As you have likely heard by now, on Friday, July 29, 2016 President Obama signed into law the GMO Labeling bill recently passed by Congress. This law preempts Vermont’s first-of-its-kind GMO Labeling law, which had just gone into effect on July 1, and authorizes the U.S. Department of Agriculture (USDA) to develop a mandatory disclosure program for “bioengineered” (aka GMO) foods. Now that the law has been enacted, all eyes are on USDA, which has the primary responsibility of implementing the law.

What exactly does the GMO Labeling Law do? 

In brief, the law:

• Preempts Vermont’s GMO labeling law, and prohibits any other state or local law from requiring mandatory labeling of food or seeds developed or produced using genetic engineering – or containing genetically engineered foods or seed ingredients;
• Creates a mandatory disclosure requirement for “bioengineered” foods, and directs USDA to develop regulations and standards to carry out this requirement;
• Gives companies the option to choose among label options that include text, a symbol (to be developed by USDA), or an electronic/digital label or link (such as a QR code that can be scanned with a smartphone);
• Requires USDA to undertake a feasibility study of QR codes within one year to “identify challenges that may impact whether consumers would have access to the bioengineering disclosure through [this] method”;
• Exempts milk and meat products from animals fed GE-feed from disclosure; and
• Grants USDA authority to audit businesses for compliance, but leaves enforcement to the Food and Drug Administration (FDA) by making the knowing failure to disclose GMO/GE ingredients a “prohibited act” under the Food, Drug & Cosmetic Act.

So Now What? 

USDA has one year to conduct the QR code feasibility study, and two years to develop the labeling standards and regulations. Both of these processes will also require public input before being finalized.

Given the projected timeline, it’s highly unlikely that USDA could complete the necessary feasibility study and public rulemaking process before the next Administration is in place. They could certainly begin the process though, and thereby get important foundations and building blocks in place for the incoming transition team.

It is clear USDA is working toward as smooth a transition as possible; at the time Congress passed the GMO labeling law (S.764) USDA announced that it had already established a working group to begin crafting the rules to properly and promptly implement it.

Logically, one would think that the QR code feasibility study would need to be completed before the regulations are developed. As the new law clearly lays out, the intent of the study is to determine whether or not “consumers, while shopping, would not have sufficient access to the bioengineering disclosure through electronic or digital disclosure methods.” If USDA were to find that consumers did not have sufficient access, they would be required to provide “additional and comparable options” for disclosure, after consulting with food retailers and manufacturers.

Unfortunately, the rulemaking process is not likely to lend itself to a “prompt” final rule. Congress has left several elements of the disclosure requirement subject to public input, which will require complex rulemaking by USDA after input is gathered. One item that promises to be particularly thorny is the charge that USDA must determine the scope of the term “bioengineered” foods.

GMO vs. GE vs. “Bioengineered”

Understanding the difference between GMO, GE, and bioengineered is likely to give anyone a headache, and the task likely won’t prove to be much easier for USDA. The GMO labeling law creates a new definition of “bioengineering” with respect to food, stating that bioengineered foods:

• Contain genetic material that has been modified through in vitro recombinant DNA techniques; and that
• The modification could not otherwise be obtained through conventional breeding found in nature.

This definition immediately caused confusion and elicited criticism from the public and from experts; even a few federal agencies joined the fray, issuing conflicting assessments of what foods would or wouldn’t be covered under this definition.

According to the FDA, the Senate’s definition of “bioengineered” would too severely limit the types of products that would require labeling. Food “that contains genetic material” would likely mean that many foods from GMO sources, such as oil made from GMO soy, would not be labeled because they do not contain genetic material. USDA, on the other hand, stated that its authority under the new law does extend to such products.

Under this understanding of USDA’s authority, USDA will have determine through rulemaking whether foods containing trace amounts of genetic material fall under the disclosure requirement. And, if so, what the threshold is.

Another sticky spot has to do with the second part of the definition, which states that bioengineered foods do not have to be labeled if the modification could otherwise have been obtained through conventional breeding, even if the modification was not actually obtained through conventional breeding techniques. Consumers and labeling proponents alike have seen this as another loophole through which GMO foods could circumvent disclosure.

The Road Ahead

USDA is likely to see thousands upon thousands of comments from stakeholders during these next phases of implementation. By law they are required to consider all comments received, suggesting that a long process is ahead. The agency is also likely to hold public meetings to allow stakeholders the opportunity to submit oral, as well as written, testimony. Given the highly contentious nature of this legislation and the GMO debate in general, we hope to see USDA proceed through this process in as transparent and inclusive a manner as possible.

All of these issues point to a lengthy and involved few years before a final disclosure requirement is in place. And regardless, once the regulations have gone through the public rulemaking process, a legal challenge is highly likely, which could further delay implementation.

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