Docket No. 9358 PUBLIC DOCUMENT

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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Edith Ramirez, Chairwoman 

Julie Brill

Maureen K. Ohlhausen

Terrell McSweeny

In the Matter of

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent.

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Docket No. 9358 

PUBLIC DOCUMENT

RESPONDENT ECM BIOFILMS’ REPLY TO COMPLAINT COUNSEL’S 

OPPOSITION TO RESPONDENT’S APPLICATION FOR STAY PENDING JUDICIAL 

REVIEW

Jonathan W. Emord 

EMORD & ASSOCIATES, P.C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

(p) (202) 466-6937 

(f) (202) 466-6938 

(e) jemord@emord.com 

Peter A. Arhangelsky

Bethany R. Kennedy

Eric J. Awerbuch

Joshua Furman 

EMORD & ASSOCIATES, P.C.

3210 S. Gilbert Road, Ste 4 

Chandler, AZ 85249 

(p) (602) 388-8899 

(f) (602) 393-4361 

(e) parhangelsky@emord.com; eawerbuch@emord.com; 

bkennedy@emord.com; jfurman@emord.com 

Counsel for Respondent ECM BioFilms, Inc. 

11 23 2015

580006
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RECORD REFERENCES & ABBREVIATIONS

Opp. – Complaint Counsel’s Opposition to Respondent’s Application for Stay

App. – Respondent’s Application for Stay Pending Judicial Review

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

ALJ Oral Arg. Tr. – Transcript of Oral argument before the ALJ 

Opin. – The Commission’s Opinion

Dissent – Commissioner Ohlhausen’s Dissent 

ALJID – Initial Decision of the Administrative Law Judge

ALJFF – The Administrative Law Judge’s Findings of Fact

CCX – Complaint Counsel’s Exhibit

RX – Respondent’s Exhibit

JX – Joint Exhibit

Tr. – Transcript of Testimony before the Administrative Law Judge

Dep. – Transcript of Deposition

CCB – Complaint Counsel’s Post-Trial Brief

CCRB – Complaint Counsel’s Post-Trial Reply Brief

CCFF – Complaint Counsel’s Proposed Findings of Fact

CCRRFF – Complaint Counsel’s Reply to Respondent’s Proposed Findings of Fact

RPB – Respondent’s Pre-Trial Brief

RB – Respondent’s Post-Trial Brief

RRB – Respondent’s Reply to Complaint Counsel’s Post-Trial Brief

RFF – Respondent’s Proposed Findings of Fact
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RRCCFF – Respondent’s Reply to Complaint Counsel’s Proposed Findings of Fact

“ECM Plastic” – A plastic properly manufactured through heat molding to contain ECM’s 

proprietary additive equally dispersed through the plastic, which additive causes plastics to 

biodegrade

“Biodegradable Claim” - ECM’s claim that ECM Plastic is biodegradable and/or that tests prove 

that ECM Plastic is biodegradable

“Rate Claim” - ECM’s claim that ECM Plastic is biodegradable in 9 months to 5 years and/or 

that tests prove that ECM Plastic is biodegradable in 9 months to 5 years

“One Year Rule” – Statement in the Green Guide, 16 CFR § 260.8(c), stating 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.”

“End-Use Consumer” – A member of the general public exposed to ECM claims in the 

marketplace

“Plastic Company Purchaser” – Those companies to which ECM solicits business, sells its 

product, or sold its product
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INTRODUCTION

ECM has satisfied the elements for a Stay contained in Commission precedent. It has 

established the case to be complex, involving several novel bases for decision, which invite 

alternative conclusions. Those novel bases include the Commission’s holding that extrinsic 

evidence from a “significant minority” constitutes as a stand-alone basis for deeming claim 

interpretation reasonable. See Ohlhausen Dissent, at 9 (“The FTC has never used extrinsic 

evidence of a ‘significant minority’ as a stand-alone basis to determine that a claim interpretation 

is reasonable”). For the first time, and contrary to its Green Guides, the Commission has 

established an arbitrary and unscientific standard as a condition precedent for use of the term 

biodegradable in commerce: That the product in question must break down into elements in 

nature within five years after customary disposal. In an unprecedented fashion, the Commission 

has ignored numerous relevant facts in the ALJ’s Initial Decision that establish the ECM 

product’s effectiveness, doing so without reasoned explanation for deviation from the Initial 

