Deceptive GMO-Labeling Rule Goes into Effect on January 1st, Lawsuit Seeks to Reverse it

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To characterize our decade-long movement to label GMOs as a saga would be a serious understatement.

After California’s high-profile but failed attempt of Proposition 37 in 2012 and Vermont’s successful passage of a GMO-labeling bill in 2014, the U.S. government stepped in with a federal bill in 2016. This superseded any state-level GMO-labeling law, so as to avoid a patchwork of different rules in various states.

Now, following many years of protests, marches and campaigns, the very flawed National Bioengineered Food Disclosure Standard is set to go into effect on January 1st, 2022. Despite this implementation date, no one should be dissuaded into thinking that the battle has been lost or is over. Hope does remain that a meaningful GMO-labeling rule can still be achieved, although it will take some time to play out in the courts.

According to a pending lawsuit filed by the Center for Food Safety, which represents a coalition of nonprofits and retailers, the act violates several amendments of the U.S. Constitution and fails at its only real purpose — easily informing consumers as to whether a product contains GMOs.

VERY DECEPTIVE AND MISLEADING

The National Bioengineered Food Disclosure Law was passed by Congress and signed into law by President Obama in 2016. Two years later, the next administration’s USDA was charged with creating the exact language and procedures for this standard.

As it stands now, here are its key provisions:

* For on-packaging text, the term “Bioengineered” must be used. “Made with GMOs” or “Made with GE Ingredients” cannot be used.  A GMO-disclosure rule should make it clear and easy for consumers to know whether a food is genetically-modified or genetically-engineered. The truth is that most people have no idea what “bioengineered” means, and using this seldom-used, scientific term is not only confusing to consumers, it is deceptive.

This does not apply to products that disclose the avoidance of GMOs, such as a “Non-GMO” label or the Non-GMO Project seal.

* QR codes can be used, instead of on-packaging labels.  Nearly 50 million Americans, particularly the elderly and people who live in rural parts of the country, do not have smartphones. As such, allowing QR codes is discriminatory and would make it impossible for these citizens to know whether something is genetically-modified or not.

* Most GMOs are excluded from the standard. Even though the statute requires any food that is engineered or may be engineered to be labeled, the USDA circumvented this by focusing on “detectable DNA.” The agency says that if a product does not contain any detectable DNA matter, it is not bioengineered. Hence, it does not need to be labeled.

However, just because DNA matter is not detectable does not mean that it is not there. It all depends on how sensitive the testing is, and the USDA is not requiring any specific testing methodology. Furthermore, the testing becomes more sensitive each year.

Some highly refined foods may contain detectable DNA, but many highly refined foods will be excluded from labeling.

THE LAWSUIT TO CANCEL AND REWRITE THE CURRENT RULE

According to Meredith Stevenson, Center for Food Safety attorney and counsel in the case, “Our goal is to get the USDA final rule invalidated and have the whole thing rewritten. It is clear that the USDA violated the plain language of the statute.”

The plaintiffs believe that the strongest argument in their case rests with the QR code issue.

Congress required the USDA to have a third-party conduct a study about whether QR codes alone on a package would be sufficient. Nearly all of the participants in the study did not make the connection between QR codes and food information. Therefore, QR codes alone on a package would not be sufficient, and the USDA acknowledged this finding.

The statute says that if the independent study arrived at this conclusion, the USDA has to provide additional and comparable options. The plaintiffs believe this to mean on-package text with the QR code or an on-package symbol with the QR code.

The USDA thinks otherwise. It believes that a QR code alone on-package with a separate text message option, to be offered on a separate package, is sufficient.

In terms of timing, an opening brief has been filed, and the case is expected to be over by the end of next summer, with a possible decision by fall 2022. This legal action, however, will not stop the standard from going into effect in a few weeks, on January 1st.

“Consumers have fought for decades for their right to know what’s in their food and how it’s produced. But USDA instead used its authority to label GE foods by obscuring this information behind QR codes and unfamiliar terminology and omitting the majority of GE foods. Fortunately, the law is on the consumers’ side,” said Meredith Stevenson.

Even though several major food companies have been in favor of GMO-labeling, government officials remain clearly on the side of the ag-biotech industry. And they have been for years.

With gratitude, Max Goldberg, Founder