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Federal lawsuit challenges US rules on ‘misleading’ GM labelling

The Center for Food Safety has filed a federal lawsuit challenging USDA rules that mean genetic modification (GM) foods are labelled as ‘bioengineered’ – a move it says reduces transparency and causes consumer confusion.

The National Bioengineered Food Disclosure Standard (NBFDS) entered partially into force on 1 January 2020 and will become mandatory for all food operators in January 2022.

However, a lawsuit filed on 28 July against the Trump Administration's Department of Agriculture (USDA) by non-profit public interest group, the Center for Food Safety, argues that final regulations issued in 2019 include provisions to the NBFDS that reduce labelling transparency.

The plaintiff argues the regulation will leave the majority of foods derived from genetic modification (GM) unlabelled, restrict access to information from tens of millions of individuals, and prohibit the use of the widely known terms GMO and genetically engineered (GE).

For instance, the rules allow manufacturers to opt for ‘electronic’ or ‘digital disclosure’, meaning they can use a QR code to declare the presence of GM ingredients rather than a written declaration on the packaging.

However, a study commissioned by the United States Department of Agriculture (USDA) in 2017 concluded that QR codes fail to convey information to consumers because they are not intuitive, create confusion, and exclude individuals without internet access.

The Center for Food Safety, which represents a coalition of non-profit organisations and retailers, says that requiring a smartphone discriminates against at least 20% of the US adult population who have lower smartphone ownership or live in areas without internet bandwidth, and would primarily impact poor, elderly, rural, and minority populations.

The lawsuit also objects to the USDA’s rules on terminology that allow suppliers and manufacturers to use the term ‘bioengineered’ rather than GE or GMO.

The legal director at the Center For Food Safety, George A. Kimbrell, said: “Basically, [this] is because industry believes that consumers have a negative connotation for the GE and GMO terms, because the GE foods offer consumers no benefit, only risk and adverse agricultural process.”

The plaintiffs also object to the rule which states that if a DNA test cannot detect a GM content in the final product, the product does not have to be labelled as bioengineered.

“The rule does not say a set amount, only if the particular test does not detect it,” Kimbrell told The Ingredients Network. “We believe this decision also violates the law, because consumers care about whether a product is produced through genetic engineering, whether or not it is detectable in the final product.

“The result is that the vast majority of GE products, which are made with GE corn or soy, are so highly processed that the GE content is not detectable, will not be labelled unless the Court reverses that decision. That’s all sodas and cooking oils, etc,” he added.

According to data from the USDA’s Economic Research Service, over 90% of US corn, upland cotton, and soybeans are currently produced using GE varieties.

Kimbrell said there is a growing awareness on the issue among the US public.

“I think people are aware that the [Food and Drug Administration] FDA does no independent testing prior to GE foods coming to the market. That all safety is based on testing by the pesticide companies engineering the crops and any meeting with regulators is voluntary and confidential.

“So, it is an experiment and based on their own self-interested assurances of safety. That rightly gives consumers pause. That’s why people have long demanded labelling. This is the reason non-GMO labelling has been the fastest growing private label in the US in the past decade.”

A 2018 survey conducted by market research company Hartman Group found that nearly half (46%) of respondents said they avoided buying products with GMOs and one quarter said they did not know enough about them.

If the lawsuit is successful, the court will declare the regulations unlawful and nullify them. The issue would then return to the USDA, which would be required to rectify the unlawful portions of the rules.