Ninth Circuit Overturns GE Labels Rule

LINCOLN, Neb. (DTN) -- USDA will be required to rewrite significant parts of a 2018 genetically engineered foods labeling rule after a federal appeals court reversed a lower court's ruling in a lawsuit that challenged the rule.

USDA's biotech labeling rule was developed in response to a 2016 federal law that for the first time required GE foods to be labeled.

In a ruling handed down at the end of last week, the U.S. Court of Appeals for the Ninth Circuit reversed a federal district court in California and held that the USDA's Agricultural Marketing Services acted unlawfully by excluding highly refined foods from the GE labels requirements simply because GE material was deemed "not detectable."

Once the USDA conducts a rewrite of the rule, it could mean that more foods will need to include GE labels.

The Ninth Circuit also ruled there's a difference between whether a food "contains" GE material versus whether it's "detectable." The Ninth Circuit said the AMS has discretionary authority to set threshold amounts for disclosure and remanded the rule back to USDA.

"Even without having to resort to epistemological philosophizing, there is an obvious and important difference between whether a substance is actually present and whether, using a particular method, one is able to detect that the substance is present," the appeals court said.

"In common parlance, 'contain' means 'to have within' or 'to have as a component or constituent part.' Thus, a food is 'bioengineered' if it actually has modified genetic material within it. That understanding of when a food 'contains' modified genetic material is plainly distinct from one's ability to ascertain the actual presence of such material using a particular means of detection."

The appeals court also ruled that the U.S. District Court for the Northern District of California abused its discretion when it agreed that USDA's use of "QR code" or smartphone labeling in the rule was unlawful, but did not vacate that part of the rule.

USDA now will be required to issue new rules that clarify that QR code packaging alone is not enough.

"The district court squarely held that (1) the act does not allow the AMS to add a fourth option (text messaging) to the three statutory options (text, symbol, or electronic or digital link)," the appeals court said, "and (2) the act requires the agency to 'fix the problem of inaccessible electronic disclosures' by 'adding "additional and comparable options," like the alternative text message instructions, to the electronic disclosure.'"

The Ninth Circuit sided with USDA on one key point by affirming the lower court's holding that the agency's choice to require the term "bioengineered" was reasonable and not arbitrary and capricious.

"Given that commenters had argued that Congress's specific definition of 'bioengineering' did not cover food with genetic material that had been modified using techniques other than in vitro recombinant DNA techniques," the Ninth Circuit said, "whereas the more general term 'genetic engineering' reflected no such limitation, the AMS reasonably concluded that it should simply use the statutory term 'bioengineered,' which (by definition) accurately describes the technology that Congress intended to be disclosed."

The lawsuit was originally filed and then appealed by plaintiffs including Natural Grocers; Citizens for GMO Labeling; Label GMOs; Rural Vermont; Good Earth Natural Foods; Puget Consumers Coop; Center for Food Safety and National Organic Coalition.

In addition, agriculture groups were allowed to intervene in the case including the American Farm Bureau Federation, U.S. Beet Sugar Association and the American Sugarbeet Growers Association.

Read more on DTN:

"Groups Fight USDA on GE Foods Labels," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on social platform X @DTNeeley

(c) Copyright 2025 DTN, LLC. All rights reserved.