YOUR SOURCE ON FOOD LITIGATION AND REGULATION

Law clerk Angela M. Silva contributed to this post.

The USDA’s Food Safety and Inspection Service (FSIS) updated two labeling guidelines involving animal raising claims in December. Labeling Guideline on Documentation Needed to Substantiate Animal Raising Claims (Animal-Raising Claims Guideline) discusses the current requirements for substantiating a variety of animal-raising claims (e.g., Raised without Antibiotics, Grass Fed, Raised Without the Use of Hormones). Labeling Guideline on Statements That Bioengineered or Genetically-Modified Ingredients or Animal Feed Were Not Used in Meat, Poultry, or Egg Products (Animal Ingredient/Feed Claims Guideline) specifically focuses on claims that state bioengineered or genetically modified ingredients or feed were not fed to animals being raised for human consumption (i.e., negative claims).

The US Department of Agriculture (USDA), through its Agricultural Marketing Service (AMS) published its final rule (NBFDS Final Rule) on December 21 establishing a nationwide labeling disclosure requirement for foods containing bioengineered (BE) ingredients, defined as foods or substances that contain 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 be found in nature. While a more thorough analysis is still being conducted, here we provide a summary of the major topics addressed in the NBFDS Final Rule.

USDA’s Agricultural Marketing Service (AMS) posted 30 questions for stakeholder input regarding the establishment of a national disclosure requirement for identifying bioengineered foods and food ingredients. The legislation requiring the disclosure of bioengineered foods was enacted on July 29, 2016, and gave AMS two years to establish a national standard and the procedures necessary for implementation (see our LawFlash, New GMO Legislation Signed Into Law, for more information on the legislation). AMS is now seeking input from stakeholders in order to issue a proposed rule this fall, such that it may promulgate a final rule by the mandated July 2018 deadline.

As our readers are aware, many states have introduced legislation that would mandate genetically modified organism (GMO) labeling requirements. There is much uncertainty surrounding state GMO-labeling initiatives, with Vermont successfully enacting legislation (that is being challenged in court) and several high-profile failures in California and, more recently, in Oregon. Although the Organic Foods Production Act sets a clear non-GMO standard for certified organic food, a lack of a clear federal definition or preemption for conventional foods has contributed to a wave of costly litigation in this area. As a result, industry is left with the threat of state-based initiatives that have the potential to create the same unworkable patchwork of laws that prompted the Nutrition Labeling and Education Act in the 1990s and the recently finalized Menu Labeling Rule, both of which have federal preemptive effect.

Vermont’s Office of Attorney General recently released its draft rule detailing how manufacturers and retailers could be required to label genetically modified organism–processed (GMO-processed) food sold in the state. The draft rule is expansive and will affect several sectors of the food industry, including producers, processors, distributors, and retailers. Significantly, Vermont’s GMO rule could serve as a model for future regulation by other states with GMO legislation and even the federal government.

This rule will place significant burdens on retailers and manufacturers to understand the composition of source ingredients. Vermont’s Act 120 defines “genetic engineering” as a process by which food is produced from organisms that are changed through the application of in vitro acid or hybridization techniques that do not occur by natural manipulation. Food products manufactured through “genetic engineering” and/or that contain GMO components must be labeled as such. The proposed rule is intended to clarify this mandate and provides that products produced with GMOs must be labeled by retailers and manufacturers as “Produced with Genetic Engineering.” In certain instances, retailers and manufacturers may label products as “Partially Produced with Genetic Engineering” (when the item is composed of less than 75% GMO material) or “May be Produced with Genetic Engineering” (when the seller does not know whether the food itself is genetically modified or contains items produced with GMOs). No label is required when 0.9% of the product’s total weight consists of items produced with GMOs.