CCX-891 ¶¶ 75-88; 

(McCarthy, Tr. 453-455)

455 Drs. McCarthy, Michel, Sahu, and Barlaz 

concur that 14C radiolabeling would provide 

strong, and perhaps definitive, evidence that the 

plastic, and not just the additive, is 

biodegrading. 

CCX-891 ¶¶ 59-60; CCX-895 at 12, 15; 

RX-855 at 47; RX-853 at 9.

456 ECM’s consumer perception expert, Dr. David 

Stewart, was unaware of any reason why a 

manufacturer would purchase the additive other 

than to make its products biodegradable, and 

his own consumer survey found that 71% of 

respondents believe that whether a product is 

biodegradable is important.

(Stewart, Tr. 2643). 

RX-856 at 27.

457 Yale Marketing Professor Shane Frederick 

concurred that biodegradable claims “affect 

consumer decisions.”

CCX-865 at 15.

458 Sinclair testified that ECM used the “nine 

months to five years” claim only to distinguish 

its product from faster-degrading compostable 

material. However, although Mr. Sinclair 

offered this dubious story when deposed,

CCX-818 at 77-79

459 Although there are a few instances in which a 

customer suggested that it did not consider 

biodegradation time, the overwhelming 

majority of the evidence supports the opposite. 

For example, in a candid moment, ECM CEO 

Robert Sinclair admitted to customer Westchem 

CCX-423 at 9;

CCX-282 at 2 (asking various questions 

about “degradable timing,” including 

whether “adding more [additive]” would 

accelerate the “degradable effect”); 
71

Group: “Lots of people get hung up on how 

long.”

CCX-281 at 2 (requesting test results 

demonstrating the “progress of 

decomposition during a certain time 

span (a couple years)”); CCX-279 at 3 

(expressing concern about “the ability to 

claim without exception the speeded up 

breakdown”); CCX-280 at 3 (“We do 

have some nagging concerns that we 

need to resolve. The first question is 

‘how long does it take to degrade.’”); 

CCX-300 at 1 (“Does ECM test, or 

recommend testing, the end-users’ 

products to ensure that they biodegrade 

in less than 5 years?”); CCX-269 at 1 

(“What determines 9 months vs 5 years 

as it is such a variance?”); CCX-400 at 4 

(asking ECM precisely how much 

additive it needed to use in its products 

use “to meet your stated degradation 

timeframe of 9 months to 5 years”). 

460 Other ECM customers demonstrated the 

importance the timeframe had to them by 

reiterating it to their prospective customers.

CCX-811 at 22 (agreeing that 

“[b]ecause the prospective customers 

were interested in purchasing 

biodegradable plastic, IPB thought that 

the fact that . . . plastic products made 

with ECM additives would fully 

biodegrade in nine months to five years 

would be important to them”); CCX-33 

(EarthAware Films; repeating “nine 

months to five years” in marketing 

literature); CCX-34 (EarthAware Films; 

repeating “nine months to five years” in 

memorandum to its distributors); CCX37 (BioPVC, repeating “nine months to 

five years” on website); CCX-53 

(Gilman Brothers; stating product would 

degrade in one to five years in 

marketing material); CCX-57 (Kappus 

Plastics; marketing materials stated in 

bold that its product “will break down 

in approximately 9 months to 5 

years”) (emphasis in original); CCX102 (BioMugs; “This BioMug is made 

of a unique plastic that renders it 

biodegradable in 1-5 years.”); CCX-105 

(Plascon Films; repeating “nine months 
72

to five years” in advertisement).

461 after informing potential customers that its 

ECM Plastic allegedly would degrade in “9 

months to 5 years,” one customer’s marketing 

materials exclaimed: “We think you’ll agree 

that this is an environmental bargain. . . 

especially when compared to the unknown 

breakdown time of other modern plastic 

materials!”

CCX-38 at 1 (ellipses in original).

462 Down To Earth asked ECM about using 

language that included “nine months to five 

years” on its grocery bags. ECM responded 

with general approval – not befuddlement or 

confusion as to why anyone would want to put 

that claim on packaging for end-use consumers. 

(approving the use of “nine months to five 

years” on another customer’s marketing). 

CCX-307; see also CCX-1095

463 Down To Earth’s supplier, Island Plastic Bags 

(“IPB”), manufactured ECM Plastic bags 

reflecting the “nine months to five years” claim 

for “50 to 100” different customers. 

CCX-811 (Hong, Tr. 57)

464 In total, IPB alone manufactured “about 10 

million” such bags.

CCX-811 (Hong, Tr. 99).

465 The claim “nine months to five years” helps 

ensure that consumers believe the 

“biodegradable” claim. Indeed, as IPB 

explained, its bags contain the “nine months to 

five years” language because “we want people 

[consumers] to know” how the product 

biodegrades, “so that they feel like this is an 

actual technology . . . it’s for real.” Put 

differently, IPB wanted consumers to have 

details regarding the biodegradation process, 

including the timeframe, “so that they would 

understand that the bags would . . . work as 

advertised[.]

CCX-811 (Hong, Tr. 54-55). 

466 Packaging manufacturer FP International 

testified that it conveyed to its potential 

customers that its “CELL-O air cushions will 

decompose completely within 9 to 60 months 

in the presence of microorganisms whether they 

are sent to a landfill or end up as litter in the 

soil” because “[i]t was important to convey a 

message of biodegradability.”

CCX-810 (Blood, Tr. 24-25).

467 The fact that ECM Plastic biodegrades quickly 

was so important that ECM required its 

customers to sign a so-called “Certificate of 

Minimum Loading” in which the customer 

acknowledges that “ECM’s reputation can be 

materially and, perhaps, irreparably damaged 

when products claiming to use ECM 

MasterBatch Pellets fail to biodegrade within a 

reasonable time

(Sinclair, Tr. 765), (CCX-832)
73

468 ECM further required that its customers certify: 

“we are fully aware [of] the risk that a [] plastic 

product will not fully biodegrade within a 

reasonable period of time if it contains less 

than one percent” of ECM’s Additive. 

(CCX-832) (emphasis added). 

469 Although ECM generally did not communicate 

with end-use consumers, one consumer who 

received a “biodegradable shopping bag” 

tracked down ECM and asked: “[I]n a landfill 

situation, would the bag be 100% broken down 

in XX years, or 50% within XX months.” Mr. 

Sinclair responded: “The timeframe for 

biodegradation is generally-speaking 9 months 

to five years[.]” 

CCX-326

470 This anaerobic sludge from wastewater 

(sewage) treatment plants is what many of the 

labs used to conduct this test. 

CCX-805 at 69 (Eden Labs Dep., lines 

21-23).

See also CCX-669 at 1 (Northeast Labs 

report indicating test inoculum sourced 

from Mattabasset Waste Treatment 

Facility).

471 Dr. Barlaz concedes that only about 10% of all 

landfills are bioreactors. 

RX-853 at 5.

472 Dr. Stewart admitted that “information 

conveyed to respondents earlier in a survey can 

affect their answers to later questions[.]” 

(Stewart, Tr. 2689)

473 Dr. Stewart also increased consumer confusion 

by asking end-use consumers to interpret 

“biodegradable” claims that included technical 

language such as “one percent load” and 

“plastic resins.” __ 

RX-602.

(Stewart, Tr. 2775-76).

474 He agreed that most consumers would not 

know what these terms meant, and that such 

claims never reached end use consumers. _ 

(Stewart, Tr. 2775-76).

475 Mr. Sinclair maintains that the Green Guides 

were revised as a result of influence from the 

“corn lobby.”

(Sinclair Tr. 1702).

476 None of the samples in Eden Lab’s tests of 

plastics containing 1% ECM additives fully 

degraded.

(Poth, Tr. 1490-1491 (stating that the 

witness had concerns about turning over 

Eden’s ECM testing, and that the 

samples in the tests located had not 

totally degraded)).

477 Dr. Stewart also did not ask consumers any 

relevant variant, such as how much time would 

it take for plastic labeled “ECM biodegradable” 

to biodegrade?

(See RX-847). 
74

II. Proposed Conclusions of Law

A. Burden of Proof

1. The parties’ burdens of proof are governed by Federal Trade Commission (“FTC”) Rule 

3.43(a), Section 556(d) of the Administrative Procedure Act (“APA”), and case law. 

FTC Rules of Practice, Interim rules with request for comments, 66 Fed. Reg. 17,622, 

17,626 (Apr. 3, 2001). Pursuant to Commission Rule 3.43(a), “[c]ounsel representing the 

C ommission ... shall have the burden of proof, but the proponent of any factual 

proposition shall be required to sustain the burden of proof with respect thereto.” 16 

C.F.R. § 3.43(a). Under the APA, “[e]xcept as otherwise provided by statute, the 

proponent of a rule or order has the burden of proof.” 5 U.S.C. § 556(d).

