No, this is not yet another story about the Trump administration’s war on the environment. Action Alert!
This tragic story proves how totally confused the debate over environmental regulation really is. This powerful agency addresses a huge environmental problem by illegally blocking progress on it. This happened under the Obama administration—now a court backs it up!
Clearly it is not the quantity of regulation that matters for the environment. It is the quality—and also the legality. There is no bigger environmental issue worldwide than the proliferation of plastic on land and in our oceans—plastic that will never biodegrade. We now have technologies to make the plastic biodegrade—but what does the FTC do? It attempts to bankrupt and shut down the company developing the technology! This is crazy.
We at ANH-USA have been closely following a recent FTC attack on a company that developed an additive for plastic products to make them biodegradable. The FTC claimed in its suit that the company, ECM Biofilms, had not proved its biodegradability and was falsely advertising its product.
That’s because the FTC decided to arbitrarily define biodegradable as something that can completely break down within five years after customary disposal in a landfill. They did this even though nothing can be shown to biodegrade for certain within that period of time! It is not just the Hostess Twinkie that will look the same after five years. Even natural material like bark can take longer, depending on a whole host of factors.
Why five years? According to the FTC, that is what “a minority” (11 to 20%) of consumers expect when they see the word “biodegradable” on a product’s label. Note this had absolutely nothing to do with science—it’s just the FTC picking a number based on consumer reactions that have not been substantiated in any way. Voilà, out of thin air, we have a new standard—created completely outside congressional authority or a formal rulemaking process—based on what the agency claims a small subset of misguided consumers thinks “biodegradable” means!
The FTC is now using its own arbitrary definition to support itself in court, making any challenges to that definition virtually impossible. This was the case when, just a few weeks ago, a US appeals court essentially sided with the FTC and denied ECM its petition for a review.
For a more in-depth history of the case, see our previous coverage of the issue here.
How can we as citizens hope to have a say in government when rules are made by the agency, for the agency, and with the sole review of the agency—all without formal rulemaking?
Unfortunately, the FTC has a history of doing this. The commission tried to create an arbitrary standard that would have required POM Wonderful, a pomegranate juice company, to conduct two randomized controlled trials to back up its so-called disease-related claims for its pomegranate juice.
In our view, it is illegal for an agency to make a new law without going through the formal comment and rulemaking process, giving the American public a chance to review the law and submit comments. Without this check, agencies can simply apply and adjust the law arbitrarily, creating new standards when it suits them. We cannot allow the FTC to get away with doing this.
Action Alert! Write to Congress and President Donald Trump and tell them that it is illegal for the FTC to arbitrarily create new standards, and ask them to reverse the FTC’s ruling on ECM Biofilms. Please send your message immediately.
Other articles in this week’s Pulse of Natural Health:
Cancer Control Within Reach? Only If It’s Profitable!
Losing Your Sense of Smell? It May Be a Predictor of…Death
5 comments
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We care about our environment and why do you not care about it to Mr. Donald Trump. We voted for you and we hope you get involved in cleaning up our environment. We want our grandkids to be able to live in a clean place one day instead of a polluted earth.
I want rid of these killing GMOS poisns the produce and makes the meat just as bad when they eat the GMO grains and grass Wealth will do no good if we are all sick from poisons
put on the label–“breaks down over 10 years-not like plastic that degrades over a thousand years”-the consumer will get the picture
Maybe the plastic could be produced, that when soaked in a non toxic solution, it breaks down in less that five yrs, or sooner.
I do not think this article accurately represents the situation and advocates sending a incorrect message to the politicians. In support I show the following:
This article says “the FTC decided to arbitrarily define biodegradable
as something that can completely break down within five years after
customary
disposal in a landfill.… How can we as citizens hope to have a say in
government when rules are made by the agency, for the agency, and with
the sole review of the agency—all without formal rulemaking?” But see
75 Fed. Reg. 63,552 (Oct. 15, 2010) (Proposed Guides) and 2 years later
the definitions: 77 Fed. Reg. 62,122 (Oct. 11, 2012) (to be codified at
16 C.F.R. Part 260)
The previous anh article says the FTC
administrative law judge (ALJ) ruled that the additive worked. But the
actual decision rejected the 1 to 5
year claim but permitted ANY competent biodegradability claim:
“The
evidence further shows that these claims were false and unsubstantiated
because ECM Plastics will not, in fact, fully biodegrade in a period of
9 months to 5 years in a landfill, as represented, and tests do not
prove the claimed biodegradation rate.”…Complaint Counsel has failed to
prove that the ECM Additive does not render plastics biodegradable. The
term “biodegradable” is defined by qualified experts in the field to
mean that an item degrades via biotic or biological agents, and does not
require completion or impose a time restraint. Evaluated in accordance
with this scientific definition, the evidence fails to show that
Respondent’s biodegradability claims are false….The Order issued with
this Initial Decision prohibits Respondent from representing that any
product or package will completely biodegrade within any time period,…
unless
such representation …Respondent possesses and relies upon competent and
reliable scientific evidence that substantiates the representation. As
pointed out by the UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT In ECM BIOFILMS,
INC.,
v. FEDERAL TRADE COMMISSION, No. 15-4339 On Petition for Review of
an Order of the Federal Trade Commission. No. 9358, the biodegradability
in a land fill is unclear: A number of different laboratories
performed D5511 biodegradation tests on plastics manufactured with ECM’s
additive. ECM points to nineteen laboratory tests that, it claims,
demonstrate that ECM plastic biodegrades at a faster rate than
traditional plastic. In one test, for instance, ECM plastic biodegraded
49.28% over 900 days, whereas traditional plastic biodegraded just
0.1152% over the same time. The FTC, in turn, points to thirteen tests
that, it alleges, indicate that ECM’s additive does not accelerate
biodegradation.