Up to 80% of products containing GMOs (genetically modified organisms) have avoided mandatory product labeling for the last five years despite a federal law requiring them, but that could change following a ruling on Monday by the 9th US Circuit Court of Appeals.
The decision, which upheld an appeals court decision in October, also requires the labels to move beyond the QR codes that are currently used and state that the product contains bioengineered material.
While the decision is a milestone for labeling advocates, it could still be years before GMO labeling appears on packaging.
The lawsuit has been making its way through the courts since 2020, when a coalition of businesses and organizations challenged USDA’s National Bioengineered Food Disclosure Standard rule in the Northern District Court of California. Advocates have pushed for labeling since the 1990s.
Plaintiffs include Natural Grocers, Citizens for GMO Labeling, Label GMOs, Rural Vermont, Good Earth Natural Foods, Puget Consumers Co-op, Center for Food Safety and National Organic Coalition.
GMO labeling: A brief history
The lawsuit challenges rules set by the USDA in 2018 that were put in place in response to the National Bioengineered Food Disclosure Standard approved by Congress in 2016.
The standard aimed to label products containing GMOs, but the USDA, under the first Trump administration, exempted ultra-processed foods, arguing that modified material deemed “undetectable” could bypass the labeling requirement, even if the product was known to contain GMOs.
USDA also took a novel approach on labeling, giving product manufacturers the option of using QR codes that must be scanned with a smartphone or other electronic device to see the GMO notice.
George Kimbrell, legal director at Center for Food Safety and lead counsel in the case, said about 70% to 80% of all GMO products have avoided GMO labeling because of the ultra-processed loophole.
“The court decision was a really big deal, because the vast majority of these crops are not whole foods; they’re commodity crops that are soy, corn, canola and sugar beets that are then highly processed and put into oils and sodas and other processed foods,” he said.
Kimbrell said the process of refining those commodities can make genetic modification undetectable in DNA testing.
This is how the USDA’s rule enabled manufacturers to avoid labeling products containing high-fructose corn syrup made from genetically modified corn, for example.
The court also sided with plaintiffs regarding a requirement that the labels use the term “bioengineered” instead of GMO, which labeling advocates argued is confusing for consumers.
“This was totally new that they started using this term [in 2016], and not by accident,” Kimbrell said. “They realized that the connotation in the public for GMOs was negative.”
What’s next on GMO labeling
The court decision was lauded by labeling advocates, but it could still be years before the labels end up on products in the store.
“Congress never intended to require the use of specific terms, the sole use of QR codes or the exclusion of ingredients made from highly processed GMO crops,” said Heather Isely, executive vice president of Natural Grocers, a 168-store grocery retailer headquartered in Lakewood, Colo. “We are pleased the court recognized the shortcomings of the final rule and mandated corrections.”
The case now heads back to district court for additional briefing on remedies and then returns to USDA, which will rewrite the rules governing implementation of the law.
“That could take anywhere from a couple of months to a couple of years,” according to Kimbrell.
The use of QR codes, which was deemed unlawful by the court, are likely to stop much sooner, he said.
“The parts that the court held unlawful will be struck down, so in the interim, based on whatever the district court decides in the next few months, companies won’t be able to label just strictly with the QR codes the way they are right now,” Kimbrell said.
The district court could give a timeframe for complying with labeling requirements once the new rules are established.
