USDADo you want to know if your food contains any GMOs? Do you know what the difference is between a GMO and Bioengineered Food? For the last 2 years, the USDA has been writing new rules for labeling and packaging food with GMOs – learn the latest below!

What is Bioengineered Food?

Bioengineering Food refers to food (as defined in section 201 of the Federal Food, Drug, and Cosmetic Act 21 U.S.C. 321)  (a) that contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques; and  (B) for which the modification could not otherwise be obtained through conventional breeding or found in nature.

In English, food and drink products meant for human consumption, that contain modified genetic material and were cultivated through inorganic means that could not otherwise be found in nature must offer that information on a label. Also if the predominant ingredient in a product falls under the definition of “food” or if the most predominant ingredient of the food is broth, stock, water, and the second ingredient is BE, it similarly is subject to the labeling requirements.

According to the proposed rule, there is still discussion over what foods make it on the list the NBFDS would apply to all foods subject to its labeling requirement, including but not limited to raw produce, seafood, dietary supplements, and most prepared foods, such as breads, cereals, non-meat canned and frozen foods, snacks, desserts, and drink

Currently, a cause for concern lies in the controversy surrounding the definition of “Bioengineering” and how that in turn affects the classification of Bioengineered Foods. There are multiple purposed options for classification, and different options have different outcomes. For example, if USDA exempts refined sugars and oils, essentially 70% of otherwise labeled products would go unscathed.

To address that controversy, AMS will create a list of foods subject to BE disclosure. There will be two lists:  (1) a proposed list of BE foods that are commercially available in the United States with a high adoption   rate and (2) a proposed list of BE foods that are commercially available in the United States that are not highly adopted. This will allow the consumer to see which foods are Bioengineered, and which foods were made from Bioengineered ingredients.

 Background Information

 On July 29, 2016, following its passage through both the House of Representatives and the Senate, Bill S.764,  “A Bill to Reauthorize and Amend The National Sea Grant College Program Act, and for other purposes” was signed into law by President Obama. The bill amended the National Sea Grant Act by adding subtitles directed at establishing rules and requirements for the labeling and disclosure of Bioengineered Foodstuff.

The law passed in 2016 mandated that USDA take two years to establish a new standard for food package labeling. The law tasks USDA with creating definitions, requirements, and enforcement mechanisms to produce a new, consistent standard of classifying, and identifying genetically altered products. Once in effect, the system will provide consumers with a more forthcoming food purchasing experience.

Aside from establishing the disclosure standards, USDA sub-division, Agricultural Marketing Systems was required to study the costs and sentiments towards the proposed system. In order to gain such insights, AMS posted 30, wide-ranging questions on its website from June to August 2017. Thousands of people, from consumers, to retailers; farmers to manufactures, as well as both state and foreign governments shared their input, giving AMS roughly another year to establish the Standard.

Ideally, the standard will eliminate the current uncertainty when purchasing food by increasing the information available to customers, effectively improving overall consumer confidence, without harming food manufacturing. Not only will it be easier for consumers to buy and understand their products, but it will also provide farms and production companies a logical, consistent standard for future labeling and packaging.

However, despite the two-year timeline mandated in the original bill, Agriculture Secretary Sonny Purdue explicitly stated that AMS may not publish a final rule by July 29, 2018, due to the Office of Management & Budget’s review of the public’s inputs.

The delayed final rule potentially poses problems for producers and retailers. In fact, back in August 2017 multiple groups representing the food and agriculture industry sent a letter recommending that the Office of Management and Budget adopt the same timeline as the Food and Drug Administration’s Nutrition Facts Panel update, because the separate regulatory agency’s new rules covered the same products. The industry leaders argued that the new rule would require industry to produce another new label and repackaging, costing industry $1.7 Billion. The comments from the public closed July 3, 2018, yet the final rule remains scheduled for July 29, making a delayed (and expensive to implement final rule), inevitable.

 New Labeling?

While the FDA, EPA, and other agencies are tasked with regulating the production process, NBFDS only mandates that the producers disclose the very presence of bioengineered food on their labels. Because the USDA has no regulatory authority over the practices of producers, it cannot treat federally reviewed products as safer or less safe based on its Bioengineered qualities. USDA, through the NBFDS only requires producers to pursue one of three options for disclosure. Companies may disclose the use of BE food ingredients either in a sentence, using a symbol (approved by USDA) or a digital disclosure, such as a QR code, or a link to a website with more information.

Who Has to Disclose?

The current proposed rule suggests that three categories of groups must disclose the presence of bioengineered ingredients:

  • Food Manufactures
  • Importers
  • Certain retailers

The document explains that if the food is packaged before retailers receives it, the labeling responsibility falls on the food manufacture or importer. However, if the retailer packages the product, they assume responsibility. Also, importers must comply with the domestic regulations.

Diaz Trade Law specializes in food labeling compliance and will gladly assist in reviewing current labels and recommend label amendments to ensure compliance with federal regulations. Contact DTL at 305-456-3830 or email info@diaztradelaw.com. Sign up for our free monthly newsletter to stay up to date with USDA’s proposed rulemaking.