GE Labels Battle Moves to 9th Circuit

Food Groups Want Appeals Court to Send Bioengineered Food Labels Back to USDA

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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USDA continues to fight a legal battle on the National Bioengineered Food Disclosure Standard rule that requires consumers to be told when food products contain bioengineered ingredients. (DTN file photo by Elaine Shein)

LINCOLN, Neb. (DTN) -- A federal appeals court has been asked to review a September 2022 court ruling that kept a USDA bioengineered foods labeling rule largely in place.

The Center for Food Safety and other groups filed an appeal with the U.S. Court of Appeals for the Ninth Circuit on Tuesday, asking the court to overturn a ruling by the U.S. District Court for the District of Northern California on Sept. 13, 2022. That court mostly sided with the agency on the National Bioengineered Food Disclosure Standard rule.

The USDA standard requires food manufacturers, retailers and importers to disclose whether ingredients in food are bioengineered. The standard is designed to give uniform information to consumers using a variety of methods.

The appeal asked the Ninth Circuit to reverse the district court and require USDA to make changes to the rule.

The group argued the district court made errors in issuing the ruling. Among the errors, the center said in its appeal, was the court's and USDA's conclusion that the term "bioengineered" covers a scope different from the use of the terms "GE" and "GMO" on food labels.

"Rather, Congress plainly defined 'bioengineered foods' as those that 'contain genetic material that has been modified,' and interchangeably used GE and GMO with bioengineered throughout the act," according to the appeal.

"USDA's decision to unduly restrict labeling to 'bioengineered' starkly departs from USDA's past insistence on using GE and GMO both in other programs and in this very rulemaking, as USDA recognizes GE and GMO as the prominent terminology used by state governments, federal agencies, scientists, 64 other countries labeling GE foods and the marketplace over the past two-plus decades."

Joining the center on the appeal are Natural Grocers, Citizens for GMO Labeling, Label GMOs, Rural Vermont, Good Earth Natural Foods, Puget Consumers Coop and the National Organic Coalition.

The center also alleges the USDA rules violate the Administrative Procedure Act and the Disclosure Act by allowing standalone QR code disclosures on labels.

"The court failed to vacate the rule in whole or even in part," according to the appeal.

"The court acknowledged that USDA's violation was a 'significant error' but nevertheless deferred to USDA's warning of alleged disruptive consequences, without any assessment of its own."

The USDA rules allow food companies to alert consumers by using text messages, providing electronic digital links on food product labels that provide information on bioengineered ingredients and via bioengineered symbols on products.

The Center for Food Safety challenged parts of the standards in the district court, including the use of digital links, the exclusion of GE and GMO in the standard, the definition of bioengineered foods that excludes highly refined foods that have no detectible bioengineered material, and on the preemption of labeling requirements at the state level for genetically engineered seeds.

The district court found most of the standards to be lawful, except for the text-message provisions.

The center said the district court erred by not analyzing the only two provisions of the Disclosure Act that USDA rules relied on to support an exemption for undetectable highly refined foods.

"In so doing, the court violated core administrative law principles," the appeal said.

"It failed to exhaust statutory interpretation tools before deferring to USDA and deferred to USDA's post hoc rationalization to support its highly refined foods exemption."

The center questions USDA's explanation for the so-called detectability requirement.

"USDA asserts that highly refined foods 'do not contain modified genetic material if the genetic material is not detectable,'" the center said in the appeal, "yet a number of newer, more sensitive testing methods before USDA reveal that highly refined foods, as a matter of objective fact, 'contain' genetic material that has been modified, per the statutory definition."

Back in 2022, a federal court ruled USDA was allowed to use the term bioengineered instead of GMO or GE on food labels, especially those foods that contain ingredients from genetically engineered crops.

The Center for Food Safety also appealed to the Ninth Circuit following that decision.

The labeling rules were developed in response to a 2016 federal law that, for the first time, required GE foods to be labeled. Congress passed the law in response to label laws passed in Vermont, Connecticut and Maine.

Read more on DTN:

"USDA Bioengineered Label Law Challenged,"…

"GMO Labeling: The Saga Continues,"…

"Groups Fight USDA on GE Foods Labels,"…

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Todd Neeley

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