The US Department of Agriculture (USDA) has ruled that GMOs in US products must be disclosed, forcing food manufacturers to be more transparent about which of their ingredients are bioengineered. This has been established in order to gain a mandatory, uniform standard of disclosure of information to US consumers about what they are purchasing.
We spoke with Stan Abramson, an Arent Fox Law Firm attorney at law specialising in biotechnology and food safety, to ask how the USDA ruling will legally and practically impact the US food and beverage industry.
What key legal points were outlined in the recent USDA ruling?
The legislation was an outgrowth of consumer interest in what information they receive when they buy food, as well as concerns on the part of the food and beverage industry from individual states.
If each developed their own labelling or disclosure requirements, we would face a localisation of labelling in the food and beverage industry. For many packaged goods or raw commodities, it would be almost impossible to deal with different disclosure standards.
When concerned members of the food industry approached congress, there was a general understanding that this was an area where action needed to be taken to prevent a calamity due to the inability to comply with requirements coming from all directions.
In terms of the legal aspects, from the beginning it was understood that congress had the authority to act in the interests of maintaining a flow of goods in interstate commerce, but also that whatever standard congress put forward had to be pre-emptive – it had to be the national standard for recovered products in order to make sure we didn’t have this disjunction between federal, state, local, and so on. That meant that the statute had to have a very specific pre-emptive clause to make sure that that would be the case.
I think that those are most likely the issues that have to be addressed in the legislation, which was then carried forward in the rulemaking proceeding.
How have GMO products changed the face of the food industry in recent years?
There have been a growing number of food and beverage products that have adopted one voluntary labelling regimen or another. The one that most consumers may be familiar with is the Non-GMO Project label. Of course, up until now, companies would have been free to put their own label on there to state that they were non-bioengineered or non-GMO. You see a lot of that in US grocery stores.
A number of surveys have also been done on the impacts on consumers. Many food and beverage companies have responded to this by altering their labelling slightly in attempts to address concerns.
Negative claims include statements such as ‘non-GMO’, ‘non-bioengineered’ and so on. There are a variety of different negative claims out there.
One thing that the rulemaking and legislation does not do is address these negative claims, and I’m sure that many companies will want to do this. The general legal requirement at state and federal levels for any labelling is that it has to be truthful and not misleading.
Any company that puts that sort of ‘negative claim’ must comply with these general legal requirements. The claim that’s provided for under the bioengineered statute and USDA’s implementing rule is by definition not misleading, but it still has to be truthful. A company that claims this has to prove that it, in fact, does not contain these bioengineered products.
The new rule makes this clear.
Does this impact the labelling more so than the ingredients themselves?
I am aware that there are some food companies who have made an effort to source from non-GMO suppliers.
You sometimes run into instances where a product, such as lettuce, an onion soup, carrots and so on, will say that it is non-GMO. This can become misleading because those sorts of products do not have biotech versions. This would make the consumer think the company has gone the extra mile in comparison with competing products. There is also the potential for consumers to be misled in thinking that other iceberg lettuces or carrots may contain GMOs.
That’s something that is going to be up to the state attorney generals, the federal trade commission and the FDA in exercising their authorities over the food label to determine whether it is misleading or not. The USDA won’t police this sort of thing except for meat, milk, and eggs.
Will this ruling impact on any imports and exports?
The rule is very clear on the fact that it will affect imports. Exports must comply with the rules of the country they are being shipped to. They may have to have a re-labelling before exporting them, but this isn’t a change brought about by the USDA’s ruling – this has been the case for a while now.
Companies must be aware of the labelling restrictions their products will face in the countries they are being exported to.
What do the changes mean for the agriculture sector?
This is a question of sourcing. There are a number of companies already doing this, but it comes down to an issue of contract law.
Each company, whether it’s a grocery store chain, processed food facility, or restaurant – for any company that is in the chain of commerce for food and beverages, it is their obligation to specify to their suppliers exactly what products are they are getting.
For example, if they are bioengineered, they must be labelled accordingly, if they are not bioengineered, then the facility should be advised of that.
Whatever it is the company wants consumers to know about their products, they need to spell those out in the contractual agreements with their suppliers so that there are no misunderstandings on the part of either party.
The facility that is receiving the commodities and the one that is supplying them must both understand what is required in terms of labelling and disclosure, and that becomes a contractual issue.
Are there any regional differences in terms of GMO foods?
I would say that Europe has a much greater interest in knowing and in some cases actually prohibiting bioengineered food products; I think that the US has seen an increase in that interest, but I don’t think that it is nearly as pervasive as it is in most of the European countries.
Why have concerns amongst US consumers been raised recently towards GMO products?
I think this is due to the growth of awareness created by a number of public interest groups.
These groups have served the cause well by striving towards this USDA requirement for individual states to disclose what is going into new products. It’s been a long-standing effort of theirs, and I think that more consumers than ever before are paying attention to such messages.
By Harriet Jachec
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