The Final Rule on Bioengineered Food Labeling

Dec. 21, 2018
USDA publishes final regulation with few changes but chooses a symbol.

USDA announced the final National Bioengineered Food Disclosure Standard (GMO labeling) on Dec. 20, 2018. The final version differs little from its draft versions and sets the implementation date at Jan. 1, 2020, except for small food manufacturers, whose implementation date is Jan. 1, 2021. The mandatory compliance date is Jan. 1, 2022.

The regulation requires food manufacturers, importers and certain retailers to ensure bioengineered foods are appropriately disclosed. Regulated entities have several disclosure options: text, symbol, electronic or digital link, and/or text message. Additional options such as a phone number or web address are available to small food manufacturers or for small and very small packages.

It also specifies the symbol to be used, actually either of two:

According to Rachel Lowe, counsel in Alston & Bird’s Litigation & Trial Practice Group, the key changes are:

  • Highly refined foods that that have no detectable modified genetic material do not need to be disclosed. There is a little more detail on validated process and testing.
  • The list of bioengineered (BE) foods does not distinguish between low and high adoption BE foods. And the “may be bioengineered” disclosure is not permitted (though it was proposed).
  • The threshold for disclosure was set at 5%.
  • Companies may voluntarily comply by making a “derived from a bioengineered food” disclosure even if the product does not contain any detectable modified genetic material.

The National Bioengineered Food Disclosure Law was passed by Congress in July of 2016. It directed USDA, not FDA, to establish this national mandatory standard for disclosing foods that are or may be bioengineered.

The standard defines bioengineered foods as those that contain detectable genetic material that has been modified through certain lab techniques and cannot be created through conventional breeding or found in nature.

The final rule can be seen here. A handy little fact sheet is here.

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