Ninth Circuit Receives Amicus Briefs on Federal Labeling Rules

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Food Industry Group Files Brief in Support of GMO Labeling Rule

by: Food and Drug Law at Keller and Heckman of Keller and Heckman LLP - The Daily Intake

Tuesday, March 19, 2024

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On March 15, 2024, the Consumer Brands Association (CBA) filed an amicus brief urging the 9th Circuit to keep a federal labeling rule allowing digital disclosure of genetic modifications to foods. The brief, which follows two similar briefs filed earlier in March by the federal government and sugar industry groups, tells the court that it “should not disturb” a 2022 ruling that left the National Bioengineered Food Disclosure Standard regulations largely intact after the rule was challenged by organic food organizations.
CBA’s SmartLabel tool is one program that is used widely on packaged goods to provide access to supplemental product information through a QR code. According to the amicus brief, vacating the digital disclosure provision of the regulations would instantly render millions of packages of food non-compliant, disrupt the manufacturing process, and delay the release of products while labels are revised. In addition, “any such instant change would threaten consumers’ access to safe, nutritious, and affordable foods and risk confusing consumers who . . . have increasingly begun to rely on digital disclosures.”
In the original lawsuit, filed in 2020, food advocacy groups claimed USDA’s rule was arbitrary and capricious because it did not deliver on the aims of the National Bioengineered Food Disclosure Act and that portions of the rule violated the First, Fifth, and Tenth amendments by limiting allowed disclosures and preempting state laws requiring additional disclosures.
CBA argued that the advocacy groups’ position that consumers would have difficulty accessing digital disclosures is incorrect since consumers have increased internet access and technological literacy, a telephone disclosure is also required, and the digital option reduces “the impact of over-warning on products.” According to CBA, vacating the rule could, in fact, further reduce consumer access to the information required by the disclosure rule while USDA amends the regulations. CBA also refuted the contention that there would be minimal industry disruption, claiming that an immediate change would leave food companies scrambling to interpret the court’s decision and that it would be impossible to make immediate packaging changes.