07
Jan
USDA Genetic Engineered Food Label Misleads Consumers, Took Effect January 1
(Beyond Pesticides. January 7, 2022) Unbeknownst to most Americans when they woke up on New Year’s Day 2022, a new labeling system for genetically modified-engineered foods— promulgated in 2019 — which does not mention genetically engineered or GMO ingredients, went into effect. Consumer, food, and environmental advocates say that the new label is misleading, insufficiently transparent, discriminatory, rife with loopholes, and confusing for consumers. The new labeling requirement mandates that genetically engineered foods bear labels that indicate that they have been “bioengineered” or that provide a text-messaging phone number or a QR code as avenues for further information. (“Additional options such as a phone number or web address are available to small food manufacturers or for small and very small packages.”) The new labeling rule from the U.S. Department of Agriculture (USDA) aims, according to the agency, to eliminate the crazy quilt of labels affixed to foods and ingredients that have been scientifically altered. According to an agency spokesperson, the rule is designed to “balance the need to provide information to consumers with the interest in minimizing costs to companies.”
Genetically altered food items and ingredients have heretofore been called, and labeled as, “genetically engineered” (GE) or “genetically modified” (GM), or as containing “genetically modified organisms” (GMO). The Washington Post reports that, “The new rule requires food manufacturers, importers and retailers to disclose information whether foods are bioengineered or use bioengineered ingredients, doing away with well-established terms like ‘genetically engineered’ and ‘GMO’ on labels. However, other kinds of official certifications like USDA Organic and NON-GMO Project Verified will be allowed.”
The new labeling arises out of several developments in recent years. The first was the so-called “Safe and Accurate Food Labeling Act of 2015,” dubbed the DARK Act — the “Denying Americans the Right to Know” Act — by its many opponents. This legislation reacted to efforts in Vermont, Connecticut, and Maine to enact state laws that would mandate labeling of foods and ingredients that were genetically engineered, or contained such ingredients. The food industry was not happy with such developments, and spent huge sums to thwart state efforts. Some food companies even stopped selling to Vermont grocers in order to avoid the extra costs of labeling and segregating such products. The passage of the DARK Act preempted Vermont’s successful GE labeling law, which required such items to be labeled as “produced with genetic engineering.”
Other contributing developments were: (1) the 2016 Congressional passage of the National Bioengineered Food Disclosure Act, which directed USDA to establish a “national mandatory standard for disclosing foods that are or may be bioengineered,” and (2) the Trump USDA’s subsequent 2018 announcement of the National Bioengineered Food Disclosure Standard (NBFDS), which resulted in the 2019 announcement of the new labeling rule that became mandatory on January 1, 2022. That standard defined “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.”
The Harvard Political Review sums up the status of GE/GMO foods in the U.S. marketplace, and the history of the battles over labeling of such food. “Genetically modified crops, which primarily include corn, soybeans, canola, and sugar beets, have been grown in the United States for 20 years, and they have FDA [U.S. Food and Drug Administration] approval. Today, as much as 75 percent of the food Americans buy at their local grocery store, from cereals to soups, include genetically modified ingredients. However, most consumers are not aware that the foods they are eating include these ingredients.”
GE/GMO proponents argue that such foodstuffs are safe for human consumption. Opponents have a variety of objections (health and safety, pesticide contamination, ecosystem impacts, etc.) that are largely shared by Beyond Pesticides, but the central issue has been consumers’ basic right to know what they are purchasing and ingesting. Out of concern for all of those issues arose the “Just Label It” campaign, on which Beyond Pesticides partnered, and about which it wrote, nearly a decade ago, “Beyond Pesticides’ goal is to push for labeling as a means of identifying products containing GE ingredients and allow for consumer choice that will drive the market toward sustainable practices.”
This shift to the term “bioengineered” for labeling has been roundly criticized by advocates. Director of the project on biotechnology for the Center for Science in the Public Interest, Gregory Jaffe, has commented, “The worst part of this law is the use of the term ‘bioengineered’ because that’s not a term most consumers are familiar with,” adding that the move to the new jargon was made primarily because “GMO” had come to be perceived as pejorative.
In the summer of 2020, the Center for Food Safety (CFS) filed suit against the Trump administration’s National Bioengineered Food Disclosure Standard and proposed labeling rule. CFS “seeks to have the court declare the regulations unlawful and nullify them, and then return the issue to USDA with orders to fix the unlawful portions of the rules.” The organization claimed that the new regulation includes provisions that “will leave the majority of GMO-derived foods unlabeled; discriminate against tens of millions of Americans; prohibit the use of the widely known terms “GMO” and “GE”; and prohibit retailers from providing more information to consumers.”
Among the objections CFS cites in its case are:
• unprecedented allowance of electronic or digital disclosure on packaging, also known as “QR code” or “smartphone” labeling without requiring additional on-package labeling
- the discriminatory nature of such digital “portals” to information, given that “at least 20 percent of the American adult population — primarily poor, elderly, rural, and minority populations — have lower percentages of smartphone ownership, or live in areas in which grocery stores do not have internet bandwidth”; (The Washington Post reports that “the new rules discriminate againstthe more than 100 million Americans who do not have access to smartphones or cell service, because companies will be allowed to rely on smartphone-based scannable QR codes to share information with consumers.”)
