On April 10, 2024, the Agricultural Marketing Service (AMS) of the U.S. Department of Agriculture (USDA) published a request for information (RFI) about potential amendments to the electronic or digital link disclosure option as it pertains to the National Bioengineered Food Disclosure Standard (Standard). 89 Fed. Reg. 25187. Responses are due June 10, 2024.

Background

As amended in 2016, the Agricultural Marketing Act requires USDA to establish a national mandatory standard for disclosing any food that is or may be bioengineered (BE), defined as a food that — subject to certain factors, conditions, and limitations — contains detectable genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (rDNA) techniques and for which the modification could not otherwise be obtained through conventional breeding or found in nature. The amended Act requires USDA to implement three BE food disclosure options, with the disclosure option to be selected by the food manufacturer: on-package text; on-package symbol; or an electronic or digital link. After determining in 2018 that consumers would not, at that time, have sufficient access to the BE food disclosure through electronic or digital means under ordinary shopping conditions, AMS added a text message disclosure option at 7 C.F.R. Section 66.108. In September 2022, the U.S. District Court for the Northern District of California found that providing a text message disclosure option as an additional and comparable option fell outside of AMS’s statutory authority and failed to address the problem of insufficient access to the BE disclosure through the electronic or digital link disclosure option. The court concluded an additional and comparable disclosure option must be included with the electronic or digital link disclosure and ordered that AMS reconsider the requirements in Sections 66.106 and 66.108.

RFI on Electronic and Digital Link Disclosures

AMS states that it is reevaluating the electronic or digital link disclosure option at 7 C.F.R. Section 66.106 and requests public input on potential revisions to the electronic or digital link disclosure option as it pertains to the Standard. AMS asks stakeholders to respond to the following questions and, if available, provide data and other evidence to support any suggested revision. AMS notes that it will not consider comments providing recommendations that are not relevant to the questions and requests below.

1. What are the current challenges associated with consumers accessing information on the BE status of foods by electronic or digital link disclosure in a retail setting?
2. If a regulated entity chooses to use an electronic or digital link to disclose a BE food, what additional and comparable option should AMS add to the electronic or digital link disclosure option that would be more helpful for consumers? In which location proximate to the electronic or digital link should an additional and comparable option be placed?
3. Provide information on current smartphone ownership among consumers, if available. Context: AMS is interested in the availability of wireless Internet or cellular networks. AMS has found that as of 2021, most Americans (97 percent) owned a cellphone of some kind, and smartphone ownership was at 85 percent. In particular, the Pew Research Center found that 89 percent of urban adults, 84 percent of suburban adults, and 80 percent of rural adults in America own a smartphone. The Pew Research Center also found that 61 percent of individuals 65 and older own a smartphone.
4. Provide information on the availability of broadband in a retail setting, if available. This could include broadband that is offered directly to consumers, or the accessibility to other private networks while in a retail setting.
5. Provide current information on the consumer usage of BE or other electronic or digital link disclosures in a retail setting. Context: AMS is trying to determine if accessibility to information through electronic and digital disclosure in retail settings is common; responses can include use in restaurants or related retail sectors, in addition to grocery stores.
6. Explain any advantages and benefits to using the electronic or digital link disclosure option.
7. Provide any information available on the percentage of usage for each of the four current disclosure options. In addition, provide information on how many small businesses use each of the four disclosure options. Context: AMS evaluates the costs that rulemaking would impose on regulated entities according to each type of disclosure option and is seeking additional data regarding how many products in the marketplace use each of the four currently available options.
8. How long does it take on average to update label art, print new labels, and deploy new labels to production lines? How frequently are labels reordered and is label inventory updated? Is there any standard cycle for updating retail product labels? How frequently is product inventory updated at retail? What is the preferred optimum compliance period for incorporating new mandatory disclosure information into products for retail?