New law plays hide-and-seek with GMO labeling
By Harriet Behar, MOSES
On July 29, 2016, President Barack Obama signed into law a bill that requires all food packages to indicate whether or not they contain genetically modified Ingredients (GMOs). This bill, the “National Bioengineered Food Disclosure Standard,” was passed by both houses of Congress about two weeks before this signing. Consumer advocacy groups and other organizations had nicknamed this bill the DARK Act—Denying Americans the Right to Know.
So what does this bill actually require? Not a clear on-package statement. Manufacturers could choose to put statements such as “produced with genetic engineering,” “partially produced with genetic engineering,” or “may be produced with genetic engineering” depending on the type of food in the package and its ingredients, as had been required by Vermont. (Vermont’s labeling law has been superseded by the passage of this Federal law.)
However, this clear and easy-to-read statement is not required. Instead, the law requires manufacturers only to disclose this information through the use of a QR (quick response) code—those strange-looking matrix barcodes that you can scan with a smartphone to access a website with additional information. The package needs a statement such as, “Scan here for more food information.” The label also could state “Call for more food information” and list a toll-free number, or provide a website where consumers can find information.
This bill enables food manufacturers to hide the information and forces the public to seek it out. The statement is not even mandated to explain that the “more food information” is actually the place you need to go to find out the GM content of the food you are buying and eating. To confuse things further, the bill does not use the common identifier “genetically engineered or modified,” but instead introduces a new term, “bioengineered.”
It is estimated that 80 percent of all processed foods sold in the United States include ingredients that originated from genetically modified crops. Most American consumers have no idea that they have been consuming GMO foods. Even for consumers who purchase organic foods, it is difficult to avoid any GMOs in their diets, especially when the food package does not tell you whether or not GMOs are in it.
The Food and Drug Administration is concerned that this new labeling law, to be implemented by the USDA, would conflict with FDA’s required statements on food packaging. The concern for the FDA (and many others) is that the definition of bioengineering is confusing and misleading. That definition, which states “Bioengineering…refers to a food (A) that contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques; and (B) for which the modification could not otherwise be obtained through conventional breeding or found in nature.”
The FDA correctly points out that a food such as soybean oil, may have originated from a genetically engineered soybean. However, since the oil does not contain the “genetic material” protein where the genetically modified DNA is present, it would not technically need to be labeled as bioengineered. Many question if this loophole actually provides the “truth in labeling” that a real labeling law should clarify.
The FDA also stated, “It may be difficult to demonstrate that a particular modification could not be obtained through conventional breeding or even that it could not occur in nature.” With the many new genetic engineering techniques of turning genes on and off, moving their location within the DNA and more, this statement offers a huge loophole to food manufacturers in order to “hide” the genetic modification of their foods. How does one prove that something could not occur in nature?
Livestock products that come from animals fed GMO (bioengineered) feeds, do not need to inform consumers through the QR code, website or toll free number that these are bioengineered, because under this law, they are not considered GMO. On this point, there is a good aspect to this law, at least these same livestock products cannot use the non-GMO label in the marketplace.
Senator Tammy Baldwin of Wisconsin was able to get it on the public record that she had contacted an author of this bill, Senator Debbie Stabenow of Michigan, and received clarification that this law will not, in any way, cause the Organic Food Production Act or its regulations to change to meet the requirements of this new legislation. The organic regulations have their own definition of genetic engineering, under the “excluded methods” section of our rule. (The National Organic Standards Board is developing a recommendation to update the excluded methods definition, to keep pace with changes in biotechnology.) Senator Stabenow stated this law “is only intended to require that USDA consider aligning the rules and regulations of the new GMO disclosure program established under this bill with the rules and regulations of the existing National Organic Program, not the inverse…. (This law) does not provide any authority to amend the Organic Foods Production Act or its rules and regulations.”
The USDA is required within a year to conduct a study that identifies potential technological challenges consumers may have in accessing bioengineering digital disclosure statements. This study is supposed to determine if landline telephones are available in stores so consumers can call toll free numbers. Wireless or cellular network availability for access to the internet for the QR codes and websites will be determined as well as the challenges retailers may have in meeting these infrastructure challenges.
The law does not ask the study to consider how long it may take for a consumer to make calls, or access the internet while pushing a grocery cart full of food in comparison to the transparency and ease of finding out the information if it were mandated to be written clearly on the package. A busy parent with children in tow, is not going to take the time to make a phone call or look up a website. Food shopping is not usually considered a recreational activity, with lots of leisure time associated with it in order to go web surfing.
The law also mandates the solicitation and consideration of public comments on this topic. The first of these public comment periods closed Sept. 16. That one focused on the USDA Performance-Based Work Statement (PWS), which highlights the steps and processes needed to complete a project (i.e., the scope of the project, applicable documents, summary of requirements, and time frame), according to the National Sustainable Agriculture Coalition. There will be other opportunities going forward. We’ll share those comment opportunities in our publications and social media outlets.
Within two years, the USDA is mandated to have a national standard for all food manufacturers to meet this bioengineered food standard. Consumers have been told there now is a GMO labeling law—but this law requires consumers to take extra steps to access the GMO information.
Another provision of the regulation specifies that food manufacturers cannot “collect, analyze, or sell any personally identifiable information about consumers or the devices of consumers.” This is supposed to protect the privacy of consumers who access websites where manufacturers disclose GMO ingredients. But, there is concern that once you have contacted a food manufacturer on this subject, you could be subject to advertising, data mining, or other communications.
This bill does not allow either bioengineered food or non-bioengineered food to state it is “safer” than its counterpart. In addition, the USDA cannot recall any products that do not provide bioengineering disclosure on packaging when this law requires it. Nor does it give the USDA any authority to levy fines or other types of punishment if the law is not followed.
The purpose of this legislation, and the reason that it was passed overwhelmingly by Congress and signed by the President, was to prevent a patchwork of differing state labeling laws, which had the possibility of impeding interstate commerce and confusing consumers. Instead, we have a labeling law that does not mandate a label.
Lastly, this law caused some division within the organic community, with the Organic Trade Association leadership breaking ranks with many of its members to provide strong support for this bill. OTA has said that the assurances that our organic regulation would not need to change its definition of GMO to meet this bill, the fact that organic foods can now carry a non-GMO label without additional testing, and that non-organic livestock products cannot use the non-GMO label if those livestock were fed GMO feed, were significant enough “wins” to not hold out for a better bill. There was concern that a bill was going to be passed, and in order to get these few provisions in the bill, it was necessary to accept the many problems within it.
It is true that consumers who seek out non-GMO foods can purchase organic foods to meet their desires. However, if there were a true GMO label on foods and livestock products that originated from GMOs, many feel this transparency would cause even more consumers to seek out organic foods.
Senator Richard Blumenthal of Connecticut has publically stated he plans to repeal this bill and introduce a true GMO labeling bill in the new Congress in early 2017. He is counting on some new faces after the election, and hopes there will be a legislative fix to this bad labeling law. The USDA is also mandated to write rules and to make sure the provisions of the bill do not make the bioengineered disclosure statement inaccessible to the majority of consumers. We will have a chance to make our voices heard on this aspect of the law—the fight is not over.
Harriet Behar is the Senior Organic Specialist for MOSES and a member of the National Organic Standards Board.
From the September | October 2016 Issue