Natural Grocers, Citizens for GMO Labeling, Label GMOs, Rural Vermont, Good Earth Natural Foods, Puget Consumers Co-op, and the Center for Food Safety are plaintiffs in a new lawsuit against the USDA that some say was probably inevitable. It’s a lawsuit that seeks to end the long-fought dispute about labeling food made with Genetic Engineering with a definite win for the GE labeling side.
Filed in U.S. District Court for Northern California, the plaintiffs say the legal action “is about ensuring meaningful food product labeling, the public’s right to know how their food is produced, and producers’ and retailers’ rights to provide it to them. Throughout U.S. history, government-mandated food and ingredient information has always been the same: on packages and in language, consumers could understand.”
They are charging that a USDA rulemaking “is a significant departure from that standard.” The lead defendant in the civil action is U.S. Secretary of Agriculture Sonny Perdue.
“Genetically engineered (GE) organisms have been a controversial topic in the public arena since their introduction into the food supply nearly three decades ago,” the complaint says. “Advocates, including plaintiffs, sought their labeling, like the labeling mandated by 64 other countries around the world. After several states passed labeling laws, Congress finally passed the Bioengineered Food Disclosure Act (Disclosure Act) in 2016.”
It says the USDA “charged with writing the implementing rules, finished them in 2019. Unfortunately, in its final decision, the agency fell far short of fulfilling the promise of meaningful labeling of GE foods. In fact, in many ways, the result is in the direct or de facto concealment of these foods and avoidance of their labeling.”
The plaintiffs discuss four claims in the lawsuit.
- “First is the issue of how the disclosure is provided under the final rule: electronic or digital forms of labeling, also known as “QR code” or “smartphone” labeling. Congress included this potential form of disclosure in the new law, but, recognizing its untested nature, made USDA undertake a study of its potential efficacy to eventually use it alone as a means of labeling. The study showed undeniably what opponents told the agency: (a) it was not realistic to have customers in a grocery store use their phone to scan barcodes for dozens of products, and (b) this form of disclosure would discriminate against major portions of the population—the poor, elderly, rural, and minorities—with lower percentages of smartphone ownership, digital expertise, or ability to afford data, or who live in areas in which grocery stores do not have internet bandwidth. Defendants’ decision nonetheless to greenlight QR codes without other forms of labeling on products was arbitrary and capricious and contrary to law, in violation of the Disclosure Act and the Administrative Procedure Act (APA).
- “Second is the issue of what terminology is permitted. For 25 years, all aspects of the public dialog around GE foods—scientific, policy, market, legislative, consumer—have used either “genetically engineered” (GE) or “genetically modified” (GMO) to refer to genetically engineered foods. Those are terms that all federal agencies, including USDA during this very rulemaking, used. They are what the public knows, understands, and expects, and what is currently used in the marketplace by producers. They are what other countries and U.S. trade partners use internationally. And, Congress used the new term “bioengineered” in the Act, at the same time, it instructed USDA to also include “any similar term” in its new standard. Despite that instruction and the overwhelming support from stakeholders to allow continued use of the far more well-known “GE”/ “GMO” terms, in its final rule USDA instead excluded “GE” and “GMO,” prohibiting them from use in the on-package text or symbol labeling, only allowing the use of the term bioengineered. That decision was arbitrary and capricious, contrary to the Act’s plain language and the APA, and failed to fulfill the Act’s fundamental purpose of informing consumers. It is antithetical to the Act’s purpose because it will confuse and mislead consumers.
- “Third is the issue of what foods are covered (or not covered) under the scope. The vast majority of GE foods are not whole foods but rather highly processed foods with GE ingredients like sodas and oils, which by some estimates account for over 70% of all GE foods. The Act provided broad scope to USDA to cover all GE foods, and the legislative history shows that USDA and Congress made assurances that the majority of GE foods—those highly refined GE foods—would be covered. Yet in the final rulemaking, USDA decided to exclude highly refined GE foods, creating a new extra-statutory limitation. That decision was contrary to the Act and the APA and again failed to fulfill the Act’s core purpose of informing consumers.
- “Fourth is the right of improving on the limited and flawed disclosure the rules provide, particularly important given all the problems explained above. Manufacturers and retailers have a fundamental 1st Amendment Right to provide truthful commercial information to consumers, and consumers have a right to receive it. In this context, manufacturers and retailers have the right to label foods as produced through genetic engineering or as genetically engineered. Yet the final rule attempts to restrict that right in multiple ways, providing only limited and restricted voluntary labeling beyond its narrow scope. Those speech chilling restrictions violate the statute’s text and purposes as well as the 1st Amendment’s guarantees.”