Decision. The Commission has ignored the constitutional standards that apply to prospective 

speech bans on commercial speech that is, at worst, only potentially misleading. Moreover, 

because the Order prohibits ECM from marketing its sole product, an additive that accelerates 

biodegradation of conventional plastics, ECM faces financial ruin. The absence of any evidence 

of actual consumer injury combined with the fact that competent and reliable scientific evidence 

confirms that ECM’s product accelerates biodegradation, thus redounding to the benefit of the 

environment and to the methane gas collection program in landfills, constitute public interest 

factors strongly favoring imposition of a stay. All parties involved, including ECM, consumers 

generally, industry regulatees, and the Commission, benefit from having the Circuit Court’s 

decision on the substantial legal and constitutional issues raised in ECM’s forthcoming appeal, 
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yet another strong public interest factor favoring grant of a stay in preservation of the status quo 

ante.

APPROPRIATE STANDARD FOR GRANTING A STAY

Complaint Counsel argue that a stay is only appropriate where a movant shows “serious 

questions going to the merits.” Opp. At 2 (quoting Mich. Coal. Of Radioactive Material Users, 

Inc. v. Grierpentrog, 945 F.2d 150, 153–54 (6th Cir. 1991)). That is not the legal standard. 

Michigan Coalition, cited by Complaint Counsel, is a decision concerning stay of a district court 

order, not an administrative order. Id. at 152. That Court, in granting the stay, held that “a 

movant need not always establish a high probability of success on the merits.” Id. at 153, 156. 

Regardless, in the administrative context, “likelihood of success on the merits” is not measured 

by whether the Commission believes the respondent likely to succeed on appeal; were that the 

administrative standard, the Commission would have to reverse its decision sua sponte every 

time it granted a stay. The stay standard does not require that the Commission admit decisional 

error. Rather, a respondent makes a requisite showing of “likelihood of success on the merits” in 

the administrative context when the respondent shows that the law has been applied to a complex 

factual record, which complexity and novelty could have resulted in an alternative outcome. In 

the Matter of Novartis Corp., 128 F.T.C. 233, 235 (1999). The novel aspects of the ECM 

decision, combined with the fact of the contrary Initial Decision and Commissioner Ohlhausen’s 

dissent, necessarily lead to the conclusion that the Commission could have chosen an alternative 

outcome.

ARGUMENT

Complaint Counsel misconstrue ECM’s arguments by claiming that ECM only argues 

that a stay is warranted because the U.S. Court of Appeals may set aside the Commission’s 
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factual findings. Opp. at 4–6 (stating that “a circuit court will only set aside the Commission’s 

factual findings if substantial evidence does not support them”) (citation omitted). To the 

contrary, ECM argues not only, under the judicial standard, that the Decision is likely to be 

reversed on appeal but, under the administrative standard, that the novelty and complexity of the 

decision reveal that the Commission could have chosen an alternative outcome. In light of that 

fact, the public interest is best served by preserving the status quo ante until an Article III court 

rules on the merits.

If for no other reason than this, the stay standard is satisfied: whether the Commission 

may lawfully use the significant minority exception as a basis for claim interpretation is an 

unprecedented construction that affects ECM’s speech rights and has a chilling effect on all of 

those similarly situated. See Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247 (2011) 

(“Lack of historical precedent can indicate a constitutional infirmity.”). 

