APR comments on biodegradable additive lawsuit decision

The Association of Postconsumer Plastic Recyclers (APR), Washington, has urged caution in response to a Jan. 28, 2015, decision by D. Michael Chappell, a chief administrative law judge, who issued a 323-page initial decision on the lawsuit brought against Painesville, Ohio-based ECM Biofilms, a degradable additives provider, by the U.S. Federal Trade Commission (FTC). The case surrounded ECM’s MasterBatch Pellets, which the company claims causes plastics to biodegrade.

In his ruling, the judge ordered ECM Biofilms to not deceptively state any plastic product or package will completely degrade within any time period and to not deceptively state tests prove such claims.

“This is a decision of reason,” says Steve Alexander, APR executive director. “The judge found that the company had violated the law by deceptively claiming plastics with its additive would degrade completely within nine months to five years.”

“We disagree with the charge,” says 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 time frame for landfill biodegradation is not one year, as the FTC changed their Green Guides to read as of Oct. 1 of last year, but can be as much as decades,” Sinclair continues. “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.”

According to the APR, the FTC Green Guides for environmental claims define biodegradable as “complete decomposition [in] no more than one year after customary disposal.” Following FTC workshops on environmental claims, the definition reflects the public’s understanding of what biodegradable means, the organization continues, adding that to contravene that understanding is misleading to the consuming public.

The initial decision is subject to appeal to the full commission, but becomes final in 30 days unless the parties appeal or the commission places the matter on its docket for review, the APR says.

The judge confused the matter by finding the FTC lawyers had not proven the ECM Biofilms advertising implied complete degradation, the organization says. The judge found the FTC’s expert had not documented his definition of time to complete degradation.

“There is a definition for aerobic biodegradation of plastics,” says Alexander. “The specification in ASTM D6400 requires 90 percent of the carbon in the plastics to be converted to gas within 180 days. This is a firm definition of time and extent of decomposition.”

ASTM D6400 is the only specification on plastics biodegradation issued by the standards organization. All other ASTM standards on the subject are test methods.

Alexander continues, “APR is interested in this matter as degradable additives create a risk of diminished performance properties over the service life for recycled plastics products until proven not to. We have a test protocol to show no harm done and have not seen any data from ECM Biofilms or others showing the protocol limits are met. We encourage the full commission to confirm the initial restrictive finding and delve deeper into the questions raised by the law judge and confirm the Green Guide biodegradation definition so to bring clarity for the public.”

In its response to the ruling, ECM says it discontinued making the challenged rate claim years before the decision and intends to abide by all terms of the order pending appeal. “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,” the company says.

ECM BioFilms also released a statement that reads: “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.”