Updated: Jul 24, 2020
By Mayhah Suri and Ashley Ellixson
The past few weeks have been chock-full of developments on the genetically modified organisms (GMO) labeling front. Late last month, President Obama has signed a bill requiring all foods containing GM ingredients be labeled. Today is the second in a two-part blog post on this huge development in food law. For a refresher on what “GMO” means, check out Ashley’s post from last year.
As mentioned in part one of this series , the U.S. Department of Agriculture (USDA) will have two years to write the rules on the genetically modified organism (GMO) law. In case it’s been a while since you watched Schoolhouse Rock, USDA is now responsible for making sure this law actually is implemented. The bill Congress passed is how the United States wants to handle GMO labeling, while the USDA rules are the turn-by-turn GPS directions of how to get there. So even though we know what the bill says, what it actually means for you as a farmer, manufacturer, distributor, educator, lawyer, or consumer is still fuzzy until we get further direction from USDA.
You may be thinking: wait, so now I have to read a bill? Worry not, dear reader! I read it for you, but if you’d like to read it yourself, you can find it here. We’ve put some important details of the bill in bold.
NOTE: In the following summary, the terms GMO, bioengineered, GM ingredients, and GM foods are all referring to food containing genetic material modified through recombinant DNA techniques.
It’s important to point out that this bill says food is considered bioengineered if it contains genetic material from recombinant DNA techniques AND the modification can’t be made through conventional breeding or found in nature. As mentioned in the first post, the Food and Drug Administration concluded that this second requirement might create a very high standard for what is even considered a GMO. Food does not need to be labeled if it came from an animal that ate GM feed.
USDA will come up with a threshold for how much of a bioengineered substance must be present for the entire food to be considered bioengineered. USDA must also figure out if any other factors might impact whether or not a food is GM.
Most significantly, it’s now mandatory to disclose the presence of GM ingredients in food through a label. The bill doesn’t outline the consequences for failing to use a label, but companies who don’t disclose the presence of GM ingredients will be breaking the law. USDA will not have the authority to recall foods without a label.
No state or municipality can pass laws regarding labeling of GM foods involved in interstate commerce that are under the purview of this law. This pre-empts or nullifies the Vermont GM labeling law.
The GMO disclosure label will only apply to federally inspected foods, where the main ingredient would independently be subject to federal inspection OR in a situation where the main ingredient is liquid like water or broth, the second-main ingredient is subject to federal inspection as well.
In two years’ time, the Secretary of Agriculture will establish a national mandatory bioengineered food disclosure standard and come up with a way to get that disclosure onto products. Any other type of label disclosing the presence of GMOs will not be allowed. This doesn’t prohibit a “no GMO” label. If a product meets federal organic standards, it is assumed to be GMO-free and the manufacturer may say that on the label.
The bill strongly states that any bioengineered food cannot be treated like it’s safer or more dangerous than a non-GM version solely because it’s bioengineered.
The bill also describes the label itself:
The disclosure, or label, can be text, a symbol, or electronic/digital link (but not a URL) and the food manufacturer can pick what it wants to use. The electronic/digital link must refer to a quick response or QR code, which is a picture you can scan with a mobile device to take you straight to a website.
The language accompanying a digital link must be “Scan here for more food information,” and nothing else.
The language accompanying a phone number must be “call for more food information,” and nothing else.
The digital link or QR code must disclose the GM status of the product in a “consistent and conspicuous manner” on the first product information page appearing on a mobile device after scanning, excluding marketing and promotional information.
Companies may not collect, analyze, or sell any personally identifiable information when consumers scan the link. If collecting this information is necessary to make the technology work, it must be deleted immediately and may not be used for any other purpose.
If companies choose to use a digital link, they must include a phone number and indicate that the same information is available by calling.
The digital link must be large enough to be easily scanned by a digital device.
USDA will provide label alternatives for food products in packages too small for the normal label. These small food manufacturers have one extra year to choose from a phone number and text indicating a consumer can call the number to learn more, or text/symbol/QR code leading to a website maintained by the manufacturer with the relevant information.
Food served in a restaurant or similar setting is exempt from this labeling requirement, as are “very small food manufacturers.”
USDA must conduct a study within a year to identify possible technological challenges impacting consumers’ ability to access digital labels. This study must consider the availability of wireless networks in stores, availability of landline telephones in stores, challenges facing small and rural retailers, efforts retailers have made to address infrastructure limitations, and the costs and benefits of installing electronic or digital link scanners for consumer use. If the study finds that the digital label would not be accessible enough, USDA must work with manufacturers to find a “comparable” solution.
Some other requirements of the law include:
USDA must open the rules to public comment once they are written.
All companies must maintain records, subject to federal audit, of their efforts to add these labels. If USDA chooses to audit a company, they must provide notice of the audit and an opportunity to hear the results, which will be made public afterwards.
Even before the law was passed, a few major food companies began to include labels. Since this topic is at the forefront of the national conversation on food and agriculture, will more companies add labels before the USDA rules are even finalized? Or will companies stop their label making while the rules are formulated?
The digital label or QR code option has received the most attention from groups who think the law is weak. Some point to studies finding that shoppers won’t actually scan the labels as evidence that food companies are still trying to hide the presence of GM ingredients. Proponents say some companies’ decision to label their products before the law goes into effect suggests otherwise. The feasibility study on digital labels will be important in determining if this option lasts. How will different groups talk about the QR code option and the USDA study to prove their point?
As with all federal rules, USDA will release drafts of the rules for public comment sometime in the next two years. These open comment periods will probably result in huge outreach efforts by labeling groups on all sides of the issue to urge their members to comment. How will the public’s input affect the scope of this labeling law?
If you want your voice to be heard on this issue, watch for the call for public comments.
As always, keep an eye on our blog for updates on this controversial and evolving issue.