Aftermath of the Bioengineered Food Labeling Public Comment Period

Some comments from the food industry were more mixed in their assessments of the standards. Generally, producers of specific kinds of foods, or representatives of specific steps in the supply chain such as retailers and restaurants, sought to minimize the impact of the rule on their sectors. The Flavor and Extract Manufacturers Association, for example, opposed the proposed exemption for highly refined products that contain no genetic material, but supported the exemption for animal products whose feed may have been bioengineered, and suggested extending the exemption to fish, insects, and microorganisms (Comment AMS-TM-0050-13014). The United Egg Producers also supported this exemption (Comment AMS-TM-0050-10841). The American Soybean Association was especially concerned that refined products derived from bioengineered organisms, but not containing them, be exempt (Comment AMS-TM-0050-12226), as were the Enzyme Technical Association (Comment AMS-TM-0050-12952), the New York Farm Bureau (Comment AMS-TM-0050-12968), the American Farm Bureau Federation (Comment AMS-TM-0050-11003), and the Corn Refiners Association (Comment AMS-TM-0050-13196). The Washington Legal Foundation went as far as to argue that requiring refined products with no rDNA content to disclose themselves as bioengineered would violate the Agricultural Marketing Act and even the First Amendment (Comment AMS-TM-0050-11790).

What Is Next for USDA?

The Bioengineered Foods Disclosure Standards Act set an ambitious deadline of July 29, 2018, which ended up being less than a month after the end of the public comment period, for USDA to issue final regulations for genetically engineered food disclosures. Not surprisingly, USDA missed this deadline. Advocacy groups sued the agency on August 1, seeking an order finding the USDA in violation of the Act and requiring it to issue the final rules “as soon as reasonable practicable.” The suit is something of a stunt, and it remains to be seen whether it will have any real impact on the agency’s timing.

USDA must now be review the comments and take possible revisions as it formulates its final rule. Given the number of optional choices in the proposed rule, it may not be out of the question that USDA will again float its final rule for public comment after it makes decisions as to these options; several commenters suggested this strategy. One of the things USDA is likely considering, in view of its prevalence among the comments, is to offer additional symbols and wording that use the terms “genetically engineered” or “GMO” and contain less natural and happy symbolism, at least as an optional means of disclosure. Other issues, such as the question of whether disclosure should be required for refined products containing no rDNA, but derived from genetically engineered sources, clearly have created a profound split among industry players and experts, and USDA will be hard pressed to resolve these to general satisfaction.

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Horvath is partner at Foley Hoag’s Advertising & Marketing practice. Reach him at ahorvath@foleyhoag.com.