Complaint Counsel also misconstrue the record by arguing that ECM offered no evidence 

that it will suffer irreparable harm absent a stay and that ECM will continue making deceptive 

claims if the Commission grants a stay. ECM submitted detailed declarations from its President 

and CFO explaining that abiding by the Order will cause ECM to suffer irreparable harm. That 

showing provided specific financial data evidencing extant losses. The notion that ECM will 

continue making deceptive claims is entirely speculative and void of a foundation in record 

evidence. It is also contrary to the representations made by ECM’s CEO in his affidavit. See

Declaration of Robert Sinclair, attached to ECM’s Application for Stay as Exhibit H, at ¶ 9. The 

balance of the equities therefore strongly support the conclusion that the Commission should 

grant the requested stay.
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A. Complaint Counsel Misconstrue ECM’s Arguments

Complaint Counsels’ Opposition parrots the Commission’s Decision, but fails to address 

the serious legal questions at stake before the U.S. Court of Appeals. Complaint Counsel argue, 

in sum, that “[t]he Commission has considered and soundly rejected ECM’s constitutional 

arguments, and [ECM] cannot [therefore] show serious arguments going to the merits.” See

Opp. at 1. But that is not the proper analysis under the governing administrative stay standard. 

If the standard to show “likelihood of success” depended on Commission admission that its 

Decision was erroneous, a stay would never be granted, making the rule superfluous. Either the 

Commission would find that it erred and reverse its decision sua sponte (thus not granting the 

stay) or it would reject the stay, either way making a stay impossible to obtain. The Commission

is not required to find that it committed decisional error before it grants a stay. Rather, the 

Commission need only find that the matter before it was complex and that it could have 

interpreted the facts and law in a way that would have wrought an alternative conclusion. 

Novartis, 128 F.T.C. at 235 (“it is well settled that arguable difficulties arising from the 

application of the law to a complex factual record can support a finding that a stay applicant has 

made a substantial showing on the merits”).

Complaint Counsel also misinterpret ECM’s constitutional argument, which has 

consistently focused on the Commission’s order; that order regulates prospective communication

of biodegradable claims in the market. The FTC cannot avoid constitutional review of its order

by invoking the “significant minority” doctrine. The Commission has rejected scientific 

consensus that accelerated gas evolution testing is appropriate to determine if a substance is 

intrinsically biodegradable in favor of an untested, unscientific, and arbitrary standard which 

prohibits use of the unqualified claim “biodegradable” unless the product in question can be 
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proven to break down into elements in nature within five years after customary disposal without 

extrapolation or modified test conditions (a demand for proof that is impossible to obtain because 

of the inherent variability of the environment). See ALJFF at ¶¶ 633–696; ALJID at 224–34. 

Without reasoned explanation, the Commission reached conclusions concerning implied claims 

that were based on novel applications of legal doctrine, to which the ALJ and Commissioner 

Ohlhausen disagreed. See Dissent at 8–11; ALJID at 220–23. That disagreement reveals an 

alternative conclusion was indeed possible.

The Commission has taken a scientific term, “biodegradable,” and imparted to it a 

restrictive meaning that is contrary to generally accepted science. Compare Opin. at 33 with 

ALJID at 224–34. The Commission has ignored the ALJ’s decision in pertinent part by deeming 

his scientific findings “irrelevant” in favor of its own contrived distinction, a newly announced 

“five year” rule (replacing its prior Green Guides’ “one year” rule). See Opin. at 41. It changed 

the terms of prior administrative policy (e.g., the Green Guides) without notice or public 

comment. Compare Opin. at 33 with 16 C.F.R. § 260.8. Whether the Commission “considered” 

those issues in the underlying case is irrelevant. The relevant inquiry is whether those legal 

issues are ones for which an alternative conclusion was possible. 

In sum, Complaint Counsel misconstrue ECM’s arguments on why a Stay is appropriate 

in this case. A stay is not only appropriate because the Commission’s standard for granting a 

stay has been satisfied but also because the Commission has applied its findings to outright bar 

the truthful claim that ECM Plastics are intrinsically biodegradable, a fact established by the 

record at trial. Dr. Barlaz’s testimony at trial, fully adopted by the ALJ and uncontroverted by 

Complaint Counsel’s experts, proved that ECM Plastics are intrinsically biodegradable. See, 

e.g., ALJID at 284–85. Indeed, the Commission’s Opinion did not conclude that Complaint 
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Counsel proved that the ECM Additive does not work. The Commission instead stated that “it is 

as likely that the ECM Additive has no meaningful effect on the biodegradation of plastic 

products as that it does.” Opin. at 47. Without meeting its burden of proving the ECM Additive 

inefficacious, the Commission cannot ban the claim that ECM Plastics are intrinsically 

biodegradable, as that claim is truthful, constitutionally protected commercial speech. The 

Commission nevertheless uses its findings of fact on consumer impression to impose an effective 

ban on ECM use of a biodegradable claim. A stay is therefore appropriate to allow the court of 

appeals to determine whether that outright ban is constitutional, even assuming the 

Commission’s findings are supported by substantial evidence. 

