Much plastic waste ends up in landfills, where it can take thousands of years to biodegrade. Increasingly, some environmentally conscious consumers have rejected traditional plastics and turned to products that decompose at a more rapid rate. Seeing an opportunity, manufacturers of plastic products have begun to look for ways to increase the biodegradability of their products.

ECM BioFilms Inc. manufactures an additive that it claims would speed the degradation of treated plastics in a landfill. The company's assertions regarding its product have changed over the years. Before 2009, ECM did not claim a specific time frame for biodegradation, but did represent that ECM plastic would biodegrade “in timeframes that would be similar to things like wood or pieces of sticks.” When, in 2009, demands arose for specific time frames, ECM began advertising that its plastic would “fully biodegrade” in a “landfill” within nine months to five years.

In October 2013, the FTC enforcement staff filed an administrative complaint alleging that ECM's biodegradability representations were false and misleading under federal law. The complaint asserted that ECM's express representation that ECM plastic would completely biodegrade within nine months to five years was unsupported by scientific evidence. It also alleged that consumers were “likely interpret unqualified degradable claims to mean that the entire product or package will completely decompose into elements found in nature within a reasonably short period of time after customary disposal.” Because ECM plastic does not fully biodegrade within a reasonably short time, the complaint alleged, this implied claim was misleading.

An FTC administrative law judge (ALJ) held a three-week trial in August 2014. The proceeding provided a rare opportunity to see and hear testimony and evidence on a common, but hard-to-nail-down concept: biodegradability. As it turns out, reputable scientists disagree on a precise definition of the term. They commonly define biodegradable material as a substance that can be decomposed by biological agents. But a complicating factor is that biodegradation occurs at different rates in different environments.

At the trial, testimony was presented on the most practical and widely-used scientific method for measuring the intrinsic biodegradability of a material: gas evolution testing. In particular, the D5511 protocol is said to provide the best approximation of plastic biodegradation in landfill conditions, which are predominantly anaerobic environments.

Following the hearing, the ALJ concluded that ECM's express claim that its plastic would completely biodegrade in a landfill within nine months to five years was false and unsubstantiated. As the ALJ observed, “All of the experts in this case agreed that ECM Plastics do not fully biodegrade in 9 months to 5 years in a landfill.” He also determined, however, that the FTC had failed to prove that ECM's remaining biodegradability claims were misleading because the FTC could not establish that ECM had made an “implied one year claim.”

After both sides appealed, the five-member Commission affirmed the ALJ's decision with regard to ECM's express claim that ECM plastic would fully biodegrade within five years, concluding that “the clear consensus among both parties' experts” was that “ECM lacks substantiation for its express and implied claims that ECM Plastics fully biodegrade in landfills within 5 years.” ECM no longer contends otherwise. The Commission reversed on the other biodegradability claims, finding that ECM indeed had made implied claims that ECM plastic would fully biodegrade within a reasonably short period of time—that is, five years.

The company also contended that the FTC order unlawfully restricts its First Amendment right to disseminate truthful scientific information. It also argued, in the alternative, that its proposed disclaimer would have cured any deception and that the FTC's required disclaimers are unduly burdensome.

“Because ECM has not provided—and in all likelihood cannot provide—scientific evidence that ECM plastic will completely decompose within five years after customary disposal (i.e. in a landfill), the Commission's order effectively requires that any use of the word “biodegradable” be accompanied with disclaimers,” the appeals court said. “This restriction is not a prohibition on speech; it does not ban ECM from using the word “biodegradable” (or any other word) in its advertisements nor are the disclaimer requirements so onerous that they effectively preclude ECM from making qualified biodegradability claims.”

Finding this contention without merit, the appeals court said: “The complaint here . . . alleged that ECM's various biodegradability claims were false and misleading, and it identified specific marketing materials containing these claims. It also informed ECM of the main issues in dispute: the scientific validity of the claims; the rate of biodegradation of ECM plastics after customary disposal; and whether consumers “interpret unqualified degradable claims to mean that the entire product or package will completely decompose into elements found in nature within a reasonably short period of time after customary disposal.”

Read full article and learn more about the FTC and Deceptive Advertising here.

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Disclaimer:  This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.