USDA Faces Legal Challenge from Organic Industry Over GMO Labeling Standards

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This article originally appeared in Presence Marketing’s January 2022 Industry Newsletter

By Steve Hoffman

The year was 2014 when the state of Vermont passed a stand-alone GMO labeling law, and for a short time, U.S consumers saw major food companies disclose on the package products that contained GMO ingredients. Then in 2015, led by former Representative Mike Pompeo, Congress passed a national GMO labeling law, the Safe and Accurate Food Labeling Act of 2015, that among other requirements, preempted individual states from mandating their own, more transparent GMO labeling laws. To many critics, the passage of the act watered down transparency in the law that favored corporate interests over the consumer’s right to know. The law, known as the National Bioengineered Food Disclosure Standard, (NBFDS) took effect in July 2016 and tasked the USDA with drafting and implementing the new labeling rules.

Now, as the labeling rules are in effect as of Jan. 1, 2022, advocates for clear labeling of GMO foods say the USDA fell short of its promise of transparent GMO labeling. Moreover, the language the agency is requiring on labels to disclose genetically engineered ingredients is confusing to consumers, they claim. In an important first step in a lawsuit challenging USDA’s rules on GMO labeling (which USDA now refers to as “bioengineered or BE foods”) – filed by organic industry groups including the Center for Food Safety and the National Organic Coalition, natural products retailers Natural Grocers, Good Earth Natural Foods and Puget Consumers Co-op, and others – a California federal judge was asked on Nov. 23, 2021, to declare USDA’s GMO labeling standard invalid. The lawsuit was originally filed on July 27, 2020, the National Law Review reported in December.

“Consumers have fought for decades for their right to know what’s in their food and how it’s produced,” Meredith Stevenson, Center for Food Safety attorney and counsel in the case, was quoted as saying. “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.”

“It’s critical to shoppers that they know what ingredients are in their food and how they were produced,” said Heather Isely, EVP of Natural Grocers, a plaintiff in the lawsuit. “Hiding the presence of genetically engineered products from consumers is a blatant attempt to hide agricultural practices that continue to destroy soils, biodiversity, communities, and public health. Education is part of our core mission and we refuse to misinform our customers.” “I believe that USDA’s GMO labeling law forces me, as a grocer, to engage in deceptive labeling,” added Mark Squire, co-owner and manager of Good Earth Natural Foods. “I cannot look my customers in the eye unless I do whatever I can to stop this misleading labeling system that is so obviously designed to protect the agro-chemical and biotech industry at the expense of consumers everywhere.”

All retail food products made with genetically modified ingredients (GMO or GE), or what the USDA refers to as bioengineered  or BE foods, will be required to disclose as of Jan. 1, 2022, if they contain bioengineered ingredients via plain text or a QR code on the label, reported Food Navigator-USA. However, many suppliers are still not up to speed with the USDA labeling standards, Nate Ensrud of FoodChain ID told Food Navigator-USA. Ensrud noted that the 13 foods USDA identified as high risk to be bioengineered “can be translated into thousands of ingredients and products sources from numerous global suppliers. Companies think that they have documentation that gives them clear insight into the BE risk of their ingredients, but a lot of what we’ve reviewed doesn’t meet the standards we would expect to support compliance,” he said.

At Issue over USDA’s GMO Labeling Standards:

- The term “bioengineered,” as opposed to the better recognized terms, GMO and GE. According to Meredith Stevenson, legal counsel with the Center for Food Safety, USDA’s mandate concerning the word “bioengineered” contradicts the letter of the law itself, which, she told The Counter, as Congress passed it, allows for this word to be used interchangeably with GMO and GE. Stevenson also noted that USDA’s terminology rule contradicts the agency’s own prior stance. Until 2016, USDA insisted on using the term GMO, saying the term permeated American society and not using the term GMO would mislead consumers.

- Highly refined products derived from GMOs in which genetically engineered material is not “detectable” using a “common testing method” after processing, are exempt from labeling disclosure. That includes sugar from GMO sugar beets, which, according to FoodPrint, comprises about 70% of the sugar consumed in the U.S., GMO canola oil, and additives derived from GMO corn or soy such as flavorings, colorings, thickening agents and binders.

- Allowing companies to use QR codes as a labeling option for consumers to scan instead of providing plain text GMO ingredient information on the label. According to the Pew Research Center, approximately one-quarter of low-income residents in the U.S. do not own a smart phone. “It’s quite discriminatory that they decided to go with a QR code that excludes a significant portion of the population from the right to know what’s in their food,” Dana Perls, Food and Technology Manager at Friends of the Earth, told The Counter in December. 

- USDA adds to the obfuscation, reported The Counter, by not allowing retailers to use shelf tags or other signage to inform customers whether a product contains GMO ingredients, even if it was made in their own kitchen. However, retailers are permitted to let customers know if a products is non-GMO.