(Editor’s Note: This is an online-only article attributed to October/November 2018 issue.)
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As reported by Food Quality & Safety on May 16, the USDA’s Agricultural Marketing Service on May 4 issued a Proposed Rule for the labeling of GMO or bioengineered foods under the Agricultural Marketing Act of 1946, as amended by Congress in July 2016 through the Federal Bioengineered Food Disclosure Standards Act. At that time, the USDA opened a public comment period. Where are we now with respect to the proposed new National Bioengineered Food Disclosure Standard? This article examples the current state of the discussion, as evidenced through public comments to the proposed rule and other public statements.
Public Comments to the Proposed Rule
The final public comments to the proposed rule were dated July 6, 2018. In total, 14,016 comments were submitted before the comment submission page was closed.
Many of the public comments reflected the criticisms raised by various industry groups around the time of the opening of the comment period. Some literally echoed them. The advocacy group Just Label It, whose partners and supporters include many organic food companies and retailers, published a press release upon the issuance of the proposed rule, criticizing omission of a requirement to disclose specific GMO ingredients and the QR option as not addressing the needs of consumers who “don’t have expensive phones or live in rural places with poor cell service.” Just Label It offered a comment for individuals to copy and paste into the public comment system, and 634 of the 14,015 comments received were the verbatim Just Label It comment. Just Label It itself submitted a comment advocating a broad definition of genetic engineering and narrow definitions of any exemptions (Comment AMS-TM-0050-13480). After the comment period, Just Label It published the results of a poll it had commissioned, indicating that Americans are much more familiar with the terms “genetically modified food” and “GMO” than with the term “bioengineered food” proposed by USDA. Other organizations, such as the Center for Food Safety, also contributed joint comments on behalf of multiple members or parties (Comment AMS-TM-0050-13739).
A further 122 comments repeated at verbatim a seven-point response issued by the organization GMO Free USA on its Facebook page, calling for the use of “GMO” or “GE” rather than “bioengineered” or “BE,” no exemptions for highly refined foods containing no rDNA, no exemptions for new gene-editing techniques, rejection of disclosures that are not simple text on the food package, and steep penalties for non-compliance.
The Sierra Club submitted “23,921 public comments” (actually 23,921 petition-style signatures to its online position statement) to which 3,301 individuals added additional written comments, all bulk-submitted as attachments to one comment. Its position was that there should be no highly-refined-product exemption, that “bioengineered” is not well understood by consumers, that the proposed symbols inappropriately suggest a preference for GMO products over other foods, and that indirect disclosures such as QR codes or web URLs are “ineffective and discriminatory” (Comment AMS-TM-0050-13576). The Sierra Club also conducted a consumer perception survey of 5,992 individuals, gauging their reactions to the USDA’s proposed “BE food” symbols. Its survey found that consumers had high levels of understanding of the terms “genetically engineered” and “genetically modified” and the abbreviation “GMO,” much lower understanding of the terms “bioengineered” and “gene edited,” and barely any recognition of the abbreviations “GE” and “BE” when not spelled out in full. The survey also found that consumers thought the symbols portrayed the bioengineered foods as “natural,” “good,” “healthy,” and “safe,” which the Sierra Club considered to be biased. Relatively high proportions of respondents volunteered that they themselves considered these implications misleading.
Other commenters in the same vein, generally regarding the proposed regulations excessively favorable to GMOs, included Friends of the Earth (Comment AMS-TM-0050-13096 and -13138), Senator Richard Blumenthal (D-CT) (Comment AMS-TM-0050-10779), Rural Vermont (Comment AMS-TM-0050-12630), the National Sustainable Agriculture Coalition (Comment AMS-TM-0050-10977), the Non-GMO Project (which attached a search engine analysis finding that almost nobody searches for the term “BE” or “bioengineered” food while many search for “GMO”) (Comment AMS-TM-0050-13276), the Consumer Federation of America (Comment AMS-TM-0050-12472), Consumers Union (Comment AMS-TM-0050-13545), and several organic food companies. The organic food companies also typically suggested that foods earning organic certification should be allowed to make a “no GMO” or “no BE” claim, but that not every company that is not required to disclose the presence of GMOs should necessarily be entitled to use a “no GMO” or “no BE” claim (See, e.g., Comment AMS-TM-0050-13241, Stonyfield Organic; Comment AMS-TM-0050-12948, Hain Celestial Group). Some other food producers agreed, but added that organic certification should not be the only route to making a non-GMO or non-BE claim; there should be a process by which any food could show that it contains no GMOs while not necessarily meeting the other conditions for organic (Comment AMS-TM-0050-11764, Produce Marketing Association).
