USDA Bio-Engineered Label Hits a Legal Roadblock

In Natural Grocers v. Rollins, the U.S. Court of Appeals for the Ninth Circuit significantly upended certain parts of the U.S. Department of Agriculture’s (USDA) National Bioengineered Food Disclosure Standard (BE Rule).

Goodbye Undetected Bioengineered Material Exemption

The panel rejected the USDA’s conclusion that the non-detectability of genetically modified material in a final food product was legally equivalent to a finding that the food does not contain bioengineered material. This loophole was significant, as 70% of foods containing GMO ingredients fell under this exemption. The vast majority of US corn (used to make HFCS) and sugar beets are grown from GMO seeds, yet food products containing ingredients made from these raw materials have no BE label due to this exemption.

Additionally, the court noted that different detection methods vary in their “limits of detection,” so the absence of modified genetic material based upon any particular method or test cannot establish that the food does not “contain” bioengineered materials. Since the regulations fail to define a “sufficiently sensitive detection method,” the exclusion for foods with undetectable levels of genetically modified materials could not be upheld.

Back to the Lab

Although the exclusion for refined foods was found to be unlawful, the Ninth Circuit rejected plaintiffs’ assertion that the USDA lacks any authority to establish threshold levels for the amount of bioengineered materials that may be present in food for it to be subject to the disclosure requirements. The court found that Congress explicitly granted USDA the authority to determine “the amounts of a bioengineered substance that may be present in food … in order for the food to be a bioengineered food.” This leaves open the possibility of the USDA adopting a threshold amount of bioengineered substance that may be present in the food to subject it to the disclosure requirements.

Informed Consumers Make Informed Choices

"This is a major win for the American family. They can now make informed shopping decisions instead of being forced to use detective work to understand what food labels are hiding," said Alan Lewis, Vice President Advocacy & Governmental Affairs for Natural Grocers, one of the plaintiffs in the case. "The public's rejection of hidden GMOs has been weighed by the Court to be greater than the agrochemical industry's desire to hide GMOs behind incomprehensible bureaucratic rules."

Consumers want the right to know whether food is genetically engineered for a variety of health and environmental reasons, the most important of which is that the vast majority of GMO crops are commodity crops that are genetically engineered to withstand increasing amounts of pesticides. The most common pesticide used with GMOs is Monsanto's Roundup (active ingredient glyphosate). As a result, the introduction of genetically engineered crops has dramatically increased overall pesticide use in U.S. agriculture.

Both ultra-processed foods and pesticides have been in the news lately as a major target of the MAHA movement and U.S. Department of Health and Human Services (HHS) Secretary Kennedy.

The Non-GMO Project

In lieu of the BE label, for the past decade, consumers have sought the familiar butterfly label for assurance that the food they consume has been sourced from non-GMO ingredients. 

All Sugaright refineries hold Non-GMO Project verification for our cane sugar products.  This verification requires a third-party audit to a strict standard of sourcing and processing.  Even with improvements to the USDA rules, if a consumer wants the assurance that an ingredient came from a non-GMO seed, the Non-GMO Project certification may still be required.

Sugaright knows “The only constant is change”. And so we are “at the ready” to supply the cane sugar you need to meet any changes in BE or Non-GMO labeling requirements.