Federal Judge makes ruling on additive case

A federal judge has ruled that a plastic additive company sued by the Federal Trade Commission misled clients and customers but sufficiently corrected its marketing approach and materials by the end of 2013.

ECM BioFilms has created a unique and trade-secreted additive technology for manufacturing biodegradable plastics that will transform any standard plastic resins into biodegradable plastics.

In issuing the Jan. 28 preliminary ruling, which can be appealed by both parties within 30 days, Judge D. Michael Chappell determined ECM BioFilms' claims that plastic products containing the company's additive would degrade within 9 months to 5 years were "false and unsubstantiated."

ECM used that time frame – and claims related to studies proving it – in various marketing materials up until the end of 2013. The FTC sued ECM in October 2013 and by December the company had discontinued referencing the timespan.

Judge Chappel is part of the FTC's Office of Administrative Law Judges, which is tasked with independently ruling on all FTC complaints. The plastics recycling industry keeps close tabs on the properties of different additives in plastic products because those additives can affect the recyclability of those items.

ECM, in responding to the ruling, argued the company has discontinued attaching timetables to its degradability claims and has no plans to use them going forward.

"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 wrote in response to the ruling.

According to ECM's website, plastics containing the company's additive are "recyclable, compostable, and/or biodegradable wherever they end up (as long as it’s not the frozen tundra, or somewhere else where nothing could biodegrade)."

The FTC had pursued a more stringent ruling against Ohio-based ECM but failed to convince the judge any claims of degradability required and implied "complete degradation" of a product within one year. ECM, court documents show, continued to market its additive as degradable "in some period greater than a year" after 2013, a practice that went against FTC's revised Green Guide.

As a result of its wrongdoing, ECM was ordered to "not represent, in any manner . . . that any product or package will completely biodegrade within any time period, or that tests prove such claims" unless scientific evidence proves such claims. The company will also be required to take part in a 20-year compliance and reporting provision.

Judge Chappell's further ruling – that FTC's counsel did not prove products marketed as degradable had to fully degrade within one year, as FTC's Green Guide argues – essentially allows ECM, and likely others, to continue marketing its additive as degradable.

Steve Alexander, executive director of the Association of Postconsumer Plastic Recyclers (APR), weighed in on the decision as it relates to the largely additive-wary plastics recycling industry.

"APR is interested in this matter as degradable additives create a risk of diminished performance properties over the service life for recycled plastic products until proven not to," Alexander said in a statement. "We have a test protocol to show no harm done and we have not seen any data from ECM BioFilms or others showing the protocol limits are met."

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