2. “It is well established that the preponderance of the evidence standard governs FTC 

enforcement actions.” Daniel Chapter One, Docket No. 9329, 2009 FTC LEXIS 157, at 

*134-35 (Aug. 5, 2009) (initial decision) (citing Telebrands Corp., 140 F.T.C. 278, 426 

(2004) (initial decision), aff’d., 140 F.T.C. 278 (2005), aff’d., 457 F.3d 354 (4th Cir. 

2006); Automotive Breakthrough Sciences, Inc., 126 F.T.C. 229, 306 n.45 (1998)) (other 

citations omitted), aff’d, (FTC Dec. 24, 2009), aff’d., 405 F. App’x. 505 (D.C. Cir. Dec. 

10, 2010), cert. denied, 131 S. Ct. 2917 (May 23, 2011). 

B. Jurisdiction

3. The acts and practices charged in the Complaint in this matter took place in or affecting 

commerce within the meaning of the Federal Trade Commission Act, as amended. 15 

U.S.C. § 41 et seq. Nationwide advertising, marketing, or sales activity of the sort that 

ECM engaged in constitutes “commerce” under the FTC Act. See, e.g., P.F. Collier & 

Son Corp. v. FTC, 427 F.2d 261, 272 (6th Cir. 1970); Ford Motor Co. v. FTC, 120 F.2d 

175, 183 (6th Cir. 1941) (noting that commerce also includes the actions, 

communications, and other acts or practices that are incident to those activities).

4. The Commission has jurisdiction over persons, partnerships, and corporations. 15 U.S.C. 

§ 45(a)(2). A “corporation” is defined in Section 4 of the FTC Act as “any company . . . 

which is organized to carry on business for its own profit or that of its members[.]” 15 

U.S.C. § 44. Therefore, the Commission has jurisdiction over ECM. 

5. The Complaint charges ECM with violating Section 5 of the FTC Act. Section 5(a) 

provides that “unfair or deceptive acts or practices in or affecting commerce are hereby 

declared unlawful.” 15 U.S.C. § 45(a)(1).

6. ECM’s challenged forms of marketing constitute alleged deceptive acts or practices 

within the scope of Section 5 of the FTC Act, 15 U.S.C. § 45.

C. ECM Made Deceptive Advertising Claims.

7. 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 
75

representation or omission is material to a consumer’s purchasing decision. In re POM 

Wonderful LLC, No. 9344, 2013 FTC LEXIS 6 at *17-18 (FTC Jan. 10, 2013) (citing 

FTC Policy Statement on Deception, 103 F.T.C. 174, 175 (1984) (appended to Cliffdale 

Assocs., Inc., 103 F.T.C. 110 (1984)) (“Deception Statement”)).

8. To evaluate whether an advertisement is deceptive, the Commission applies a three-part 

inquiry as to: “(1) what claims are conveyed in the advertisement; (2) are those claims 

false or misleading; and (3) are those claims material to prospective consumers.” Kraft, 

Inc. v. FTC, 970 F.2d 311, 314 (7th Cir. 1992). 

9. ECM violated Section 5 of the FTC Act because a preponderance of evidence shows: 

(1) respondent disseminated advertisements conveying the claims alleged in the 

complaint; (2) the claims were false or misleading; and (3) the claims are material to 

consumers. 

ECM Disseminated Advertisements Conveying The Claims Alleged In The Complaint.

10. ECM’s customers received the claims through ECM’s website and myriad promotion 

materials, e.g., brochure, flyers, technical data sheets, technology summaries, Certificate, 

testing, and presentations. FOF ¶¶ 46, 63, 65-66.

11. End-use consumers received these claims both directly through ECM’s website and 

through the means and instrumentalities ECM provided to its customers. FOF ¶¶ 107-

108, 24-25. 

12. Advertising claims may be express or implied. “Express claims directly represent the 

fact at issue while implied claims do so in an oblique or indirect way.” Kraft, 970 F.2d at 

318 (citing Thompson Medical, 104 F.T.C. 648,788 (1984)).

13. The ALJ has the authority to rule as to the conveyed meaning of advertisements and 

promotional materials based on a facial analysis of these advertisements or promotional 

materials. Automotive Breakthrough Sciences, Inc., Docket Nos. 9275-77, 1996 FTC 

LEXIS 252, at *44, (partial summary decision May 22, 1996) (citing Kroger Co., 98 

F.T.C. 726, 729 n.11 (1981); Ford Motor Co., 87 F.T.C. 756, 794-97 (1976)). 

14. “The courts and the FTC have recognized consistently that implied claims fall along a

continuum, from those which are so conspicuous as to be virtually synonymous with 

express claims, to those which are barely discernible.” FTC v. Febre, No. 94 C 3625, 

1996 U.S. Dist. LEXIS 9487, at *14 (N.D. Ill. July 3, 1996) (citing Kraft, Inc., v. FTC, 

970 F.2d at 319) (magistrate judge’s recommendation), adopted by 1996 U.S. Dist. 

LEXIS 14297 (N.D. Ill. Sept. 25, 1996), aff’d, 128 F.3d 530 (7th Cir. 1997); see also 

FTC v. Bronson Partners, LLC, 564 F. Supp. 2d 119, 127-28 (D. Conn. 2008) (an 

advertisement’s statements were “so clear, repetitive, and unambiguous that they 

constitute[d] the functional equivalent of express claims”), aff’d, 654 F.3d 359 (2d Cir. 

2011).

15. “If the advertisement explicitly states or clearly and conspicuously implies a claim, the 

court need not look to extrinsic evidence to ascertain whether the advertisement made the 
76

claim.” FTC v Nat’l Urological Group, Inc., 645 F. Supp. 2d at 1189; see also FTC v. 

Colgate-Palmolive Co., 380 U.S. at 391-92 (stating that the FTC is not required to 

conduct consumer surveys before determining that a commercial has a tendency to 

mislead); Kraft, Inc. v. FTC, 970 F.2d at 320 (“[W]hen confronted with claims that are 

implied, yet conspicuous, extrinsic evidence is unnecessary because common sense and

administrative experience provide the Commission with adequate tools to make its 

findings. [citations omitted]. The implied claims Kraft made are reasonably clear from 

the face of the advertisements, and hence the Commission was not required to utilize 

consumer surveys in reaching its decision.”).

16. In considering the net impression of an advertisement, the Commission does “not require 

that all consumers reading or viewing it be sophisticated experts in interpreting the 

nuances of the English language.” Thompson Med. Co., 104 F.T.C. at 792 (“We look at 

how such individuals actually interpret advertisements in a real-life situation, not at how 

they would if they had sufficient time and incentives attentively to review the ads so as to 

come up with the most semantically correct interpretation of them.”).

17. Commission law recognizes that advertisements may be susceptible to more than one 

reasonable interpretation. Kraft, Inc., 114 F.T.C. at 120-21 n.8; Thompson Med. Co., 104 

F.T.C. at 789 n.7. “Statements susceptible of both a misleading and a truthful 

interpretation will be construed against the advertiser.” FTC v. Bronson Partners, LLC, 

564 F. Supp. 2d at 127 n.6 (quoting Country Tweeds, Inc. v. FTC, 326 F.2d 144, 148 (2d 

Cir. 1964)). 

18. ECM repeatedly made four express claims: (1) ECM Plastics will biodegrade 

completely; (2) in nine months to five years; (3) in a landfill; and (4) scientific testing 

proves these claims. (SOF ¶¶18, 26-29; 31; 32; 33; 44-48; 50). 

19. When claims are express, one can “infer that reasonable consumers interpret them to 

mean what they say.” FTC v. USA Beverages, Inc., No. 05-61682-CIV, 2005 U.S. Dist. 

LEXIS 39075, at *16-17 (S.D. Fla. Dec. 5, 2005); accord FTC v. Pantron I Corp., 33 

F.3d 1088, 1096 n. 21 (9th Cir. 1994). These express claims are clear on their face. 

Accordingly, no further analysis is necessary to determine that ECM made these claims 

and that its customers and consumers reasonably understood them to mean what they 

said. Pantron I at 1088.

20. While under investigation by the FTC, ECM changed its primary advertising claim to 

“biodegradable in some time greater than a year.” (SOF ¶38). ECM also continued to 

prominently claim that ECM Plastic was “biodegradable” both on its website and in its 

brochure. (SOF ¶¶ 39-43). This advertising made three implied claims: (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.

