Consumers are increasingly interested in knowing whether the food they eat contains bioengineered ingredients. Bioengineered foods are those produced using modern biotechnology techniques to alter an organism’s genetic makeup. In response to this growing consumer demand, Congress passed the National Bioengineered Food Disclosure Standard (NBFDS) in 2016, marking the first mandatory federal law requiring disclosure of bioengineered ingredients in food. The USDA published the final rule in December 2018, with compliance required by January 1, 2022 (The National Law Review) (The National Law Review). However, the legal landscape surrounding the NBFDS is currently in flux due to ongoing court challenges.
Requirements of the NBFDS
The NBFDS mandates that food manufacturers, retailers, and importers disclose the presence of bioengineered ingredients in their products. The regulation offers several methods for meeting this requirement, including:
- Text on the Package: Simple on-package language indicating “Bioengineered food” or “Contains a bioengineered food ingredient.”
- USDA-Approved Symbol: A standardized symbol to visually denote bioengineered content.
- QR Code: A scannable code that links to online information about the bioengineered ingredients.
- Text Message: A system where consumers can text a code to receive information about the bioengineered content (The National Law Review) (Food Industry Executive).
Legal Challenges and Court Rulings
Despite its implementation, the NBFDS faces significant legal challenges from a coalition of nonprofit organizations and food retailers. These groups argue that the NBFDS regulations fall short in several areas:
- QR Codes and Accessibility: The reliance on QR codes for disclosure may disproportionately exclude consumers without smartphones or internet access. The USDA’s own study highlighted technological barriers, leading to a court ruling that the text message option provided as a solution was insufficient and did not meet the requirement for “additional and comparable options” (The National Law Review) (Center for Agricultural Law and Taxation).
- Terminology: The regulations require the use of the term “bioengineered” instead of more familiar terms like “genetically engineered” (GE) or “GMO.” Critics argue that this terminology is less recognized by consumers, which could undermine the transparency intended by the law (DTNPF) (Center for Agricultural Law and Taxation).
- Highly Refined Foods: The NBFDS excludes certain highly refined foods that no longer contain detectable modified genetic material, which some argue still originated from bioengineered crops. This exclusion has been a point of contention in the ongoing legal battles (The National Law Review).
A federal district court upheld most of the USDA’s rules but remanded the text message and QR code provisions for further rulemaking. The court found that the USDA had failed to comply with the statute’s directive to ensure consumers can access electronic disclosures, leading to ongoing litigation (Center for Agricultural Law and Taxation).
Implications for Food Manufacturers
The outcome of the current court challenge could have significant implications for food manufacturers. Depending on the court’s ruling, manufacturers may need to adjust their disclosure methods, potentially including broader options beyond QR codes. Additionally, the court’s decision on the use of terminology like “GMO” could impact labeling practices. A ruling in favor of stricter disclosure standards could lead to further regulations requiring the disclosure of bioengineered ingredients even in highly refined foods (The National Law Review) (Center for Agricultural Law and Taxation).
Staying Compliant and Informed
Given the dynamic legal landscape, it is crucial for food manufacturers to stay informed about the ongoing legal developments surrounding the NBFDS. Consulting with legal counsel experienced in food law can help manufacturers navigate the complexities of bioengineered food disclosure and ensure compliance with current and evolving regulations. This proactive approach will be essential in adapting to any changes resulting from the ongoing litigation.
For more detailed information and updates on the NBFDS and related legal challenges, manufacturers and stakeholders can refer to the USDA’s BE Disclosure website and other authoritative sources on food law and biotechnology regulations (The National Law Review).
