On July 29, 2016, President Obama signed Senate Bill 764 into law, which amends the Agricultural Marketing Act of 1946 to establish the National Bioengineered Food Disclosure Standard. Under this law, the USDA Agricultural Marketing Service (AMS) will develop and implement a federal biotech labeling standard. The new law immediately preempts Vermont’s Act 120 GMO-labeling requirement, which went into effect on July 1, 2016. Under the new law, food manufacturers will eventually be required to display some form of disclosure on products that are deemed “bioengineered,” (a term Congress preferred over “genetically engineered” or “GMO”).
Many of the detailed workings of the new law will be determined by AMS. Congress gave the agency substantial leeway to develop regulations to implement the new law as it sees fit; however, Congress provided enough direction to provide an understanding of how the law will work when it is implemented. Here are a few of the major takeaways:
The new law applies to all FDA-inspected products that are deemed “bioengineered.” The new law also applies to some USDA-inspected products (e.g., meat, poultry, egg products), but it is slightly complicated. If the predominant ingredient in the product is an ingredient that would be FDA-inspected if it were a standalone ingredient, then the new law would apply — except when the product’s predominant ingredient is water, broth or any solution. In this case, you look to the second predominant ingredient. If it would be inspected by FDA as a standalone ingredient, that product would be subject to the new law.
The applicability rules may be complicated at first glance, but they are intended to ensure marinated or injected meat and poultry products aren’t subject to GMO labeling.
The most controversial element of AMS’s rulemaking will likely be the definition of what constitutes “bioengineering.” The new law requires AMS to define bioengineering as a food that contains “genetic material” that has been modified through recombinant DNA techniques that would not otherwise occur naturally or through conventional breeding techniques. Critics of the law are concerned that AMS may use the definition of “bioengineering” to create a loophole. This is because many highly processed food products, such as refined sugar or soybean oil, contain only small traces of genetic material. It is possible that AMS’s rule could establish minimum thresholds for the presence of genetic material that would result in exempting highly processed products made from biotech crops; however, AMS has given no indication on how it will approach this issue.
Meat, poultry and dairy products are not subject to the new law’s disclosure requirements solely because they were derived from animals that consumed biotech feed ingredients. Likewise, the use of genetically engineered processing aids, such as rennet in cheese, will not trigger any labeling requirement.
Congress provided three options for manufacturers to disclose the presence of bioengineering in their food products. Manufacturers can include one of the following on their packaging to satisfy the disclosure requirements: a text disclosure with language to be developed by AMS; an icon developed by AMS; or a scannable link that can be accessed via a smartphone (QR Code). The new law provides for AMS to develop alternative accommodations for small packages.
The act preempts state and local laws that would require labeling of food products containing biotech ingredients, such as Vermont’s GMO-labeling law. The scope of the act’s preemption extends beyond those products that will eventually bear a label under the federal standard. States and localities are now barred from establishing a labeling or disclosure standard for seed, food sold in restaurants and other foodservice establishments, livestock and poultry feed and pet food.
The law exempts the following categories of products from the new law’s disclosure requirements: livestock and poultry feed, pet food, alcohol (except ciders and wine coolers), food sold in restaurants and institutional establishments, and food produced by very small manufacturers (to be determined by AMS).
Congress gave AMS two years to develop a final rule to implement the new bioengineering disclosure standard. AMS got an early start on the rulemaking and may release a proposal before President Obama leaves office. Once the rule is finalized, AMS will likely allow food manufacturers at least a year to come into compliance with the law. Those deemed to be small manufacturers will have an additional year to comply.
We will have a better idea of how the new law will be implemented when AMS releases its rules. It will create a burden for some manufacturers because of additional recordkeeping, but the law prevents a 50-state patchwork of labeling laws and finally ends a decade-long debate over GMO labeling in the United States. NP