USDA Releases Proposed Mandatory GMO Labeling

By: Robert W. George and Kael K Bowling

The U.S. Department of Agriculture (USDA) released on May 4, 2018 proposed rules which, if finalized, will require certain foods produced from genetically modified organisms (GMO) crops or ingredients to be labeled as “bioengineered” beginning January 1, 2020 thus avoiding the controversy over the GMO terminology.

Congress instructed USDA to develop national rules for GMO labeling in 2016 after food manufacturers and retailers complained about states, most notably Vermont, enacting their own GMO labeling laws. Through amendments to the Agricultural Marketing Act, 7 U.S.C. 1621 et seq., Congress preempted all state and local laws inconsistent with the uniform, nationwide labeling requirement that USDA was charged with developing. 

USDA’s approach seeks to balance the growing interest among consumers for more information about where their food comes from and what it contains with the realities of the complex, and often global, supply chains and distribution networks that US food manufacturers rely upon to compete.

USDA has provided food manufacturers and sellers with flexibility in terms of disclosure methods. The proposed rules permit disclosures to be made in printed statements, through digitally linked content (e.g., QR codes), with logos and in some instances through the use of phone numbers or URLs printed on packaging. Importantly, USDA’s proposal does not require front-of-pack placement for these disclosures. The proposed rule also details the boundaries of several Congressionally-mandated exemptions to the labeling requirements including exemptions for foods sold at restaurants, animal/pet foods and for products that include meat or poultry as primary ingredients. 

While USDA has attempted to craft a flexible and pragmatic approach to GMO labeling, several aspects of the proposed rule warrant close attention by the regulated community, and perhaps reconsideration by the agency. Substantial uncertainty remains in the proposal as to how foods or ingredients imported from other countries will be regulated. The agency is seeking feedback on three proposed alternatives for a bioengineered (BE) logo that could be used on packaging in lieu of written statements. USDA is also still considering whether highly refined ingredients such as sucrose, dextrose, corn-starch and high fructose corn syrup should be outside the scope of the law’s definition of bioengineered foods. While made from crops included on the agency’s proposed “highly adopted” list, the agency wants to know if the processes used to refine these ingredients results in the effective removal of any genetically modified materials. Interested parties have until July 3, 2018 to submit comments on these, and the many other, questions raised by USDA’s proposed rule. 

Given the limited space available today on food product labels and the potential confusion caused among consumers by government-mandated labeling claims, manufacturers and sellers of food products need to stay engaged and continue to provide constructive input on the development of these rules. USDA’s proposal presents a number of legally and technically complex questions. Our firm would be pleased to assist you in developing comments on the proposed rule and provide advice about how to ensure that your company’s labels and sourcing processes comply with the new requirements scheduled to take effect on January 1, 2020. 

The information provided above is created the Attorneys Robert W. George and Kael K. Bowling of Friday, Eldredge & Clark, LLP.  Robert’s focus consists of a multifaceted business litigation practice in both federal and state courts and includes defending clients against environmental and toxic tort claims, as well as commercial disputes or involving fraud, theft or unfair competition. Kael is an associate in the firm’s Commercial Litigation and Regulation Practice Group. His practice includes serving as litigation counsel to financial institutions, insurance companies, and other business entities in connection with a broad range of subject matters.

This is not a substitute for legal advice and should be considered for general guidance only. For more information or if you have further questions, please contact one of our attorneys.