The federal magistrate judge has yet not yet ruled whether the defendants even have the legal standing to bring their case, and the federal defense attorneys have yet to show up in the court, but two activist organizations say they are now “entitled to a summary judgment on their sole claim.”

The Center for Food Safety and Center for Environmental Health on Aug. 1 sued U.S. Secretary of Agriculture Sonny Perdue and Bruce Summers, administrator of USDA’s Agriculture Marketing Service (AMS) for failure to enact federal regulations on labeling genetically modified foods. It took until mid-August before the plaintiffs could show Perdue, Summers and U.S. Attorney General Jeff Sessions were served with notices of their status as defendants in the case.

The Center for Food Safety and the Center for Environmental Health, both environmental nonprofit organizations, now want federal Magistrate Judge Elizabeth D. Laporte to give them a summary judgment against USDA and its officials as soon as 9 a.m on Oct. 16.

They want Laporte to say that Perdue has unlawfully withheld regulations implementing the labeling of genetically engineered foods — referred to by federal officials as bioengineered or BE foods — under the Federal Bioengineered Food Disclosure Act. The Act took effect on July 29, 2016, and gave USDA two years to issue the implementing regulations.

Attorneys for the two nonprofit centers, Amy L. van Saun and George Andreas Kimbrell, say they are entitled to summary judgment because USDA has failed to implement the final mandatory federal standards for “bioengineered” or genetically engineered food disclosure by the deadline.

By not meeting the deadlines, USDA stands in violation of both the Federal Bioengineered Food Disclosure Standards Act and the Administrative Procedure Act. By failing to promulgate labeling regulations for genetically modified organisms (GMOs) — also known as genetically engineered (GE) — as required by Congress in the GE Labeling Act, the defendants say Americans are being denied the information they need to make informed decisions. 

They argue that a nationwide “bioengineered,” or BE, food disclosure standard is critical and was evidenced by the fact that Congress enacted “an express statutory deadline, a rare legislative command.” Congress impose the deadlines, they say,  because states were interested in mandatory GE labeling. Vermont had enacted its own law, but the federal law also preempts any state action on the issue.

Without the regulations, the nonprofit centers say the new GE Labeling Act is just “an empty vessel.”

“People are left without any information on whether their food is genetically engineered,” the plaintiffs say. “People want to know if food is produced using GE for numerous reasons: health, personal, economic, environmental, religious, and cultural.”

“For example,” says the motion for summary judgment, “on the human health side, the public knows that the Food and Drug Administration, the agency charged with ensuring the safety of most foods, does not actually independently test the food safety of GE  foods or require them to be tested. FDA does not “approve” GE foods for safety; rather, the agency has confidential meetings with industry in which it merely reviews the industry’s own testing — and even that is only voluntary. Market entry for GE foods is based solely on confidential industry research. “

While USDA has not yet responded in any way to the lawsuit, it has both a proposed rule the National Bioengineered Food Disclosure Standard and proposed Bioengineered labels pending. During a 60-day period ending on July 3, USDA received 14,019 public comments on the proposed standard.

According to the USDA website, AMS is charged with developing a national mandatory system for disclosing the presence of the bioengineered material. The two-year deadline passed without the prorogation of a final rule.

A USDA working group is reportedly working on a timetable for rule-making “to ensure an open and transparent process for effectively establishing this new program, which will increase consumer confidence and understanding of the food they buy, and avoid uncertainty for food companies and farmers,” according to AMS.

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