FTC says firm's biodegradable claims 'false'

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Washington — The U.S. Federal Trade Commission has ruled against an Ohio-based plastics film maker, calling ECM BioFilms Inc.’s claims that its product is biodegradable “false and unsubstantiated.”

The FTC ruling overturns an administrative law judge’s decision in January that ECM’s MasterBatch Pellets cause plastics to biodegrade and that such claims are supported by evidence, including more than 20 gas evolution tests proving biodegradability. The FTC rejected the nearly 1,500 findings in the more than 300-page decision by Administrative Law Judge D. Michael Chappell.

However, the new ruling says the company’s claims that treated plastics will biodegrade in a landfill over a time period spanning nine months to five years are merely deceptive marketing.

FTC’s final order bans ECM from saying any plastic product treated with its additive is “biodegradable” unless that claim is supported by scientific evidence and that the entire plastic item will completely decompose into elements found in nature within five years if disposed of in a conventional way, unless the product is clearly labeled with an explanation of how long it takes to biodegrade and any special disposal requirements.

While administrative law judges review complaints before they go to the Commission, that is viewed only as an initial decision and FTC can rule however it chooses on its own.

The company will appeal the decision, according to lawyers with Emord & Associates in the Washington, D.C. area, who have been representing ECM since the legal battle over the company’s biodegradability claims began in October 2013.

An appeal will likely take another 16 to 20 months, said Peter Arhangelsky, a principal lawyer at the firm, and a temporary stay on the new decision is likely to be permitted by a judge.

“This is the direction the agency is taking,” Arhangelsky said. “It’s an order against ECM but it effects the entire industry. It has the effect of shutting down almost all biodegradable claims. If it stands folks are going to have to revisit the way they are testing their products.”

The company and its lawyers had hoped that FTC would look at the “massively favorable decision” from the administrative law judge and find favorably for them, Arhangelsky said. But FTC’s ruling followed closely with the complaint rather than the initial findings of the judge and the scientific evidence presented.

“Biodegradation of plastics is a really complex thing. So the question we’ve always asked from the start is, this is not the EPA, this is not the FDA, this is not an agency that has a special scientific jurisdiction, it’s the FTC, it’s a bunch of lawyers passing judgment. Is this the agency that should be making policy on this matter?” Arhangelsky said. “This could finally be the case that draws the attention of the circuit courts... and says maybe we shouldn’t give the agency as much authority as they’ve been taking.”