Food Labeling Advocacy Groups Sue USDA Over GMO Labeling

On Monday, several food labeling focused public interest groups and nonprofits sued Sonny Perdue and the Department of Agriculture (USDA) over concerns with labeling standards under the Bioengineered Food Disclosure Act of 2016, calling them “a significant departure” from past standards.  The plaintiffs were particularly concerned with the lack of meaningful labeling around “genetically engineered” (GE) or “genetically modified” (GMO) foods.

The plaintiffs—Natural Grocers, Citizens For GMO Labeling, Label GMOs, Rural Vermont, Good Earth Natural Foods, Puget Consumers Co-Op, and Center For Food Safety—brought this suit in the Northern District of California and stated four main issues with the USDA.  The USDA was charged by Congress with writing and implementing rules, which finished in 2019, but the plaintiffs believe the agency “fell far short of fulfilling the promise of meaningful labeling of GE foods.”

In a press release, George Kimbrell, Center For Food Safety legal director and counsel in the case, representing the plaintiffs, said “This case is about ensuring meaningful food labeling, the public’s right to know how their food is produced, and retailers’ rights to provide it to them.  The American public successfully won GE food labeling after more than a two-decade fight, but the Trump rules fall far short of what consumers reasonably expect and the law requires.” 

For reference, the Act defines bioengineered food as: “(A) that contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques; and (B) for which the modification could not otherwise be obtained through conventional breeding or found in nature.”

The plaintiffs’ first issue is with the disclosure of information on food products provided under the final rule: “electronic or digital forms of labeling, also known as ‘QR code’ or ‘smartphone’ labeling.”  Congress included this potential form of disclosure, but the plaintiffs assert several concerns with this method.  For example, it is not realistic to have consumers in grocery stores to use their phones to scan dozens of products for information, and “this form of disclosure would discriminate against major portions of the population—the poor, elderly, rural, and minorities—with lower percentages of smartphone ownership, digital expertise, or ability to afford data, or who live in areas in which grocery stores do not have internet bandwidth.”

The second issue raised is over terminology, because the terms GE and GMO were replaced by Congress with ‘bioengineered,’ and “in its final rule USDA instead excluded ‘GE’ and ‘GMO,’ prohibiting them from use in the on-package text or symbol labeling, only allowing use of the term bioengineered.”  The third and fourth issues focus on the scope of the GE foods covered and the right of improving on the limited and flawed disclosure the rules provide.  The plaintiffs brought these challenges under the Administrative Procedure Act.  Specifically, under the fourth issue, the plaintiffs alleged a First Amendment violation, because the final rule by the USDA prohibits commercial speech about foods produced through GE or GMOs, except in the “narrow and inadequate forms approved by USDA.” 

The plaintiffs request that the court declare that the aforementioned decisions made in hte final USDA rule are contrary to the Act. Additionally, they ask that the court vacate all portions of the final rule based on the above requests.