DARKer Act: USDA’s new GMO labeling rule is an “insult to consumers”

Published: December 29, 2018
New law exempts highly processed GMO-derived ingredients from labeling, allows use of complex, consumer-unfriendly QR codes, sets GMO threshold at 5 percent

The U.S. Department of Agriculture finally published its “National Bioengineered Food Disclosure Standard” (NBFDS), and for supporters of mandatory labeling of genetically engineered foods the regulations falls far short in giving American consumers the transparency they want.

“Betrayed public trust by denying Americans the right to know”

When legislation was passed in 2016 to create the NBFDS, consumer advocates dubbed the bill the DARK (Deny Americans the Right to Know) Act.

The final NBFDS rules live up to that billing. They give companies the option of providing disclosure via electronic means, using complex QR (quick response) codes, rather than providing on-package information. And it exempts from disclosure large swaths of the food supply, including soft drinks containing high fructose corn syrup from genetically engineered corn, and oil from GMO corn, soy and canola.

Consumer advocates blasted the new rules. “The USDA’s new disclosure rule will likely keep many consumers in the dark about whether the food they buy has been genetically engineered,” said Michael Hansen, PhD, senior staff scientist at Consumer Reports. “No information is required on the package and manufacturers can get away with simply providing a QR code and phone number for consumers to learn more. Even consumers who have a smart phone and take the time to do that won’t necessarily get the full picture since many genetically engineered technologies and ingredients are exempt from disclosure.”

“The USDA has betrayed the public trust by denying Americans the right to know how their food is produced,” said Andrew Kimbrell, executive director at The Center for Food Safety. “Instead of providing clarity and transparency, they have created large scale confusion and uncertainty for consumers, food producers, and retailers.”

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Maine congresswoman Chellie Pingree called the rule “an insult to consumers.” “What people across the country have asked for—and what Congress has passed—is more information and transparency about the food on the nation’s shelves. What USDA has produced is a marketing campaign aimed at putting a positive spin on GMO food.”

Rules allow the use of complex QR codes for disclosure

Under the new rules, companies don’t have to provide disclosure until January 2022. They are given the option of using on-package labels, but those labels must say “bioengineered food,” a term not commonly used in the marketplace, rather than the more widely used term “GMO,” with which consumers are familiar. Manufacturers are also given the option of providing disclosure through electronic means—via a scannable QR code, URL, or phone number.

USDA’s own research found that many consumers prefer a simple label statement, and think QR codes would be burdensome and discriminatory against one-third of Americans who don’t own a smart phone.

“Not everyone has a smart phone or lives in an area with reliable Internet service,” said Jean Halloran, director of food policy initiatives for Consumer Reports. “And even for those who do, it’s inconvenient to have to scan every food you put into your grocery cart.”

78 percent fewer products will be labeled GMO

Many GMO foods were exempted from the disclosure rules, including highly refined oils and many soft drinks, on the grounds that they don’t contain detectable DNA. However companies can keep track of whether a product is genetically engineered or not through basic recordkeeping. And consumers want to know if the food came from a genetically engineered source, regardless of the detectability DNA.

According to the Grocery Manufacturers Association, excluding refined ingredients from the scope of the disclosure rules would result in 78 percent fewer products being disclosed under the law.

Major food companies criticized this aspect of the new rules. The Sustainable Food Policy Alliance, whose members include Danone, Mars, Inc., Nestlé USA, and Unilever, said in a statement: “the standards fall short of consumer expectations, and the practices of leading food companies, particularly when it comes to how we are already disclosing highly refined ingredients and the threshold for disclosure.”

The vast majority of corn, soy, canola, and sugar beets grown in the U.S. are now genetically engineered, and they are often used as ingredients in processed foods. Consumer Reports had urged the USDA to require disclosure using easily recognized terms, such as “GE,” “genetic engineering,” or “GMO.”

Other products are exempt from the new rules. Foods made using new genetic engineering techniques such as CRISPR and TALEN gene editing will not require disclosure. Meat, eggs, and dairy from animals fed a GMO diet will also not require disclosure.

The new rules also set a high 5 percent threshold for unintended presence of GMO ingredients. Highly refined products made from GMO crops would be exempted if current testing methods are unable to detect their GMO content, even though rapidly evolving test methods detect GMO content in products once thought to be free of it. The 5 percent threshold for the unintended presence of GMO ingredients in processed food is far too high—over five times higher than the European Union’s 0.9 percent standard.

Rules allow voluntary non-GMO claims

Ninety-two percent of Americans believe that GMO foods – widely found in kitchens across the country—should be labeled before they’re sold, according to a 2014 nationally representative survey of 1,014 people conducted by Consumer Reports.

“The overwhelming majority of consumers want genetically engineered food to be clearly labeled,” said Hansen. “But this rule fails to give consumers the information they deserve.  Consumers can, however, rely on labels such as “Non-GMO Project Verified” which will tell them if a food does not contain GMO ingredients.”

The new rules will allow voluntary non-GMO claims such as Non-GMO Project Verified.

Some major food companies such as Campbell’s, Mars, Danone, Coca-Cola and Unilever have been voluntarily labeling their products containing GMO ingredients since 2016.

In response to the new disclosure rules, the Environmental Working Group announced that it has created a new portal on its Food Scores website for consumers who want to seek out certified organic and non-GMO options. The website lists more than 3,000 food products that are both certified organic and certified GMO-free.

The Center for Food Safety has suggested there may be legal action against the NBFDA. “Unfortunately instead of putting this issue behind us, these regulations will almost certainly lead to litigation, more state legislation, and efforts to amend the federal law,” said George Kimbrell, CFS legal director. “We will explore all legal avenues to ensure meaningful labeling and protect the public’s right to know.”

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