B. A Stay Is Warranted because This Is the First Time the Commission Used the 

Significant Minority Exception to Find a Claim Interpretation Reasonable

Even if the Commission’s findings are supported by substantial evidence (they are not), a 

stay is warranted to preserve the status quo ante while the U.S. Court of Appeals determines

whether the Commission’s choice of decision in deviation from the Initial Decision and the 

dissent of Commissioner Ohlhausen was a lawful choice. Commissioner Ohlhausen explained

that this is the first time that the Commission has ever “relied solely on the significant minority 

exception to find an ad interpretation reasonable.” Dissent at 9. The Commission failed to 

consider evidence on whether that interpretation is scientifically supported, instead presuming

only its preferred interpretation of “biodegradable” reasonable solely because it was presumably

held by a “significant minority” of consumers. Opin. at 33. The Commission should not be able 

to conclude that an interpretation is reasonable solely because some undefined minority of 

consumers may interpret the claim in a certain way. See Dissent at 9 (the significant minority 

exception “does not mean that a claim is necessarily reasonable simply if held by a ‘significant 

minority’ (as low as 10%) of consumers”). Under the Commission’s logic, if a significant 
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minority of consumers believe that the world is flat, then that belief is reasonable (and 

controlling) regardless of the scientific evidence. 

In addition, the majority of the Commission stated that “[i]n the absence of any evidence 

to the contrary we conclude [the consumers] are ‘reasonable.’” Opin. at 26. However, the 

Commission cannot presume what Complaint Counsel is required to prove. Dissent at 9 n.46. 

The record contains overwhelming evidence that a consumer interpreting a “biodegradable” 

claim on a plastic product to mean that the product will biodegrade within five years is 

unreasonable. Untreated plastic products take thousands of years to biodegrade. ALJFF ¶ 898.

The fastest biodegrading items, like banana peels and tree trunks, will not reliably biodegrade 

within five years in a landfill. ALJID at 246. That is why “biodegradation” “refers to the 

biological process by which microorganisms such as bacteria and fungi use the carbon found in 

organic materials as a food source, and does not include a time requirement for completion.” 

ALJID at 226. Any consumer interpreting a “biodegradable” claim on a plastic product to imply 

that the product will biodegrade within five years therefore holds an unreasonable belief. And 

“[u]nreasonable interpretations are not deceptive[.]” Dissent at 8. 

As this is the first time that the Commission has ever used the significant minority 

exception as the sole basis for finding an ad interpretation reasonable, a stay is appropriate to 

allow the circuit court to determine whether that action by the Commission is lawful. The 

Supreme Court has reasoned that “the most telling indication of a severe Constitutional problem 

is the lack of historical precedent[.]” Nat’l Fed. Of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2586 

(2012) (quoting Free Enter. Fund. v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 505 

(2010)); see also Virginia Office, 563 U.S. at 260 (“Lack of historical precedent can indicate a 

constitutional infirmity.”). “At the very least,” appellate courts “should ‘pause to consider the 
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implications of the government’s arguments’ when confronted with such new conceptions of 

federal power.’” Id. (quoting U.S. v. Lopez, 514 U.S. 549, 564 (1995)). This is the first time in 

Commission history that it has used the significant minority exception to conclude that because a 

significant minority of consumers hold a belief, that belief is reasonable. Dissent at 9. A stay is 

therefore appropriate to allow the U.S. Court of Appeals to determine whether that application of 

the significant minority exception is lawful. See N. Tex. Specialty Physicians, 141 F.T.C. 10, *3 

(2006). 

C. A Stay Is Warranted because the Commission Failed to Apply the Central Hudson 

Test

Complaint Counsel argue that a stay is inappropriate because “ECM simply recycles its 

previously rejected argument that the record does not support the Commission’s finding that an 

unqualified biodegradable implies a product will completely break down in 5 years.” Opp. At 6.

