- QR codes and information by text message alone are not enough to communicate the mandatory disclosure of bioengineered ingredients in food and beverage products, a California federal court ruled. There were too many potential issues with using technology as the only source of GMO disclosure, many of which were enumerated in a study released by the USDA before the labeling law took effect.
- The ruling sends that portion of the National Bioengineered Food Disclosure Standard back to the USDA for reconsideration. It does not invalidate the law or labeling requirements.
- The ruling is part of a sprawling lawsuit filed in 2020 by a coalition of GMO labeling advocates who hoped to force changes to the law, which they had argued did not provide the disclosure consumers wanted. This ruling denied all of their other claims.
While the federal GMO labeling law was being debated, one of the more controversial aspects was the provision that allowed brands to use a smartphone-scannable QR code, a digital link or a number to get text-messaged information as the sole source of a disclosure. Opponents argued that these methods were insufficient. Not all consumers have access to smartphones as they shop, there is not always internet access in grocery stores, and many people do not know that they can get information about a product by scanning QR codes.
The court essentially agreed with that argument. Leaders from the groups that filed the lawsuit — the Center For Food Safety, Natural Grocers, Citizens for GMO Labeling, Label GMOs, Rural Vermont, Good Earth Natural Foods and Puget Consumers Co-op — hailed the decision as a victory for transparency.
"This should be a warning to the industrial food sector that avoiding clear on packaging labeling by using QR codes alone will not pass legal scrutiny," Andrew Kimbrell, executive director of the Center for Food Safety, said in a written statement.
However, many more of the changes the groups wanted to see in the lawsuit will not be coming. They had asked the court to force the government’s labeling lexicon — which deems the items as “bioengineered” — to be the more commonly known “GMO.” The court ruled against this because the law does not prohibit any company from also using the term “GMO” on its packaging.
The groups also wanted to require a more stringent disclosure standard. Currently, companies only need to disclose that a product is bioengineered if the altered DNA is detectable, meaning that there is no labeling requirement for food using highly processed ingredients from GMO plants. The court ruled that there is adequate disclosure in the law as written. The USDA has a list of bioengineered food items that it publicizes and updates annually. Food companies can voluntarily disclose use of highly processed ingredients made through bioengineering, like if a manufacturer uses corn starch or soybean oil made from genetically modified crops.
The impact of this ruling was not immediately clear. There are no easily found statistics on how many SKUs currently disclose bioengineered ingredients, or how those disclosures are made. Plain text disclosures that products contain bioengineered ingredients often accompany scannable QR codes on packages, but it’s not known if many products only use the QR code. However, studies have shown that mandatory GMO labeling doesn’t change consumer purchase behavior as much as awareness of GMO ingredients. In general, since GMO labeling has been a controversial issue for years, manufacturers may be doing as much low-key disclosure as possible in order to prevent class-action lawsuits over labeling complaints.
The USDA did not respond to an email seeking comment on the ruling. The groups that filed the lawsuit said in their statement they will consider appealing the portions they disagree with.