In the FTC’s administrative proceeding against ECM Biofilms, Inc., Administrative Law Judge Chappell rejected the FTC’s assertion, taken directly from the Green Guides, that marketing a product as “biodegradable” includes an implied claim that the product “will completely decompose into elements found in nature within one year after customary disposal.” ALJ Chappell ruled that the FTC failed to “demonstrate with probative, persuasive evidence” that ECM Biofilm’s claim that products made with its plastic additives were “biodegradable” also communicated an implied one-year claim to “a significant number of reasonable consumers.” ALJ Chappell’s traditional advertising claims analysis included ECM’s marketing materials, dictionary definitions of “biodegradable,” the absence of copy tests specific to ECM Biofilm’s claims, competing consumer surveys about biodegradability, and related expert testimony. ECM Biofilms did not escape unscathed, however: ALJ Chappell agreed with the FTC that more specific claims – “fully biodegradable in a landfill within 9 months to 5 years” – were false and unsubstantiated and thus violated the FTC Act.

Don’t scratch the implied one-year claim out of your copy of the Green Guides or change your substantiation practices regarding “bare” biodegradable claims just yet. Given the importance the FTC attaches in the Green Guides to conveying a reasonable time frame for biodegradability, expect the full Commission to sit as an appellate body in review of this ALJ decision.  If the Commission reaches a different result, expect the matter to go up to the DC Circuit for further appellate review, similar to the administrative proceeding and appeals process in the POM Wonderful proceeding.

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