21. “Extrinsic evidence is unnecessary to establish the impression that consumers would take 

away from an ad if the claims are reasonably clear from the face of the advertisement.” 

In re POM Wonderful LLC, 2013 FTC LEXIS 6 (F.T.C. Jan. 10, 2013). 
77

22. When the possibility of deception is as self-evident as it is in this case, we need not 

require the State to 'conduct a survey of the . . . public before it [may] determine that the 

[advertisement] had a tendency to mislead.” Zauderer v. Office of Disciplinary Counsel, 

471 U.S. 626, 652-53 (1985). 

23. “[T]he Commission may rely on its own reasoned analysis to determine what claims, 

including implied ones, are conveyed in a challenged advertisement, so long as those 

claims are reasonably clear from the face of the advertisement.” Kraft, Inc. v. FTC, 970 

F.2d 311, 319 (7th Cir. 1992); see also POM Wonderful, 2013 FTC LEXIS *44 (“In this 

case, extrinsic evidence is not required because the establishment claims are in fact 

apparent from the overall, common-sense, net impression of the words and images of the 

advertisements themselves.”). 

24. If a substantial number of consumers interpret an advertisement as conveying an implied 

claim, then the requirement that the advertisement convey the claim is satisfied. See, e.g., 

Benrus Watch Co., Inc. v. FTC, 352 F.2d 313, 319-20 (8th Cir. 1965) (“substantial 

percentage”); Raymond Lee Org., Inc., 92 F.T.C. 489, 649 (1978) (“substantial 

numbers”), aff'd, 679 F.2d 905 (D.C Cir. 1980); In the Matter of The Kroger Co., 98 

F.T.C. 639, 728 (1981) (“some reasonably significant number”), modified on other 

grounds, 100 F.T.C. 573 (1982); Travel King, Inc., 86 F.T.C. 715, 759 (1975) 

(“substantial numbers”); Bristol-Myers Co., 85 F.T.C. 988, 744 (1975) (“substantial 

numbers”); Statement of Basis and Purpose for the Funeral Industry Practices Rule, 47 

Fed. Reg. 42.260, 42,274 (1982) (“substantial segment”); Statement of Basis and Purpose 

for the Cigarette Rule, 29 Fed. Reg. 8325, 8360 (1964) (“substantial segment”). 

25. Although the Commission has never determined the minimum number of consumers 

necessary to constitute a “substantial number,” Courts and the Commission have found 

repeatedly that percentages ranging from 10% to 22% are sufficient. See, e.g., In the 

Matter of Telebrands Corp., 140 F.T.C. 278, 325 (10.5% is substantial); Firestone Tire 

& Rubber Co. v. FTC, 481 F.2d 246, 249 (6th Cir. 1973) (“We find it hard to overturn the 

deception findings of the Commission if the ad thus misled 15% (or 10%) of the buying 

public.”) (emphasis added); In the Matter of Am. Home Prods., 98 F.T.C. 136, 394 (1981) 

(finding, based in part on a study showing that 22% of respondents identified 

“tension/nervous” tension” as a symptom relieved by Anacin, that Anacin’s advertising 

“convey[ed] a strong message that Anacin relieves anxiety, stress and other mood 

problems entirely apart from its function as a pain reliever”); In the Matter of Benrus 

Watch Co., 64 F.T.C. 1018, 1045 (1964) (“Moreover, even if the study does show 86% 

nondeception as assumed by the examiner, which it does not, this still leaves 14 percent

of the prospective purchasers who may be deceived, and, of course, these are entitled to 

protection.”) (citation omitted) (emphasis added), aff’d, Benrus Watch Co. v. FTC, 352 

F.2d 313, 319-20 (8th Cir. 1965) (“[W]e think that the Examiner and the Commission 

were justified in concluding that list prices still indicate actual regular retail prices to a 

substantial percentage of the watch buying public, a percentage that is entitled to 
78

protection from deceptive preticketing.”); see also In the Matter of Bristol-Myers Co., 85 

F.T.C. 688, 745 (1975) (finding 2-4% “patently insubstantial”). 

26. Although not using the technical term “convergent validity,” both the Commission and its 

ALJs have recognized that the convergence of results from different consumer perception 

studies confirms that they are “reasonably reliable and probative.” See In the Matter of 

Bristol-Myers Co., 85 F.T.C. 688, 744 n.2 (1975) (noting the fact that different “surveys 

are from independent sources and tend to confirm one another” is relevant to whether 

surveys are reasonably reliable and valid); In the Matter of Thompson Med. Co., 104 

F.T.C. 648, 836 n.82 (“The consistency of this finding across both studies should have 

been a warning signal to Thompson that potential consumers might be confused about the 

ingredients of Aspercreme.”); In the Matter of Am. Home Prods., 98 F.T.C. 136, 252 

(noting that “[t]he fact that these studies generated consistent results over a relatively 

short period of time (three to four years) enhances their reliability”) (ALJ op.).

27. Courts have also recognized “convergent validity” in other contexts. See, e.g., United 

States v. Montgomery, No. 2:11–cr–20044–JPM–1, 2014 WL 1516147, 53 (W.D. Jan. 28, 

2014) (“the Court is guided by the principle of ‘convergent validity’” when evaluating 

testing for intellectual disability); K.S. ex rel. P.S. v. Fremont Unified Sch. Dist., 679 

F.Supp.2d 1046, 1060 (N.D. Cal. 2009) (rejecting argument that ALJ erred by relying on 

testimony of an expert who employed a “convergent validity” approach); cf. Grigsby v. 

Mabry, 758 F.2d 226, 237 (8th Cir. 1985) (“The consistency over a wide range of survey 

methods and respondents is impressive.”). 

28. A factfinder can draw valid conclusions from several studies even when the individual 

“studies could not, standing alone, serve as a basis for any conclusion.” Am. Home 

Prods., 98 F.T.C. at 253. 

29. “[N]o survey is perfect.” Selchow & Righter Co. v. Decipher, Inc., 598 F. Supp. 1489, 

1502 (E.D. Va. 1984).

30. Survey evidence need not be perfect, as long as it is “reasonably reliable and probative.” 

See, e.g., In re POM Wonderful LLC, 2013 FTC LEXIS 6, 49 (Jan. 10, 2013) (“The 

Commission does not require methodological perfection before it will rely on a copy test 

or other type of consumer survey, but looks to whether such evidence is reasonably 

reliable and probative.”) (citations omitted); In re Telebrands Corp., 140 F.T.C. 278, 324 

(2005) (“[C]opy tests do not have to be flawless to be reasonably reliable and 

probative.”) (citation omitted); In the Matter of Novartis Corp., 127 F.T.C. 580, 699 n.24 

(“While a given study may be flawed in some respects, it still can be probative, and any 

deficiencies simply will affect the weight given to the evidence.”) (citation omitted); In 

the Matter of Stouffer Foods Corp., 118 F.T.C. 746, 807 (1994) (“Perfection is not the 

prevailing standard for determining whether a copy test may be given any weight. The 

appropriate standard is whether the evidence is reliable and probative.”).

31. Professor Frederick defined a valid survey as “one which produces accurate results,” 

which is consistent with the Commission’s standard, which looks to whether a survey is 

reasonably reliable and probative. 
79

32. Although federal courts sometimes use The Manual for Complex Litigation to guide their 

analysis of survey evidence, that manual merely points to various indicia of a probative 

survey (for instance, whether the questions are clear, and whether the data gathered were 

accurately reported). The Commission has never employed The Manual for Complex 

Litigation to guide its analysis of survey research, although the various considerations 

this treatise references are entirely consistent with an inquiry into whether a survey is 

reasonably reliable and probative. Indeed, under the Commission’s authority, any 

consideration relevant to whether a survey is reasonably reliable and probative is 

relevant. 

33. Although a claim is not deceptive if it is “unreasonably misunderstood by an insignificant 

and unrepresentative segment” of consumers, Deception Statement, 103 F.T.C. at 178 

(quoting In re Kirchner, 63 F.T.C. 1282, 1290 (1963), aff’d, 337 F.2d 751 (9th Cir. 

1964)) (emphasis added), there is no evidence that consumers who believe a product 

could biodegrade within days or weeks are have an unreasonable misunderstanding—

especially when the product at issue is one labelled “biodegradable.” With respect to the 

survey research at issue in this case, there is no legally valid basis to conclude that one set 

of mistaken estimates (days, weeks) should be excluded as unreasonable or “absurd,” 

whereas another set of mistaken beliefs (months, one year) is close enough to count. 