However, even assuming the Commission’s findings of consumer impression on the term 

“biodegradable” are supported by the evidence (they are not), a stay is warranted to allow the 

U.S. Court of Appeals to determine the legal question of whether the Commission met its burden 

under Central Hudson in prohibiting ECM from prospectively making its biodegradable claim. 

The Commission failed to consider the possibility that ECM’s biodegradability claim is only 

potentially misleading and not inherently misleading. Potentially misleading speech (meaning 

that speech capable of being corrected by a mandated qualification) is protected by the First 

Amendment. See, e.g., Pearson v. Shalala, 164 F.3d 650, 655 (D.C. Cir. 1999); Fleminger, Inc. 

v. U.S. Dept. of Health and Human Servs., 854 F. Supp. 2d 192, 195 (D. Conn. 2012); Alliance 

for Natural Health U.S. v. Sebelius, 786 F. Supp. 2d 1, 13 (D.D.C. 2011). The Supreme Court 

has “reasoned that so long as information can be presented in a way that is not deceptive, such 

information is only potentially misleading” and must not be prohibited outright but must be 
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allowed in reliance on claim qualifications rather than censorship. Whitaker v. Thompson, 248 F. 

Supp. 2d 1, 9 (D.D.C. 2002) (citing In re R.M.J., 455 U.S. 191, 2013 (1982)). 

Before the Commission can ban prospective speech it must meet its burden under Central 

Hudson. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 561–70 

(1980). The Commission attempted to ignore the Central Hudson test by finding that ECM’s 

“biodegradable” claim is inherently misleading, and therefore not protected by the First 

Amendment. Opin. at 56. No federal court has ever determined that a scientifically proven 

claim is inherently misleading because a significant minority of consumers misunderstand the 

claim. “If there is any likelihood that ‘truthful and nonmisleading expression will be snared 

along with deceptive commercial, the State must satisfy the remainder of the Central Hudson by 

demonstrating that its restriction serves a substantial state interest and is designed in a reasonable 

way to accomplish that end.” W. States Med. Ctr. v. Shalala, 69 F. Supp. 2d 1288, 1301 (D. 

Nev. 1999), rev’d on other grounds, 283 F.3d 1090 (9th Cir. 2001). The term “biodegradable” 

is, at worst, only potentially misleading and protected by the First Amendment, as the 

Commission admits that qualifications can “prevent ECM’s prior unqualified claims from being 

misleading . . . .” Opin. at 57; see also R.M.J., 455 U.S. at 203 (potentially misleading speech is 

misleading speech that can be remedied by “a requirement of disclaimers or explanation”). 

Instead of applying the Central Hudson test to find a required disclaimer for ECM’s 

biodegradable claim that “directly advances” the Commission’s interest in preventing deception 

and that has a reasonable fit with that interest, Pearson v. Shalala, 164 F.3d 650, 656 (D.C. Cir. 

1999), the Commission has adopted an effective ban on ECM’s ability to make the scientifically 

truthful claim that ECM Plastics are biodegradable. ALJID at 284–85. In the Application for 

Stay, ECM demonstrated that the Order effectively completely bars ECM from making that 
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claim. App. at 19–21. The Commission’s remedy therefore violates Central Hudson. See 

Valley Broad. Co. v. U.S., 820 F. Supp. 519, 528 (D. Nev. 1993) (a regulation which “effectively 

imposes a ban” on commercial speech fails the Central Hudson test). That violation occurs even 

were all of the Commission’s factual findings supported by substantial evidence because whether 

a government restriction on speech meets the Central Hudson test is a purely legal question. See, 

e.g., El Dia, Inc. v. Puerto Rico Dept. of Consumer Affairs, 413 F.3d 110, 113 (1st Cir. 2005). 

