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Legal Appeal Challenges Hidden GMO Foods in Marketplace

Center for Food Safety Challenges Exemptions for Highly Refined Foods and Unfamiliar Terminology (Bioengineered) in GMO Food Labeling Regulations

September 06, 2023
Center for Food Safety

SAN FRANCISCO—Late yesterday, Center for Food Safety filed a legal appeal against the U.S. Department of Agriculture (USDA) in response to its genetically engineered (GMO or GE) labeling rules that do not mandate universal, clear on-package food labeling and allow unlabeled hidden GMOs to proliferate in the U.S. food marketplace. 

Despite a victorious 2022 district court ruling in CFS's original lawsuit against USDA, which found it unlawful to use inaccessible digital QR codes on food products instead of clear, accessible labeling, the court refused to vacate USDA's decision allowing this practice—denying consumers the right to know what's in their food.

CFS's appeal also challenges the district court's 2022 decision allowing the USDA loophole which excludes "highly refined" products from mandatory GMO disclosures unless the GE material is "detectable." Approximately 70% of genetically engineered ingredients in foods on supermarket shelves are "highly refined" GMO ingredients such as corn and soy oils that may not be detectable via testing as a result of processing.

The CFS appeal challenges this loophole that allows most GMO foods to go unlabeled—and disputes a USDA policy where some GMO foods are labeled as "bioengineered," even though this is not a term most of the public associates with genetically engineered food. In its 2022 ruling, the court required USDA to add a comparable on-package disclosure in addition to a digital or text message disclosure to label GMO foods under USDA's National Bioengineered Food Disclosure Standard

"USDA is hiding the presence of the majority of GMO food ingredients from American eaters with its exemption for highly refined foods, despite the law Congress passed," said Meredith Stevenson, CFS attorney and counsel for appellants. "The district court agreed that USDA cannot conceal GE food disclosures with inaccessible digital and electronic links, but it also rubber-stamped USDA's decision to exclude highly refined foods--like sodas and oils--from labeling and to use unfamiliar terminology, keeping us largely in the dark about how our food is produced."  

Center for Food Safety filed the original case against USDA in 2020 on behalf of a coalition of nonprofits and retailers, including Natural Grocers, which operates 157 stores in 20 states, and Puget Consumers Co-op, the nation's largest community-owned food market. The lawsuit followed the USDA's rulemaking in December 2018, which would have discriminated against tens of millions of Americans by permitting the use of QR codes alone on packaging after USDA itself found QR code labeling insufficient.

The lawsuit followed an over twenty year campaign led by CFS to secure GMO "right to know" labeling in the U.S.— already provided in over 60 countries around the world—including state legislation and culminating in the first ever U.S. federal GMO labeling law.

In 2016, after decades of statewide efforts to label GMO foods, Congress passed a federal food disclosure law. When creating regulations from this law, the USDA rules contained numerous loopholes and inadequacies, including the allowance of digital "QR code" labels instead of on-package text labels. In addition, USDA allowed foods containing highly refined ingredients to be exempt from labeling requirements and prohibited the widely known terms, GE and GMO, from satisfying the mandatory disclosure requirement.

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