34. The Commission evaluates claims “in light of the sophistication and understanding” of 

the audience. See, e.g., Deception Statement, 103 F.T.C. at 178-79. 

35. The fact that there is no universal “shared understanding” of a term is legally irrelevant to 

whether a substantial minority of consumers have been deceived. 

36. The Green Guides state that “[i]t is deceptive to make an unqualified degradable claim 

for items entering the solid waste stream if the items do not completely decompose within 

one year after customary disposal.” 16 C.F.R. § 260.8(c).

37. ECM’s advertisements convey expressly or strongly imply the following claims:

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 disclosure;

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.

ECM’s Advertising Claims Are False And Unsubstantiated.

38. Claims are deceptive if they are false or lack a reasonable basis. In re Daniel Chapter 

One, No. 9329, Initial Decision, at *99 (F.T.C. Aug. 5, 2009). ECM’s claims both are 
80

false and lack a reasonable basis.

39. ECM’s express and implied claims are false and unsubstantiated.

40. ECM’s claims are false. ECM’s expert, Dr. Sahu, estimates that at minimum it would 

take 30 years for ECM Plastic to completely biodegrade. Another of ECM’s experts, Dr. 

Barlaz, concurs with Complaint Counsel’s expert, Dr. Tolaymat, that landfill conditions 

do not support the biodegradation times claimed by ECM. In addition to these 

concessions, ECM’s express and implied claims are false based on indisputable science. 

A physical blend of 1% ECM Additive and 99% conventional plastic cannot change the 

underlying recalcitrance of the remaining 99% plastic—and ECM offers no reliable 

expert opinion the contrary. A number of biodegradation studies also that show ECM’s 

claims are false.

41. To prevail under the “reasonable basis” theory, Complaint Counsel must prove that the 

advertiser did not have a reasonable basis substantiating its claims at the time it made the 

claims. Daniel Chapter One, No. 9329, Initial Decision, at *99 (citing Thompson Med. 

Co., 104 F.T.C. at 813). ECM’s express and implied claims of complete biodegradation 

in landfills in five years or less lack a reasonable basis for two reasons. First, the 

appropriate level of substantiation is competent and reliable scientific evidence. This 

standard requires well-controlled, well-conducted studies, and ECM’s evidence falls far 

short of this standard.

42. Second, even assuming that some of the tests show some biodegradation, they fail to 

reach levels of biodegradation beyond that attributable to the additive, much less enough 

to support ECM’s claims of complete biodegradation. Nor were they conducted under 

conditions that come close to approximating the conditions claimed in ECM’s 

advertisement. Accordingly, ECM’s claims are unsubstantiated.

43. “To determine what constitutes a reasonable basis, the Commission considers the ‘Pfizer 

factors,’ which are factors relevant to the benefits and costs of developing substantiation 

for the claim.” See POM Wonderful, Docket No. 9344, at 17-18 (citing In re Pfizer Inc., 

81 F.T.C. 23 (1972)); Substantiation Statement, 104 F.T.C. at 840. Application of the 

Pfizer factors here demonstrates that ECM’s substantiation is insufficient to support its 

claims.

44. Biodegradable marketing claims must be supported with a high-level of substantiation. 

Environmental claims are particularly difficult for consumers to evaluate: consumers are 

not in a position to access, let alone evaluate, scientific evidence of biodegradability nor 

see for themselves whether a product actually degrades as promised. 16 C.F.R. 

§ 260.4(b); POM Wonderful at 35 (citations omitted) (citing Removatron Int’l Corp., 111 

F.T.C. 206, 306 n.20, 884 F.2d 1489, 1496-97 (1st Cir. 1989)) (competent and reliable 

scientific evidence required for “claims whose truth or falsity would be difficult or 

impossible for consumers to evaluate by themselves”). This standard is consistent with 

the level of substantiation expected from experts in the field, who view claims of 

biodegradable conventional plastic with great skepticism. FOF ¶ 134. 
81

45. Competent and reliable scientific evidence is the quantum of substantiation for 

biodegradability claims in The Guides for Environmental Marketing, 16 C.F.R. § 260.8, 

and in numerous consent orders. See, e.g., Down to Earth Designs, Inc., Docket No. C4443 (2014); Clear Choices Housewares, Inc., File No. 122 3288 (2013); Kmart Corp., 

File No. 0823186 (2009); Tender Corp., File No. 082-3188 (2009); Dyna-E Int’l Inc., 

File No. 082-3187 (2009); Archer Daniels Midland Co., 117 F.T.C. 403, 415, 410 

(1994); Mobil Oil Corp., 116 F.T.C. 113, 120-121 (1993); American Enviro. Prods., Inc., 

115 F.T.C. 399, 408-09 (1992). 

46. “Competent and reliable scientific evidence” is “tests, analyses, research, studies, or other 

evidence based on the expertise of professionals in the relevant area, that has 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.” 

See, e.g., Brake Guard Prods., Inc., 125 F.T.C. 138 (1998); see also, POM, 2013 FTC 

LEXIS 6, at 11.

47. The Commission then has the burden of proving that the respondent’s purported 

substantiation is inadequate, but is not required to conduct or present studies showing that 

the products do not perform as claimed. See FTC v. QT, Inc., 448 F. Supp. 2d at 959 

(citing FTC v. Sabal, 32 F. Supp. 2d at 1008-09).

48. “[T]he advertiser has the burden of establishing the substantiation it relied on for its 

claim.” Daniel Chapter One, 2009 FTC LEXIS 157, at *137 (initial decision) (citing 

FTC v. QT, Inc., 448 F. Supp. 2d at 959). In addition, “where advertising expressly or 

impliedly represents that it is based on scientific evidence, the advertiser must have that 

level of substantiation, and, in particular, must satisfy the relevant scientific community 

that the claim is true.” Removatron, 111 F.T.C. at 299. If advertisements “expressly or 

impliedly promise a scientific level of substantiation,” then a Pfizer analysis is not 

required and the ads’ claims must be supported by scientific proof. Removatron Int’l 

Corp., 111 F.T.C. at 297-98, 306 (when evaluating ads “the net impression” of which was 

“that respondents’ claims were based on competent scientific proof . . . . we need not 

apply the Pfizer analysis in determining the reasonable basis for respondents’ claims.”); 

aff’d, 884 F.2d 1489, 1498 (“[A] ‘reasonable basis,’ when one makes establishment 

claims, means well-controlled scientific studies.”)

49. Dr. McCarthy and Dr. Tolaymat testified on the level of substantiation they would 

expect, as experts in their fields, to support biodegradability claims. ECM’s evidence 

falls far short of this standard.

50. Dr. McCarthy is a professor of Plastics Engineering at the University of Massachusetts 

Lowell with more than thirty years’ experience studying both the chemical and 

mechanical behavior of polymers, including their biodegradability. He testified that there 

is overwhelming scientific consensus that conventional plastics are not biodegradable, 

because the chemical structure of commercial-grade plastics are resistant to naturallyoccurring microorganisms. 

51. He also testified that, to satisfy polymer scientists that ECM’s additive will make 
82

conventional plastics biodegradable in a stated timeframe and disposal condition, the 

claimant should provide the results of well-conducted scientific testing. 

52. The following claims are false and ECM did not possess competent and reliable scientific 

evidence to substantiate them at the time ECM made the claims:

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 

disclosure;

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 5511.

53. Therefore, ECM violated Section 5 of the FTC Act, and Complaint Counsel is entitled to 

the proposed order against ECM.

ECM’s Deceptive Claims Are Material.

54. A claim is material if it “involves information that is important to consumers and, hence, 

likely to affect their choice of, or conduct regarding a product.” Kraft, Inc. v. FTC, 970 

F.2d 311, 322 (7th Cir. 1992) (quotation omitted). Significantly, three types of claims are 

presumed material: (1) express claims; (2) implied claims the seller intended to make; 

and (3) claims involving health, safety, or “other areas with which reasonable consumers 

would be concerned, including a claim that concerns the purpose, safety [or] efficacy” of 

the product. Id. at 322-23 (emphasis added). Thus, any claim related to the product’s 

central characteristics is presumptively material, Telebrands, 140 F.T.C. at 292, including 

any implied claim, Thompson Med., 104 F.T.C. at 816-17. 

55. Each of ECM’s claims regarding the alleged biodegradability of ECM Plastic is material. 

ECM’s express claim—that the ECM additive would make plastic biodegrade in nine 

months to five years in a landfill and that testing proved this fact—are presumptively 

material. Kraft, 970 F.2d at 322-23. 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 under two independent legal theories. First, there is ample 

evidence that ECM intended to make these claims. Second, the claims relate to the 

“central characteristic” of the product (its ability to make plastic completely biodegrade, 

in a landfill, in 5 years or less). Thompson Medical Co., 104 F.T.C. 648, 816-817 (1984), 

aff’d, 791 F.2d 189 (D.C. Cir. 1986), cert. denied, 479 U.S. 1086 (1987).