Many individually written comments voiced the same concerns as the public advocacy groups and organic food companies. At least one individual even took it upon himself to redesign the USDA’s proposed symbols, eliminating the happy, leafy elements and using “GMO” or “GE” abbreviations in place of “BE” (Comment AMS-TM-0050-12234). Another commenter pointed out that the USDA obtained trademarks for less emotionally loaded “GMO” symbols in December 2016, but then abandoned them in February 2018 (Comment AMS-TM-0050-10833).
Some of these individual comments highlighted a key issue in the GMO disclosure debate by apparently indicating misinformation about GMOs, such as “50 percent of dogs!… now have cancer! and GMOs in their food are the scientifically proven cause. look it up…” (Comment AMS-TM-0050-13650), “GMO Is toxic to humans causing numerous diseases” (Comment AMS-TM-0050-13908), “Genetically engineered foods are known to cause a myriad of illnesses including cancer, Parkinson’s Disease, irritable bowel, infertility in men, endocrine problems, and much more…” (Comment AMS-TM-0050-12012), and “The average life expectancy of U.S. citizens has steadily gone down as our food supply has steadily used more GMOs!” (Comment AMS-TM-0050-12481). Some commenters attributed near-miraculous health benefits, such as cancer remission, to their decision to eat only organic foods or avoid GMOs.
Other comments, albeit a distinct minority of individual consumer comments, came out largely in favor of the proposed rule. Industry players submitting comments generally supportive of the proposed standard included the Wonderful Company (Comment AMS-TM-0050-13754), Seafood Products Association (Comment AMS-TM-0050-13964), the Canadian Produce Marketing Association (Comment AMS-TM-0050-13294), the Illinois Farm Bureau (Comment AMS-TM-0050-13310), the U.S. Chamber of Commerce (Comment AMS-TM-0050-12455), the Government of Canada (Comment AMS-TM-0050-13293), Sargento Foods (Comment AMS-TM-0050-2603), and the American Bakers Association (Comment AMS-TM-0050-10818). An influential comment, cited by several other comments from mainstream food companies, was submitted by the Coalition for Safe Affordable Food, a generally pro-GMO organization (Comment AMS-TM-0050-13009).
Several major food companies and groups, including Kraft Heinz (Comment AMS-TM-0050-12759), Coca-Cola (Comment AMS-TM-0050-11441), SNAC International (a snack food industry trade association) (Comment AMS-TM-0050-12498), the Grocery Manufacturers Association (Comment AMS-TM-0050-12345), Danone, Mars, Nestle, and Unilever (joint submission, Comment AMS-TM-0050-10964), the American Frozen Food Institute (Comment AMS-TM-0050-11666), the International Dairy Foods Association (Comment AMS-TM-0050-13235), and Campbell Soup (Comment AMS-TM-0050-13552) generally supported the proposed standard but opposed any exemption for refined products containing no bioengineered genetic material. As Coca-Cola put it, “As a brand owner with a commitment to transparency, we believe that it is essential to have a BE disclosure rule that provides consumers with the desired transparency and information they want. Our consumers want to know if a product contains an ingredient that was sourced from a BE plant, and we would advocate for a final rule that consistently requires disclosure of this information without an exemption based on the presence or absence of rDNA material.” Several of these submissions also expressed concern that the proposed symbols and use of the term “bioengineered” would not be sufficiently understandable to consumers.
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.
Horvath is partner at Foley Hoag’s Advertising & Marketing practice. Reach him at firstname.lastname@example.org.