By Sarah Everhart
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On December 21, 2018, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service issued its final rule establishing the national bioengineered (BE) food disclosure standard (Standard)- in other words the federal GMO labeling law. You may remember back in 2016, in an attempt to prevent states from passing conflicting GMO labeling laws, Congress passed the National Bioengineered Food Disclosure Law, which directed USDA to establish a national mandatory standard for disclosing foods that are or may be BE.
What is a BE food?
The Standard defines bioengineered foods as those that contain detectable genetic material that has been modified through certain lab techniques and cannot be created through conventional breeding or found in nature. USDA also maintains a list of BE foods. The list includes any BE crops or foods that are currently in legal production somewhere in the world. If a company subject to the Standard (explained below) uses a food, or an ingredient produced from a food, on the USDA’s list of BE foods, the company must maintain records regarding that food or ingredient. If a company uses a food, or an ingredient produced from a food, that is not on the list of BE foods, but the regulated entity has actual knowledge that the food or ingredient is BE, the company must maintain records for that food or ingredient. According to USDA, in acknowledgment of the realities of the supply chain and the fact that BE and non-BE food and ingredients are often grown, harvested, transported, and processed in close proximity to one another, there is a 5% threshold standard which exempts food with a small percentage of unintentional BE substances.
Meat, poultry and egg products by themselves do not require disclosure as BE foods. Similarly multi-ingredient products that have these items as their first ingredients, such as a canned stew with beef broth do not need to be labelled as BE. Additionally, highly refined foods or ingredients that do not contain detectable modified genetic material are also not BE foods.
What does the BE Standard Require?
The Standard requires regulated entities, which includes food manufacturers, importers and certain retailers, to ensure BE foods are appropriately disclosed. Retailers who package food or sell food in a bulk container and/or display are responsible for ensuring that any BE food bears a BE disclosure or that a bulk display includes signage identifying the food as BE. The Standard exempts food served in restaurants or similar retail food establishments.(e.g.cafeterias, food trucks, airplanes, etc.) or very small food manufacturers, which are food manufacturers with annual receipts of less than $2,500,000.
According to the Standard, regulated entities may make the disclosure using one of four different methods: (1) text, (2) symbol, (3) electronic or digital link, or (4) text message. The text disclosure is: “bioengineered food” or “contains bioengineered food ingredients.” The permitted symbol disclosure is the symbol displayed at the top of this post. The Standard also indicates where and how an on-package disclosure is required. It needs to be seen under ordinary shopping conditions, and must be located near other information on the label that features the manufacturer’s name and location. The mandatory compliance date for the Standard is January 1, 2022. Foods entering commerce after this date must be labeled in compliance with the Standard. Many food manufacturers, however, may begin to voluntarily label BE foods in the near future.
For more information on the Standard, check out the the USDA’s frequently asked questions. Further, anyone with questions can email USDA at befoodsdisclosure@usda.ams.gov.