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Here Come USDA’s “Bioengineered” Food Labels (or Maybe Not)

The new label requirements for “bioengineered” foods are here! Sort of.

Eric G

It’s a messy story. The new USDA rules for labeling foods with “bioengineered” ingredients, which became fully effective January 1, 2022, are being challenged in court. Opponents, including the Center for Food Safety, an advocacy group, are plaintiffs in federal court in San Francisco, suing USDA to stop the effectiveness of the new rules.

If the court agrees that any of the plaintiffs’ objections are valid, the court will temporarily, or permanently, prohibit the rules from going into effect or being enforced.

Let’s take a close look at some of the issues raised in the lawsuit, some of which are commonly raised in administrative cases. For background, you can see my July 2018 column in PW for a summary of the rules and even some of the controversy.

The USDA itself refers to its rules, which it calls the National Bioengineered Food Disclosure Standard, as intended to require disclosure of information about bioengineered foods and ingredients. (Separately, USDA offers guidance for those who want to claim their foods contain no bioengineered ingredients.)

The new requirements apply to foods that are required to be labeled under FDA’s requirements and to meat and poultry products required to be labeled under USDA’s. Yo, packaging makers and users: packaging components that migrate into food are not “food” for purposes of these new bioengineered food disclosure requirements. And, for what it’s worth, neither are animal foods.

“The Standard defines bioengineered foods as those that contain detectable genetic material that has been modified through certain lab techniques and cannot be created through conventional breeding or found in nature,” explains a USDA document.

USDA’s Agriculture Marketing Service generated a list of bioengineered foods to help companies comply. “The List of Bioengineered Foods is  alfalfa, apple (Arctic™ varieties), canola, corn, cotton, eggplant (BARI Bt Begun varieties), papaya (ringspot virus-resistant varieties), pineapple (pink flesh), potato, salmon (AquAdvantage®), soybean, squash (summer), and sugarbeet. These foods comprise most of the bioengineered crops or foods grown in the world and, therefore, most of the bioengineered food and food ingredients.” USDA will conduct annual reviews of the list.

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