Federal Court Finds USDA’s Bioengineered Food Text Message Disclosure Method Insufficient

October 19, 2022 | Kitt Tovar Jensen

The National Bioengineered Food Disclosure Standard law requires all bioengineered food to disclose its bioengineered status to consumers through “text, symbol, or electronic or digital link.” 7 U.S.C. § 1639b(b)(2)(D). The USDA, through the Agricultural Marketing Service (AMS), promulgated the National Bioengineered Food Disclosure Standard rule in 2018.

A group of retail stores and food advocacy groups brought suit in the Northern District of California claiming that the regulations violated the Administrative Procedure Act. A federal judge agreed and found that the USDA failed to comply with the disclosure statute’s directive to “provide additional and comparable options” to ensure that consumers could access the electronic disclosure. However, the judge held that the statute’s preemption provision did not violate the Tenth Amendment.

National Bioengineered Food Disclosure Standard

Beginning in 2014, several states including Connecticut, Maine, and Vermont, passed laws regulating the labeling of genetically engineered (GE) food or genetically modified organisms (GMOs). Concerned how this lack of uniformity would impact consumers, Congress enacted the National Bioengineered Food Disclosure Standard statute (the disclosure statute) to preempt state and local laws mandating GE labeling.

The disclosure statute required all bioengineered food to have a disclosure in the form of “a text, symbol, or electronic or digital link” on the food package. 7 U.S.C. § 1639b(b)(2)(D). The disclosure statute defined “bioengineered” as a food “that contains genetic material that has been modified through [DNA] techniques…for which the modification could not otherwise be obtained through conventional breeding or found in nature.” 7 U.S.C. § 1639(1). The statute did not define “GMO” or “GE.”

The disclosure statute also directed the USDA to implement regulations establishing a “national mandatory bioengineered food disclosure standard” and to conduct a study to identify technological challenges to access an electronic disclosure. 7 U.S.C. § 1639b(a), (c). If the study determined “that consumers, while shopping, would not have sufficient access to the bioengineering disclosure through electronic or digital disclosure methods,” the USDA was to “provide additional and comparable options to access the bioengineering disclosure.” 7 U.S.C. § 1639b(c)(4).

To comply with the electronic disclosure study directive, the Agricultural Marketing Service (AMS) hired a consulting firm. The firm identified “key technological challenges” such as a lack of technical knowledge and a lack of infrastructure. The firm also identified several “offline options” which could “provide greater access for populations who lack smartphones or broadband.”

In response, AMS added a text message method as a fourth disclosure option. The final regulations required the BE disclosure to be in one of the following forms:

  • On-package language of either the phrase “Bioengineered food” or “Contains a bioengineered food ingredient” on the label;
  • A “bioengineered” symbol on the label;
  • An electronic or digital link with a statement such as “Scan here for more food information” (the electronic disclosure); or
  • A text message disclosure and the following statement on the label “Text [command word] to [number] for bioengineered food information.”

7 C.F.R. § 100(b).

Subsequent Litigation

After the regulations went into effect, a group of grocery stores and food safety organizations brought this lawsuit against the USDA. The plaintiffs argued that the electronic disclosure and text message disclosure were not in accordance with the law and, therefore, violated the Administrative Procedure Act (APA). The plaintiffs moved for summary judgment and the USDA resisted.

Text Message Disclosure

If an agency action is arbitrary and capricious or otherwise not in accordance with law, the court must hold it unlawful. 5 U.S.C. § 706(2)(a). The court first noted that language in the disclosure statute mandating the electronic feasibility study was straightforward. If the study showed that consumers would have difficulty accessing the electronic disclosure, Congress directed the USDA to “provide additional and comparable options” in order to improve the electronic disclosure method. See 7 U.S.C. § 1639b(c).

The USDA argued that the text message disclosure option was comparable to the electronic disclosure method thus meeting the statute’s mandate to provide “additional and comparable” options. The district court disagreed and determined that the text message option did not address whether consumers can actually access the electronic disclosure at all but “merely provided a fourth disclosure option that regulated entities can select instead of the electronic disclosure method.”

As a result the district court concluded that the standalone text message disclosure option was in violation of the APA. See 5 U.S.C. § 706(2)(A). However, the district court acknowledged that because the regulation had already gone into effect, vacating the regulation would cause disruptions in the food industry. As a result, the district court remanded 7 C.F.R. sections 66.106 and 66.108 for further rulemaking.  

Bioengineered Disclosure

The plaintiffs also challenged the mandatory use of the word “bioengineered” in the disclosure options. Specifically, the plaintiffs claimed that the USDA’s decision to use this word was arbitrary and capricious under the APA because it was inconsistent with the agency’s historical use of the terms GE and GMO.

The district court rejected the plaintiffs’ argument. The disclosure statute authorized the USDA to define bioengineered “or any similar term.” 7 U.S.C. § 1639(1). Although consumers may be more familiar with the terms GE and GMO, the USDA chose not to use them after determining that “those terms could blur the scope of the regulations, and lead to inconsistent disclosures.” 83 Fed. Reg. at 65837, 65851.

Federal Preemption

Lastly, the district court considered whether the disclosure statute’s explicit preemption of state labeling requirements for GE seeds violated the Tenth Amendment. Under the Tenth Amendment, “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” U.S. Const. amend. X.

The disclosure statute prohibited any state or local government from establishing GE food or seed labeling requirements. 7 U.S.C. § 1639i(b). The plaintiffs argued that this violated the anticommandeering doctrine by ordering a state to enact laws requiring or prohibiting certain acts. See Murphy v. Nat'l Collegiate Athletic Ass'n, 138 S. Ct. 1461, 1477 (2018).

The district court rejected this argument finding that § 1639i(b) is “a typical federal preemption provision no different from similar provisions in many other federal statutes.” To preempt state law, a federal law must regulate private individuals; here, the disclosure statute “confers on suppliers of GE seeds the right to be free of a patchwork of state laws.”

Natural Grocers v Vilsack, 2022 WL 4227248 (N.D. Cal. Sept. 13, 2022).