The proliferation of plastic on land and in our oceans — plastic that can take hundreds of years to biodegrade — is among the most serious environmental issues in the world. As a consumer, wouldn’t you want to know about a plastic bottle that biodegraded in significantly less time?
We now have technologies to do just that — but the Federal Trade Commission (FTC) is trying to block the company that has developed those technologies from being able to tell consumers what their product actually does.
In its lawsuit, the FTC is claiming that the company, ECM Biofilms, has not proved its product’s biodegradability and was therefore misleading consumers through false advertising.
That’s because the FTC decided to arbitrarily define “biodegradable” as something that can completely break down into elements of nature within five years, after customary disposal in a landfill. This standard is completely unsupported by science. Nothing biodegrades into “elements of nature”; substances biodegrade into compounds. Additionally, 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 materials like bark or mulch can take many years, depending on a whole host of factors.
In short: the FTC has set a standard that is impossible to follow.
And why five years? According to the FTC, that is what “a minority” (only 11 to 20 percent) of consumers expect when they see the word “biodegradable” on a product’s label. Again, this had absolutely nothing to do with science. It’s just the FTC picking a number out of thin air, based solely on uninformed consumer reactions — a number that has not been substantiated in any way. And voila, suddenly we have a new FTC standard, created completely outside congressional authority or any formal rule-making 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 U.S. appeals court essentially sided with the FTC and denied ECM its petition for a review.
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 agency as sole arbiter — all without a formal, public rule-making?
In point of fact, no one will be able to meet the FTC’s standard for biodegradability, meaning that, if the original decision stands, there will be no market for biodegradable plastic. We will be left with plastic that takes between 450 and a thousand years to decompose, which will continue to wreak havoc on our environment.
Unfortunately, the FTC has a history of doing this kind of thing. The commission tried to create an arbitrary standard that would have required POM Wonderful, a pomegranate juice company, to conduct two incredibly expensive randomized controlled trials just to back up health claims for its pomegranate juice — despite the fact that POM had already spent millions on health research of its own, in addition to relying on existing academic research to back up those claims. Once again, the FTC disregarded the law and created its own standard without going through the formal rule-making process. The result is that consumers are denied useful and truthful information about the health benefits of products they buy.
There is some cause for hope. Acting FTC Chairwoman Maureen Ohlhausen dissented from the FTC’s misguided decision in the ECM case, and has a strong record of standing up for economic freedom and denouncing overregulation. This case offers Ms. Ohlhausen her first opportunity as acting chairwoman to put her principles into action and save a company from being the victim of absurd and arbitrary government overreach — and to allow consumers access to information that can benefit our planet.
The question for Ms. Ohlhausen is, will the FTC continue down the same road, or can this agency, which has repeatedly created new policies without following the rules, be reined in?
• Gretchen DuBeau is the executive and legal director of the Alliance for Natural Health USA.
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