- the rule’s restrictions on label language: when on-package text isused, the rules limit the adjective used to only “‘bioengineered,’ despite the fact that for 25 years, every aspect of the issue — [in] science, policy, and [the] marketplace — has used genetically engineered (GE) or genetically modified (GMO”
- the “loopholes” that would exempt many GE foods from the new labeling requirements
In its litigation, CFS argues that the new rule violates the National Bioengineered Food Disclosure Act, the Administrative Procedure Act (APA), and the U.S. Constitution. The first of those aimed to protect the public’s right to know what is in their food and how it is produced; USDA was tasked by that law with creating and implementing rules to achieve those aims. Plaintiff’s case documents state: “USDA’s final rule ignores virtually all the Disclosure Act’s statutory provisions designed to ensure disclosure of all GE foods for all Americans. Instead, USDA’s Disclosure Standard strips away the hard-fought labeling requirements of states — requirements Congress sought to encompass — replacing them with inaccessible digital disclosures, unfamiliar terminology, and an extra-statutory definition of ‘bioengineered food.’ USDA’s flawed rationales for doing so violate the plain language of the Disclosure Act and are arbitrary and capricious under the APA.”
The suit also asserts that “the Disclosure Standard violates regulated entities’ First Amendment rights to provide disclosure to consumers, violates states’ Tenth Amendment rights by overbroadly prohibiting state laws related to GE seed labeling, and violates the Fifth Amendment by using vague and contradictory language, allowing for arbitrary enforcement.” CFS adds, in its case documents: “Left standing, the Disclosure Standard will result not only in de facto concealment of GE disclosures, but also a dangerous precedent for truthful and non-misleading commercial speech and for Congress’s power to commandeer state governments. Accordingly, this Court should set aside the arbitrary and unconstitutional Disclosure Standard and sever and declare invalid constitutionally infirm provisions of the Disclosure Act.” CFS filed a motion for summary judgment in the case in early December, 2021. (Such a motion asks a court for a judgment on the merits of a case prior to the actual trial; this is typically done when the dispute is about a question of law, rather than the facts of a case.)
The net impact of the new labeling schema, according to advocates, is that it puts a far greater burden on consumers to figure out what the labels mean, to “do their homework” so they are adequately informed (especially because there is, to date, no broad public campaign to apprise them of the change), and — if industry takes the least transparent path of using QR codes and text messaging rather than labels — to have to resort to in-the-moment “research” in the grocery store via smart phones they may or may not have and in settings that may or may not have cell or wifi service.
An issue for many advocates is the huge number of food items that would not be covered by the new labeling requirements. The NBFDS exempts “(1) foods served in a restaurant, (2) very small food manufacturers with annual receipts of less than $2.5 million, (3) food certified under the USDA National Organic Program, and (4) food in which no ingredient intentionally contains a bioengineered substance, with an allowance for inadvertent or technically unavoidable presence of up to 5% for each ingredient.”
CFS elaborates on this “loophole” issue and notes an additional concern: “The vast majority of GE foods (by some estimates over 70%) are not whole foods, but highly processed foods with GE ingredients, like sodas and oils. Yet in the final rule USDA excluded these ‘highly refined’ products, unless the GE material is ‘detectable.’ Lastly, the statute invalidates state GE seed labeling laws and prohibits future GE seed labeling laws in violation of states’ rights to regulate in the absence of federal regulation.” Even Forbes magazine has weighed in, writing that, “One failing of the bill is that even the Food and Drug Administration (FDA) says that the definition of ‘bioengineering’ in the bill is too narrow and would not apply to many foods that come from genetically engineered sources.”
CFS Executive Director Andrew Kimbrell wrote, in a late December 2021 update on the organization’s litigation, “These regulations are not about informing the public but rather designed to allow corporations to hide their use of genetically engineered ingredients from their customers. It is a regulatory scam which we are seeking to rescind in federal court. In addition, we are urging our million CFS members and others to become citizen investigators and find and expose the companies that are using QR codes instead of on-package text or symbol labeling, thereby trying to keep us in the dark about what they have put in our food.”
Beyond Pesticides Executive Director Jay Feldman had this to say: “This label is recognition by USDA and ‘Big Food’ that full and honest disclosure of GMO/GE ingredients will hurt the market. In the end, lying to consumers will not work, but it may hurt the value and credibility of other USDA labels, such as the USDA Certified Organic label that we have worked so hard to create in order to convey meaningfully important information about organic criteria, standards, and enforcement.”
Few stakeholders appear thrilled by this rule at this moment in time. Some food companies, according to their trade groups, are asserting that instituting this new rule mid-pandemic, and during a supply-chain crisis, puts a significant burden on a sector already struggling. The Consumer Brands Association has urged USDA to pause implementation temporarily; a spokesperson commented: “We believe the government must take a ‘do no harm’ position right now that allows companies to focus on delivering essential products to consumers.”
Long a proponent of transparency about the food supply, a few years ago Beyond Pesticides published advocacy points on the flaws of the then-anticipated labeling schema, asking USDA to “ensure that labels are honest, transparent, and informative by adopting the following policies”:
• reject package labeling with unreliable “QR codes” and other discriminatory communication methods; such options discriminate against more than 100 million Americans — especially many in rural communities, as well as low-income, people of color, and elderly populations that tend disproportionately to lack access to these technologies
- require labeling to use only common, well-established labeling terms, such as GE or GMO; do not allow these to be replaced with the term “bioengineered”
- require all foods produced with genetic engineering — including highly processed oils and sugars — to be labeled
- include new and future methods of genetic engineering, such as CRISPR
- ensure harmonization with the European Union by requiring disclosure if unintended GE contamination exceeds the current level of detection
In light of the new labeling, consumers would do well to “do their homework” ahead of time, or in the grocery store, in order to parse the meaning of the new labeling. (The Washington Post’s coverage of the new rule includes a useful “What to Know” section to help consumers understand implications of the rule for foods they buy and consume.) Perhaps an easier approach, for those who want to avoid GE/GMO food items, is to buy organic as much as possible because USDA National Organic Standards disallow the use of GEs/GMOs.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
