GMO labeling: USDA ‘bioengineered’
labeling rules are unlawful, argues lawsuit
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Gettyimages-Goran13; bioengineered logo: USDA The National Bioengineered Food Disclosure Standard – which requires firms to label ‘bioengineered’ foods and beverages - is unlawful and should be nullified and then revised, according to a lawsuit filed by a coalition of retailers and nonprofits who want stricter GMO labeling laws.
The law – which will become mandatory in January 2022 – defines bioengineered foods as those that “contain detectable genetic material that has been modified through certain lab techniques and cannot be created through conventional breeding or found in nature.”
It generated intense debate when final details were released in late 2018, with supporters
of stricter GMO labeling laws arguing that it didn’t go far enough, and
opponents arguing that it would “confuse consumers [and] erode trust in
brands and the technology.”
The new lawsuit is filed in the Northern
District of California on July 27 against agriculture secretary Sonny Perdue,
ARS administrator Bruce Summers, and the USDA by Natural Grocers, Citizens For
GMO Labeling, Label GMOs, Rural Vermont, Good Earth Natural Foods, Puget
Consumers Co-Op, and the Center For Food Safety. It takes issue with multiple
aspects of the law, from its limited scope, to its requirement to use the word
‘bioengineered’ on labels instead of more familiar terms such as ‘GMO’ or
‘genetically engineered.’
The aim is to have the court
declare the regulations unlawful and nullify them, and then return the issue to
the USDA with orders to fix the unlawful parts, said George Kimbrell, legal
director at the Center for Food Safety and counsel in the case, who argues that
the rules “fall
far short of what consumers reasonably expect and the law requires.”
Law should
‘cover all products produced with genetic engineering, not just those
‘detectable’ in the final product by current DNA tests’
He told FoodNavigator-USA: “We would like to see
the types of disclosure that have always been done for food labeling:
on-package, text labeling. Not the unprecedented use of barcodes and the
discriminatory requirement to have a smart phone and scan dozens of food
products.
“We would also like to see that labeling be meaningful and clear, using terms that consumers know and are familiar with: GE/GMO, not ‘bioengineered.’ [As for the scope of the regulations] the proper, legally required solution is to cover all products produced with genetic engineering, not just those ‘detectable’ in the final product by current DNA tests.”
He added: “Note that all
of these answers are not just what we prefer as a policy matter, but also what
the law requires. Which is why USDA violated the law in not complying with
them.”
The key
arguments in the lawsuit
The plaintiffs’ make four key
arguments:
- Requiring
food companies to use the term ‘bioengineered’ – although
consumers and other government agencies such as the EPA and the USDA
itself routinely use the term ‘genetically engineered’ - is “arbitrary and
capricious, contrary to the Act’s plain language and fails to fulfill the
Act’s fundamental purpose of informing consumers.”
- The
law fails to “fulfill the Act’s core purpose of informing consumers”
about GE ingredients because most foods containing ingredients from GM
crops would not have to be labeled (the law only mandates
the labeling of ingredients from GM crops if they contain detectable genetic material that has
been modified through in vitro recombinant deoxyribonucleic acid (DNA)
techniques), meaning most highly refined ingredients from GM crops such as
high fructose corn syrup, refined soybean oil, and sugar would not have to be
labeled. And this – argues the lawsuit – makes
a mockery of the entire enterprise: “The vast majority of GE foods are not whole
foods, but rather highly processed foods with GE ingredients like sodas
and oils, which by some estimates account for over 70% of all GE
foods."
- USDA’s
decision to allow electronic or digital disclosures on labels (eg.
via QR codes), without requiring additional on-package labeling “discriminates
against at least 20% of the American adult population—primarily poor,
elderly, rural, and minority populations—who have lower percentages of
smartphone ownership, or live in areas in which grocery stores do not have
internet bandwidth.“Defendants’ decision nonetheless to
greenlight QR codes without other forms of labeling on products was
arbitrary and capricious and contrary to law, in violation of the
Disclosure Act and the Administrative Procedure Act.”
