USDA Releases Long-Awaited Food Labeling Requirements for GMO Products

Faegre Drinker Biddle & Reath LLP

Faegre Baker Daniels

While most of us were making our final holiday plans, the U.S. Department of Agriculture’s Agriculture Marketing Service (AMS) published the long-awaited rule to establish labeling requirements for foods that contain genetically modified organisms (GMOs). 

However, the regulations are not without controversy. The spirit of the holiday season has already given way to criticism by some who maintain that the rule amounts to a “lump of coal” for consumers by failing to require appropriate transparency about the presence of engineered ingredients in food. Thus, more pointed criticism can be expected as the public attention returns from the holiday celebration.

The rule, published December 21, 2018, is the final step needed to implement the National Bioengineered Food Disclosure Standard (NBFDS) required by Congress in 2016. The delay in issuing the rule is evidence, once again, that the country’s food regulatory agencies continue to act on their own timeline, government shutdown or not.

The rule is more than 60 pages long and contains many nuances, starting with a shift to the term “bioengineered” or “BE” foods from the popular and widely used terms “genetically modified organisms” or “GMO” foods. BE foods are defined in the rule as those that contain detectable genetic material that has been modified through certain lab techniques and that cannot be created through conventional breeding nor found in nature. 

As the definition indicates, highly refined foods that no longer contain detectable modified genetic material are exempted. This means, for example, that highly refined BE beet sugar, high fructose corn syrup and oils will not have to be labeled. The rule also exempts certain business categories such as very small manufacturers (those with less than $2.5 million in annual sales), as well as food served in restaurants, food trucks, airplanes, delicatessens and similar establishments from compliance with the regulations.

To avoid any misunderstanding, the AMS has developed a master list of crops or foods that are largely available in bioengineered forms and will therefore – unless they’re highly refined – require disclosure. The list includes staples such as alfalfa, canola, corn, cotton, potatoes, soybeans, squash, sugar beets, as well as certain varieties of apples, eggplants, papaya, pineapples and salmon.

The rule requires food manufacturers, importers and certain retailers to ensure BE foods are appropriately disclosed by using one of several disclosure options including text, symbol, electronic or digital link, and/or text message. Additional options such as a phone number or web address are available to small food manufacturers or for small and very small packages.

However, the enforcement provisions are less onerous than those that attach to other food labeling violations. There are no civil penalties, recalls or adverse consequences for violators other than AMS compliance audits and the prospect that the agency’s findings of noncompliance will be made public. The rule comes with an “initial” implementation date of January 1, 2020 but postpones “mandatory” compliance until January 1, 2022.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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