56. Express representations are presumed material because “the willingness of a business to 

promote its products reflects a belief that consumers are interested in the advertising.” 

Deception Policy Statement at 182 (quoting Cent. Hudson Gas & Elec. Co. v. Pub. Serv. 
83

Comm’n, 447 U.S. 557, 567 (1980)); see also FTC v. 1st Guar. Mortg. Corp., No. 09-cv61840, 2011 U.S. Dist. LEXIS 38152, at *46 (S.D. Fla. Mar. 30, 2011); FTC v. Nat’l 

Urological Group, Inc., 645 F. Supp. 2d at 1190; Medical Billers Network, Inc., 543 F. 

Supp. 2d 283, 304 (S.D.N.Y. 2008). Also presumed as material are implied claims that 

are made “by such strong implication that they are the functional equivalent of an express 

claim.” See FTC v. Bronson Partners, LLC, 564 F. Supp. 2d at 135.

57. The Commission infers materiality where the record shows that a respondent intended to 

make an implied claim. Novartis Corp., 127 F.T.C. at 686-89 (explaining that the ALJ 

correctly presumed implied superior efficacy claims were material because Novartis had 

intended to make such claims) (citing Deception Policy Statement at 182); see also FTC 

v. 1st Guar. Mortg. Corp., 2011 U.S. Dist. LEXIS 38152, at *46 (“[D]eliberately-implied 

claims used to induce the purchase of a product or service are presumed to be material to 

consumers as a matter of law.”); FTC v. Bronson Partners, LLC, 564 F. Supp. 2d at 135 

(“The underlying rationale for finding [an intended] claim to be presumptively material 

is the assumption that the willingness of a business to promote its product reflects a belief 

that the consumers are interested in the advertising.”) (quotation and alterations omitted); 

FTC v. Nat’l Urological Group, Inc., 645 F. Supp. 2d at 1190 (“[D]eliberately made 

implied claims, used to induce the purchase of a particular product or service, are 

presumptively material.”).

58. The Commission also presumes that claims are material if . . . they pertain to the “central 

characteristics of a product . . . such as those relating to its purpose . . . [or] efficacy.” 

Telebrands Corp., 140 F.T.C. at 292 (quoting Thompson Med. Co., 104 F.T.C. at 816-17) 

(alteration in original); see also Novartis Corp., 127 F.T.C. at 687 (agreeing with the ALJ 

that “the challenged superior efficacy claim relates to central characteristic of the 

product, that is, Doan's ability to relieve back pain.”); Brake Guard Prods., Inc., 125 

F.T.C. 138, 210-11 (1997) (initial decision) (“The Commission also presumes claims to 

be material if they pertain to the ‘central characteristics of a product . . . such as those 

relating to its purpose . . . [or] efficacy,’ or to safety. The majority of the challenged 

claims made for the product directly involved its purpose, efficacy and safety. The 

central theme of respondents’ ads was that the Brake Guard device was an antilock brake 

system that provided certain braking and stopping distance improvements, and that 

installing an antilock brake system like Brake Guard would make the vehicle safer.”) 

(alteration in original) (citation omitted), aff’d., 125 F.T.C. 138 (1998).

59. Notably, as a manufacturer of end-use products, Island Plastic Bag’s (“IPB’s”) intent in 

conveying the “nine months to five years” claim is “a predicate fact giving rise to the 

presumption of materiality.” Deception Statement, 103 F.T.C. at 182; See also Kraft, 970 

F.2d at 311 (presumption of materiality applies “where there is evidence that the seller 

intended to make the claim”) (citation omitted); FTC v. QT, Inc., 448 F. Supp.2d 908, 

960 (N.D. Ill. 2006).

60. There are many different ways an advertiser can convey the material message that its 

product’s central feature functions as advertised. See, e.g., Thompson Med., 104 F.T.C. 

at 818 (“Evidence from the ads themselves confirms our conclusion that Thompson was 

making implied efficacy representations when it represented Aspercreme to be a new 
84

product.”); see also Sterling Drug, Inc. v. FTC, 741 F.2d 1146, 1151-52 (9th Cir. 1984) 

(upholding Commission finding that broad references to drug’s “quality” would be 

interpreted by consumers as encompassing “efficacy,” because, with respect to the 

product at issue, “effective pain relief” was “consumers’ primary concern”). 

ECM Provided Its Customers With The Means And Instrumentalities To Deceive End-Use 

Consumers.

61. “‘[I]t is well established that one who puts into the hands of others the means by which 

such others may deceive the public is equally as responsible for the resulting deception.’” 

FTC v. Magui Publishers, Inc., No. 91-55474, 1993 U.S. App. LEXIS 28684, at *10 (9th 

Cir. Oct. 6, 1993)) (quoting In re Litton Indus., Inc., 97 F.T.C. 1, 48 (1981)). 

Specifically, under the doctrine of means and instrumentalities (“M&I”), a respondent is 

primarily liable for deceptive claims even when it does not convey the misrepresentations 

directly to end-use consumers. FTC v. Winstead Hosiery Co., 258 U.S. 483 (1922). The 

purpose of the M&I doctrine is simple: “it is in the public interest to stop any deception at 

its incipiency.” Regina Corp. v. FTC, 322 F.2d 765, 768 (3d Cir. 1963). 

62. The doctrine applies in at least two circumstances: the passing on of deceptive tangible 

items and the passing on of specific deceptive claims from the tangible item. In re Shell 

Oil Co., 128 F.T.C. 749, 766 (1999) (Swindle, C., dissenting). M&I liability has been 

imposed to address a wide variety of deceptive claims. See, e.g., FTC v. Winsted Hosiery 

Co., 258 U.S. 483, 494 (1922) (deceptive labels on knit goods sold to retailers); Magui 

Publishers, Inc., No. 91-55474, 1993 U.S. App. LEXIS 28684, at *10-11 (certificates, 

brochures, and signed prints); FTC v. Cyberspy Software, LLC, No. 6:08-cv-1872-ORL31GJK, 2010 U.S. Dist. LEXIS 145969 (M.D. Fla. April 22, 2010) (computer spyware); 

FTC v. Cruz, No. 08-1877 (JP), 2008 U.S. Dist. LEXIS 103103, at *4-5 (D.P.R. Dec. 18, 

2008) (pamphlet containing instructions on how to perpetuate an envelope stuffing 

scheme, as well as sample advertisements and a script to carry out the scheme); FTC v. 

Norvergence, Inc., No. 04-5414 (DRD), U.S. Dist. LEXIS 40699, at *7-8 (D.N.J. July 18, 

2005) (consumer rental agreements); FTC v. Five-Star Auto Club, 97 F. Supp. 2d 502, 

539 (S.D.N.Y. 2000) (marketing materials to recruit other participants to “free dream 

vehicle” pyramid scheme); In re N.E.W. Plastics Corp., No. C-4449, 2014 FTC LEXIS 

71, at *8 (Apr. 3, 2014) (plastic lumber marketing brochures); In re Nonprofit Mgmt. 

LLC, 151 F.T.C. 144, 154 (2011) (“Tested Green” logo and “green” certification).

63. ECM provided its customers with the means and instrumentalities to deceive consumers. 

Its product has no economic value unless it allows purchasers to make biodegradability 

claims about their products; without such a claim, a customer’s product would be 

indistinguishable from the products of its competitors who did not raise their costs by 

buying ECM’s additive. The fact that some ECM customers sell to others in the 

production or distribution chain does not change this fact. Each purchaser in such a chain 

only makes money from purchasing the ECM Additive if the claims can eventually be 

passed to a retailer who can use those claims to sell to end-use consumers. Given this 

fact, ECM provides its customers with a multitude of marketing tools to help sell their 

products to end-use consumers, all of which feature ECM’s false and unsubstantiated 

claims: the ECM logo, the ECM Certificate of Biodegradability, and other marketing 
85

material such as the ECM flyer and ECM leaf. (SOF ¶¶39-41; 65-67). ECM’s customers, 

in turn, use the deceptive claims provided in these material to sell their products. (SOF 

¶36; ¶52; ¶¶59-60).

64. First, ECM routinely provided its customers with its “biodegradable” logo—a green tree 

with the wording “ECM” and “Biodegradable,” and instructed customers to use the logo 

on consumer products to promote the products’ alleged biodegradability. (SOF ¶¶62-64). 

