USDA Begins Crafting Rules for Mandatory GMO Food Labels

Simply because a food label does not disclose GMOs does not mean that it can also claim to be “not bioengineered” or “non-GMO,” the statute says. However, certification of a food under USDA’s National Organic Program is sufficient to make such a claim because “organic” food is not allowed to contain GMOs.

USDA must establish a national mandatory bioengineered food disclosure standard within two years and identify the quantity of bioengineered substances necessary to trigger labeling. Small food manufacturers will have one extra year to comply with the rules after USDA sets them and very small food manufacturers, restaurants, and “similar retail food establishments” are exempt.

Critics contend the law’s narrow wording will allow companies to not disclose GMOs produced by new technologies, such as “gene editing,” and hide the use of highly processed sweeteners and vegetable oils that are made from GMO crops but carry no detectable genetic material. However, USDA contends the legislation gives the agency sufficient authority to consider these matters.

“The bill provides the authority for highly refined sugars and oils to be brought into the program … as well as the whole host of products derived with traditional gene modification (having gone through the USDA de-regulation process, like corn, soybeans, sugar, and canola) and those derived with gene editing and RNA interference,” USDA explained in a statement.

At the center of the controversy is the provision of the law that gives food manufacturers several options for label disclosure, including use of “text, symbol, or electronic or digital link,” such as QR or Quick Response Codes that can be scanned by smartphones, or in the case of small manufacturers, a telephone number, so long as the latter two methods carry the words, “Scan here [or call] for more food information.” Small manufacturers could also simply publish a website address on the label.

“The bill allows corporations to hide information about GMOs behind confusing QR barcodes that more than a third of Americans can’t even read because they don’t have smartphones or reliable Internet service,” complains Ronnie Cummins, international director of the Organic Consumers Association, which says it gathered 500,000 online signatures opposing the law within a week after Obama signed it.

“The primary objection to the bill is that consumers shouldn’t have to scan packaged foods to determine if the products contain genetically engineered ingredients,” says Creighton R. Magid, a partner at the Dorsey & Whitney law firm and head of its Washington, D.C. office. The legislation “doesn’t make advocates of labeling genetically engineered foods particularly happy, but is a relief to food producers fearful of a patchwork of state labeling laws,” he says.

Turf War Brewing?

The law designates USDA, not FDA, as being responsible for overseeing GMO labeling requirements.

“The bill would give USDA these authorities over food labeling that is otherwise under FDA’s sole regulatory jurisdiction,” the FDA wrote in a June 27, 2016 “technical assistance” document for lawmakers. Because FDA has long held that genetically engineered (GE) foods as a class are safe, the agency “has not expressed a desire to be the responsible agency” for any new program to regulate food labels for bioengineered food, it added.

Nevertheless, “we note that provisions to allow information regarding the GE content of food to be presented only in an electronically accessible form and not on the package label would be in tension with FDA’s statute and regulations, which require disclosures on food labels,” the FDA added.

Furthermore, “we are concerned that USDA’s regulations implementing the mandatory standard under this bill could conflict with FDA’s labeling requirements.” For example, if a manufacturer couldn’t fit both FDA’s and USDA’s required information on the label. FDA made several suggestions for amending the bill, none of which were adopted.

Organic Food Industry Split

The new law has also driven a bitter wedge in the organic food community, which has established a foothold in the traditional food industry only after years of effort. The Organic Trade Association (OTA), the largest industry group whose membership includes large companies, some of which have been acquired by conventional food conglomerates, supported the federal legislation. Smaller groups, such as the Organic Consumers Association, a nonprofit whose members include small companies and co-ops, opposed it.