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GMO Labeling Law Update: USDA Releases Study Exploring Potential Challenges of Using Electronic and Digital Disclosures on Food Labels

  • As previously reported on this blog, legislation requiring labeling of genetically modified (GM) foods and food ingredients was signed into law on July 29, 2016.  This law, entitled the National Bioengineered Food Disclosure Standard, directs the U.S. Department of Agriculture (USDA) to develop regulations and standards to create mandatory disclosure requirements for bio-engineered foods by July 2018.  Under the new law, food companies would have three options to disclose GMO ingredients: the use of on-package text, a USDA-created symbol, or an internet link — i.e., a QR code printed on the package that directs customers to GMO information.  As part of the development of mandatory disclosure requirements for bioengineered foods, USDA was required to complete a study to identify potential technological challenges that may impact whether consumers would have access to the bioengineering disclosure through electronic or digital disclosure methods.  This study was slated to be released in July 2017.  As of late August 2017, the study had not been released and so the Center for Food Safety sued USDA to release the study.

  • On September 6, 2017, USDA released the mandated study (the Study of Electronic or Digital Link Disclosure).  The study considered five factors:

    • The availability of wireless Internet or cellular networks;

    • The availability of landline telephones in stores;

    • Challenges facing small and rural retailers;

    • The efforts that retailers and other entities have taken to address potential technology and infrastructure challenges; and

    • The costs and benefits of installing in retail stores electronic or digital link scanners, or other evolving technology that provide bioengineering disclosure information.

  • Highlights of the study’s findings include:

    • The majority of Americans own a smartphone (77%) and ownership rates are trending upward;

    • Most Americans live in areas with sufficient broadband access (93.6%) to scan a digital link to access bioengineering food disclosure information;

    • All national chain stores and most regional chain stores (97%) provide Wi-Fi in store;

    • Of small retailers, 37 percent already provide Wi-Fi to consumers in store;

    • Consumers may recognize digital links but lack familiarity with scanning;

    • Many consumers (85%) experienced technical challenges using certain mobile software applications (“apps”) for scanning digital links; and

    • Scanning digital links requires access to the internet; therefore, some retailers may need to install Wi-Fi networks for consumers without access to cellular data or local Wi-Fi networks.

  • Industry groups have had favorable reactions to the study.  The Food Marketing Institute, for example, released a statement noting that “[i]ncreasingly shoppers have the hardware and Wi-Fi or cellular access available to them to do so . . . in the tradition of food retail’s strong history of customer service, we recognize the need to provide supplemental education to our customers about the information available to them and how to best use the QR Code. And, we are planning to do so in a concerted effort as soon as the final rule is issued and implementation begins.”  The Grocery manufacturers Association (GMA) also issued a statement along similar lines noting that it “strongly supports consumers having tools and information to make informed decisions about the products they buy and use” and that “[a] consumer education campaign will be a vital part of the implementation and rollout of the bioengineering disclosure regulation.” However, the study focused on potential challenges that may impact whether consumers can access the bioengineered food disclosure through electronic or digital links.  Thus, it will be interesting to see whether QR codes will be an acceptable mechanism for communicating that food is bioengineered.

  • We will continue to monitor developments on the National Bioengineered Food Disclosure Standard and report them to you here.

© 2017 Keller and Heckman LLP

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Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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