- Manufacturers
and retailers “have a First Amendment Right to label
foods as produced through genetic engineering or as genetically
engineered. Yet the final rule attempts to restrict that right in multiple
ways, providing only limited and restricted voluntary labeling beyond its
narrow scope.” (eg. firms can use phrases such as ‘derived from
bioengineering’ if they want to proactively disclose that
they are using ingredients from GM crops, even if genetic material is not
detectable.)
“Retailers
and shoppers have relied on the term GMO for more than a decade to identify and
avoid GMO foods. Banning the use of this term and replacing it with a term
nobody has ever heard of is misleading and will create massive confusion in the
marketplace.”
Mark Squire,
co-founder, Good Earth Natural Foods
“A disclosure
law that exempts 70% of the foods it is supposed to disclose is not a
meaningful disclosure law: it is a fraud and allows producers to keep their GMO
ingredients secret.”
Tara Cook
Littman, Citizens for GMO Labeling
CSPI:
Consumers are confused
Greg Jaffe, biotech director at
the Center for Science in the Public Interest (CSPI), would not comment on the
lawsuit, but said the limited scope of the GMO labeling law – which has a
narrow definition of ‘bioengineered’ and also fails to define ‘Non-GMO’ –
created a potentially confusing environment for consumers.
“The combinations of mandatory and
voluntary disclosures, the number of products that will be exempt, and the
range of Non-GMO claims that currently exist, make for a very confusing
marketplace for consumers" given that currently the
criteria underpinning ‘Non-GMO’ claims on food products differ from brand to
brand.
He added: “The CSPI did
recommend that USDA allow companies to use the term 'genetically engineered'
because the term 'bioengineered' is unfamiliar to most consumers.
"Second,
we supported including highly refined ingredients that are derived from
genetically engineered crops in the disclosure requirements.”
By making the disclosure of this
information voluntary, he added, “consumers will be confused when one product
voluntarily discloses that is it ‘derived from bioengineering’ and an identical
product has no such disclosure.”
The USDA did not immediately
responded to requests for comment on the lawsuit.
The National
Bioengineered Food Disclosure Standard defines
bioengineered foods as those that contain detectable genetic material that has
been modified through in vitro recombinant deoxyribonucleic acid (rDNA)
techniques and "for which the modification could not otherwise be obtained through
conventional breeding or found in nature."
The standard identifies three ways
firms can determine that modified genetic material is
not detectable:
- By
using records to verify a food is sourced from a non-bioengineered crop.
- By
using records to verify a food has been subjected to a refinement process that has been validated to
render modified genetic material undetectable.
- By
maintaining certificates of analysis or other testing records that confirm
the absence of detectable modified genetic material.
There are four disclosure options:
- On-pack
text: 'Bioengineered food' or 'Contains a
bioengineered food ingredient'
- USDA
approved symbol: (see right)
- Electronic
or digital link to 'Scan here for
more food information' or 'Call xxxx for more food
information'
- Text
message disclosure must include the
statement: 'Text [command word] to [number] for bioengineered food information.'
Voluntary
disclosures: Foods that do not meet the definition of bioengineered but are
derived from bioengineered food (eg. a highly refined starch, sweetener, oil
from GM corn, soy) may be disclosed voluntarily using a 'derived from
bioengineering' symbol or a phrase such as 'corn derived from a bioengineered
source.'
USDA's bioengineered list - which tells firms which foods
they must keep records for and which may require bioengineered disclosures
- includes: Alfalfa, Arctic apples, canola, corn, cotton,
BARI Bt Begun eggplant varieties, ringspot virus-resistant varieties
of papaya, pink fleshed pineapple varieties, potato, AquAdvantage
salmon, soybeans, summer squash and sugarbeet.
Gene
editing/CRISPR: USDA will determine on a case-by-case basis whether disclosure will
be required for gene edited products (eg. products where DNA changes can
be made within a species without introducing foreign DNA.)
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