Circuit courts review legal questions de novo. See U.S. v. Van De Walker, 141 F.3d 1451, 1452 

(11th Cir. 1998) (collecting cases). The Commission cannot use the findings it made in this case 

to prohibit future truthful speech, or at least speech that is not demonstrably false. See Opin. at 

47 (admitting that Complaint Counsel failed to meet its burden of proving that the ECM Additive 

is inefficacious). A stay is therefore appropriate to allow the circuit court an opportunity to 

determine de novo whether the Commission met its burden under Central Hudson. See, e.g., 

Citizens for Responsibility and Ethics in Wash. v. Office of Admin, 565 F. Supp. 2d 23, 28 

(D.D.C. 2008) (a stay is appropriate when a “serious legal question is presented”). 

D. ECM Provided Sufficient Evidence to Show that It Will Suffer Irreparable Harm 

Absent a Stay

Complaint Counsel argue that “ECM merely asserts, without any support, that it will 

suffer irreparable injury if it must truthfully qualify its claims.” Opp. At 8. In the Commission’s 

decision, ECM is provided no claim qualification that can be proven scientifically and, thus, 

allowed under the terms of the order. Thus, under the decision the notion of biodegradable claim

qualification is illusory. ECM supplied affidavits from both its President and Chief Financial 

Officer explaining in detail the precise financial bases underlying the conclusion that, if forced to 

abide by the Order, ECM will suffer irreparable injury. See Declaration of Robert Sinclair, 
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attached to ECM’s Application for Stay as Exhibit H, at ¶¶ 3–9, 11–12, 14–17; Declaration of 

Kenneth Sullivan, attached to ECM’s Application for Stay as Exhibit I, at ¶¶ 3–7. 

Complaint Counsel entirely ignore ECM’s evidence of financial harm. ECM presented 

sworn affidavits, balance sheets, and financial data showing that the Final Order will irreparably 

damage ongoing business and imperil the company’s ability to finance an appeal. See generally 

Declaration of Robert Sinclair, attached to ECM’s Application for Stay as Exhibit H; Declaration 

of Kenneth Sullivan, attached to ECM’s Application for Stay as Exhibit I. That harm is based on 

ECM’s inability to market product under the existing Order. Complaint Counsel argue that ECM 

can still market product because the Commission “reject[ed] ECM’s contention that there is no 

scientific means to provide a rate or extent qualification.” See Opp. at 9 (quoting Opin. at 57). 

That point is highly disputed and will be at issue on appeal. It is also irrelevant. Even if that 

point were correct (it is not—there is no generally accepted method to prove rate or extent of 

biodegradation within any set time period), the Commission’s findings preclude ECM from 

using its existing science, a point ignored by Complaint Counsel in their Opposition. The Final 

Order prohibits industry (and ECM) from relying on accelerated gas evolution testing and from 

extrapolating data from those gas evolution tests when calculating biodegradation or 

biodegradability. See Order at 2–3. The Order requires testing under so-called “landfill” 

conditions, a limitation that was rejected as inaccurate and impracticable by expert testimony.1

 

Because industry relies on accelerated gas evolution testing to determine intrinsic 

biodegradability, and ECM’s tests employed accelerated testing, the Final Order actually might 

preclude ECM from marketing any “biodegradable” product. That would end ECM’s business. 

 1 All three of FTC’s own experts had used accelerated testing and extrapolation principles 

to measure biodegradability of articles. ALJID at 242–45 (Drs. McCarthy and Michel); see also 

ALJFF ¶ 723 (“Dr. Tolaymat, Complaint Counsel’s expert, agreed that accelerated testing to 

demonstrate biodegradation is possible.”). 
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See Declaration of Robert Sinclair, attached to ECM’s Application for Stay as Exhibit H, at ¶¶ 

5–8. 

Immediate enforcement of the Order absent a stay also threatens irreparable 

constitutional harm to ECM. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First 

Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable 

injury”). Complaint Counsel have entirely ignored ECM’s relevant factual support. They argue 

that “ECM merely asserts, without any support, that it will suffer irreparable injury if it must 

truthfully qualify its claims.” Opp. at 8. That position presupposes that ECM will be wholly 

unsuccessful on appeal. Their argument is therefore misguided and improper, as it conflates 

ECM’s likelihood of success with its potential for irreparable harm. Whether ECM’s proposed 

claims are “truthful” is a matter to be determined by the Court. See Peel v. Attorney Reg. & 

Disciplinary Comm’n of Ill., 496 U.S. 91, 108 (1990) (extending de novo review to appellate 

courts when determining whether “inherent character of a statement places it beyond the 

protection of the First Amendment”). By contrast, if ECM is precluded from conveying that 

truthful information during its appeal, it suffers an irreparable harm. Newsom v. Norris, 888 F.2d 

371, 378 (6th Cir. 1989) (“The Supreme Court has unequivocally admonished that even minimal 

infringement upon First Amendment values constitutes irreparable injury sufficient to justify 

injunctive relief”). 

