It was an interesting summer for followers of the regulation of genetically modified organisms (GMOs), genetic engineering, bioengineering, or whatever we want to call it, in food labeling. In May, the U.S. Department of Agriculture (USDA)’s Agricultural Marketing Service put out a proposed rule for the labeling of bioengineered foods as directed by the Federal Bioengineered Food Disclosure Standards Act of 2016, amending the Agricultural Marketing Act, and accepted public comments until July 3. Where are we now with respect to the proposed new National Bioengineered Food Disclosure Standard?

Issues Raised in the Public Comments
USDA received 14,016 comments by everyone from major food trade associations to foreign governments to individual consumers. The following were the issues raised in the proposed rulemaking that were most frequently cited by commenters:

Use of “Bioengineered” Instead of “GMO”
The proposed rule adopted “bioengineered” rather than “genetically modified” or “genetically engineered” as a descriptor for the food or ingredients to be disclosed. Some comments discussed whether this descriptor is technically broader or narrower than “GMO,” but the overwhelming concern among commenters was that the term “bioengineered” may be meaningless to consumers. Some organic food interest groups even submitted the results of consumer perception surveys indicating that “bioengineered” is far less recognized, and far less often searched on internet search engines, than “genetically modified,” “GMO,” or “genetically engineered.” The abbreviation of “BE” proffered by USDA for use on symbol-based disclosures was even less understood and recognized, although not much less than the abbreviation “GE” for genetically engineered.

Proposed Disclosure Alternatives
A related issue, aside from the adoption of “bioengineered,” was the forms of disclosure permitted by the proposed rule. Two aspects of the disclosure came in for special criticism. One was the set of possible symbols suggested by USDA as a possible alternative to a straightforward text disclosure. Most of these symbols incorporated the abbreviation BE without explanation, and contained graphic elements suggestive of green fields, leaves, the sun, and even “smiley faces.” Many commentators opined that the symbols were not only difficult to interpret, but communicated a positive bias in favor of whatever is being disclosed. The other issue was the option not to disclose directly the presence of bioengineered food, but to provide a web link, scannable QR code, or other such device, and inviting consumers, allegedly cryptically, to follow these links to the internet for more information on the food ingredients. Commenters were concerned that neither of these measures would provide clear and immediate information to consumers about the presence of bioengineered ingredients, and that they would discriminate against rural, elderly, and low-income consumers in terms of their likelihood of having a smart phone and wireless coverage to be able to access the internet at the point of sale.

Whether Refined Products Require Disclosure
The proposed regulations proposed, as an open question, whether highly refined foods such as oils or sugars, which may be extracted from bioengineered foods but which, once extracted, contain no genetic material, need to be disclosed in some form. On this point there was sharp disagreement. Some food companies and trade associations, especially producers of such refined products, opposed disclosure on the basis that these products do not contain, in the terms of the statute, bioengineered material. Individual consumers and public interest groups, and several mainstream food companies, strongly supported some form of disclosure, contending that consumers wish to know whether genetically engineered material was involved in any away in the origin of the food, even if it is no longer present.

Definitions of Bioengineered Food
Some commenters were dissatisfied with the proposed rule’s definition of its subject matter, insisting that various new modification techniques be included and that the definition of bioengineered food be flexible enough to encompass any future form of genome manipulation.

Small Company Exemption
The proposed USDA rule suggested an exemption from disclosure for small companies on grounds of burden and put forth various candidate company sizes. Not surprisingly, commenters lined up on both sides of this question based on the nature of the constituents they represented.

“No GMO” or “No BE” Labeling
USDA’s proposed rule is solely concerned with affirmative disclosure of the presence of bioengineered foods. It contains no provision or requirement for a labeling or marketing claim that a food has no genetically engineered content. Several comments, however, addressed this issue. Especially vocal was the organic food industry, which seems to be united in the view that 1) foods that comply with the national organic certifications standard should be allowed be marketed as “no BE” without further review and 2) other foods, even if not required to disclose bioengineered ingredients, should not necessarily be allowed to claim “no BE.” Other food companies commented that while certified organic foods may be able to make the “no BE” claim, other foods satisfying some yet-to-be-determined criteria should be able to do the same, even if they do not satisfy all requirements to be organic.

What Is Next for USDA?
The Bioengineered Foods Disclosure Standards Act set an ambitious deadline of July 29, 2018, for USDA to issue its final rule. Advocacy groups have already sued the USDA for missing this deadline, hoping to force quick action.

USDA must now be reviewing the comments and taking possible revisions to its proposed rule, and choices among some of the alternatives presented, as it formulates its final rule. It may again offer its final rule for renewed public comment after it considers comments to the key issues described above, and others. USDA is likely reconsidering the use of symbols and wording that use the terms “genetically engineered” or “GMO,” at least as an optional means of disclosure. Other issues, such as the question of whether disclosure should be required for refined products containing no DNA, but derived from genetically engineered sources, clearly have created a major split among industry players and experts, and USDA will be hard pressed to resolve these to everyone’s satisfaction.

August Horvath, Esq., partner at Foley Hoag, is an expert in advertising and marketing law related to the food and beverage industry.