Less than a week after Agriculture Secretary Sonny Perdue cautioned the final draft of a proposed rule governing federally mandated GMO labeling of food products might not be ready by the July 29 deadline, the long-awaited proposal was officially published Friday in the Federal Register.
The highly anticipated 106-page proposal — developed by USDA's Agricultural Marketing Service — sets forth which products will need the disclosure, how much genetically modified material in a product mandates labeling, and how the disclosure will look on food products.The measure will be open to a 60-day comment period scheduled to end on July 3.
"The regulatory oversight of USDA and other relevant Federal agencies ensures that food produced through bioengineering meets all relevant Federal health, safety, and environmental standards."
While GMO food is often a lightning rod of controversy — which led to the disclosure law being passed in the first place — the proposed rule aims to not take a position on the safety of these items. The 2016 federal law that put the labeling requirements in place gave USDA two years to bring forward these regulations.
"The regulatory oversight of USDA and other relevant Federal agencies ensures that food produced through bioengineering meets all relevant Federal health, safety, and environmental standards," the regulation states.
Industry groups and activists were largely supportive of the rule, which they said would provide more clarity and transparency for consumers interested in knowing more about what is in their food. So far, most of the reaction to the USDA's proposal has been a willingness to review it and advocate for stakeholders.
Scott Faber, senior vice president for government affairs with the Environmental Working Group, called the publication of the rule "an important milestone," but cautioned there are still a lot of important issues that need to be addressed.
"We’re one step closer to having a national mandatory GMO disclosure system," Faber said in a statement. "But, the draft rule leaves many fundamental questions unanswered, fails to provide solutions for consumers without smart phones or consumers with lousy cell service, and fails to provide clear rules that ensure that QR codes will consistently scan."
USDA's proposed rule syncs the new disclosure for large businesses with the Nutrition Facts upgrade. Both new labeling initiatives are required for large manufacturers at the start of 2020. Small businesses would get until 2021 to comply, and then all companies would get until 2022 to use labels on hand for current products.
How would it be labeled?
Because the federal law is formally titled the National Bioengineered Food Disclosure Standard — abbreviated as NBFDS throughout the document — the proposal calls for labeling items in the text as "bioengineered food" — not the popular "genetically modified" or "GMO." The proposal says USDA considered these terms, but they did not make the final cut.
"AMS is not proposing any similar terms because we believe that the statutory term, 'bioengineering,' adequately describes food products of the technology that Congress intended to be within the scope of the NFBDS," the proposed rule states.
According to the proposed rule, the presence of bioengineered food or ingredients needs to be indicated through text, electronic or digital link disclosure, or one of three potential symbols. The symbols, all designed not to disparage biotechnology or the safety of food, are benign and often smiling pictures. They contain the letters "BE." One shows a plant growing in what looks like a field. Another features a sun with "be" as the eyes and a smiling mouth underneath. A third is a round smiling face with "be" as the eyes, and a leaf inside the "b."
Smartphone scannable disclosure also would be allowed, which was a big part of the federal law — and a major hangup during the debate. The proposed rules would allow any sort of scannable option, but it would need to have text next to it that says "Scan here for more food information" to let consumers know about it. According to a study mandated by the GMO labeling bill that examines challenges of getting the information through a smartphone, most consumers are not aware that they can scan codes on packages to learn more about a product.
In addition, USDA is considering allowing disclosure through text messages. Food companies would need to note on packaging that consumers may “Text [number] for more food information,” and give a phone number or short code. An automated response would immediately provide the disclosure using text. Smartphones or broadband access would not be required under this option, and manufacturers could not include marketing messages or charge a fee.
What ingredients would require disclosure?
In the law requiring GMO labeling that was signed in July 2016, automatic exemptions from labeling include meat, poultry, dairy and egg products from animals given genetically modified feed, and products having one of those items as a primary ingredient. It also exempts restaurants, retail food establishments and manufacturers with annual receipts of less than $2.5 million.
Other exemptions proposed under the rule include multi-ingredient food items containing solutions such as water or broth as the main ingredient, and meat, poultry or eggs as the second one. Under this situation, a product like canned ham or soup with meat would not need to carry the GMO label — even though other ingredients in the product — like corn syrup — may be genetically modified.
