Nearly two years after passage of the nation’s first federal law requiring food manufacturers to disclose the presence of GMO ingredients on packaged food labels, USDA’s Agricultural Marketing Service (AMS) has issued a proposed rule outlining how and under what conditions such disclosures will be required. But the agency also left a few particularly contentious issues unresolved, pending further consideration.
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The National Bioengineered Food Disclosure Law (PL 114-216) was signed into law in July 2016. It requires food manufacturers to prominently disclose on the label the presence of any bioengineered ingredient. Companies can choose among three options: text, a GMO symbol, or an electronic link, such as a QR or quick response code that can be scanned by smartphones. There is no penalty for non-compliance. USDA was statutorily required to issue a final regulation implementing the law within two years of its passage.
USDA published the proposed rule on May 4, 2018, with a 60-day public comment period that closes July 3. Because the agency was late in issuing the draft regulation, the comment period will not be extended, USDA said. The agency plans to issue the final rule later this year after evaluating the comments it receives, which are expected to be numerous.
“This rulemaking presents several possible ways to determine what foods will be covered by the final rule and what the disclosure will include and look like,” said Agriculture Secretary Sonny Perdue. “We are looking for public input on a number of these key decisions before a final rule is issued later this year.”
The law defines bioengineered food as that containing “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.” This definition is incorporated verbatim in the draft regulation.
In creating the draft regulation, USDA evaluated more than 112,000 comments it received last year in response to 30 questions about the GMO law posted on the AMS website. Questions revolved around such issues as the amount of a bioengineered substance needed for a food to be considered GMO, and whether ingredients that are derived from bioengineered crops, such as highly-refined oils or sugars, must be so labeled even if the bioengineered material cannot be detected.
Responses to these questions “disclosed wide differences in public opinion about how the statutory definition of ‘bioengineering’ should be interpreted and applied” to the law, the draft regulation states. As a result, USDA is proposing a range of options regarding GMO threshold amounts, and is inviting further information and comments on the matter of highly refined products.
Concerning threshold levels, the agency is considering three options for exempting foods from the GMO labeling requirement, based on comments it received to its 30 questions. A food product would be exempt from the label law if:
a) the food contains an ingredient with a bioengineered substance “that is inadvertent or technically unavoidable, and accounts for no more than 5 percent by weight of the specific ingredient,” or
b) the food contains an ingredient with a bioengineered substance “that is inadvertent or technically unavoidable, and accounts for no more than 0.9 percent by weight of the specific ingredient,” or
c) the food contains an ingredient or ingredients “that contain a bioengineered substance [that accounts] for no more than 5 percent of the total weight of the food in final form.”
In addition, USDA categorically exempts “an incidental additive present in food at an insignificant level and that does not have any technical effect in the food.” A “Reserved” place is left open in the regulation for one additional exemption, without explanation.
Concerning whether highly refined products made from bioengineering should be covered, USDA acknowledges two prevailing, opposing viewpoints: If a bioengineered genetic material has been removed from the food to the extent that it is undetectable by common testing methods, the food should be exempt because it does not contain bioengineered material. On the contrary, if a food is produced from bioengineering, it should by definition be covered. Simply because a test may not detect bioengineered material doesn’t mean it’s not present. Some studies have found such genetic materials present in highly refined oils and sugars, while other tests were inconclusive.
To resolve the dispute, USDA is requesting information from additional studies as well as comments on which of the two positions better interprets the statutory definition of bioengineering.
Another still-to-be resolved issue concerns the GMO symbol. USDA is proposing three alternatives: a circle with a green circumference with the capital letters “BE” in white type; a filled green circle with the lower-case letters “be” with the hint of a smiley face and with 10 triangular leaves evenly spaced along the circumference; or a circle with dotted circumference, with the lower-case letters “be” and the hint of a smiley face. Click here to view options. The agency wants feedback on “perceptions, beliefs, or feelings” about each of the proposed symbols, particularly the message each communicates to consumers.
