Love Has No Labels, but GMO Foods Soon Will: The National Bioengineered Food Disclosure Standard

The relative benefits vs. risks of widespread bioengineered crops and other food sources is an often aggressively-debated issue between scientists, the agricultural industry, and consumers. Genetically Modified Organisms, or GMOs, are defined by the European Food Safety Authority as “an organism in which the genetic material has been altered in a way that does not occur naturally through fertilization and/or natural recombination. GMOs may be plants, animals or micro-organisms, such as bacteria, parasites and fungi.” “Genetic Engineering” (GE) is an alternative term used to refer to the manipulation of these species at the DNA level to produce or promote particular traits. GE crops are thus “genetically engineered”. There has been public resistance to the proliferation of GMO food, despite organizations such as the American Medical Association (AMA) and the American Association for the Advancement of Science (AAAS) declaring that genetically engineered foods do not present any appreciable risks.  Nonetheless, a large majority of Americans are in favor of GMO labeling in food products. While the AMA, AAAS, and other scientific organizations argue that GMO labeling will inappropriately imply that GMOs cause harm, consumer advocacy groups contend that people have a right to know what they are eating.

2014 Vermont Labeling Law
Based on these concerns, in 2014 the state of Vermont passed a law requiring: 

“…food that is intended for human consumption and that is offered for sale on or after July 1, 2016 to be labeled as produced from genetic engineering if the food was entirely or partially produced with genetic engineering. The act also prohibits a manufacturer of a food produced entirely or in part from genetic engineering from labeling the product on the package, in signage, or in advertising as “natural,” “naturally made,” “naturally grown,” “all natural,” or any other similar words.”

Surprisingly, the law appears to have had the opposite effect than what both critics and advocates expected. Opposition to GE food actually decreased 19% following the law’s implementation, in contrast with the concerns of the AMA and AAAS. Despite the sociologic benefits of Vermont’s law, many industry groups vehemently protested the requirement. In addition to the increased costs borne by companies in order to track the origin of all food ingredients, they have argued that forcing the disclosure of information which they do not wish to disclose is a First Amendment violation. While the labeling requirement was specific to Vermont, the law affected manufacturers all over the country, since it would have been difficult to ensure that unlabeled products were sold exclusively outside of Vermont. With a $1,000 per day fine for violations, manufacturers largely chose to follow more wholesale compliance mechanisms that the industry expected to bear significant costs nationally. In response some companies planned to simply avoid selling products in the state. Following the passing of Vermont’s law several other states joined the GMO labeling movement, potentially leading to a patchwork of different and therefore possibly expensive regulations.

National Labeling Law

In an attempt to preempt the states, the U.S. Congress acted quickly to pass a national labeling law, Public Law 114–216, which supercedes any state laws and therefore creates a consistent national standard. The law was signed by former President Barack Obama on July 29^th, 2016, less than a month after the Vermont requirement went into effect. Trade organizations praised the creation of a less onerous and more consistent regulation, while many consumer-advocacy nonprofit groups adamantly opposed several features of the law. Many critiqued the vagueness of the law’s language and its list of exemptions. It also allows the use of QR barcodes instead of written disclosures, which some have argued diminishes the purpose of the disclosure and is discriminatory against consumers without smartphones.

Proposed Regulation Details

The U.S. Department of Agriculture (USDA) was tasked with defining the details of the regulation within two years of passage, and the national debate over the the law returned following a review of public comments on the draft regulatory language. The proposed rule (regulation) for the “National Bioengineered Food Disclosure Standard” allows disclosure of bioengineered materials in food products through on-package text, electronic communication such as the aforementioned QR barcode, or one of the following icons, with BE standing for “bioengineered”:

On July 28^th 2017 as the USDA was beginning to formulate the rule, it published a list of 30 questions proposed for public comment. Among the major issues debated both in 2017 and during the recent comment period were the definitions of “bioengineering” and “conventional breeding”. The rule also proposed possible percentage thresholds for reporting requirements (either 0.9% or 5%), with different exclusion options based on whether the presence of BE ingredients was intentional.

Final Regulation

The final rule was published on December 20^th, 2018 (despite an original deadline of July 29^th, 2018). In the final rule the definition of bioengineering was formally defined, a 5% threshold was set for reporting requirements, and it was determined that refined food materials obtained from BE ingredients may be declared as non-BE if the BE genetic material has been eliminated during processing. The disclosure labels were also changed to the following:

The “derived from bioengineering label” is voluntary and applies to foods that do not contain detectable modified genetic material, such as described above. Following a research study determining that electronic disclosure may inhibit information access for low-income consumers without smartphones, the final rule also requires call and text options in addition to a QR code or website. The compliance deadline is January 1, 2020 for most companies and a year later for small manufacturers, but it is possible that many BE labels will appear on products before that date. Consumers can expect to see labels on all relevant food products by Jan 1, 2022. For more information, see here.