In a federal court of appeals decision, the United States Department of Agriculture’s rule on the disclosure of genetically engineered foods exempting “highly refined” or ultra processed GMO foods was unlawful. The Ninth U.S. Circuit Court of Appeals invalidated the “loophole” in the U.S. National Bioengineered Food Disclosure Standard that left out foods like oils and sugars from mandatory labeling.
The court rulings also upheld a prior 2022 district court decision that found that relying solely on electronic links (like QR codes) for disclosure does not provide sufficient consumer access as a USDA-commissioned study itself had identified significant technological challenges for many consumers.
“We’ve fought for decades for GMO labeling, as required by more than 60 other countries, and today’s decision is a crucial culmination of those hard-fought efforts,” George Kimbrell, Center for Food Ssafety’s Legal Director and lead counsel in the case, said. “QR codes alone do not provide meaningful access to all Americans, and USDA now will have to remedy that failing and provide accessible labeling. We are gratified that the Court has struck down U.S. Department of Agriculture’s (USDA) loophole for ultra-processed GMO foods, the vast majority of which have been genetically engineered for increased pesticide tolerance.”
The primary lawsuit was filed by the Center for Food Safety (CFS) and a coalition of non-profits and retailers against the USDA. The appeals court determined that the USDA’s rule wrongly allowed foods to avoid a “bioengineered” label if the modified genetic material was “undetectable” after processing. The court stated there is an important difference between a substance being present and a specific testing method being able to detect it, and now the USDA is forced to reconsider this exemption.
“Today’s decision is a landmark victory for the public’s right to know what they eat and feed their families,” Kimbrell said.
As a USDA-commissioned study had identified significant technological challenges for many consumers, the court ordered the USDA to come up with and provide additional, comparable on-package options.
“This is a major win for the American family,” Alan Lewis, Vice President Advocacy & Governmental Affairs for Natural Grocers, one of the plaintiffs in the case, said. “They can now make informed shopping decisions instead of being forced to use detective work to understand what food labels are hiding. 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.”
The court rejected the plaintiffs’ argument that the mandatory use of the term “bioengineered” (instead of “GMO” or “genetically engineered”) was unlawful. The court found that using the term “bioengineered” was within the USDA’s discretion and aligned with the language used by Congress in the 2016 law.
The outcome is being called a significant victory for food transparency advocates. Now the USDA will have to review and make changes to the problematic portions of the regulations to address the identified legal errors in the court decisions. The existing rules remain in effect while the USDA revises them, to avoid disrupting the food industry and current consumer access to information.
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