Many customers followed ECM’s instructions, placing the ECM logo on products as 

varied as grocery bags, online golf tee ads, and shampoo containers. (SOF ¶25). By 

providing its customers with the ECM logo (and encouraging them to use it on their 

products and advertising), ECM gave them the means to deceive customers and end-use 

consumers.

65. Second, ECM routinely provided its customers with a “Certificate of Biodegradability,” 

and instructed them to use the certificate to prove the veracity of biodegradable claims to 

downstream customers and end-use consumers. (SOF ¶¶46-48; ¶53; ¶56). In fact, ECM 

expressly told its customers to “present” the certificate to downstream customers as a 

way of “assuring” them that ECM Plastic had been tested and proven to biodegrade. 

(SOF ¶56). Many customers followed ECM’s instructions, passing the certificate to their 

distributors and customers, posting the certificate on their website, and creating their own 

certificates with precisely the same (or very similar) wording as the ECM certificate. 

(SOF ¶¶59-61). ECM thus provided its customers with the means to fool downstream 

customers—and ultimately end-use consumers—into believing that they were purchasing 

tested and proven biodegradable plastic.

66. Finally, ECM provided its customers with dozens of “sales tools” and emails to help 

them market their products based on the ECM’s additives supposed efficacy. (SOF ¶¶65-

67; ¶69-70). ECM also actively helped customers to develop “biodegradable” claims 

tailored to their product. Numerous emails show ECM employees reviewing, tweaking, 

and approving advertising copy (SOF ¶70), and testimony from ECM employees and 

customers reveals ECM’s eagerness to funnel biodegradable claims into the market. (SOF 

¶¶65-67; ¶69-70). By providing customers with “sales tools” and personalized help in 

developing biodegradable claims, ECM gave its customers the means to deceive 

downstream customers and end-use consumers.

ECM’s Contention That It Never Made the Express and Implied Claims Set Forth Above 

Is Baseless. 

67. There is no merit in ECM’s argument that its customers are “highly sophisticated” plastic 

manufacturers who do not perceive biodegradable claims the same way as end-use 

consumers. This defense fails for two reasons.

68. First, sophistication, or lack thereof, is irrelevant to interpretation of ECM’s express 

claims. As the Ninth Circuit explained in Pantron I, when a “case involves express 

objective product claims,” there is no need to consider whether they are “so far-fetched 

that reasonable consumer would not believe them” 33 F.3d at 1096 n.21 (emphasis in 

original, quoting Thompson Medical, 104 FTC at 788-89 n.6).
86

69. Second, ECM’s customers are not biodegradation experts. Many ECM customers and 

downstream users were small businesses that had neither the resources nor the 

sophistication to meaningfully understand or evaluate the results of biodegradation tests. 

(SOF ¶95; SOF ¶87). Therefore, they relied solely upon ECM’s express claims and 

purported substantiation. (SOF ¶58).

70. When ECM attempted to sell its additive to 3M Corporation, the results illustrate both 

the lack of sophistication of their actual customers and the difficulty ECM encountered 

when selling its product to a truly sophisticated customer. Unlike many customers who 

simply accepted ECM’s claims, 3M conducted its own test showing no measurable 

biodegradation of the plastic samples. FOF ¶¶92-94; FOF ¶¶ 180-81. Thus, 3M, an 

actual sophisticated “customer,” did not use ECM’s additive in its products, and never

passed any of ECM’s false claims to consumers. This incident demonstrates why ECM’s 

entire business was dependent on unsophisticated buyers. 

71. A “pilot study” conducted by ECM’s own expert, Dr. Stewart, provides additional 

evidence of lack of “sophistication.” In that study, 37.5% of the customers questioned

believed that biodegradation would happen within one year, making them essentially 

indistinguishable from end-use consumers. The study’s sample size is too small to 

support meaningful conclusions. FOF ¶ 410. Nonetheless, these results tend to 

corroborate the already overwhelming evidence that at least some, if not most, of ECM’s 

customers were unsophisticated regarding biodegradability. 

72. There is no merit in ECM’s argument that, even if some of its direct and indirect 

consumers were not sophisticated, ECM effectively qualified its biodegradable claims by 

delivering them as a package with verbal and written qualifiers. ECM’s “qualification 

defense” fails for four reasons. First, to the extent that ECM’s argument rests upon oral 

and written “disclaimers” purportedly disseminated separately from the false claims, the 

argument fails as a matter of law. An advertiser cannot “cure the deception” in one 

advertisement with different statements in another. In re Chrysler Corp., 87 F.T.C. 719, 

1976 FTC LEXIS 397, *59 (Apr. 13, 1976); Removatron Int’l Corp. v. FTC, 884 F.2d 

1489, 1496-97 (1st Cir. 1989).

73. “The public has a right to expect each of respondent's advertisements to be equally free of 

deception.” Id. See In re Raymond Lee Organization, Inc., 92 F.T.C. 489, 618-19 (1978) 

(“If an initial contact with a purchaser is deceptive, the fact that the truth may be 

subsequently revealed will not necessarily eliminate the initial wrong.”); Removatron, 

884 F.2d at 1496-97 (“Each advertisement must stand on its own merits; even if other 

advertisements contain accurate, non-deceptive claims, a violation may occur with 

respect to the deceptive ads.”).

74. Third, “disclaimers or qualifications in any particular ad are not adequate to avoid 

liability unless they are sufficiently prominent and unambiguous to change the apparent 

meaning of the claims and to leave an accurate impression. Anything less is only likely 

to cause confusion.” FTC v. Direct Mktg. Concepts, 624 F.3d 1, 24 (1st Cir. 2010) 

(quotation omitted). ECM claims, without support, that it disclaimed the express ninemonth-to-five-year claim by stating that biodegradation times are “approximate.” Even if 
87

true, however, such a “disclaimer” poses just the type of confusion the cases warn about. 

One logical and facially reasonable interpretation of the claim given the “disclaimer” is 

that the nine month to five years claim is an approximation of the time it typically takes 

ECM Plastic to completely biodegrade in a landfill. However, this range is off by 

decades, if not centuries. Thus, even with ECM’s disclaimer, the claim is not even close 

to being an accurate approximation. 

75. Fourth, even if ECM qualified its claims to its purportedly “sophisticated customers,” 

ECM’s is still responsible for the claims as conveyed to end-use consumers because it 

intended (and insisted) that its customers use the “sales tools” it provided to pass claims 

down the distribution chain and ultimately to consumers. Thus the effectiveness of the 

qualifications must be viewed from the intended “relevant audience”—the end-use 

consumer, and not its customers. Removatron, 884 F.2d at 1497 (“We reject the 

contention that the relevant audience is only the beauty industry. While it is true that 

petitioners placed their ads in trade magazines, it is also true that their sales personnel 

provided brochures and other information to purchasers who were then instructed to 

provide these materials to potential clients. Furthermore, petitioners provided advertising 

to purchasers who would then place it in local print media. The relevant audience thus 

includes potential purchasers and customers of purchasers. The two qualifications made 

by petitioners are, as the Commission found, ineffective to dispel the overall message that 

the machine will remove hair permanently.”) (emphasis added). As discussed in prior 

sections, end-use consumers understand ECM’s biodegradable claims to mean rapid 

biodegradation times of around one year in a landfill.

76. Finally, ECM’s own customers’ understanding of the claims further demonstrate the 

ineffectiveness of ECM’s supposed “qualifiers.” Many of these customers testified that 

they self-evidently understood ECM to be claiming complete biodegradability in nine 

months to five years in a landfill. Thus, any “qualifiers” were demonstrably ineffective. 

In addition to being ineffective, ECM’s qualifications were rare. Dozens of ECM emails 

and marketing documents uniformly reiterate ECM’s deceptive claims without any 

qualifier. Thus, even if the qualifiers could have been effective, which they clearly were 

not, such sparse qualifications do no rise to the prominent and unambiguous level 

required by the law.

D. Remedy

Corporate liability

77. A corporation is liable for violations of the FTC Act if the corporation “engaged in

misrepresentations or omissions of a kind usually relied on by reasonably prudent persons 

and [] consumer injury resulted.” FTC v. Pantron I Corp., 33 F.3d at 1102 (citing FTC v. 

Amy Travel Serv., 875 F.2d at 573).

