How an over­reach­ing FTC at­tacks the en­vi­ron­ment

Its def­i­ni­tion of ‘biodegrad­ables’ de­fies sci­ence and lim­its progress

The Washington Times Daily - - OPINION - By Gretchen Dubeau

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.

IL­LUS­TRA­TION BY LI­NAS GARSYS

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.