Where the Commission has departed almost wholesale from its ALJ’s opinion, and 

extended legal doctrine in ways never before seen, one would think awaiting Circuit review is a 

prudent safeguard against injustice. The Supreme Court has held in other contexts that the lack 

of government action in the past despite the attractiveness of that course “suggests an assumed 

absence of such power.” See Printz v. U.S., 521 U.S. 898, 907–08 (1996); Virginia Office, 563 
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U.S. at 259; Free Enterprise, 561 U.S. at 505–06 (“Perhaps the most telling indication of the 

severe constitutional problem ... is the lack of historical precedent for this entity.”). Preserving 

the status quo ante would reduce the risk of irreparable harm to ECM and businesses nationwide. 

The public has an interest in constitutional government, perhaps the most paramount of 

all interests at stake in this case. “The public as a whole has a significant interest in ensuring 

equal protection of the laws and protection of First Amendment liberties.” Jones v. Caruso, 569 

F.3d 258, 278 (6th Cir. 2009) (explaining that “it is always in the public interest to prevent the 

violation of a party’s constitutional rights.”); Dayton Area Visually Impaired Persons, Inc. v. 

Fisher, 70 F.2d 1474, 1490 (6th Cir. 1995) (“the public as a whole has a significant interest in ... 

protection of First Amendment liberties”). The public also has an interest in receiving truthful 

and non-misleading commercial speech. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 

497 (1996) (quoting Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 

U.S. 748, 765 (1976)). 

As with the likelihood of success prong, here the significant constitutional questions

warrant imposition of a Stay. Based on hundreds of factual findings that were never addressed 

by the Commission, the ALJ concluded that the ECM additive rendered plastics “biodegradable” 

and accelerated biodegradation in landfills. ALJID at 284 (“plastics manufactured with the ECM 

Additive are anaerobically biodegradable”). Moreover, the Commission, despite having a clear 

interest in justifying its investigation and Complaint, could not find sufficient evidence to rule 

against ECM on that point. See Order, at 47. The Commission explained that “we find as likely 

that the ECM Additive has no meaningful effect on the biodegradation of plastic products as that 

it does.” Id.; but see ALJID at 164–65 (explaining that the Commission’s burden to establish 

wrongdoing under the FTC Act is by a preponderance of the evidence). If anything, the clear 
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disagreement by the FTC ALJ is cause to Stay the Order until a circuit court passes on the 

significant factual and legal issues raised. Indeed, the ALJ’s 323 page opinion largely favored 

ECM. The ALJ devoted only about 6 pages of content concerning ECM’s expressed rate claim, 

which ECM has long abandoned. ALJFF ¶¶ 245–264, 697–708; ALJID at 175–78, 245–46. The 

Commission’s decision overturned almost the entirety of the ALJ’s remaining 317 pages. The 

palpable risk of a constitutional deprivation raises a significant prospect of public harm. See 

App. at 31–35.

E. Immediate Implementation of the Order Is not Required to Protect Consumers and 

the Public Interest

Complaint Counsel argue that “[t]here is every reason to believe that absent the 

Commission’s Order, ECM will continue along the same path” of making “deceptive claims.” 

Opp. At 9. Complaint Counsel again ignore the declaration of Robert Sinclair, ECM’s President, 

which states that “ECM does not intend to use a Commission or Judicial Stay to continue to 

perpetuate its prior advertising claims.” See Declaration of Robert Sinclair, attached to ECM’s 

Application for Stay as Exhibit H, at ¶ 9. Rather, “ECM intends to revise its advertising 

materials consistent with the scientific evidence produced before and at trial.” Id. 

