BE labeling Rule Challenge Largely Fails but Court Takes Issue with Electronic and Text Message Disclosure Options

As we  previously reported, about two years ago, 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 USDA’s the final rule implementing the National Bioengineered Food Disclosure Standard (NBFDS), also known as the BE labeling rule.  Plaintiffs challenged the use of the term bioengineered (rather than GMO or genetically engineered), the limitation of the mandatory disclosure being required only if the food contains detectable modified genetic material and the options of using a QR code disclosure or a text message for the disclosure statement.

On September 14, 2022, the U.S. District Court for the Northern District of California ruled on a motion for summary judgement filed by the plaintiffs.

The Court denied the motion on the points of the use of the term bioengineered and the limitation of a mandatory requirement to foods that contain detectable BE material as, according to the Court, these provisions were consistent with the statute.

However, the Court did grant the motion on the issue of the disclosure options.  As readers may recall, the current regulation provides for four options for a disclosure statement, i.e., text disclosure, symbol disclosure, electronic disclosure (QR code with a phone number for further information), and a text message disclosure. The statute itself – the National Bioengineered Food Disclosure Standard – requires use of one of three forms of disclosure: on-package text, a symbol, or an electronic or digital link.

USDA’s final rule includes the option for a QR code plus phone number even though a study (mandated by the statute) revealed significant access problems with this option.  To “fix” the potential problem of access, USDA added a fourth disclosure option of a text message.  The Court’s order explains that the text message “did nothing to fix the problem of the inaccessible electronic disclosure”.  USDA should have improved the electronic disclosure statement by “providing additional and comparable options to access the [electronic] bioengineering disclosure,” rather than adding a fourth option for a stand-alone text message. Thus, the Court concluded that addition of the standalone text message disclosure options was inconsistent with the statute’s mandate. The Court remanded to USDA, the BE labeling regulation provisions regarding these disclosure options without vacatur; in other words, the status quo is maintained (products using these disclosure options need not be revised immediately) while USDA revisits these two disclosure provisions of the BE labeling rule.