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FTC’s Ban of “Biodegradable” Claims in the ECM Case Threatens an Expansion of FTC Authority (Case Comment)

By Peter A. Arhangelsky, Esq. On October 19, 2015, the Federal Trade Commission issued its Final Decision and Order (“Decision”) against ECM Biofilms, an Ohio-based company that produces additives used in plastics manufacturing.  See In re ECM Biofilms, FTC Docket No. 9358 (Oct. 19, 2015).  A copy of ECM’s press release concerning that decision is […]

FTC Bans “Biodegradable” on Products

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 […]

Biodegradable Plastics Claim Upheld Against FTC Challenge in Precedent Setting ECM BioFilm’s Case

Press Release:  February 6, 2015 For Immediate Release Contact:  Jonathan W. Emord or Peter A. Arhangelsky (202-466-6937) Washington, D.C.–On January 28, 2015, Federal Trade Commission Chief Administrative Law Judge D. Michael Chappell issued a precedent setting decision in the case of FTC v. ECM BioFilms, FTC Docket No. 9358. In his decision, Judge Chappell held […]

D.C. Circuit: FTC’s Two RCT Requirement Violates the First Amendment

On January 30, 2015, the Circuit Court of Appeals for the District of Columbia entered its decision in the case of POM Wonderful, LLC (“POM”) v. Federal Trade Commission (“FTC”), No. 13-1060.  In that decision, the D.C. Circuit upheld the FTC’s findings that POM violated the Federal Trade Commission Act (“FTCA”) by misleading consumers through […]

FTC’s POM Wonderful Decision Will Dumb Down the Marketplace

In a recent opinion, the Federal Trade Commission (“FTC”) affirmed in part and reversed in part an Administrative Law Judge’s decision that Pom Wonderful deceptively advertised its products.  According to the Commission, Pom Wonderful did not have sufficient substantiation to support claims the FTC deemed implied that POM’s products could treat, prevent, or reduce the […]

The Rule of Innocent Construction

It is a truism that words have multiple meanings.  String them together in a sentence and greater opportunity exists for construing them to mean something other than intended by the speaker.  Add to that meanings not overtly expressed but interpretable as implied and you can transform an intended meaning into an unintended one with relative […]

FTC Investigating Vitamin Shoppe Purchase of Super Supplements, Inc.

The FTC is once again intruding into the marketplace by investigating The Vitamin Shoppe’s planned $50 million acquisition of Super Supplements, Inc.  The specifics of the investigation are unclear because the FTC does not comment on investigations and Vitamin Shoppe’s brief statement concerning the investigation did not detail the reason for it, but stated that […]

The FDA’s and FTC’s Reliance On Randomized Clinical Trials For Dietary Ingredients Is Impractical and Unethical

The FDA and FTC intend to require randomized clinical trials (RCTs) in support of promotional claims for dietary supplements and dietary ingredients.  That much is clear.  The FTC took that position in the recent POM Wonderful case, and the FDA memorialized that position in its Evidence Based Review System (EBRS).  In practice, the FDA will […]

FTC Burden of Proof Offends the First Amendment

By Jonathan W. Emord As Bethany Kennedy explains in her recent post, the Federal Trade Commission’s staff expects advertisers of health benefits to possess competent and reliable scientific evidence in advance of advertising a health benefit claim.  In particular, that means an advertiser must have written evidence on hand before advertising.  The absence of the […]

FTC Staff’s Two Clinical Trials Standard Likely to Continue Even if POM Wins

In the POM Wonderful case, the FTC ALJ rejected FTC staff demands that certain claims there in issue had to be backed by at least two well-designed clinical trials or they would be deemed deceptive.  The issue is before the full Commission and will be decided on January 18, 2013.  Even if the full Commission […]


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