United States: What Could The USDA's Bioengineered Food Disclosure Standard Mean For Food Labeling Litigation?

Last Updated: July 3 2018
Article by August T. Horvath

The symbol at right is one of the three candidate food labeling symbols indicating the presence of "bioengineered foods" being proposed by the Agricultural Marketing Service (AMS) of the U.S. Department of Agriculture in its National Bioengineered Food Disclosure Standard (NBFDS). Published May 4, 2018, in the form of a Proposed Rule, the standard is open for public comment until July 3. The rather complex symbology of this carefully designed little symbol is described in the proposed standard at some length:

"The bottom proportion of the circle contains an arch, filled in green, that resembles a rounded hill. Above that arch, about halfway through the height of the circle, is a second arch, filled in darker green, that resembles a second rounded hill. On the left side of the second arch, near the left side of the circle, is a stem coming from the second arch and arching towards the center of the circle, ending in a four-pointed starburst. The stem has two leaves coming from the upper side of the stem and pointing towards the top of the circle. At the top of the circle, to the left of center, in the background of the leaf, is a portion of a yellow circle that resembles a sun. The remainder of the circle is filled in light blue, resembling the sky."

In these days of understaffed government agencies, it is good to know that some USDA staffers have the time to create such intricate symbols, which are also designed in monochrome versions for packaging that can't handle all the colors. And yet, the provided description doesn't fully explain the significance of a four-pointed starburst growing on a plant, or why the "BE" legend for "bioengineered" is crouching behind a grassy knoll. There are two alternative symbols to be described at the end of this post, but first, let me be serious for a moment. As I have reported previously, there are lawsuits about allegedly false "no-GMO" claims that are parked waiting for this standard to become final, and if these stays are lifted at that point, it is worth inquiring into what will happen.

A Brief Introduction to the Proposed NBFDS

Congress directed the creation of the NBFDS through an amendment to the Agricultural Marketing Act of 1946, 7 U.S.C. § 1621 et seq.), passed July 29, 2016. The standard generally eschews the use of "genetically modified organism" or "GMO" in favor of "bioengineered food." It is a bit cryptic about whether it intends those terms to be synonymous: "AMS considered using alternative phrases, such as 'genetically modified' or 'genetically engineered.' However, AMS is not proposing any similar terms because we believe that the statutory term, 'bioengineering,' adequately describes food products of the technology that Congress intended to be within the scope of the NBFDS." The definition passed by Congress (7 U.S.C. § 1639(1)) is that a bioengineered food is any food that "contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques" and "for which the modification could not otherwise be obtained through conventional breeding or found in nature."

A major question that is left open in the proposed NBFDS by presenting the two opposing positions for comment, but that would seem to have to be resolved before the standard becomes final, is whether a bioengineered food must actually contain genetic material, or whether a highly refined food that contains no genetic material, other than possible trace contaminants, is a bioengineered food if it was "produced from" bioengineering. This is a major issue with several food product categories, such as cooking oil and refined sugar, which contain no DNA and are chemically indistinguishable from the same products made from naturally occurring organisms. Opponents of the need to label such highly refined products argue that the statutory definition, which says "contains genetic material," has already resolved this question, but anti-GMO advocates resist this position. The AMS seems to be leaning toward the first position, that finished products in which recombinant DNA cannot be detected would not be subject to labeling, noting that this rule has been adopted in some other countries.

The USDA standard also seeks comment on other ambiguities in the statutory definition, such as the exact meaning of "conventional breeding" and "found in nature." Somewhat amazingly, AMS's current proposal is not actually to resolve these definitional ambiguities, but instead to accept comments (i.e., let people vent) and then "directly incorporate [the 7 U.S.C. §1639(1)] statutory definition into the definition of 'bioengineered food' without further interpretation of what 'bioengineering' means." How, then, will USDA determine what must be labeled as bioengineered? The current proposal is for the USDA to create and maintain a list of bioengineered foods that are currently commercially available, starting with the five crops that are virtually available only in bioengineered form: canola, field corn, cotton, soybean, and sugar beet. There are also five crops – non-browning apples, sweet corn, papaya, potato and summer squash – for which producers would be required to keep records to establish that their crops are not bioengineered and subject to labeling.

Preemption and Potential Impact

The proposed standard is intended to preempt state law: "Sections 293(e) and 295(b) provide that no State may directly or indirectly establish or continue with any food or seed requirement relating to the labeling or disclosure of whether the food or seed is bioengineered or was developed or produced using bioengineering, including any requirement for claims that a food or seed is or contains an ingredient that was developed by or produced using bioengineering. After USDA establishes the NBFDS, States may adopt standards that are identical to the NBFDS, and States may impose remedies for violations of their standards, such as monetary damages and injunctive relief."

It would seem, then, that the NBFDS has the potential to resolve "non-GMO" lawsuits based on elements such as the following:

  • what position the USDA adopts as to highly refined products or those in which recombinant DNA is undetectable;
  • any claim that a product that does not appear on USDA's current list of commercially available bioengineered foods is, nonetheless, bioengineered; or
  • any attempt to impose a different functional definition of "bioengineered" or "GMO" than the one set forth in the amended statute.

On the other hand, certain exemptions in the proposed standard still would raise interesting preemption questions. For example, the NBFDS contains an exemption for "very small food manufacturers," for which several proposed thresholds are discussed in the proposed rule, but for which the AMS is inclined toward $2.5 million in annual revenue. A $2.5 million company is certainly still large enough to be interesting to a class-action plaintiff's lawyer, so the question is, if a food company were exempt from the BE disclosure solely by reason of meeting the small-size exemption, would this exemption carry with it the statute's preemptive effect? If not, these small companies might have to carry the disclosure anyway, to avert private litigation.

And now, as promised, the other two proposed symbols, officially "Alternatives 2-A and 2-B":

These two graphics are less symbologically complex, and somewhat related to each other. Both incorporate what the proposed standard calls "an inverted green arch" below the lower-case letters "be." To be clear, the inverted green arch carries no symbolic significance and is in no way intended to complete a smiley face. Both of these symbols also incorporate a leaf motif, with 2-A arranging leaves in the shape of rays of the sun, and 2-B incorporating a leaf in the left eye – er, sorry, in the letter "b" of "be."

All of the proposed "BE" symbols share a common iconography that suggests a supportive approach toward bioengineered foods on the part of the agency. Absent are any symbols of beakers, test tubes, double helixes, and so forth that might actually differentiate bioengineered food organisms from their conventionally bred cousins. A cynic might even say that the symbols look like what someone creating a "no-GMO" symbol might design. Considering this favorable portrayal, whichever "BE" symbol is adopted, it seems likely that most bioengineered food companies will adopted it instead of the alternative text disclosures such as "BIOENGINEERED FOOD INGREDIENT."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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