January 1, 2022, marked the mandatory compliance date for the Bioengineered (BE) Food Disclosure Standard (Standard). Many BE foods entering commerce on and after this date must include a disclosure on the label informing consumers that the food is BE or contains BE ingredients.
History of the Standard
On July 29, 2016, President Obama signed the National BE Food Disclosure Law. 7 U.C.S. § 1639-1639c. This law required the Secretary of Agriculture to create regulations establishing the Standard. The Secretary of Agriculture delegated this task to the Agriculture Marketing Service (AMS), and agency housed within the United States Department of Agriculture (USDA). On December 21, 2018, AMS published a final rule formally creating the Standard. 83 Fed. Reg. 65814; 7 C.F.R. § 66. The Standard addresses whether a food contains BE ingredients, and does not address the safety of BE foods.
BE Foods and the Disclosures
According to AMS, BE foods are “those that contain detectable genetic material that has been modified through certain lab techniques and cannot be created through conventional breeding or found in nature.” AMS will determine whether a food was “created through conventional breeding or found in nature” on a case-by-case basis. Although AMS was the agency that created and is in charge of enforcing the Standard, the Standard applies mainly to foods regulated by the Food and Drug Administration, and some foods regulated by the Food Safety Inspection Service (FSIS), another agency housed within the USDA. If the first ingredient of a food is meat, poultry, or an egg product, then the food is not subject to the Standard. Similarly, if the first ingredient is broth, stock, or water, and the second ingredient is meat, poultry, or an egg product, then the food is not subject to the Standard.
To Aid the “regulated entities”—or the food manufacturers, importers, and retailers who are responsible for labeling food—in determining whether a food is BE or contains BE ingredients, AMS keeps a list of BE foods that it updates annually. Currently, the list of BE foods includes:
- Alfalfa
- ArcticTM Apple varieties
- Canola
- Corn
- Cotton
- BARI Bt Begun Eggplant varieties
- Ringspot virus-resistant Papaya
- Pink flesh pineapples
- Potato
- AquAdvantage® Salmon
- Soybean
- Summer squash
- Sugarbeet
However, if a “regulated entity” has record of or actually knows that a food it produces is BE or contains BE ingredients, but the food or any of its ingredients aren’t on the list, the regulated entity must still disclose that the food is BE.
The Standard gives regulated entities four options for making disclosures. First, regulated entities can include text on the label that states the food is BE or contains BE ingredients. Second, regulated entities can include a particular symbol, found in the regulations and on the AMS website, on the BE food label. Third, regulated entities can include a digital link, such as a QR code, on the BE food label and make the disclosure on the linked website. Finally, regulated entities can include a phone number on the BE food labels that consumers can call or text, and in response receive the BE disclosure.
Implementation v. Compliance Dates
The Standard includes two implementation dates, a voluntary disclosure date, and a mandatory disclosure date. AMS explains the implementation dates are “when regulated entities (…) should prepare to fully comply with the [Standard].” AMS explains that regulated entities should prepare to comply by identifying the foods that will need a disclosure, collecting the records necessary to meet the Standard’s recordkeeping requirements, and choosing how the regulated entity will make its disclosures. January 1, 2020, was the implementation date for most regulated entities, and January 1, 2021, was the implementation date for small food manufacturers. This means that all regulated entities should have been preparing to comply with the Standard for one to two years.
AMS explains that the voluntary disclosure date was the last day “foods entering commerce may voluntarily comply with the Standard.” The voluntary disclosure date was December 31, 2021. This means that regulated entities could have, but were not required to, include BE disclosures on the food they put into commerce any time before or during December 31, 2021. AMS created a voluntary disclosure date to allow the regulated entities who already had to comply with state BE disclosure laws to switch over to the national Standard. This voluntary disclosure date does not impact and is not related to the voluntary BE disclosures made by exempt entities, such as very small food manufacturers and restaurants.
The mandatory disclosure date is the most important of these dates. AMS explains that the mandatory disclosure date is when all “foods entering commerce must be labeled in accordance with the Standard.” AMS explains that a food “enters commerce” when it is labeled for retail sale. This means that regulated entities are now required to include a disclosure on all labels of foods that are subject to the Standard. However, BE foods that were labeled without a disclosure before January 1, 2022, are still saleable and do not violate the Standard.
Like the Organic Standard, the BE standard only indicates whether a food is BE or contains BE ingredients, it does not indicate whether a food is safe or healthy to eat. As such, AMS does not have the authority to recall products that violate the Standard. To enforce the Standard, AMS will rely on complaints, meaning AMS will audit and investigate the records of regulated entities and report its findings. AMS will not conduct random inspections of facilities or conduct laboratory test to determine whether food contains BE material.
Conclusion
On January 1, 2022, food manufacturers, importers, and retailers were required to begin including disclosures on BE food labels. However, consumers at grocery stores may not find disclosures on all the BE foods that fall under the Standard for another few weeks. Currently, the food in stores was likely put into commerce on or before December 31, 2021. Meaning that most food currently on shelves did not fall under the Standard. However, because many food manufacturers, importers, and retailers are now required to comply, consumers will likely start seeing more BE food disclosures on grocery store shelves.
For more information from AMS on the Standard, click here.
To read the National Agricultural Law Center’s factsheet on the National Bioengineered Food Disclosure Standard, click here.
For more National Agricultural Law Center resources on bioengineered food, visit the Biotechnology Reading Room, here.
**This article was written by former NALC Staff Attorney Jana Caracciolo.