The next time you see a plastic bottle described as “biodegradable,” be extra skeptical. Consider the plight of ECM Biofilms, Inc. I first mentioned the company back in 2010 in an article on bags. In that article ECM was mentioned as a supplier of an additive that another company was using to make its product biodegradable. ECM popped up in another article on Green Lodging News in 2013. In that instance the company was the target of Federal Trade Commission (FTC) complaint. The FTC charged ECM with violating the FTC Act by misrepresenting that: 1) ECM plastics (plastics made with ECM additives) are biodegradable and will completely break down within a reasonably short period of time after customary disposal; 2) ECM plastics are biodegradable in a landfill; 3) ECM plastics are biodegradable in a stated qualified timeframe; and 4) that various scientific tests prove ECM’s biodegradability claims.
Finally, the complaint charged ECM with providing its customer and independent distributors—through the distribution of its promotional materials—with the means to deceive consumers. ECM allegedly claimed, for example, that “plastic products made with [its] additives will break down in approximately nine months to five years in nearly all landfills or wherever else they may end up.” The complaint alleged that these purportedly biodegradable plastics do not in fact biodegrade within a reasonably short period of time after disposal in a landfill. Moreover, the complaint alleged that ECM has no substantiation to support its claims that its additive makes plastic biodegradable. In 2013, ECM was one of a number of companies fined for their claims.
ECM was back in the news this past week. The FTC announced its Opinion and Final Order against ECM, finding that the company acted deceptively by making false and unsubstantiated environmental claims about its product, a chemical additive that supposedly would make treated plastics biodegrade in a landfill within nine months to five years or within a reasonably short period of time, as alleged in the administrative complaint announced against the company in 2013. The Commission’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.
In addition, the Final Order 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. Also, ECM must have competent and reliable evidence to substantiate claims for any environmental benefit.
The Final Order also bars ECM from providing others with the “means and instrumentalities” to make any false, unsubstantiated, or otherwise misleading representations of material fact or environmental benefits; and bars the company from misrepresenting the existence, contents, validity, results, or conclusions of any test, study, or research. ECM may file a petition for review of the Commission decision with the U.S. Circuit Court of Appeals within 60 days of service of the Final Order.
The FTC is obviously serious about protecting consumers against false biodegradability claims. ECM is just one of a number of companies the FTC has penalized in recent years. Whether buying amenities, plastic bags or other items that claim to be biodegradable, don't trust so easily.