Antitrust Law Daily Wrap Up, TOP STORY—ECM Biofilms deceptively advertised that ECM Plastics were completely biodegradable, (Feb 6, 2015)

By Jody Coultas, J.D.

The FTC’s Chief Administrative Law Judge (ALJ) ruled that plastics additive manufacturer ECM Biofilms, Inc. violated the FTC Act by deceptively claiming that plastics treated with ECM additives would completely biodegrade in a landfill within nine months to five years (In the Matter of ECM BioFilms, Inc., FTC Dkt. No. 9358, January 28, 2015, Chappell, D.).

ECM, which markets additives under the trade name MasterBatch Pellets, allegedly claimed that its additives could make plastic products biodegradable. Advertising for its additives claimed that ECM Plastics would completely biodegrade in a landfill in a time period ranging from nine months to five years, and that tests proved such claims. The FTC alleged that scientific tests relied on by ECM did not show that ECM Plastics would completely decompose in a reasonably short period of time or in ECM’s stated timeframes of nine months to five years, and did not replicate the physical conditions of either landfills, where most trash is disposed, or other disposal facilities stated in ECM’s claims.

The ALJ found that these claims violated Section 5 of the FTC Act based on expert testimony establishing that ECM Plastics were not fully biodegradable in a period of nine months to five years in a landfill.

However, the FTC failed to prove that ECM’s claims that ECM Plastics were “biodegradable” conveyed the implied claim that ECM Plastics would completely biodegrade into elements found in nature, in a landfill, within one year. Also, ECM’s tests constituted competent and reliable evidence demonstrating that ECM Plastics were biodegradable, including in a landfill.

The judge’s order bars ECM from representing that any product or package will completely biodegrade within any time period, or that tests prove such a representation, unless the representation is true and not misleading, and at the time it is made, ECM possesses and relies upon competent and reliable scientific evidence that substantiates the representation. ECM and associated entities are also barred from providing others with the means and instrumentalities to make any false, unsubstantiated, or otherwise misleading representation, including through the use of endorsements or trade.

The judge found that the FTC was not entitled to an order provision that would require ECM to possess substantiation establishing that a given item “will completely decompose into elements found in nature within one year after customary disposal” before making unqualified biodegradability claims about the item.

Attorneys: Jonathan W. Emord (Emord & Associates, P.C.) for ECM BioFilms, Inc. Katherine Johnson for FTC.

Companies: ECM BioFilms, Inc.

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