Background

The National Bioengineered Food Disclosure Standard, enacted in 2016, required USDA to establish a national standard for disclosing foods that are or may be bioengineered (“BE”).

The statute expressly provides for three BE food disclosure options: an on-package text stating a food is BE; an on-package symbol that conveys the food is BE; and an electronic or digital link consumers may scan (such as a quick response (QR) code) to access BE food information.2 Under USDA’s implementing regulation, the third option—an electronic or digital link—must be accompanied by a telephone number that provides access to the same disclosure information.³ Manufacturers may decide which of the three options they use.

The statute also required that USDA conduct a study to identify possible technological challenges that could inhibit consumers’ access to electronic or digital BE disclosures.⁴ If the agency found that consumers, while shopping, would not have sufficient access to the BE disclosure through electronic or digital disclosure methods, the statute directed USDA to provide “additional and comparable options” to access the disclosure. In response to both the study, which was conducted by Deloitte Consulting in 2017, and related public comments, USDA found that some consumers would not have adequate access to BE information disclosed through electronic or digital methods. This finding prompted AMS to add a text message option as an additional and comparable means of disclosure. Thus, the final regulation provides four different disclosure options that food retailers and manufacturers can employ when disclosing the necessary BE information: on-package text; the BE symbol; an electronic or digital link alongside a phone number; and a text message.5

USDA’s implementation of this text message disclosure option as a separate disclosure method was challenged (among other aspects of the final rule) in a lawsuit filed by retail stores that sell natural and organic food products and food safety advocacy organizations. In a September 2022 decision, the U.S. district court for the Northern District of California found that AMS’s separate text message disclosure option that companies can select instead of the electronic disclosure method fell outside of the statutory authority of the amended Act because it failed to address the problem of insufficient access to BE disclosure information through the electronic or digital link option. ⁶ The court found that Congress’s aim in mandating the access study was to ensure that the electronic methods were accessible and would achieve the goal of disclosure, while AMS’s text message alternative did not achieve this goal. AMS also, according to the court, failed to adopt the Deloitte study’s recommendation that the text message alternative be added as an additional requirement for the electronic disclosure. The court concluded that nothing in the statute permitted AMS to expand the disclosure options for manufacturers beyond the “text, symbol, or electronic or digital link” choices. The court accordingly ordered AMS to reconsider the text message and electronic or digital link disclosure options.

We note that the court remanded the rule to AMS for further rulemaking, rather than immediately vacating the rule. The court’s decision to remand rather than vacate is currently on appeal at the Ninth Circuit Court of Appeals, as are other aspects of the final rule related to the use of the term “bioengineered” rather than “GMO” for the disclosure statement, and the rule’s exclusion of foods that are derived from bioengineered crops but that no longer contain detectable modified genetic material.

Request for Information

In response to the district court’s 2022 ruling, AMS is soliciting public input on potential revisions to the electronic or digital disclosure option in order to provide an additional and comparable method of disclosure.

Parties wishing to comment should respond to the following questions and provide data or other evidence to support any suggested revisions where appropriate.

1. What are the current challenges associated with consumers accessing information on the BE status of foods by electronic or digital link disclosure in a retail setting?
2. If a regulated entity chooses to use an electronic or digital link to disclose a BE food, what additional and comparable option should AMS add to the electronic or digital link disclosure option that would be more helpful for consumers? In which location proximate to the electronic or digital link should an additional and comparable option be placed?
3. Provide information on current smartphone ownership among consumers, if available. For context, AMS is interested in the availability of wireless internet or cellular networks.
4. Provide information on the availability of broadband internet in a retail setting, if available. This could include broadband that is offered directly to consumers, or the accessibility to other private networks while in a retail setting.
5. Provide current information on the consumer usage of BE or other electronic or digital link disclosures in a retail setting. For context, AMS is trying to determine if accessibility to information through electronic and digital disclosure in retail settings is common. Responses can include use in restaurants or related retail sectors, in addition to grocery.
6. Explain any advantages and benefits to using the electronic or digital link disclosure option.
7. Provide any information available on the percentage of usage for each of the four current disclosure options. In addition, provide information on how many small businesses use each of the four disclosure options.
8. How long does it take on average to update label art, print new labels, and deploy new labels to production lines? How frequently are labels reordered and label inventory updated? Is there any standard cycle for updating retail product labels? How frequently is product inventory updated at retail? What is the preferred optimum compliance period for incorporating new mandatory disclosure information into products for retail?

The questions signal that AMS is carefully considering whether the findings of the 2017 Deloitte study continue to be accurate today given the advances in internet and QR code use over the past seven years.

We encourage trade associations and other interested parties to submit comments on this topic, and are available to assist in drafting comments.

References

1 89 Fed. Reg. 25187 (Apr. 10, 2024).

2 7 U.S.C. § 1639b(b)(2)(D).

3 7 C.F.R. § 66.

4 The results of that study are available on the AMS website. See “Study of Electronic or Digital Link Disclosure: A Third-Party Evaluation of Challenges Impacting Access to Bioengineered Food Disclosure,” was made available to the public on September 6, 2017, at https://www.ams.usda.gov/reports/study-electronic-or-digital-disclosure.

5 7 C.F.R §§ 66.102–.108.

6 Natural Grocers, et al. v. Thomas Vilsack, et al., Case No. 20-cv-05151-JD (N.D. Cal. September 13, 2022). The decision is available here. Our memorandum summarizing the district court decision can be found here.