OCTOBER 2017 FOOD & AGRICULTURE QUARTERLY PAGE 7 or website link . Recognizing the technological requirements associated with digital / electronic labeling methods , the GE Labeling Law required the USDA to conduct a study on consumer access to inform its rulemaking .
When the USDA had not released this study by the statutorily-imposed deadline of July 29 , 2017 , the Center for Food Safety filed a lawsuit in California federal court alleging that electronic / digital labeling is inherently discriminatory to minority , low-income and elderly consumers , as well as Americans who live in rural areas . In response to this lawsuit , the USDA made public the results of the study . The study — undertaken by consulting firm Deloitte — concluded that , although researchers directly observed key technological challenges , such challenges could be overcome through appropriate implementation . Additionally , 62 percent of study respondents did not voice challenges that might impact their access to information in a digital link . The Secretary of Agriculture must still solicit and consider comments from the public on the study before determining the efficacy of the electronic / digital disclosure option and whether such option will have to be replaced with an alternative due to insufficient consumer access to bioengineering information .
Overlap with Organic Foods Production Act
The USDA ’ s GE labeling regulations are slated for issuance in 2018 . Recognizing overlap between the GE Labeling Law and provisions of the Organic Foods Production Act , the USDA has issued a Policy Memorandum clarifying its intent to maintain consistency between the two sets of regulations . Both the USDA organic regulations and the GE labeling regulations include definitions relating to bioengineered products , but none of the proposed rules for bioengineered food disclosure require modifications be made to the USDA organic regulations .
As a practical matter , the GE labeling regulations are narrower in scope than the organic regulations . For example , the GE Labeling Law exempts a food from being considered “ bioengineered ” solely because it is derived from an animal that consumed feed from , containing or consisting of a bioengineered substance . Conversely , compliance with organic certification entails that operations have verifiable practices in place to avoid all contact with GMOs , including genetically engineered feed , seeds and crops . Further , the GE labeling law provides that simply because a food is not required to bear the applicable disclosure , that does not mean the food is considered , in fact , ‘ not bioengineered ,’ ‘ non-GMO ’ or any other similar claim . With respect to the USDA ’ s organic labeling policy , however , compliance with organic regulations is sufficient to make a claim regarding the absence of bioengineering in the food .
The USDA ’ s proposed regulations are still on the horizon . Thus , key definitions that will trigger the GE Labeling Law ’ s application , such as thresholds for GE ingredients , remain undetermined .
Devan Flahive is an associate licensed only in West Virginia and concentrates her practice in oil and gas , antitrust and litigation . She can be reached at dflahive @ porterwright . com or 614.227.1989 .
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