USDA bioengineered food labeling

USDA’s Text Message Bioengineered Food Disclosure Regulation Determined Unlawful

As of January 1, 2022, most foods that contain bioengineered ingredients—some of which are grown or processed in the southern United States—are required to carry a disclosure that informs consumers that the food contains bioengineered ingredients. According to USDA’s regulations, food manufacturers and producers can make this disclosure by either (1) including a statement on the package, (2) including USDA’s bioengineered symbol on the package, (3) including an electronic or digital link on the package that allows consumers to read the disclosure online, or (4) including a number on the package that when texted provides consumers with the disclosure via text message. To learn more about the Bioengineered Food Disclosure Standard, click here.

When directing USDA to create these regulations, Congress required USDA to “provide additional and comparable options to access the bioengineering disclosure” if USDA determines “that consumers, while shopping, would not have sufficient access to the bioengineering disclosure through electronic or digital disclosure methods.” 7 U.S.C. § 1639(c)(4). Because of this provision, USDA conducted a study that found that many consumers, while shopping, would have difficulty accessing the internet. Therefore, USDA included the fourth text message disclosure option as the additional and comparable option to the third electronic disclosure option. 

Among other things, the plaintiffs in Natural Grocers v. Vilsack, 3:20-cv-05151-JD (N.D. Cal. 2022), argued that USDA acted arbitrarily and capriciously in deciding to include the fourth text message option as the additional and comparable option. The court agreed and found that the “text message option merely provided a fourth disclosure option that regulated entities can select instead of the electronic disclosure method.” As a result, the court remanded the text message disclosure regulation, but without vacatur. This means that until USDA updates the regulations, food manufacturers and producers can still choose to include the electronic or text message disclosures as a method to disclose bioengineered ingredients. 

Caracciolo, Jana. “USDA’s Text Message Bioengineered Food Disclosure Regulation Determined Unlawful”. Southern Ag Today 2(41.5). October 7, 2022.