The challenge to USDA’s rules on labeling genetically engineered (GE) or GMO (genetically modified organisms), or otherwise “bioengineered foods” is from the Center for Food Safety (CFS). It has been fighting for mandatory GE food labeling for more than two decades at the federal and state levels, work that helped lead to the passage of the 2016 federal law.
It says the final regulations, issued in 2019, include provisions that will leave the majority of GMO-derived foods unlabeled; discriminate against tens of millions of Americans; prohibit the use of the widely known terms “GMO” and “GE”; and prohibit retailers from providing more information to consumers. The CFS is representing a coalition of food labeling nonprofits and retailers, including the Natural Grocers, operating 157 stores in 20 states, and Puget Consumers Co-op, the nation’s largest community-owned food market.
“This case is about ensuring meaningful food labeling, the public’s right to know how their food is produced, and retailers’ rights to provide it to them,” said George Kimbrell, CFS legal director, and counsel in the case. “The American public successfully won GE food labeling after more than a two-decade fight, but the Trump rules fall far short of what consumers reasonably expect and the law requires.”
The CFS’s lawsuit makes a number of arguments.
First, the case challenges USDA’s unprecedented allowance of electronic or digital disclosure on the packaging, also known as “QR code” or “smartphone” labeling, without requiring additional on-package labeling. The USDA allowed this despite Congress requiring the agency to first study whether digital disclosure would provide meaningful information to consumers. In 2018, the CFS successfully sued the USDA to release the study, and it showed conclusively that QR codes would fail. But in this final rule the USDA went ahead with it anyway.
“Requiring a smartphone discriminates against at least 20 percent of the American adult population — primarily poor, elderly, rural, and minority populations — who have lower percentages of smartphone ownership, or live in areas in which grocery stores do not have internet bandwidth,” said Caroline Gordon of Rural Vermont, a plaintiff in the case.
Especially during the ongoing COVID-19 pandemic, many Americans are visiting grocery stores less frequently to avoid exposure to the virus and purchasing more items during each visit. Requiring a shopper to scan every single item they purchase would not only place an undue burden on the shopper but would increase a shopper’s exposure risk to the deadly virus.
Second, CFS is challenging USDA’s labeling language restrictions. When on-package text is used, the rules limit it to only “bioengineered,” despite the law allowing the use of similar terms. But for 25 years, every aspect of the issue — science, policy, and marketplace — has used genetically engineered (GE) or genetically modified (GMO).
“Retailers and shoppers have relied on the term GMO for more than a decade to identify and avoid GMO foods,” said Mark Squire, co-founder of Good Earth Natural Foods, a plaintiff. “Banning the use of this term and replacing it with a term nobody has ever heard of is misleading and will create massive confusion in the marketplace.”
“At Natural Grocers, we believe in meaningful transparency. This means providing our shoppers with the information they deserve and demand about foods produced with genetic engineering,” said Alan Lewis, vice president advocacy and governmental affairs of Natural Grocers, a plaintiff. “Our rights and those of our customers are damaged by the USDA’s unlawful bioengineered labeling rule.”
Third, the case challenges the USDA’s severe restriction on which foods are covered and require disclosure. The vast majority of GE foods — by some estimates more than 70 percent) are not whole foods, but highly processed foods with GE ingredients, like sodas and oils. Yet in the final rule the USDA excluded these “highly refined” products, unless the GE material was “detectable.”
“A disclosure law that exempts 70 percent of the foods it is supposed to disclose is not a meaningful disclosure law: it is a fraud and allows producers to keep their GMO ingredients secret,” said Tara Cook Littman of Citizens for GMO Labeling, a plaintiff.
Fourth, the exclusive rules restrict retailers and producers from voluntarily providing more meaningful information to consumers, such as using the terms GE and GMO. The only voluntary labeling allowed is “derived from bioengineering” and only in certain circumstances. The federal law preempted state disclosure laws that used the normal GE/GMO terms and properly required the labeling of all GE foods, so voluntary additional disclosure under the federal rules is imperative.
“PCC believes that our members and shoppers have a right to transparency about the food they eat, and that retailers and manufacturers have a fundamental First Amendment right to provide truthful information to customers. The USDA rules unlawfully restrict that protected speech and do not provide the transparency on GMO foods that consumers deserve,” said Aimee Simpson, director of advocacy and product sustainability for PCC Community Markets, a plaintiff.
The lawsuit seeks to have the court declare the regulations unlawful and nullify them, and then return the issue to USDA with orders to fix the unlawful portions of the rules.
The 2019 rules implement a 2016 federal law that for the first time required the labeling of GE foods. Congress passed the federal law after several states (Vermont, Connecticut, Maine) passed GE labeling laws, with numerous other states poised to do the same. The labeling is required to be implemented by food manufacturers in January 2022.
Several larger states, including California, earlier voted down mandatory GE labeling in voter initiatives.
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