Complaint Counsel has identified no “prior history of violations” by ECM. See Opp. at 

9. The basis for Complaint Counsel’s allegation is simply that ECM failed to immediately alter 

its advertising content—and effectively shutter its business—when faced with a government 

allegation. The ALJ was highly skeptical of this argument, logically so, when he interacted with 

Complaint Counsel during closing argument:

And if that’s your position, then you’re saying that respondent, any 

respondent, has no right to assume that they have not done anything wrong. 

They have to assume that the government is correct and change their actions 

immediately. Is that what you’re saying?
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... I’m listening to you and I’m applying common sense here. And there are 

two sides to this case. There’s not just the government. There’s a respondent 

here. And we’re still a free country. 

See Chappell, Tr. at 39-40 (Closing Argument, Nov. 22, 2014). In fact, ECM has no prior 

history of violations. Until this case, ECM had never been charged by an administrative, 

judicial, or private body with deceptive advertising. There is no evidence at all in the record 

suggesting that ECM’s use of the word “biodegradable” on packaging has induced any purchase 

of higher-priced plastic or altered end-consumer behavior in any way. ALJID at 300–01 nn.58–

69. ECM’s immediate customers (i.e., plastics manufacturers) are now privy to substantially 

more information about the science of biodegradation and the biodegradability of ECM plastics 

than ever before. Those companies can also review the public ECM case. The risk of consumer 

deception in the presence of a stay is non-existent.

Further, ECM, as a good faith actor, attempted to comply with the Green Guides. The 

Green Guides state that an unqualified biodegradable implies to consumers complete 

biodegradation within one year after customary disposal. 16 C.F.R. § 260.8(c). So, in 

attempting to dispel that incorrect interpretation, ECM qualified its biodegradable claim with the 

disclaimer that ECM Plastics would biodegrade in some period greater than a year. ALJFF ¶ 

253; ALJID at 182 (“ECM’s revised stated time period of ‘some period greater than a year,’ on 

its face, is clearly and directly contrary to any message that complete biodegradation would 

occur ‘within one year.’”). ECM is therefore a good faith actor, and ECM will not continue to 

make unqualified biodegradable if the Commission stays the Order. 

CONCLUSION

ECM respectfully requests that the Commission stay the Final Order pending ECM’s 

appeal to the United States Court of Appeals. 
Docket No. 9358 PUBLIC DOCUMENT

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Respectfully submitted,

Jonathan W. Emord (jemord@emord.com)

EMORD & ASSOCIATES, P.C.

11808 Wolf Run Lane

Clifton, VA 20124

Telephone: 202-466-6937

Facsimile: 202-466-6938

DATED: November 23, 2015
Docket No. 9358 PUBLIC DOCUMENT

20

CERTIFICATE OF SERVICE

I hereby certify that this is a true and correct copy of Respondent ECM BioFilms’ Reply to 

Complaint Counsel’s Opposition to Respondent’s Application to Stay the Final Order Pending 

Judicial Review, and that on this November 23, 2015, I caused the foregoing to be served 

electronically to the following: 

Donald Clark

600 Pennsylvania Ave., NW

Suite 172

Washington, DC 20580

I hereby certify that this is a true and correct copy of Respondent ECM BioFilms’ Application to 

Stay the Final Order Pending Judicial Review, and that on this November 23, 2015, I caused the 

foregoing to be served electronically to the following:

Jonathan Emord

Emord & Associates, P.C.

jemord@emord.com

Respondent

Peter Arhangelsky

Emord & Associates, P.C.

parhangelsky@emord.com

Respondent

Katherine Johnson

Complaint Counsel

Federal Trade Commission

kjohnson@ftc.gov

Complaint

Elissa Jillson 

Complaint Counsel

Federal Trade Commission

ejillson@ftc.gov

Complaint

Jonathan Cohen

Federal Trade Commission, Bureau of Consumer Protection, Enforcement Division

jcohen@ftc.gov

Complaint

Arturo DeCastro
Docket No. 9358 PUBLIC DOCUMENT

21

Attorney

Federal Trade Commission

adecastro@ftc.gov

Complaint

Eric Awerbuch

Attorney