A citizen petition filed on September 24, 2018 by the Information Technology & Innovation Foundation (ITIF) asked FDA to prohibit “non-GMO” food labeling claims, including the Non-GMO Project butterfly logo and label. ITIF argues in the petition that such claims mislead and deceive consumers about foods, food ingredients, and their characteristics related to health and safety. Thus, ITIF states that use of “non-GMO” claims constitute misbranding under the Federal Food, Drug, and Cosmetic Act. ITIF has requested that FDA issue a regulation to prohibit the use of the term “non-GMO” on consumer foods, and to require food manufacturers to revise labeling to omit any “non-GMO” terms, symbols, or claims.

The Non-GMO Project is a third-party certifying body for non-genetically modified food and products. In a statement released to FoodNavigator-USA, the Non-GMO Project dismissed the allegations made in ITIF’s citizen petition as “based on errors and misrepresentations.” They do not expect the petition to gain traction with the FDA because the petition is “factually inaccurate and fundamentally biased,” and prohibiting such claims would be likely challenged on Constitutional First Amendment grounds.

FDA already addresses the use of “non-GMO” and similar claims in guidance that was issued in November 2015.  Here, FDA states that such claims convey “zero or total absence unless a regulatory definition has been put in place in a specific situation.” FDA goes on to recommend that manufacturers not use such claims and suggests manufacturers use “other types of statements to indicate that a plant-derived food has not been produced using bioengineering.”

Pursuant to 21 CFR 10.30(e)(2), the FDA must respond to citizen petitions within 180 days of receipt, which means a response could be issued by March 2019. However, that response may not be substantive and may just indicate that FDA is further reviewing the matter.  Further, as stated above, it is unlikely the FDA will respond to ITIF’s citizen petition favorably, especially in light of the fact that many consumers are accustomed to seeing non-GMO claims on their food products.