Court says USDA's labelling exemption for “highly refined” or ultra-processed GMO foods — such as corn and soy oils — is unlawful
A federal court of appeals decision handed down on 31 October overturned a US Department of Agriculture (USDA) rule on the disclosure of genetically engineered (GE or GMO) foods, the Center for Food Safety reports. The case challenged the USDA rulemaking which applied the 2016 federal law mandating GMO labelling, now called “Bioengineered”. USDA had exempted “highly refined” or ultra-processed GMO foods — such as corn and soy oils — from disclosure, a loophole the court held unlawful.
The court of appeals also held that the lower court abused its discretion regarding USDA’s use of “QR code” or smartphone labelling in the rule: the district court had previously held that USDA’s reliance on “QR code” labelling alone on packages without other forms of disclosure was unlawful, but had nonetheless left such products on market shelves. The court of appeals determined that remedy was an error and instead held that the QR code section should be vacated, or made null and void. With the prior rule now struck down as unlawful in several ways, the court sent the issue back to USDA to redo in a future new rulemaking compliant with today’s opinion and order. The case was successfully litigated by the Center for Food Safety (CFS) on behalf of a coalition of nonprofit labelling advocates and organic retailers.
“Today’s decision is a landmark victory for the public’s right to know what they eat and feed their families,” said George Kimbrell, CFS’s Legal Director and lead counsel in the case. “We’ve fought for decades for GMO labelling, as required by more than 60 other countries, and today’s decision is a crucial culmination of those hard-fought efforts. QR codes alone do not provide meaningful access to all Americans, and USDA now will have to remedy that failing and provide accessible labelling. We are gratified that the Court has struck down USDA’s loophole for ultra-processed GMO foods, the vast majority of which have been genetically engineered for increased pesticide tolerance.”
The detailed 50+ page opinion held that USDA had acted unlawfully in excluding ultra-processed foods from the bioengineered disclosure standard. The statute had required disclosure for any food that “contains” modified genetic material, but in the rule, USDA had grafted a loophole that said if the modified material was not “detectable,” it was not “contained”, and therefore need not be disclosed. The court resoundingly rejected this, explaining that “there is an obvious and important difference between whether a substance is actually present and whether, using a particular method, one is able to detect that the substance is present”. This loophole was significant, as these GMO ultra-processed foods, such as sodas and cooking oils, make up the majority of all GMO food ingredients – approximately 70%. The court ordered USDA to redo the rulemaking in a new decision consistent with its order.
This decision builds on a prior 2022 CFS court victory in the district court which held it unlawful for USDA to limit GMO disclosures on food packaging to only digital QR codes instead of clear, accessible labelling. USDA’s own report had found that such disclosures would be discriminatory in not providing the information to many segments of the public. The appeals court held that the district court “abused its discretion” when it previously nonetheless declined to vacate, or strike down, the QR code rule. USDA will now need to issue new rules clarifying that QR code packaging alone will not suffice; USDA is required to add an additional disclosure option accessible to all Americans.
“This is a major win for the American family. They can now make informed shopping decisions instead of being forced to use detective work to understand what food labels are hiding," said Alan Lewis, Vice President Advocacy & Governmental Affairs for Natural Grocers, one of the plaintiffs in the case. “The public’s rejection of hidden GMOs has been weighed by the Court to be greater than the agrochemical industry’s desire to hide GMOs behind incomprehensible bureaucratic rules.”
Finally, the court did conclude that USDA’s use of the new term “bioengineered” as the uniform disclosure term is acceptable, as opposed to the well-known terms “genetically engineered” or “genetically modified,” though even there the court also said there was no legal bar to food manufacturers using the older more well-known terms on packages in addition to bioengineered.
Consumers want the right to know whether food is genetically engineered for a variety of health and environmental reasons, the most important of which is that the vast majority of GMO crops are commodity crops that are genetically engineered to withstand increasing amounts of pesticides. The most common pesticide used with GMOs, Monsanto’s Roundup (active ingredient glyphosate), has been linked to cancer and subject to thousands of cancer lawsuits, resulting in billions of dollars in settlements and jury awards. As a result, the introduction of genetically engineered crops has dramatically increased overall pesticide use in US agriculture, leading to a parallel increase in the pesticide “tolerances” the FDA permits on food products. Both ultra-processed foods and pesticides have been in the news lately as a major target of the MAHA movement and U.S. Department of Health and Human Services (HHS) Secretary Kennedy.
In the litigation, CFS represents a plaintiff coalition of nonprofits and organic retailers: Natural Grocers, PCC Natural Markets, Good Earth Natural Foods, National Organic Coalition, Citizens for GMO Labeling, Label GMOS, and Rural Vermont. Natural Grocers operates 157 stores in 20 states, and Puget Consumers Co-op is the nation's largest community-owned food market.
Background
Over 60 countries around the world require GMO food labelling, including Europe, Japan, China, and most US trade partners. It has always been an issue that has united Americans, with polls consistently showing that over 90% of Americans support disclosures. Grassroots efforts in the U.S. to require GMO labelling began over two decades ago, with millions of Americans joining a CFS legal petition to the federal government to require labelling.
When those efforts were initially met with inaction, states stepped into the breach, with ballot initiatives and state legislation introduced in over 30 states in 2012-2015. After three state laws passed and CFS successfully defended in court industry efforts to challenge them, Congress finally acted, passing the first-ever US law mandating GMO disclosures, in 2016.
But that law’s passage turned out to be only the beginning of the next chapter in the fight for transparency, not the end. USDA, charged with writing the laws implementing rules, did not write them. It took earlier successful CFS litigation to require the rules’ completion, as well as a Congressionally mandated study on the usefulness and accessibility of “QR code” disclosures, which turned out to have damning results.
Nonetheless, the final USDA rule allowed QR code labelling and created the “highly refined” loophole eliminating labelling. CFS filed the original case against USDA in 2020 on behalf of a coalition of nonprofits and retailers, arguing that the final rule was unlawful on various grounds. A 2022 court decision found it unlawful to use inaccessible digital QR codes alone on food packages.
Source: Center for Food Safety
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