In a decision that reverses its Administrative Law Judge and sets new national environmental policy, a Federal Trade Commission decision released on October 19, 2015 forbids the term “Biodegradable” from appearing on any product unless that product is shown to completely break down into elements in nature within five years after customary disposal. See In re ECM Biofilms, FTC Docket No. 9358 (Oct. 19, 2015). Under that standard, bananas, oranges, wood, and even paper (all understood by scientists to be intrinsically biodegradable) are not “fully biodegradable” because none reliably biodegrades into elements within five years after disposal.
Leading industry and scientific experts who testified in the case are quick to note that products do not biodegrade into “elements” but into compounds and elements. Moreover, intrinsically biodegradable substances cannot be predicted to biodegrade within any set time period, and depends instead on ambient environmental conditions and the relative presence of biota. Under the new FTC rule, a product that completely biodegrades five years and one minute after disposal is not lawfully labeled “biodegradable” but one that completely biodegrades just one minute before is.
In the FTC Administrative Law Judge’s decision, Judge D. Michael Chappell ruled that ECM Biofilms, maker of an additive that accelerates the biodegradation of conventional plastics, had proven the effectiveness of its product based on generally accepted, competent and reliable scientific evidence, including over twenty gas evolution tests that prove intrinsic biodegradability. Excerpts from the ALJ decision follow below.
The FTC rejected the ALJ’s decision without a scientific explanation and without identifying any other form of testing generally accepted in the scientific community that could support a biodegradable claim. Judge Chappell provided a detailed explanation of why accelerated gas evolution testing was appropriate for determining intrinsic biodegradability, a method of testing even affirmed as valid by FTC’s own testifying expert Dr. Thabet Tolaymat, a representative of the U.S. Environmental Protection Agency (EPA). Without a reasoned explanation for departure from the science, the FTC adopted instead an arbitrary five-year cut off as the standard for allowing biodegradable claims.
Under the FTC’s new standard, only if a company can show that its product biodegrades into elements in nature within five years of customary disposal can it claim the product to be biodegradable. Moreover, the FTC precludes companies from extrapolating test results beyond the cutoff date for gas evolution tests, meaning that no natural material (including paper or food waste) can ever meet the Commission’s narrow definition of a fully “biodegradable” product.
“This is an egregious instance of abuse of agency discretion,” said Jonathan Emord of Emord & Associates, the firm representing ECM Biofilms. “The ALJ correctly ruled on the record evidence (including two dozen independent tests, peer-reviewed publication, and scientific testimony) that the ECM product renders plastic intrinsically biodegradable and accelerates plastic biodegradation (in other words that it works). By forbidding ECM from claiming that its product makes plastics biodegradable despite overwhelming evidence that it does, and by erecting an arbitrary and unscientific five year cut off for use of the term ‘biodegradable,’ the FTC has imposed a constitutionally forbidden prior restraint on truthful speech.” Emord also said, “FTC has created a new standard that will harm consumers and the environment and has presumed to establish national environmental policy, invading the exclusive province of the EPA. ECM intends to appeal and vigorously contest this unconstitutional, unscientific, and arbitrary decision.”
FACT FINDINGS FROM THE ALJ DECISION:
“The ECM Additive helps to set in motion the attraction/migration of microbes and biological agents to the plastic, and to the areas of the plastic where weaknesses or hydrophilic defects exist.” ALJ Finding of Fact # 910.
“Inclusion of the ECM Additive, a biodegradable substance and attractant for microbial growth, contributes to an acceleration of biodegradation.” ALJ Finding of Fact # 917.
“Peer-reviewed literature supports Dr. Sahu’s opinion that the ECM Additive contributes to an acceleration of biodegradation.” ALJ Finding of Fact # 951.
“Based on his statistical analyses and the test data he reviewed concerning ECM Plastics, Dr. Barlaz testified that competent and reliable scientific evidence exists to show that plastics manufactured with the ECM Additive are anaerobically biodegradable.” ALJ Finding of Fact # 1041.
“Based on his statistical analyses and test the data he reviewed concerning ECM Plastics and based on his review of the procedures used by the labs conducting the ASTM D5511 tests, Dr. Barlaz credibly and persuasively testified that [ECM’s] testing constitutes competent and reliable scientific evidence demonstrating that plastics manufactured with the ECM Additive are anaerobically biodegradable.” ALJ Opinion at Page 284.
“Dr. Barlaz persuasively and credibly testified that competent and reliable scientific evidence shows that plastics manufactured with the ECM Additive are anaerobically biodegradable.” ALJ Opinion at Page 283.
For More Information:
Read the ALJ Initial Decision
Read the Commission’s Decision
Read the Dissenting Opinion of Commissioner Ohlhausen
Read the Final Order from the Commission
Visit ECMDefense.com (for more information or to support ECM in its appeal)
CONTACT: Jonathan Emord (202-466-6937 | jemord@emord.com)
* Emord & Associates, P.C. is representing ECM on appeal of the decision to the U.S. Court of Appeals.