However, USDA proposes requiring the labeling for all other foods under its purview, including raw produce, seafood, dietary supplements, and most prepared foods, such as breads, cereals, non-meat canned and frozen foods, snacks, desserts and drinks.
And for those products, if meat, poultry or egg products are the third most prominent ingredient, the food item would be subject to the labeling requirements, USDA proposes.
But what ingredients count as genetically modified? USDA has drawn up two lists of products that may need to be disclosed under the GMO labeling law. One includes bioengineered foods commercially available in the U.S. "with a high adoption rate" — meaning the genetically modified form is planted or produced more than 85% of the time. The other list contains foods that are used in genetically modified form less than 85% of the time.
The "highly adopted" category includes canola, field corn, cotton, soybeans and sugar beets. Food items made from corn — such as corn starch, cornmeal, corn syrup, grits, corn chips, corn tortillas and corn cereal — would be subject to disclosure requirements.
The commercially available GMO foods which are not "highly adopted" include non-browning apples, sweet corn, papayas, potatoes and summer squash varieties. USDA proposed that only those foods or products on either of the lists or produced from foods on the lists would need to comply with the labeling law. The lists would be reviewed and revised annually.
The rule would be enforced through audits and record examinations. Complaints of non-disclosure could be filed, and hearings could be held to determine the outcome.
What is the reaction?
Agriculture, industry trade organizations and food advocacy groups were largely supportive of the USDA proposal.
The National Corn Growers Association called it "a critical step" toward getting the labeling standard adopted. The association is a member of the Coalition for Safe Affordable Food, a group of agriculture and other organizations supportive of the federal law.
"Given the importance of ensuring the final rule is in place by the statutory deadline, the Coalition will be analyzing the proposed rule and developing coordinated food and agricultural industry comments over the next 60 days," a statement from the group posted on AGDAILY said. "The Coalition looks forward to providing the Department with input that reflects the needs of consumers, farmers and the rest of the food value chain."
The agency signaled as much in its May 3 release about the forthcoming proposal: "The standard will provide a uniform way to offer meaningful disclosure for consumers who want more information about their food and avoid a patchwork system of state or private labels that could be confusing for consumers and would likely drive up food costs."
Gary Hirshberg, chairman of the Just Label It campaign and Stonyfield Organic, said in a statement that he was glad to see the proposed rule because consumers have the right to know what is in their food — even though it took a while to get to this point.
"We now have 60 days to make our voices heard, and we intend to ensure that the millions of consumers and companies that support a strong GMO disclosure rule weigh in."
Chairman, Just Label It
"At the end of the day, consumers will expect USDA's mandatory labeling standard to apply to all GMO foods, including genetically modified sugars and oils; to align with the labeling policies of our major international trading partners; and for digital options to work for all consumers, including rural Americans and people who don’t have smartphones," he wrote. "We now have 60 days to make our voices heard, and we intend to ensure that the millions of consumers and companies that support a strong GMO disclosure rule weigh in."
The Grocery Manufacturers of America welcomed the proposed rules. In a statement, the industry group said its comments would revolve around providing consumers with the transparency they need to make informed product choices. GMA touted its leadership in the SmartLabel program, which also provides smartphone-scannable information on a product label.
“Our industry is delivering on the promise of ingredient transparency," the statement says.
Leslie Sarasin, president and CEO of the Food Marketing Institute, touted the retailer group's continued support of GMO labeling. She said in a statement the group has been working with USDA since 2016 to ensure the law provided consistency and clarity to grocery stores and shoppers.
“We also aligned with the entire value chain to ensure farmers, manufacturers and retailers are working together to provide accurate, simple and unbiased information to our customers," Sarasin said in the statement. "We remain focused on consumer education, which will help our customers have the tools they need while they shop.
FMI and GMA will promote a consumer education program starting next month to help shoppers understand how to find information on food labels, Sarasin said. This program "creates a mechanism to share information that goes well beyond that included on the label and well beyond whether the product contains ingredients that result from genetic engineering,” she said.