USDA Releases Report on Potential Challenges of Using Electronic and Digital Disclosures on Food Labels; Challenges Significant but Manageable

As part of the development of mandatory disclosure requirements for bioengineered foods, USDA is required to complete and report on a study to identify potential technological challenges that may impact whether consumers would have access to the bioengineering disclosure through electronic or digital links, such as barcodes and Quick Response (QR) codes. The electronic disclosure method is attractive to industry because it saves valuable “real estate” for other product information on the package. However, opponents such as the Center for Food Safety (CFS) believe that electronic links should not be an option because most consumers are unlikely to check on-line for the information while shopping.

Just about 14 days after CFS sued USDA claiming that the agency missed the statutory timeframe for issuance of the study report (see our previous post here), USDA issued the report.

As required by law, the study addressed five factors:

• “The availability of wireless Internet and cellular networks”;
• “The availability of landline telephones in retail stores”;
• “Challenges facing small and rural retailers”;
• “[E]fforts that retailers and others have taken,” thus far, “to address potential technology and infrastructure challenges”; and
• “The costs and benefits of installing in retail stores [technology] that provide[s] bioengineering disclosure information.”

The report describes the findings from 150 direct observations (40 in-depth discussions with consumers; observation of more than 75 consumers while shopping, and visits to 42 retailers) and 994 crowdsourced participants. The study focused on consumers that are interested in accessing information on the bioengineered status of their foods.

Some noteworthy findings include:

• A growing majority (currently 77%) of Americans own a smartphone;
• 85% of the smartphone owners “struggle[] with complicated mobile software application”;
• Scanning digital links requires access to the internet; although 97-100% of the chain stores provide WIFI in their stores, only 37% of small retail stores have WIFI.

Key challenges identified in the report include “difficulties recognizing the link [as associated with additional food information], accessing it through use of tools, [and] scanning the link.” Technical challenges to access include lack of a smartphone or scanner tool, old smartphones incapable of scanning, and lack of memory for an app. Not surprisingly, technological challenges “disproportionately impact low-income earners, rural residents, and Americans over the age of 65.”Authors acknowledge that costs of providing the tools (e.g., scanners) and access to WIFI may prove prohibitive for small and rural retailers. Moreover, due to continuing developments, technologies (such as scanners) may be outdated quickly. Nevertheless, researchers conclude that the government and interested parties can take “meaningful steps” to minimize the challenges and provide consumer access. Both supporters and opponents of digital links as a means for providing a bioengineered food disclosure statement undoubtedly will heavily scrutinize the report to find evidence to support their position. It remains to be seen if USDA will conclude that electronic links will provide sufficient access or if additional disclosure options should be provided. It will be interesting to see USDA’s proposed regulation.