20
Sep
Not Accessible to All, Court Finds QR Codes Unlawful as Means of Disclosing Genetically Engineered Food Ingredients
(Beyond Pesticides, September 20, 2022) A federal court this month declared that the U.S. Department of Agriculture (USDA) acted unlawfully in allowing food retailers to label genetically engineered (GE, or GMO) foods with only a “QR” code. The decision, made by U.S. District Court for the Northern District of California, comes as a result of a lawsuit against USDA by a coalition of nonprofits led by Center for Food Safety, along with organic retailers Natural Grocers and Puget Consumers Co-op. “This is a win for the American family. They can now make fully informed shopping decisions instead of being forced to use detective work to understand what food labels are hiding,” said Alan Lewis, Vice President for Advocacy and Governmental Affairs at Natural Grocers. “The public’s rejection of hidden GMOs has been weighed by the Court to be greater than the agrochemical industry’s desire to hide GMOs behind incomprehensible bureaucratic rules.”
In 2016, Congress passed the National Bioengineered Food Disclosure Standards Act, which established federal standards around labeling GE foods. That bill, dubbed by GE transparency advocates as the DARK (Denying Americans the Right to Know) Act, was the result of a deal between U.S. Senators Debbie Stabenow (D-MO) and Pat Roberts (R-KS), and widely seen as an effort to block a strong GE labeling law passed by the state of Vermont as part of a wave of grassroots advocacy around the issue. Under the new law, all state-level GE labeling efforts became preempted (prohibited) by federal law, a weak definition of “biotechnology” provided several loopholes, and food retailers were to be given a choice of labeling options to be determined by USDA.
Congress mandated that USDA study the challenges associated with using electronic or digital “QR” code links. Based on the study, the USDA Secretary was to determine whether consumers would have sufficient access to information about the presence of GE materials in one’s food. If not, the Secretary was required to consult with retailers and provide additional disclosure options.
USDA refused to release the results of this study when it was completed. It took a 2017 lawsuit from Center for Food Safety to force the department’s hand, resulting in a public release less than two weeks after the legal challenge was launched. The study found that low-income, rural, and elderly Americans were most likely to encounter technological challenges in receiving information from a QR code. Reasons include lack of equipment like a smartphone, unreliable internet connections, and difficulty using QR technology. In general, it found Americans of all ages and backgrounds to be unfamiliar with QR codes.
The USDA study did find that over half of U.S. adults care and want to know whether their food is genetically engineered, a figure that cut across region, age, gender, and income. Yet USDA’s takeaway was not to embrace transparency, but instead the discriminatory approach of QR codes that keeps low-income, rural, and elderly Americans in the dark. Further, instead of utilizing the term genetically engineered or genetically modified organisms, names most Americans are familiar with, the department opted to have these products labeled as “bioengineered.” In its original proposal, USDA went as far as to suggest the use of a happy, smiling sun that would read either “bioengineered” or “may be bioengineered food.”
USDA significantly curtailed foods subject to the disclosure requirement, allowing a range of loopholes for manufacturers to avoid labeling foods that may in fact contain GE ingredients. For instance, foods that list either meat, poultry, eggs, broth, stock or water as the first ingredient are not required to be labeled, even if other ingredients in the product are GE. Even more egregiously, food products containing “refined” GE ingredients (such as oil from GE soybeans, or candy bars with high fructose corn syrup from GE corn) do not require disclosure as long as the refining process is “validated” by USDA.
CFS’s lawsuit challenged USDA on all of these aspects. “Americans deserve nothing less than clear on-package labeling, the way food has always been labeled,” said CFS legal director George Kimbrell. “Allowing companies to hide genetically engineered ingredients behind a website or QR code is discriminatory and unworkable.”
The court victory requires USDA to revise portions of its rules implementing GE disclosure, removing the option to use QR codes on the package, and adding an additional disclosure option that is accessible to all Americans. However, the court is continuing to permit USDA to use the unfamiliar term “bioengineered.” It also took no action on USDA’s loopholes for “highly refined” products. CFS indicates it is not ruling out an appeal on those unaddressed issues.
“We are very gratified that the District Court has acknowledged the flawed nature of the National Bioengineered Food Disclosure Standard and has removed at least one of the very egregious aspects of it from the labeling standard,” said Mark Squire, co-owner and manager of Good Earth Natural Foods. “We will continue to fight for complete honesty and transparency in food labeling.”
Lax regulations are permitting more and more GE foods in the aisles of American supermarkets. Just recently, USDA approved a GE purple tomato, an unnecessary invention that adds pigments widely found in other fruits and vegetables. Yet most concerning among GE crops are those developed to withstand repeated spraying with highly hazardous pesticides. Not only are these crops likely to contain higher levels of toxic chemicals that threaten public health, but they also result in indirect damage to wildlife, water quality, and the wider environment.
Beyond Pesticides has long maintained that consumers should be able to discern whether the products they purchase are putting themselves or the local community where the crops were grown at risk. For more information on GE agriculture and the decades long fight for GE labeling transparency, see Beyond Pesticides’ Genetic Engineering program page.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