A number of early comments submitted by members of the public focused on these symbols. Many disliked them, calling them “misleading” or “cartoonish.” Others said the smiley face was deceptively suggestive of bioengineered food being good or healthy when, in fact, it might well be the opposite.
When the GMO label law was passed two years ago, some critics complained that it too narrowly defined bioengineering and would allow companies to not disclose GMOs produced by new technologies, such as “gene editing.” At the time, USDA contended that it had sufficient authority to consider the matter.
The new draft regulation, however, does not address the matter in any detail. Instead, USDA “recognizes that technologies continue to evolve, and that food produced through a specific technology may or may not meet the definition of BE [bioengineered] food.” The agency says it will consult with other agencies, including APHIS, EPA, and FDA, to keep abreast of the commercialization of new technologies, and will issue annual updates, subject to review and comment.
To reduce the compliance burden on food manufacturers, USDA will develop and maintain two lists of commercially produced bioengineered foods. Only foods on either of these lists are subject to disclosure.
One list will include bioengineered foods having a “high adoption rate,” defined as comprising 85 percent or more of U.S. planting or production. Examples include bioengineered canola (90 percent), bioengineered field corn (92 percent), bioengineered cotton (93 percent), bioengineered soybean (93 percent), and bioengineered sugar beet (100 percent). The other list would be bioengineered foods that are “not highly adopted,” or representing less than 85 percent of U.S. planting or production, such as apples, sweet corn, papaya, potato, and summer squash.
While foods from either list must be disclosed, the text wording will differ. High adoption bioengineered foods must be worded “Bioengineered food” or “Contains a bioengineered food ingredient.” Non-high adoption foods must be worded “May be a bioengineered food,” or “May contain a bioengineered food ingredient,” or “Contains a bioengineered food ingredient.”
Instead of text or the GMO symbol, the law allows food manufacturers the option of using an “electronic or digital link,” such as a QR or quick response code. The draft regulation proposes the code be accompanied by such wording as ‘‘Scan anywhere on package for more food information’’ or ‘‘Scan icon for more food information.’’
The Grocery Manufacturers Association (GMA) said its SmartLabel QR initiative “provides more information that could ever fit on a package label,” and is found on more than 25,000 food and other items. “Digital disclosure by scanning an electronic link on a package is one of the ways to provide the bioengineered ingredient information required by the federal law,” GMA said in a statement.
While many food industry groups such as GMA, the Food Marketing Institute, the National Grocers Association, and the American Farm Bureau Federation largely support USDA’s labeling effort, some consumer and environmental groups continue to find fault with it, much as they did when the law was passed.
“This rule will help keep consumers in the dark, as it is intended,” said Wenonah Hauter, executive director at Food & Water Watch. Digital codes and other technology make it more difficult for consumers to obtain GMO information than simple labels, she said, calling the provision “a gift to industry.”
Andrew Kimbrell, executive director of the Center for Food Safety, said USDA’s own study found QR codes to be “inherently discriminatory against one-third of Americans who do not own smartphones.” On-package text or symbol labeling is “the only fair and effective means of disclosure for GE foods,” he added.
The law instructed USDA to assess potential technological challenges involved in using electronic or digital disclosure methods. While that report has been concluded, USDA has not made a final decision about the issue. The draft regulation, however, proposes a new disclosure option of text messaging for those shopping without a smartphone.
Unchanged from the law are several exemptions. These include food served in restaurants and other retail establishments, very small food manufacturers (having less than $2.5 million in annual sales), food derived from animals that consumed bioengineered feed, such as GMO corn or soybeans, and food verified under the National Organic Program. Meat, poultry, or eggs would require labeling only if the most prominent ingredient would independently be subject to the labeling requirement.
Food manufacturers with more than $10 million in annual revenues must comply by Jan. 1, 2020. Small food manufacturers (less than $10 million but $2.5 million or more in annual revenues) would have an additional year (Jan. 1, 2021). Food importers would be subject to the same disclosure and compliance requirements as domestic companies. USDA is considering recognition arrangements with foreign governments that have established bioengineered food labeling standards. In those cases, each country could agree to recognize each other’s standards as comparable.