QR Code and Text Messaging Alone Are Insufficient to Disclose Bioengineered Food Ingredients

By: Natalie E. Rainer and Amy Wong

Due to a recent decision in the Northern District of California, the U.S. Department of Agriculture (USDA) will be required to revise current electronic and text message disclosure options under its Bioengineered (BE) Food Labeling Rules, also known as the National Bioengineered Food Disclosure Standard (NBFDS or Standard). Plaintiffs successfully argued that these methods of disclosure did not meet Congress’s requirement that these methods be adequately accessible to consumers.

The BE labeling regulations took effect on January 1, 2022 and require labeling disclosure when foods contain bioengineered (BE) ingredients (or are themselves bioengineered). The Standard provides four methods of disclosure: (i) the statement “Bioengineered food” or “Contains a bioengineered food ingredient” (hereinafter “text disclosure”); (ii) the USDA BE symbol (the “symbol disclosure”); (iii) an electronic or quick response (QR) digital disclosure link and accompanying text (“electronic disclosure”); and (iv) text message instructions (“text message disclosure”). The law requires that the electronic disclosure be accompanied by a phone number for consumers to access an automated recording available 24-hours a day with the necessary BE disclosure information. 

In July 2020, plaintiffs–including the Center for Food Safety, a San Francisco-based non-profit–sued the USDA in the Natural Grocers et al. v. Perdue et al. case, alleging that certain aspects of the Standard violated the Administrative Procedure Act (APA). Plaintiffs argued that the electronic and text messaging disclosure methods did not meet the statutory requirement for accessibility. The court agreed and held that the USDA failed to take into account issues identified in a study of the accessibility of the electronic disclosure method. The study, conducted during the rulemaking process, revealed that consumers lack the technical knowledge and access to smartphones that would facilitate obtaining disclosure information through the electronic disclosure method.

Additionally, the court found that the availability of the text message disclosure option did not fix the deficiencies of the electronic disclosure option and that USDA acted in an arbitrary and capricious manner in authorizing the text message disclosure option. The court remanded the regulations related to these disclosure options, which will remain valid while the USDA determines how to respond to the decision.

Plaintiffs also brought First Amendment challenges, claiming that the Standard precludes them from using terms such as “GMO” and “GE.” The court was not convinced and held that the plaintiffs lack standing because the Standard does not prohibit them from using said terms. They are free to say “GMO” or “GE” so long as they also include the word “bioengineered.” 

The USDA will presumably conduct notice-and-comment rulemaking to address the court’s decision. Regulated entities may consider using the text or symbol disclosure methods if they currently use the electronic or text disclosure methods.  Regulated entities should monitor developments as to the disclosure requirements and work with their regulatory departments and legal counsel to ensure labeling comports with the NBFDS regulations.

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