Ninth Circuit to Rule on USDA Bioengineered Food implementation

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Organic Food Group Asks 9th Circuit to Upend GMO Label Rule

by: Food and Drug Law at Keller and Heckman of Keller and Heckman LLP - Food & Chemicals Unpacked Podcast

Tuesday, October 29, 2024

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An organic food industry advocacy group has asked the Ninth Circuit to reverse a district court decision upholding USDA’s implementation of the National Bioengineered Food Disclosure Standard, saying that the rule is “arbitrary and capricious” and is “not the uniform standard for consumers that Congress envisioned.”
In the original lawsuit, filed in 2020, food advocacy groups claimed USDA’s rule 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. A U.S. District Court judge upheld most of the law but sided with the organic industry groups in ruling that QR codes are not adequate methods of informing shoppers that food is bioengineered. Then, in March, the Consumer Brands Association, the federal government, and sugar industry groups filed amicus briefs in support of the rule, as we discussed on this blog.
The appeal, argued by George Kimbrell, the legal director for the Center for Food Safety, is focused on three concerns:
- USDA’s exemption for highly refined foods with “undetectable” genetically engineered elements is contrary to the Act’s definition of a bioengineered food as one that “contains genetic material that has been modified.” According to one judge on the panel, that is “a difference without a distinction [because] it seems odd to say that something’s there when it’s not detectable.” However, according to Kimbrell, the Agency did not set a level of detection or a threshold for detectability, so there could be two different results with the same product.
- A requirement that labels use the term “bioengineered” instead of the more commonly known “genetically engineered” or “genetically modified,” which consumers better understand.
- While the district court found the QR code portion of the rule unlawful, the judge erred by failing to vacate that part of the rule, so there are product packages on the market that use the QR code method to disclose that the food is bioengineered.
The federal government argued that a product can include a genetically modified source that is no longer in the product after processing, because some processes degrade DNA to undetectable levels. Further, there are required testing standards for detection of bioengineered material and there was significant science backing USDA’s position in drafting the rule. However, one judge said that the rule leaves it in the hands of the companies to decide if DNA is detectable in the final product, which does not fulfill Congress’s intent.