State of the Biodegradable Plastics Market

PAINESVILLE, OH, Jan. 27, 2016 / — On this date Voice America broadcast a radio show interview of Robert Sinclair, President of ECM BioFilms, Inc., by David Marinac of the Ditch the Box radio series on the topic of ECM BioFilms leading the sustainability movement within the plastics and landfill gas-to-energy industries with an additives for manufacturing biodegradable plastics–creating an entirely new and greatly desired end-of-life scenario for plastics–and simultaneously opening up exciting new opportunities for energy generation and recycling the hydrocarbons of old plastic products into new plastic resin.

To listen to the show, follow the link below:

http://www.voiceamerica.com/episode/90157/the-rise-of-biodegradable-plastics

FTC Grants ECM Application to Stay Final Order in Biodegradable Plastics Case

WASHINGTON, Dec. 9, 2015 /PRNewswire/ — On December 8, 2015, the Federal Trade Commission granted ECM BioFilms’ request to stay the Commission’s Final Order in the matter of ECM BioFilms, FTC Docket No. 9358. The stay of its October 15, 2015 Order will remain in place until the United States Court of Appeals for the Sixth Circuit decides ECM’s appeal from the FTC’s Order. On October 15, 2015, the Commission reversed its Administrative Law Judge’s 300+ page initial decision holding that ECM BioFilms had proven with competent and reliable evidence that its product accelerated biodegradation of conventional plastics, thus corroborating its “biodegradable” claim for its product. The Commission reversed the Initial Decision, concluding that the unqualified term “biodegradable” could only appear on plastics if they are proven to completely biodegrade into elements found in nature within five years after customary disposal, a requirement scientists have testified could never be satisfied for any product due to environmental variability.

In its application for stay, ECM argued that the case was complex and that an alternative decision in favor of ECM was possible, such as that made by the ALJ and such as that supported by the dissent of FTC Commissioner Ohlhausen. ECM also explained that the absence of a stay would cause it to suffer irreparable economic injury, jeopardizing its appeal. The Commission granted ECM’s request. The Commission’s stay order can be found at emord.com, along with copies of the Commission Decision and the ALJ Initial Decision. ECM docketed its appeal with the U.S. Court of Appeals for the Sixth Circuit on December 4, 2015.

For more information please visit www.emord.com.

Contact: Jonathan W. Emord or Peter A. Arhangelsky (202-466-6937)

SOURCE Emord & Associates, P.C.

RELATED LINKS
http://www.emord.com

FTC Sets Environmental Policy that Disregards the Science of Waste Management

WASHINGTON, Oct. 19, 2015 /PRNewswire/ — 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.

Visit www.emord.com (http://www.emord.com/) for copies of the public decisions.

CONTACT: Jonathan Emord (202-466-6937)

SOURCE Emord & Associates, P.C.

Please help ECM fight this unreasonable restriction on its freedom of truthful speach by donating here at www.ecmdefense.com.

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

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 ECM’s claim that its plastics additive, ECM MasterBatch Pellets™, causes plastics to biodegrade was supported by competent and reliable scientific evidence. He rejected FTC’s challenge to that claim. He also rejected FTC’s argumentthat the term “biodegradable” implies that a product will completely biodegrade into elementsfound in nature within one year after customary disposal—a position articulated in the FTC’s Green Guides industry guidance. He upheld the FTC’s position challenging the specific rate within which ECM plastic degrades, given the unpredictable fate of plastics in the environment.

ECM BioFilms discontinued making the challenged rate claim years before the decision. Judge Chappell refused to include any fencing-in provisions as a part of his order.  ECM BioFilms intends to abide by all terms of the order pending appeal and has issued the following corporate statement: “ECM BioFilms respects the decision of administrative Law Judge Chappell. We are particularly gratified that Judge Chappell determined, based on a thorough review of all scientific evidence, that ECM’s representation that its ECM MasterBatch Pellets™ cause plastics to biodegrade is supported by competent and reliable scientific evidence.”

“We have long since discontinued making claims concerning estimated periods within which biodegradation may occur and have no intention of making such claims in the future.”

ECM BioFilms is represented by the constitutional and administrative law firm, Emord & Associates, P.C.

# # #

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

DOCKET NO. 9358

In the Matter of
ECM BIOFILMS, INC.,
a corporation, also d/b/a
Enviroplastics International,
Respondent.

INITIAL DECISION

ECM BioFilms Responds to FTC Complaint: Claims Agency Overlooked Credible Scientific Evidence and Its Own Rules

For Immediate Release

PAINESVILLE, Ohio/EWORLDWIRE/Oct. 29, 2013 — ECM BioFilms Inc. (ECM) today announced that it would defend itself against an administrative complaint filed by the Federal Trade Commission (FTC) staff against the company. The FTC action alleges that ECM made misleading claims that plastic products produced utilizing ECM’s additive technology are biodegradable after customary disposal under most conditions including landfills because ECM lacks proof that the product eliminates 100 percent of plastics within one year of application.

“We disagree with the charge,” said ECM President Robert Sinclair. “We have the scientific evidence that plastic products manufactured with our additives will fully biodegrade in landfills that accept municipal solid waste and in reasonable periods of time. A reasonable timeframe for landfill biodegradation is not one year, as the FTC changed their Green Guides to read as of October 1 of last year, but can be as much as decades. Even though we vehemently disagree with this arbitrary one year limit for landfills, we changed our claims from the unqualified ‘biodegradable’ claim to qualified biodegradability claims last year right after the newly revised Green Guides came out. Now the FTC is going further and is disregarding the consensus scientific view, as expressed in the ASTM Standard Test Methods, that the results of these tests are reflective of what will occur in real-world landfills.”

[Read more…]



Please help ECM fight FTC's unreasonable restriction on the freedom of truthful speach by donating at www.ecmdefense.com.