78. ECM is liable under Section 5 of the FTC Act both for making biodegradability claims to 

its customers, and for providing its customers with the means and instrumentalities to 

deceive their customers and end-use consumers.
88

Entry of the Notice Order is Appropriate and Necessary

79. Entering a cease and desist order to stop ECM’s ongoing deceptive advertising is 

appropriate because the findings of fact are “supported by substantial evidence upon the 

record as a whole.” Niresk Indus. Inc. v. FTC, 278 F.2d 337, 340 (7th Cir. 1960). Once a 

violation is found, the FTC has wide latitude in crafting the appropriate relief. The 

Notice Order sets forth relief appropriate for this case:

In carrying out this function 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. If the Commission is to attain 

the objectives Congress envisioned, it cannot be required to 

confine its “road block” to the narrow lane the transgressor 

traveled; it must be allowed effectively to close all roads to the 

prohibited goal, so that its order may not be “by-passed” with 

impunity. Moreover, the Commission has wide discretion in its 

choice of a remedy deemed adequate to cope with the unlawful 

practices disclosed.

FTC v. Ruberoid Co., 343 U.S. 470, 473 (1952); Removatron Int’l Corp. v. FTC, 884 

F.2d at 1498 (“Our role in reviewing a Commission order has been defined by the 

Supreme Court: It has been repeatedly held that the Commission has wide discretion in 

determining the type of order that is necessary to cope with unfair practices found, and 

that Congress has placed the primary responsibility for fashioning orders upon the 

Commission.”).

80. This “wide discretion” allows the Commission to issue orders with fencing-in provisions 

that are broader than the respondent’s unlawful conduct. Telebrands Corp. v. FTC, 457 

F.3d 354, 357 n.5 (4th Cir. 2006).

81. Pursuant to this discretion, courts have affirmed Commission orders requiring remedies 

as diverse as prohibitions on individual use of zone pricing (FTC v. National Lead Co., 

352 U.S. 419 (1957)); cancellation of existing contracts (North Texas Specialty 

Physicians v. FTC, 528 F.3d 346 (5th Cir. 2008); mandated divestiture of assets to create 

a competitor (Chicago Bridge & Iron Co N.V. v. FTC, 534 F.3d 410 (5th Cir. 2008)); 

requirements for varying levels of substantiation for future claims (See, e.g., Sears, 

Roebuck & Co. v. FTC, 676 F.2d 385 (9th Cir. 1982) (requiring competent and reliable 

evidence for future performance claims for major household appliances); Thompson 

Medical Co. v. FTC, 791 F.2d 189 (1986) (requiring at least two adequate and wellcontrolled, double-blinded clinical studies for future efficacy claims for a topical 

analgesic)); disclosure requirements (Porter & Dietsch, Inc. v. FTC, 605 F.2d 294, 307 

(1979)) and trade name excision (Continental Wax Co. v. FTC, 330 F.2d 475 (1964)), just 

to name a few. The underlying inquiry in all these orders is the same: what is the 

necessary remedy to ensure that respondents do not again violate the FTC Act? See FTC 

v. Colgate-Palmolive Co., 380 U.S. 374 (1964).

82. The Commission’s “wide discretion” to craft that remedy is subject to only two 
89

constraints: (1) the order must bear a “reasonable relation” to the unlawful practices, 

Jacob Siegel Co. v. FTC, 327 U.S. 608, 612 (1946); and (2) it must be sufficiently clear

and precise that its requirements can be understood, Colgate-Palmolive, 380 U.S. at 392. 

83. The Commission may order “provisions that are broader than the conduct that is declared 

unlawful.” Telebrands Corp., 457 F.3d at 357 n.5; see also, e.g., Colgate-Palmolive Co., 

380 U.S. at 394-95; FTC v. Ruberoid Co., 343 U.S. 470, 473 (1952); POM Wonderful, 

2013 FTC LEXIS 6, at *50. To the extent the proposed notice order goes beyond ECM’s 

specific practices, such fencing-in relief is appropriate in light of ECM’s willful and 

repeated misrepresentations about the core attributes of its sole product and its persistent, 

knowing misrepresentation of scientific evidence. The Notice Order is narrowly crafted 

to prevent ECM from continuing to deceive its customers, others in the manufacturing 

and distribution chain, and end-use consumers while still allowing ECM to make truthful 

and substantiated claims. 

84. The Notice Order would allow ECM to make truthful, substantiated claims. First, if its 

substantiation only applies to limited disposal environments, they can make claims based 

on such substantiation so long as they conspicuously disclose that limitation. Second, 

ECM can disclose the substantiated time to complete biodegradation. Finally, because 

ECM’s own experts admit that ECM Plastics may take decades or centuries to completely 

biodegrade in landfills, ECM could disclose, with appropriate qualifications, the rate and 

extent of biodegradation shown in valid, properly controlled and conducted, scientific 

tests. Because partial biodegradability does not demonstrate that a product will 

completely biodegrade, let alone at the same rate as demonstrated in a short term test, 

additional disclosures are needed to prevent deceptive impressions about the meaning of 

test results. (SOF ¶158 (showing that at least a significant minority of consumers 

extrapolate rate and extent information concerning biodegradation times)). In short, the 

Notice Order is crafted carefully to permit ECM to make truthful claims, while 

preventing it from using incomplete test data to deceive consumers.

85. ECM has been misusing incomplete test data to deceive consumers for years. In fact, 

ECM’s repeated and willful misrepresentations to its customers and end-users about the 

efficacy of its product, and about its purported scientific “proof” of that efficacy, justify 

strong injunctive relief. As the Commissioner recently noted in POM:

when determining whether an order is reasonably related to the 

unlawful practices, the Commission should consider “(1) the 

seriousness and deliberateness of the violation; (2) the ease 

with which the violative claim may be transferred to other 

products; and (3) whether the respondent has a history of prior 

violations.” Stouffer Foods Corp., 118 F.T.C. at 811; see also 

Telebrands Corp., 457 F.3d 354, 358 (4th Cir. 2006); Kraft, 

Inc., 970 F.2d at 326. “The reasonable relationship analysis 

operates on a sliding scale — any one factor’s importance 

varies depending on the extent to which the others are found. . . 

. All three factors need not be present for a reasonable 

relationship to exist.” Telebrands Corp., 457 F.3d at 358-59. 
90

(Emphasis added.)

POM Wonderful, 2013 FTC LEXIS 6, at *49.

86. ECM’s violations were serious, repeated, and blatant. Indeed, Robert Sinclair, ECM’s 

President and CEO, “acted in blatant and utter disregard of the law.” Standard Oil Co. v. 

FTC, 577 F.2d 653, 662 (9th Cir. 1978). Sinclair had complete control over every aspect 

of ECM’s marketing and testing. (SOF ¶72). He was responsible for ECM’s prominent

and express “9 months to 5 years” claim, even though he knew that the claim was false. 

(SOF ¶72). He was instrumental in the dissemination of the bogus and misleading 

McLaren-Hart study. He also knew about five different adverse adjudications regarding 

the efficacy of ECM Plastics, and multiple bad test results, but concealed this information 

from his customers and continued to promulgate the same debunked claims about his 

product’s efficacy and the strength of testing. In fact, he aggressively discouraged his 

customers from doing their own testing, insisting that existing tests were sufficient to 

prove ECM’s biodegradability claim. Finally, even after promulgation of the Green 

Guides, and during an FTC investigation, he directed ECM to switch its marketing to the 

facially misleading “some period greater than a year claim.” As in POM, ECM has a 

“demonstrated propensity to misrepresent to [its] advantage the strength and outcomes of 

scientific research.” POM at 51.

87. A violation is transferrable where other products could be sold utilizing similar 

techniques. FTC v. Colgate-Palmolive Co., 380 U.S. at 395; Sears, Roebuck & Co. v. 

FTC, 676 F.2d at 392.

88. The Commission has issued orders covering many of a company’s products on the basis 

of violations as to a single product. Litton Indus., Inc., 97 F.T.C. 1, 78-80 (1981), aff’d 

as modified, 676 F.2d 364 (9th Cir. 1982); Sears Roebuck & Co., 95 F.T.C. 406, 515-22 

(1980), aff’d, 676 F.2d 385 (9th Cir. 1982).

89. The size and duration of the deceptive advertising campaign also is considered in 

evaluating the seriousness of the violations. Stouffer Foods Corp., 118 F.T.C. at 812-13; 

Kraft, Inc., 114 F.T.C. at 140.

90. Violations have been found to be “serious” where “claims were consciously made despite 

flaws in the studies relied upon by [the respondent], and because consumers who were 

not able to assess the validity of those claims relied on the misrepresentation.” See 

Schering Corp., 118 F.T.C. at 1121 (initial decision).

