On November 9, 2015, ECM BioFilms, Inc. filed an Application for a Stay Pending Judicial Review in the Matter of ECM BioFilms, Inc., FTC Docket No. 9358. ECM’s Press Release on that Application for Stay is available here.
ECM asks the Commission to stay its October 19 Order overturning the Administrative Law Judge’s Initial Decision and holding ECM liable for violations of the FTC Act. The Commissioners are the same individuals that oversaw the pre-litigation investigation into ECM’s business practices and approved the filing of the Complaint against ECM. Contrary to the scientific evidence which identifies through gas evolution testing whether a product is intrinsically biodegradable, the Commission remarkably found—contrary to the scientific evidence—that the word “biodegradable” may only be used on a product that can be proven to completely decompose within 5 years after disposal. According to the scientific testimony offered by both ECM and Complaint Counsel, no product can meet that standard due to environmental variability (not even a piece of paper, wood, a banana, or an apple core). In its application for a stay, ECM requests that the Federal Trade Commission stay its Order pending review in the U.S. Court of Appeals. Given that the Order is unprecedented in several constitutional and procedural aspects, ECM urges FTC to table its Order until a federal court passes on its legality.
In the Application, ECM explains that the Commission was wrong in overturning the Administrative Law Judge’s finding that the ECM Additive renders plastic products “biodegradable,” as proven through expert testimony, peer-reviewed literature, and product testing. The Commission’s Order misinterpreted critical and uncontroverted testimony by leading authorities in landfill biodegradation and brings about a complete ban on use of the term “biodegradable” in consumer packaging and advertising. The FTC Order imposes unscientific environmental policies on a national scale. The Commission’s decision also circumvents the protections of the First Amendment by censoring truthful scientific speech. ECM contends that its Additive renders plastic products biodegradable, as defined in the scientific literature. ECM therefore asks the FTC to stay its order to preserve the status quo ante pending review by the federal courts.