USDA’s final ruling on GMO disclosure in food called out for limited transparency

January 9, 2019

Critics say that USDA's mandatory GMO labeling standards are insufficient. 

On December 21, 2018, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service issued its final rule establishing the new national bioengineered (BE) food disclosure standard as required by the amendment to the Agricultural Marketing Act of 1946 that was passed on July 29, 2016. The amendment required the disclosure of bioengineered food, also known as genetically modified organisms (GMOs). Much like the law’s passage, the new standards outlined in the final rule have been met with mixed reviews.

The central conflict lies in the fact that the legislation requiring the disclosure of GMOs in food products is a compromise designed to pacify both food manufacturers and critics of GMOs. To provide some background, Vermont was the first state to pass legislation requiring the disclosure of GMOs on food labels. More states were primed to follow suit with laws of their own, which concerned large food manufacturers because a patchwork of state GMO labeling laws would force manufacturers to create different labels for different jurisdictions, a costly proposition, or alternatively make it necessary for companies to disclose GMOs on all their labels going forward.

Big Food lobbied Congress to pass legislation that would preempt Vermont’s labeling law before the law took effect. One bill would have created a standard for voluntary disclosure and removed any mandatory labeling on a state-by-state basis. Ultimately, however, a compromise was reached to pass a mandatory GMO disclosure law, criticized by some as lacking teeth, such as exempting meat from labeling requirements (conventionally raised livestock consumer GMO feed such as soybeans), but praised by others as a major step forward for transparency.

Many of these critiques carry over now that USDA has released its final rule as we finally get to see how labeling standards will be implemented. For example, the Center for Food Safety (Washington, DC) released a statement criticizing the standards, stating that a large portion of food that has a presence of GMOs is exempt from labeling requirements. “The USDA has betrayed the public trust by denying Americans the right to know how their food is produced,” stated Andrew Kimbrell, executive director at Center for Food Safety, in a press release. “Instead of providing clarity and transparency, they have created large-scale confusion and uncertainty for consumers, food producers, and retailers.”

For example, a major point of contention for the consumer safety watchdog is the high 5% threshold for the unintended presence of GMO ingredients. This, says the Center for Food Safety, exempts highly refined products made from GMO crops, such as cooking oils, candies, and sodas, because current testing methods are unable to detect their GMO content. For comparison, the European Union’s threshold is 0.9%.

The American Herbal Products Association (AHPA; Silver Spring, MD) also criticized the final rule for this reason. The industry trade group had advised USDA to make a number of revisions to its standards during the public comment period, which USDA did not incorporate. These included: 1) Adopting common terms used to describe bioengineering such as genetically modified, genetically engineered, and GMO, 2) Defining “BE” food to include all relevant GMO techniques (such as newer techniques like CRISPR and RNAi), 3) Setting the threshold for disclosure of GMO content at 0.9% for consistency with international standards, 4) Revising the design of the BE symbol options to avoid any emotive quality or any implication that GMO content in a food is a benefit or of additional value in the food. (See main article image for the official disclosure symbol chosen by USDA for reference.) The symbol is one of several disclosure options the new standard allows for indicating GMO presence, including text statement, an electronic or digital link such as a QR code, and/or a text message to consumers.

The QR code option is also under criticism because access to information scanned from a QR code requires a smart phone and a reliable broadband connection, luxuries not everyone can afford. “This labeling option discriminates against more than 100 million Americans who do not have access to this technology,” states the Center for Food Safety in its press release.

“Because the proposed rule was not significantly revised, it is very unlikely that Americans will be provided with a reasonably accessible way to know if their food contains genetically modified ingredients,” said AHPA president Michael McGuffin in a press release. “The final rule doesn’t require disclosure of the information consumers are demanding for highly refined ingredients and contravenes the intent of the GMO labeling law.”

Another way the final rule limits transparency is that a multi-ingredient product will only have to disclose GMOs if the GMO ingredient is the primary ingredient of the product. If the primary ingredient of a product is not independently subject to GMO disclosure (such as meat, poultry, and eggs), then the product as a whole is not required to disclose GMO content.

According to the final rule, “A multi-ingredient food product that contains meat, poultry, or egg product (including beef broth, if identified as a composite ingredient) …as the first ingredient of the ingredient list on the food label would not be subject to the national bioengineered food disclosure standards (NBFDS). For example, a canned stew where pork is the primary ingredient followed by other ingredients such as sweet corn would not be subject to the NBFDS. The corn may be bioengineered, but pork, which is subject to the labeling requirements of the Federal Meat Inspection Act, is the predominant ingredient, so the canned stew product is not subject to the NBFDS, per the amended Act. If, however, a meat, poultry, or egg product is the third most predominant ingredient or lower, the food would be subject to the NBFDS.”

While the final rule does have its flaws, others have been more pragmatic about the new national bioengineered food disclosure standard. “The Final Rule advances transparency for consumers about the presence of bioengineered (BE) material in both food and dietary supplement products,” said Steve Mister, president and CEO of the Council for Responsible Nutrition (Washington, DC), in a statement. “It requires food manufacturers, importers, and other entities that label food for retail sale to disclose information about BE food and BE food ingredients. The BE disclosure issue is complex, and USDA has struck a careful balance between empowering consumers to make informed decisions about the food and dietary supplement products they purchase while not creating unnecessary regulatory burdens or misleading warnings about these products.”

The implementation date of the standard is January 1, 2020, except for small food manufacturers whose implementation date is January 1, 2021. The mandatory compliance date is January 1, 2022.