USDA makes filing in lawsuit on BE food disclosure

As you may recall, the lawsuit’s primarily allegation is that USDA’s implementation of the BE rule violates the Administrative Procedure Act (APA) as arbitrary and capricious and contrary to law, based on AMS’s decisions to:

1. Not include all highly refined foods within the definition of BE food;
2. Not prohibit food manufacturers from selecting the electronic or digital link disclosure method without also providing an on-package disclosure;
3. Include a text messaging disclosure option; and
4. Not require the disclosure to include the term “bioengineered” or other similar terms.

In USDA’s response to CFS’s motion for summary judgement, it discusses Chevron deference and the broad discretion afforded to the agency under the statute.  With respect to each of the points above, USDA argues:

1. The rule requires a food to “contain” modified genetic material in order to be subject to disclosure; this is consistent with the language in the statute that defines the term “bioengineering” as referring to a food that “contains” modified genetic material. Further, the statute authorized USDA to “determine the amounts of a bioengineered substance that may be present in a food” for it to be considered a BE food.  USDA also discusses the legislative history, including statements from senators concerned that the law would allow highly refined ingredients (HRI) to be exempt from disclosure.  USDA takes the position that the letter from then-USDA General Counsel Jeffrey Prieto stating that USDA would have authority to include HRI within the scope of the standard, is not binding on the agency.
2. The electronic link and text messaging disclosure options are authorized by the statute. The law contains no requirement that a digital disclosure must also be accompanied by an on-pack disclosure. USDA was authorized to provide “additional and comparable” disclosure options, which the agency did in allowing a text message disclosure.  USDA argues that plaintiffs seek to eliminate the electronic disclosure option found in the statute by requiring an on-pack disclosure too, rather than having USDA offer an “additional” option.
3. Regarding use of the term “bioengineered,” USDA argues its interpretation is entitled to Chevron deference. In response to the allegation that the BE Rule violates the First Amendment by prohibiting use of “GMO” and other terms, USDA recognizes that “food manufacturers are permitted to make additional statements about a bioengineered food using other, similar terms, such as ‘genetic engineering’ or ‘GMO’.’” Further, USDA explains that if a company wanted to label a meat or dairy product from an animal fed GMO feed, it could do so using the term “GMO.”  USDA recognizes that the rule bars the term “may be bioengineered,” but argues this statement is ambiguous and confusing.

USDA states that vacating the final rule “would disrupt the food industry”, leaving it with “no guidance or disclosure requirements for affirmative statements regarding the bioengineered status of foods.”  We will keep you apprised of developments on the litigation.

Authored by Martin Hahn and Veronica Colas.