Alleges Federal “bioengineered food” law improperly prohibits state seed labelling

Center for Food Safety (CFS) has filed an amended complaint in their ongoing litigation challenging the US Department of Agriculture’s (USDA) “bioengineered” (more commonly known as “genetically engineered”) food labelling rule, challenging the law’s prohibition on states' labelling of genetically engineered seeds. The new filing adds claims challenging the part of the “bioengineered foods” rule that will leave genetically engineered seeds unlabelled, preventing consumers and farmers from knowing if seeds are genetically engineered.

“Consumers have a right to know what’s in their food, including whether it is genetically engineered or not. That’s what this case is fundamentally about: meaningful labelling,” said George Kimbrell, CFS legal director and counsel in the case. “The same goes for seeds. The decision takes away states’ rights to label seeds, while offering absolutely nothing in return.”

CFS filed the 120-page lawsuit in late July 2020. The provisions then-challenged covered the inadequacies of the law as it relates to food labelling; the new amendment adds the seed labelling aspect.
 
As the lawsuit explains, the “bioengineered” food rule will unlawfully leave the majority of genetically engineered foods unlabelled.

First, it discriminates against tens of millions of minority, poor, elderly, and rural Americans, by allowing labelling through digital “QR” codes only accessible by smartphones with broadband, despite the government’s own study showing this labelling method was discriminatory, inadequate, and unworkable in grocery stores.

Second, when on-package text is used, the rules misleadingly limit text to only the term “bioengineered,” despite the law allowing use of similar, better-known terms — for twenty-five years, the commonly used terms have been “genetically engineered” (GE) or “genetically modified” (GMO), not “bioengineered.”

Third, the vast majority of genetically engineered foods (highly processed foods, such as oils and sodas, over 70% of all genetically engineered foods by some estimates) are unlawfully left out of the labelling standard entirely.

Fourth, the law prohibits retailers and producers from voluntarily providing more meaningful information to consumers, such as using the well-known terms GE and GMO, in violation of their free speech rights.
 
Finally, the new case amendment covers the prohibition on state seed labelling. Despite not including any seed labelling provisions, the federal law prohibits states from enacting laws that would directly or indirectly require the labelling of genetically engineered seeds. That prohibition unconstitutionally interferes with states’ rights to regulate their own citizens in the absence of federal regulation. States have chosen to label GMO seeds for a variety of reasons, including to protect biodiversity and ensure transparency for their citizens. A number of states, including Vermont and Virginia, have seed labelling laws that cover genetically engineered seeds.

CFS is representing a coalition of food labelling 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.

The 2019 rules implement a 2016 federal law that for the first time required the labelling of GE foods. Congress passed the federal law after several states (Vermont, Connecticut, Maine) passed GE labelling laws, with numerous other states poised to do the same. The labelling is required to be implemented by food manufacturers in January 2022.

CFS’s 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.

USDA's labelling rule misleads retailers and shoppers

"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."

“The National Organic Coalition has weighed in repeatedly with the USDA to urge a meaningful disclosure standard for GMO foods that uses terms that are understandable to consumers and provides on-package labelling, rather than electronic means of disclosure that are inaccessible to millions of Americans. The 2019 regulations put forward by USDA are woefully lacking,” said Abby Youngblood, executive director at the National Organic Coalition, a plaintiff.

"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 & Governmental Affairs of Natural Grocers, a plaintiff. "Our rights and those of our customers are damaged by the USDA's unlawful bioengineered labelling rule."

"A disclosure law that exempts 70% 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 Labelling, a plaintiff.

"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 1st 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 & Product Sustainability for PCC Community Markets, a plaintiff.