USDA Must Update Genetically Modified Food Labeling Requirements: Court

The requirements currently exclude bioengineered food if modified genetic material is not detectable.

Bags of chips and other food products in a grocery store, in this file image. Justin Sullivan/Getty Images

The U.S. Department of Agriculture erred in excluding all genetically modified products from congressionally required labeling if the genetic material in the modified food is not detectable in the product’s finished form, an appeals court has ruled.

The department’s Agricultural Marketing Service (AMS) “committed legal error in concluding that, under ’the plain language of the amended Act,‘ ’if a food does not contain detectable modified genetic material, it is not a bioengineered food,'” U.S. Circuit Judge Daniel Collins stated in the ruling, which was released on Oct. 31.

The service “relied entirely on the flawed legal premise that the non-detectability of a substance under the regulation was equivalent to its nonpresence,” Collins added later.

Congress, in a 2016 law, required the agriculture secretary to establish a standard for the disclosure of bioengineered, or genetically modified, ingredients in food. The secretary passed the task to AMS, which finalized the rules in 2018. The rules, which became mandatory on Jan. 1, 2022, require companies to include the word bioengineered on labeling.

Exceptions include if a food contains at least one bioengineered ingredient but processing ultimately rendered the genetically modified material undetectable.

Citizens for GMO Labeling and other groups sued over the rules, arguing they should require all food containing genetically modified material to be labeled as such.

A federal judge ruled in favor of the government on that aspect in 2022.

The three-judge panel of the U.S. Court of Appeals for the Ninth Circuit overturned the judge in the new decision, finding that the exclusions promulgated by AMS were not supported by the law.

The panel remanded the issue to AMS for further consideration. The ruling stated that AMS can exclude some bioengineered foods under the instructions in the law from Congress.

The U.S. Department of Agriculture has said it does not comment on litigation.

George Kimbrell, legal director of the Center for Food Safety, which represented the groups that sued, said in a statement that the ruling “is a landmark victory for the public’s right to know what they eat and feed their families.”

He added, “We are gratified that the Court has struck down USDA’s loophole for ultra-processed GMO foods, the vast majority of which have been genetically engineered for increased pesticide tolerance.”

The center said that products excluded from the requirements include soda and cooking oil.

The appeals court ruled against the litigants on another aspect. The panel said that the use of the word bioengineered, which is in the statute, was an adequate description of the ingredients. The litigants were trying to force the government to require terms they said are more familiar, such as genetically modified.

The panel also said that the district court properly ruled that the AMS illegally allowed disclosures of bioengineered ingredients in the form of digital codes on packages, but improperly did not vacate that part of the labeling requirements.

The panel remanded that portion of the case to the district court with instructions to vacate those rules after hearing from the parties.