Background
In 2016, Congress passed the National Bioengineered Food Disclosure Act, which required the U.S. Department of Agriculture (USDA) to establish a standard national disclosure for bioengineered foods. As part of the rulemaking establishing the disclosure standard, AMS established the List of Bioengineered Foods at 7 CFR 66.6. The List creates a presumption that those foods included on the List are bioengineered. Consequently, if a food is on the List, a regulated entity must make a disclosure unless they have maintained records establishing the ingredient is not bioengineered. In addition to the foods on the List, if a regulated entity has actual knowledge that a food or an ingredient is bioengineered, then a disclosure must be made.
AMS is required to consider updates to the List annually, and solicit comments and recommendations for updates using the Federal Register and its website.1 Currently the List includes: alfalfa, apple (Arctic™ varieties), canola, corn, cotton, eggplant (BARI Bt Begun varieties), papaya (ringspot virus-resistant varieties), pineapple (pink flesh varieties), potato, salmon (AquAdvantage®), soybean, squash (summer), and sugarbeet.
When making a determination whether a food should be included on the List, AMS follows two criteria outlined in 7 CFR 66.7(a)(4). AMS must consider if a food is (1) authorized for commercial production somewhere in the world, and (2) currently in legal commercial production for human food somewhere in the world.
On July 24, 2020, AMS sought public comment concerning the addition of sugarcane (insect-resistant) and amendment of “squash (summer)” to “squash (summer, virus-resistant).” Additionally, AMS sought public comment for cowpea and rice, which it did not consider to meet criteria for addition to the List, to determine if additional information was publicly available.
Proposed Rule
AMS is proposing to add “Sugarcane (Bt insect-resistant varieties)” and the additional description to the existing squash entry to read “squash (summer, mosaic virus-resistant varieties)”. Additionally, AMS did not receive any comments related to cowpea or rice, and consequently AMS is not proposing any action related to the two crops. AMS is seeking further comment concerning the two proposed changes.
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Sugarcane (BT insect-resistant varieties): AMS is seeking comments on the inclusion of sugarcane to the List. Additionally, AMS is seeking comments with evidence or data points relating to the conclusion that seedling bulk up is the only use for Sugarcane (BT insect-resistant varieties).
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Squash (summer, mosaic virus-resistant varieties): AMS is seeking comments on modification of squash on the List.
Importantly, at this stage, the proposed changes have not yet been finalized, and accordingly there is no established timeline for implementation. If the proposed changes are finalized, the primary resulting impact would be additional recordkeeping requirements related to foods that contain or are derived from sugarcane and squash in order to confirm the foods are not BE foods; or if such records are not available, a BE disclosure would need to be made. Such records could include, for example, documentation confirming that sugar processed from sugarcane does not contain detectable modified genetic material or is from identity preserved sugarcane, records confirming summer squash is not from resistant varieties, or records confirming certified organic ingredients are used.
We will continue to monitor AMS’s implementation of NBFDS. If you have any questions, please do not hesitate to contact us.
Authored by Martin Hahn, Elizabeth Fawell, Veronica Colas, and Molly Mulligan.
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