Breaking Down Bioengineered Foods’ New Disclosure Standard

Are you a retailer selling bioengineered foods? If you are, or you may become one, the National Bioengineered Food Disclosure Standard (NBFDS) must now become part of your vocabulary.

In 2016, Congress passed the National Bioengineered Food Disclosure Law, which required the U.S. Department of Agriculture to issue a set of rules providing national uniformity for the mandatory disclosure of bioengineered foods (also called BE foods). The U.S. Department of Agriculture's (USDA) Agricultural Marketing Service recently announced the final NBFDS rules.

The NBFDS presents a variety of relevant issues for grocery stores and similar retailers, including those with private-label lines, bulk-good sales and deli-style foods. Compliance with the NBFDS is mandatory as of January 2022. That said, you may see food bearing NBFDS-related labels as early as this year, given that the NBFDS became effective on Feb. 19, 2019.

Here are some key points grocery trading partners need to know:

1. Who must comply?

Food manufacturers, importers and retailers who package and label food for retail sale or sell bulk-food items must comply with the NBFDS. Grocery stores must be especially mindful of NBFDS when selling private label foods and bulk-food items. While most retailers have provisions in their purchase orders or other supply-chain agreements addressing labeling-rules compliance and manufacturer indemnification obligations, it is critical that grocery retailers become conversant in the NBFDS for their private label brands.

The NBFDS does not apply to restaurants or “similar retail food establishments.” This means that cafeterias, lunch rooms, food stands, transportation carriers (such as trains and planes), saloons and bar lounges are exempt. Delis, salad bars and other food stands within those retail establishments (including grocery stores) that provide ready-to-eat foods are also not subject to the disclosure rules. Of particular relevance to grocery stores, the NBFDS specifically clarifies that “the portions of grocery stores and similar retail establishments that prepare food for immediate consumption (e.g., deli or prepared food section) fall within the definition of restaurant and are exempt from the disclosure requirement.” The NBFDS goes on to clarify that “unpackaged food in the produce section would be subject to disclosure if it meets the definition of bioengineered food, while the same product used as an ingredient in a sandwich in the deli would not.”

2. Bioengineered foods must bear a BE disclosure.

“Food” covered by the NBFDS includes what you typically think of as food for human consumption, as well as dietary supplements, processing aids, enzymes and chewing gum. The NBFDS also applies to foods regulated by the federal meat, poultry and egg inspection acts in certain circumstances, such as canned stews, depending on which ingredients predominate. It does not apply to distilled spirits, wine or malt beverages, which are covered by a different federal law.

What makes a food BE? The NBFDS defines bioengineered foods as those foods with genetic material modified through rDNA techniques, where the modification could not be obtained through conventional breeding or found in nature. CRISPR and other methods of gene editing are not included in the NBFDS definition of BE food.

The USDA will maintain a “List of Bioengineered Foods” to be updated periodically. That list now consists of a baker’s dozen of foods, including staples such as corn, potato and soybean. But even if a food is not on the List of Bioengineered Foods, companies subject to the NBFDS will need to make a bioengineered disclosure if they have “actual knowledge” that a food they are selling is bioengineered as defined in the NBFDS.

Manufacturers can perform testing and maintain records to confirm that—even if a food is on the list of bioengineered foods—the particular version of that food they are using is not bioengineered.

Highly refined foods, such as vegetable oils and high fructose corn syrup, are unlikely to require disclosure. They are not considered BE foods under the NBFDS because the processing effectively eliminates the DNA that was originally present and therefore there are no detectable modified genetic substances.

3. The NBFDS has specific exemptions for some categories of food.

Food derived from an animal that consumed feed that has bioengineered ingredients does not need to bear a BE food disclosure. Eggs that come from chickens fed from BE feed, for example, do not need to be labeled bioengineered because of that feed.

Food certified as organic under the National Organic Program (NOP) is exempt from disclosure, because the NOP regulations already prohibit bioengineered ingredients.

There is a threshold amount. Food with less than 5% detectable bioengineered substance where no ingredient is intentionally a BE substance is exempt from disclosure.

4. How to disclose BE foods?

BE foods can bear a text disclosure (such as “Bioengineered food”), a symbol disclosure (like the those which are included in this article), an electronic or digital link disclosure or a text message disclosure (e.g., Text [command word] to [number] for bioengineered food information.) The NBFDS disclosure labels and labeling placement details are available on the Agricultural Marketing Service website. There are additional options for small-package foods. This means that buyers will need to read the label, check the “scan here for more food information” digital link, and check for a text message instruction if they want to confirm whether they are buying a BE food.

The voluntary disclosure “derived from bioengineering” or “ingredients derived from a bioengineered source” may be used for certain products, such as highly refined products made by manufacturers that want to disclose the product derivation but are not required to bear a BE disclosure.

This is a basic overview of a fairly complex rule. Over 14,000 comments were submitted to the draft NBFDS rule before it was finalized and published—relatively quickly—by the USDA. There remain disparate views among retailers and manufacturers over what the law should cover and what should be disclosed and how. Grocers should work with counsel to keep tabs on further developments as the known BE foods are updated and courts weigh in on the inevitable consumer lawsuits.

Rachel Lowe is a Los Angeles-based counsel in Alston & Bird’s Litigation & Trial Practice Group.