Last year, the Ninth Circuit Court of Appeals ruled in Natural Grocers v. Rollins that portions of the National Bioengineered Food Disclosure Standard (Standard) be set aside and sent back to a lower court. After being directed by the National Bioengineered Food Disclosure Law, USDA established the Standard in a 2018 Final Rule for the purpose of regulating the disclosure and labeling of Bioengineered (BE) foods. Specifically, the Standard required that food manufacturers, importers, retailers, and other food labeling entities disclose if a product included a BE food or ingredient. In 2020, a group of food and agricultural organizations challenged three aspects of the Standard – 1) the exclusion of highly refined foods from the BE foods definition, 2) the requirement to use the term BE, and 3) the allowance of QR codes or text-messaging to accomplish the required disclosures (electronic disclosures).
In a 2022 ruling, the District Court for the Northern District of California agreed with plaintiff’s claims on electronic disclosure regulations but rejected the other two. Though the electronic disclosure regulations were invalided by the lower court, they were remanded without vacatur to USDA for further consideration. This means that the regulations, though found unlawful, could still be enforced while the agency made the changes mandated by the court. However, in the fall of 2025 the plaintiffs appealed the ruling to the Ninth Circuit.
In an October 2025 decision, the Ninth Circuit agreed with the challengers that claims 1 and 3 should be set aside. However, the Ninth Circuit did not reject claim 2 and found that the use of term “BE” was appropriate for disclosure. Regarding claim 1, the court rejected the Standard’s position on highly refined food by finding that highly refined foods which have modified genetic material “as a component or constituent part” are considered BE even if the genetically modified material is not detectible. Thus, the court determined that those foods would be required to comply with disclosure rules. With this conclusion, the Ninth Circuit determined that USDA’s interpretation was incorrect and that the agency should reconsider the regulations.
As for claim 3, the Ninth Circuit looked to the Standard’s electronic disclosure regulations. Specifically, the court considered whether the lower court’s decision to send the regulations back to the agency without vacatur was improper. Here, the Ninth Circuit found that the lower court’s decision was improper and remanded the regulations back to the district court. It instructed the lower court to gather input from the parties to help the agency overturn portions of the regulations as needed.
At the District Court 2026
After instructing both parties to file briefs in response to the Ninth Circuit’s decision, on August 3, 2026, the U.S. District Court for the Northern District of California published an order establishing January 1, 2028 as the effective vacatur date for those regulations. This means that there is now a deadline for when the current regulations will expire. Thus, food manufactures may comply with the current BE disclosure rules until January 1, 2028. However, they should be on the lookout for related agency rulemaking. In its 2026 Unified Agenda of Federal Regulatory and Deregulatory Actions, USDA indicated its intentions to propose rules that would revise the Standard “based on the Ninth Circuit [ . . .] decision.”
For more information on the Ninth Circuit decision, click here for NALC article “Ninth Circuit addresses ‘Natural Grocers v. Rollins.”
Recommended citation format: Stone, Emily. “Update for National Bioengineered Food Disclosure Standard.” Southern Ag Today 6(40.5). October 2, 2026. Permalink