91. “The more egregious the facts with respect to a particular element, the less important it is 

that another negative factor be present.” Sears, Roebuck & Co. v. FTC, 676 F.2d at 392; 

see also Thompson Med. Co., 104 F.T.C. at 833.

92. Part I.A of the Order prohibits degradability claims for any product, package, or service 

unless they are true, not misleading, and substantiated, and specifies qualifications 

needed to prevent deception in some contexts. It is consistent with the provisions in the 

Commission’s Green Guides that address biodegradability claims. Part I.B prohibits 

environmental benefit claims for any product, package, or service unless the claim is true, 
91

not misleading and substantiated. Part I is consistent with the relief approved in recent 

Commission settlements. E.g., Down to Earth Designs, Inc. d/b/a gDiapers, Docket No. 

C-4443 (Mar. 18, 2014); and FTC v. AJM Packaging Corp., No. 1:13-cv-1510 (D.D.C. 

Oct. 1, 2013).

93. Part I requires competent and reliable scientific evidence to substantiate claims where 

appropriate. Commission orders requiring respondents to have, where appropriate, 

competent and reliable scientific evidence have been consistently upheld. Daniel 

Chapter One, 2009 FTC LEXIS 157, at *278-79 (initial decision) (citing Telebrands 

Corp., 140 F.T.C. at 347; Kraft, Inc., 114 F.T.C. at 149; Thompson Med. Co., 104 F.T.C. 

at 844; Removatron Int’l Corp., 111 F.T.C. at 318.).

94. The Notice Order’s definition of “competent and reliable scientific evidence” requires 

that any scientific protocols used to substantiate biodegradability claims assure complete 

decomposition within the stated timeframe (or a reasonably short period of time) and 

simulate the physical conditions of the stated disposal environment. This provision is 

meant to ensure that ECM no longer makes unqualified biodegradable claims without 

adequate support, and, in particular, that ECM no longer (1) extrapolates from minimal 

biodegradation to complete decomposition or (2) makes landfill claims based on tests like 

ASTM D5511 that do not simulate landfills.

95. Part II of the Order prohibits ECM from providing, in connection with the marketing of 

any product, package, or service, the means and instrumentalities to make any false, 

unsubstantiated, or misleading statement of material fact regarding any environmental 

benefit. Part II is consistent with the relief approved in recent Commission settlements. 

E.g., Serious Energy, Inc., No. C-4359 (May 16, 2012); and THV Holdings, LLC, No. C4361 (May 16, 2012)

96. Parts III through VII of the Order are standard provisions requiring recordkeeping, order 

distribution, notice to the Commission of corporate status changes, the filing of 

compliance reports, and termination of the order, respectively. They are necessary to

ensure the Order’s effectiveness and to facilitate the Commission’s monitoring and 

enforcement of the Order. These provisions are consistent with the relief in virtually all 

Commission settlements.

97. ECM made deceptive biodegradability claims deliberately over an extended period of 

time. ECM can easily make similar claims for other products, packaging, and services, 

including other plastic products and non-plastic products. Consumers cannot assess the 

accuracy of these claims for themselves.

98. The seriousness and deliberateness of ECM’s violations, the duration of the deceptive 

advertising campaign, the difficulty that consumers have in judging the truth or falsity of 

the biodegradability claims, and the transferability of the claims to other products, 

packaging, and services justifies the appropriateness of the Order’s fencing-in relief, 

including the scope of the Order, which covers claims for any product, package or 

service.
92

99. The Notice Order does not violate ECM’s First Amendment right to communicate 

truthful commercial speech about important environmental benefits. Specifically, ECM’s 

argument that that the government must use less restrictive alternatives under Pearson v. 

Shalala, 165 F.3d 650, 658 (D.C. Cir. 1999); and that the proposed conduct relief would 

prevent it from providing truthful information to its customers about important 

environmental benefits of its products in conflict with federal environmental policy lacks 

merit.. 

100. ECM’s arguments fail for three reasons. First, ECM’s assertion that the Notice Order 

would require “complete elimination of plastic within one year as a condition precedent 

to use of the term ‘biodegradable,’” ignores the two permissible qualified claims. As 

discussed in detail above, ECM can make truthful claims about biodegradation, and about 

its test results, as long as it has competent and reliable scientific evidence to support those 

claims.

101. Second, ECM’s commercial speech argument is legally flawed. Although the First 

Amendment protects commercial speech, it is well-established that government can 

regulate deceptive commercial speech through adjudication. The Supreme Court has 

long held that “the Constitution accords less protection to commercial speech than to 

other constitutionally safeguarded forms of expression.” Bolger v. Youngs Drug Prods. 

Corp., 463 U.S. 60, 64 (1983). Commercial speech receives less protection than other 

forms of expression under the First Amendment because “commercial speech may be 

more durable than other kinds. Since advertising is the sine qua non of commercial 

profits, there is little likelihood of its being chilled by proper regulation and foregone 

entirely.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 

U.S. 748, 772 (1976). 

102. Importantly, for commercial speech to receive the protections of the First Amendment, 

the commercial speech “at least must concern lawful activity and not be misleading.” 

Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 566 (1980).

103. Moreover, the government may prohibit false or misleading commercial speech entirely. 

See In re R. M. J., 455 U.S. 191, 203 (1982) (“Misleading speech may be prohibited 

entirely”). In this case, ECM’s ongoing marketing is deceptive and misleading, and will 

continue to mislead consumers without appropriate conduct relief. Furthermore, unlike 

its customers and end-use consumers of ECM Plastics, who lack the ability to 

independently verify the veracity of ECM’s claims, ECM has “extensive knowledge of 

both the market and their products. Thus, [ECM is] well suited to evaluate the accuracy 

of [its] messages and the lawfulness of the underlying activity.” Central Hudson at 564 

(citing Bates v. State Bar of Arizona, 433 U.S. 350, 381 (1977)). 

104. Furthermore, ECM’s reliance on Pearson is misplaced. Pearson held that an FDA rule

effectively banning specific health claims was an unduly restrictive means to regulate 

potential deceptive speech, and that the FDA needed to consider possible curative 

disclosures. Pearson v. Shalala, 165 F.3d at 659-660. In contrast, this case involves 

adjudication of actual deceptive claims in commerce. The Commission recently rejected 

this argument in POM, reasoning that:
93

In addition, the Commission’s approach to address misleading advertising, 

which is a case-by-case adjudication after ads have been disseminated, 

differs from regulatory efforts that prohibit categories of speech or rely on 

prior approval of the language to be used. The latter serve as illustrations 

of “bars” on commercial speech and are inapplicable to the detailed ex post 

analysis we engage in here, based on a full record about the ads in 

question. [Internal citations omitted].

POM Wonderful, 2013 FTC LEXIS 6, at *44. 

105. Third, ECM’s federal environmental policy argument is legally incorrect. The FTC need 

not permit deceptive commercial speech in furtherance of environmental policy. Indeed, 

the FTC’s role is to protect consumers in the marketplace from such unfair or deceptive 

acts or practices. In this case, the instant action and proposed relief further that role. 

Furthermore, even if environmental policy were the FTC’s charge, ECM has not, and 

cannot, establish that lying to consumers about the efficacy of its product furthers any 

such policy.

106. ECM’s practices, as alleged in the Complaint, constitute unfair or deceptive acts or 

practices, in or affecting commerce, in violation of Section 5(a) of the FTC Act, and they 

warrant the relief proposed in the Commission’s Notice Order.
94

CERTIFICATE OF SERVICE

I hereby certify that on September 25, 2014, I caused a true and correct copy of the 

foregoing to be served as follows:

One electronic copy to the Office of the Secretary, one hard copy, and one copy through the 

FTC’s e-filing system:

Donald S. Clark, Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Room H-159

Washington, DC 20580

Email: secretary@ftc.gov

One electronic copy and three hard copies to the Office of the Administrative Law Judge:

The Honorable D. Michael Chappell

Administrative Law Judge

600 Pennsylvania Ave., NW, Room H-110

Washington, DC 20580

One electronic copy to Counsel for the Respondent:

Jonathan W. Emord

Emord & Associates, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Email: jemord@emord.com

Peter Arhangelsky

Emord & Associates, P.C.

3210 S. Gilbert Road, Suite 4

Chandler, AZ 85286

Email: parhangelsky@emord.com

Eric J. Awerbuch

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286

Email: eawerbuch@emord.com

Date: September 25, 2014

/s/Katherine Johnson

Katherine Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov)

Arturo DeCastro (adecastro@ftc.gov)

Federal Trade Commission

600 Pennsylvania Ave., N.W. M-8102B

Washington, DC 20580

Phone: 202-326-2185; -2551; -2747

Fax: 202-326-2558