Lawsuit Challenges USDA’s BE Labeling Rule

On July 27, 2020, the Natural Grocers, Citizens for GMO Labeling, Label GMOs, Rural Vermont, Good Earth Natural Foods, Puget Consumers Co-op, and the Center for Food Safety (“Plaintiffs”) filed a complaint against USDA challenging the final “BE labeling rule,” i.e., the final rule implementing the National Bioengineered Food Disclosure Standard (NBFDS).  According to Plaintiffs, the final BE labeling rule fails to provide meaningful labeling of, what Plaintiffs call, genetically engineered (GE) foods.   They allege that USDA “fell far short of fulfilling the promise of meaningful labeling of GE foods [and] in many ways, the [rule results] . . . in the direct or de facto concealment of these foods and avoidance of their labeling.”

As readers of our blog know, Plaintiffs have been fighting for mandatory disclosure of the presence or use of genetically engineered ingredients in food for many years.  Congress passed the NBFDS in 2016 after several states had passed and several other states were poised to pass laws mandating certain statements on foods that were manufactured from or with the use of genetic engineering.  The Agricultural Marketing Service (AMS) of the USDA was tasked with the implementation of the law.   The final rule, setting a compliance date of Jan. 1, 2022, was issued in 2018.  (see our blog post here)

Plaintiffs take issue with various aspects of the final regulation.

1. The option of using a QR code only (i.e., without requiring additional on-package labeling) as method of disclosure. Plaintiffs allege that a study commissioned by AMS showed that it is not realistic to have customers scan barcodes for dozens of products in the store and the QR code would discriminate against people with lower smartphone ownership, with no or low ability to afford data, and people living in areas without general access to internet with the required bandwidth, i.e., the poor, elderly, rural and minorities.  According to Plaintiffs, AMS ignored the  study results and decided to allow the QR code as a method of disclosure anyway.
2. The terminology used in the disclosure language . Congress used the new term “bioengineered” in the NBFDS.  However, Plaintiffs allege that NBFDS instructed USDA to also include “any similar term” in its new standard.  Nevertheless, the final rule prohibits the terms “genetically engineered” and “GMO,” on the label.  Plaintiffs allege that AMS’s decision was arbitrary and capricious and in contradiction to the plain language of the law.  According to Plaintiffs the use of “bioengineered” rather than “genetically engineered,”  or “GMO” will confuse and mislead consumers because for many decades, consumers, federal agencies, scientists and the marketplace have used the terms “genetically engineered” and “GMO.”
3. The application of mandatory disclosure to foods that contain detectable modified genetic material only. Not surprisingly, Plaintiffs assert that the final rule is too limited because the mandatory disclosure applies only to foods that contain detectable modified genetic material and excludes highly refined products which do not contain any detectable modified genetic material.  As we reported previously, AMS considered the language of the definition of BE in the NBFDS and concluded that the term BE foods covers only those foods that contain detectable modified genetic material.
4. The prohibition against the voluntary use of the terms “GMO” or “genetically engineered” on BE foods. The only voluntary labeling allowed is “derived from bioengineering” and only in certain circumstances.  Plaintiffs argue that this limitation is unconstitutional because “[m]anufacturers and retailers have a fundamental 1st Amendment Right to provide truthful commercial information to consumers, and consumers have a right to receive it.”  Therefore,  prohibiting manufacturers and retailers from labeling foods as produced through genetic engineering or as genetically engineered “violate[s] the statute’s text and purposes as well as the 1st Amendment’s guarantees.”

Plaintiffs ask that the Court set aside or vacate all or portions of the final rule based on AMS/USDA’s violations of the NBFDS and Administrative Procedure Act, and set aside any portions of the rule and the NBFDS that violate the 1st Amendment.