The Federal Trade Commission has ruled that ECM BioFilms acted deceptively by making false and unsubstantiated environmental claims by saying its product is biodegradable.
ECM BioFilms claimed its product, a chemical additive, would make treated plastics biodegrade in a landfill within nine months to five years.
The FTC’s final order bars ECM from representing that a plastic product or package is degradable, or that any product or service affects a plastic product’s degradability, unless the representation is true, not misleading, and substantiated by competent and reliable scientific evidence. It also requires that for claims relating to degradability of plastic products, ECM must ensure that either: 1) the entire plastic item will completely decompose into elements found in nature within five years after customary disposal; or 2) the claim is clearly and prominently qualified by either the time for complete decomposition or the type of non-customary disposal required and the availability of such disposal facilities.
The FTC’s decision reverses its administrative law judge’s earlier decision. It follows the FTC’s recent crackdown on companies’ claims that their products are biodegradable.
In the FTC administrative law judge’s January decision, Judge D. Michael Chappell ruled that ECM Biofilms had proven the effectiveness of its product based on generally accepted, competent and reliable scientific evidence, including more than 20 gas evolution tests that prove intrinsic biodegradability.
ECM Biofilms’ attorney says the FTC’s final order effectively bans the term “biodegradable.”
“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 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.”
ECM will appeal the FTC’s decision, Emord said.
Photo Credit: biodegradable label via Shutterstock