The U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) issued a final rule on December 20 that establishes the new national mandatory bioengineered (BE) food disclosure standard. The final rule does not incorporate significant revisions recommended by AHPA and consumer groups that were aimed at ensuring U.S. consumers can discern if their food includes genetically modified organisms (GMOs) or ingredients derived from GMOs.

During the public comment period on the proposed rule, AHPA aligned with consumer groups to request that USDA’s proposed rule be modified to:

• Adopt the common terms used to describe bioengineering, i.e., “genetically modified,” “genetically engineered” and “GMO”
• Define “BE” food to include all relevant GMO techniques
• Extend labeling requirement to include refined products and ingredients that are derived from GMO crops
• Set the threshold for disclosure of GMO content at 0.9% for consistency with international standards
• Revise the design of the BE symbol options to avoid any emotive quality or any implication that GMO content in a food is a benefit or additional value in the food

Unfortunately, these recommendations were not adopted in the final rule.

"Because the proposed rule was not significantly revised, it is very unlikely that Americans will be provided with a reasonably accessible way to know if their food contains genetically modified ingredients," said AHPA President Michael McGuffin. "The final rule doesn’t require disclosure of the information consumers are demanding for highly refined ingredients and contravenes the intent of the GMO labeling law."

The final rule defines bioengineered foods as those that contain detectable genetic material that has been created through certain in vitro genetic modification techniques and cannot be created through conventional breeding or found in nature. However, the rule does not require disclosure for the presence of highly refined ingredients produced from bioengineered crops, as long as no detectable modified genetic material is present. Regulated entities can disclose the presence of such ingredients on a voluntary basis. AMS developed the List of Bioengineered Foods to identify the crops or foods that are available in a bioengineered form throughout the world and for which regulated entities must maintain records. These records will inform regulated entities about whether they must make a bioengineered food disclosure, but must comply with the rule regardless of whether a bioengineered food is on the USDA list. The final rule provides an exemption for the presence of inadvertent and technically unavoidable bioengineered content of up to 5% in each ingredient.

The final rule requires food manufacturers, importers, and certain retailers to ensure bioengineered foods (as defined in the rule) are appropriately disclosed through text, symbol, electronic or digital link, and/or text message. Additional options such as a phone number or web address are available to small food manufacturers or for small and very small packages.

The implementation date of the labeling requirement is January 1, 2020, except for small food manufacturers, whose implementation date is January 1, 2021. The mandatory compliance date is January 1, 2022.

AHPA first published a member guidance policy in 2003 (most recently updated in 2015) regarding the use of GMO agricultural inputs in herbal products such as dietary supplements and teas. Among other things, this policy encourages voluntary label disclosure of the use of any herbal ingredients that have been knowingly and intentionally cultivated with GMO technologies, or extracts and natural flavors derived from such ingredients, in a manner that assures that consumers are informed that the ingredient (or more precisely, its source crop) was cultivated with GMO technology. AHPA will continue to advocate for GMO disclosure requirements that better meet the needs of consumers and the industry.