Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law

The Center for Food Safety (CFS) filed suit against the United States Department of Agriculture (USDA) on August 25, 2017 in the United States District Court for the Northern District of California. CFS alleges that USDA has violated both the GE Labeling Act and the Administrative Procedures Act by failing to conduct and release a study ordered by the GE Labeling Act, as well as hold a required public comment period on the study, before July 29, 2017. CFS is a non-profit membership organization whose mission is “to protect food, farmers, and the environment from the harms of industrial agriculture” and works to advance the labeling of genetically engineered (GE) products. You can read the full complaint here.

About the GE Labeling Act

Prior to July 2016, no federal labeling requirements for GE products existed in the United States. GE Labeling was and remains a controversial issue of agricultural policy. As states began to consider and pass their own GE labeling laws, questions arose regarding how to deal with inconsistent labeling requirements from state to state in the marketplace. Connecticut and Maine passed GE labeling laws in 2013 with effective dates dependent on the passage of similar laws in other states. Vermont became the first state to pass mandatory GE labeling in 2014, scheduled to go into effect in 2016. Congress passed the National Bioengineered Food Disclosure Standard (GE Labeling Act) in July 2016, which preempted state laws immediately.

The GE Labeling Act mandates that USDA shall “establish a national mandatory bioengineered food disclosure standard with respect to any bioengineered food and any food that may be bioengineered; and establish such requirements and procedures as the Secretary determines necessary to carry out the standard.” (See 7 U.S.C. § 1639b(a)). The statute requires USDA to conduct a study on potential methods of labeling and release this study within a year of the effective date. One of the suggested methods to be studied was to include GE labeling via a “QR” code, a digital code which produces specific information when scanned with a smart phone. More specifically, the study should “identify potential technological challenges that may impact whether consumers would have access to the bioengineering disclosure through electronic or digital disclosure methods.” (See 7 U.S.C. § 1639b(c)(1)). This study on digital and electronic disclosure methods was set to be completed by July 29, 2017. However, the study has still not been released.

CFS’s Claims Against USDA

CFS brings suit under the Administrative Procedure Act, which provides the right to judicial review for individuals harmed by an agency’s action or failure to act (See 5 U.S.C. § 702). In addition to mandating the completion and release of the study by July 29, 2017, the statute required a public comment period integrated into the process of conducting the study.

CFS claims that USDA failed to finish or publically release the study or hold a public comment period by July 29, 2017. These actions, according to CFS, put USDA in violation of both the Administrative Procedure Act and the GE Labeling Act.

CFS asks the court to enter an order declaring USDA has violated both of these laws because of its failure to release the study or conduct a public hearing on the study by the statutory deadline. CFS also asks the court to order USDA to complete these tasks as required by statute “as soon as reasonably practicable” and order a timeline for doing so.

USDA was given the authority to promulgate final rules for the GE Labeling Act to be completed no later than July 29, 2018. CFS claims in its complaint that because the results of the study are a necessary precursor to the promulgation of the final rules, the entire process will be delayed.