Public Comments to the Proposed National Bioengineered Food Standard

Image submitted by several commenters making the point that the USDA has switched to “happier” and less informative proposed disclosure symbols.

The USDA’s Agricultural Marketing Service recently accepted public comments on its Proposed Rule for the labeling of bioengineered foods, as directed by the Federal Bioengineered Food Disclosure Standards Act of 2016, amending the Agricultural Marketing Act, with the comment period closing July 3.  The proposed standard, which we previously covered here, has important implications for food packaging and labeling disclosures and ultimately for false-advertising litigation exposure.

I reviewed the 14,016 comments that were submitted, and my full analysis was just published in the online magazine Food Quality & SafetyFollow this link to check out my detailed conclusions.  To whet your appetite, here are some high-level take-aways.

Comments were submitted by everyone from individual consumers, to food companies large and small, to trade associations and advocacy groups, to foreign governments to a U.S. Senator.  Several aspects of the proposed rule were lightning rods for comments.  One, illustrated by the photo above which was submitted with several comments, was the agency’s proposal to use “bioengineered foods” or the abbreviation “BE” instead of the more common “genetically modified” or GMO, and the option to present the disclosure in the form of a symbol redolent of leaves, suns and “smiley faces.”  Many individual commenters, interest groups, organic food producers, and even some mainstream food producers thought these symbols might be difficult to interpret and biased in favor of BE foods.  Another key issue was the question of whether “highly refined” foods that may have been derived from bioengineered plants, but that now should contain no traces of DNA so that they are indistinguishable from other products, should require disclosure.  Some views on this question came from unexpected sources.

With those teasers, I invite you to read the full article.  Watch this space for news on what the USDA does in response to these comments, and the implications for advertising law.

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