Lawsuit Alleges USDA’s GMO Policies Reduce Transparency

Following the ongoing relaxation of GMO labeling laws by the U.S. Department of Agriculture (USDA), a coalition of industry members led by the Center for Food Safety (CFS) last week sued the agency, noting that a lack of regulation over the growing biotech industry is threatening the ability to provide transparency in food and beverage products — something consumers increasingly want.

The lawsuit stems from the National Bioengineered Food Disclosure Act, passed by Congress in 2016, which instructed the USDA to create mandatory disclosure standards for bioengineered foods and the resulting framework, the National Bioengineered Food Disclosure Standard, which was released in 2018 and is set to become mandatory on January 1, 2022. The policies are the first major overhaul of GMO regulation since it began in 1987. Noting the agency’s standards now fail to require transparency about GMOs, the lawsuit aims to ensure “meaningful food product labeling, the public’s right to know how their food is produced, and producers’ and retailers’ rights to provide it to them.”

The lawsuit was filed in the Northern District of California by CFS along with co-plaintiffs of retailers Natural Grocers, Good Earth Natural Foods and Puget Consumers Co-op, as well as advocacy groups Label GMOs, Rural Vermont and Citizens for GMO Labeling. The suit calls for the laws to be declared unlawful, nullified and revised per the plaintiffs’ requests; the government has 60 days to respond.

A number of states have pushed for mandatory labeling policies of their own, but the group argues that a federal framework is crucial for clarity, consistency and safety. According to the lawsuit, highly-refined items like sodas and oils account for over 70% of all genetically modified foods and the USDA’s rule does not require them to disclose their GMO content. Instead, the rule explains that a soda company producing a beverage with corn syrup from bioengineered corn does not need to disclose the corn syrup as long as its modified genetic material cannot be detected; if the company chooses to disclose, it should say that the ingredients are “derived from bioengineering.” The lawsuit argues that this violates the law; any food and beverage products, especially these highly-refined items, should be required to disclose genetically engineered ingredients on packaging.

The legislation defines “bioengineered foods” as those that contain detectable genetic material that has been modified through lab techniques and cannot be created through conventional breeding or found in nature. Prior to these updates, the USDA required notifications and field research for new genetically engineered crops to determine their safety before farmers could plant them. Now the goal, the agency said, is to reduce unnecessary oversight that slows down the development of new agricultural technologies, ingredients and products.

Most recently, the USDA published the Sustainable, Ecological, Consistent, Uniform, Responsible, Efficient (SECURE) final rule in the Federal Register in May, further reducing federal oversight of GMOs starting at the seed. It allows producers to apply for exemptions before a regulatory review happens; additionally, if a plant doesn’t pass a regulatory review, a producer can still request a permit.

Some members of the natural products industry aren’t buying these new regulations, claiming they help biotech producers and will mislead consumers.

A large part of the lawsuit centers around the language used for GMOs. George A. Kimbrell, legal director at CFS and the case’s counsel, noted that the USDA’s recent policies are pushing the food industry to use the term “bioengineered” because consumers have negative associations with “genetically engineered” and “genetically modified,” though all have the same meaning. The final law, Kimbrell noted, does not require that manufacturers label these products — and they can only use the term “bioengineered” when they do. This violates Congress’ instructions to “allow any similar terms” on products, the lawsuit notes.

“In short, genetically engineered foods offer consumers no benefits, and only risks and adverse impacts,” Kimbrell said. “So, [the USDA] wants to have a new name under which to brand them, in hopes that consumers will think they are different than what they know of genetically engineered foods.” At the same time, Kimbrell said, R&D for biotech ingredients, a “pesticide-promoting technology,” has been generating billions of dollars.

Although Kimbrell thinks some consumers are savvy, he noted the USDA’s policies will likely ”exacerbate misconceptions,” like a rule allowing companies to use QR codes on labels to trace GMO information (rather than clear callouts), which he said will discriminate against minority, elderly and low-income consumers without smartphones. The suit also argues that it’s the First Amendment right of retailers and manufacturers to provide accurate information — and that the policies block them from doing that.

Alan Newman, Natural Grocers’ VP of advocacy and governmental affairs, said the crux of the issue is that the policies reduce opportunities for transparency between industry and consumers. Furthermore, the move comes as food manufacturers are increasingly open to addressing the issue. Big CPG companies, such as General Mills, are already working to provide clear information about biotech, and small brands need to do the same in order to compete, Newman noted. Consumers, he said, are looking for clear disclosures and symbols like the Non-GMO Project’s butterfly, rather than looking online to track ingredients.

“It’s a classic instance of a law that’s named for exactly the opposite of what it does,” Newman said.

The USDA, which manages the importation, interstate commerce and environmental impacts of GMO crops, said it wants to focus on a plant’s properties rather than how it was grown. The agency this year launched a centralized website in partnership with the Food and Drug Administration (FDA) and Environmental Protection Agency (EPA) to further explain the role of biotech in the food system.

Despite the USDA saying in a release that SECURE creates a “transparent, consistent, science-based, and risk-proportionate regulatory system” and providing details via an FAQ page, most of the 6,000 comments on the SECURE draft said it would do more harm than good, the Non-GMO Project said in a statement. In the final rule, the USDA mentioned how many commenters thought “economic interests” favoring the biotech industry were at play “at the expense of public health and safety and the environment.” Regardless, the final rule, which takes effect October 1, 2021, loosens regulation of GMO crops.

As this happens, the biotech industry is ballooning. According to the Non-GMO Project, the number of biotech startups has grown 220% in the past three years and the organization is monitoring 375 such companies developing new ingredients. However, there’s no government mechanism to evaluate, regulate or label them, according to the statement.

“Unfortunately this decision signals a clear, strategic shift even further away from transparency in the food system,” the statement reads. “Consumers overwhelmingly want to know what’s in their food and how it is made. What’s more, there is no mechanism today to evaluate, regulate or label hundreds of new GMOs that use new techniques.”

Though some GMOs are indeed safe, scientific evidence is needed from the ground up before they are available in the marketplace, Gregory Jaffe, biotechnology project director at the Center for Science in the Public Interest (CSPI), said in a statement.

“The result is that government regulators and the public will have no idea what products will enter the market and whether those products appropriately qualified for an exemption from oversight,” Jaffe said.

To maintain transparency, food and beverage brands should prioritize non-GMO certifications and make sure they have “neutral, factual, transparent labeling” about ingredients, Kimbrell said.

“Give people the power and the information; don’t obfuscate and hide it,” Kimbrell said.