At the end of November, Center for Food Safety (CFS) took an important step in its lawsuit challenging the Trump administration’s Department of Agriculture’s (USDA) rules on labeling genetically engineered (GE) or GMO foods, which USDA now calls “bioengineered foods,” detailing its legal arguments and asking a federal court to strike down the rules. CFS represents a coalition of nonprofits and retailers, including Natural Grocers, operating 157 stores in 20 states, and Puget Consumers Co-op, the nation’s largest community-owned food market.
“Consumers have fought for decades for their right to know what’s in their food and how it’s produced,” said Meredith Stevenson, Center for Food Safety attorney and counsel in the case. “But USDA instead used its authority to label GE foods by obscuring this information behind QR codes and unfamiliar terminology and omitting the majority of GE foods. Fortunately, the law is the consumers’ side.”
The 2018 rules include provisions which will leave the majority of GMO-derived foods unlabeled; discriminate against tens of millions of Americans by permitting the use of QR codes; prohibit the use of the widely-known terms “GMO” and “GE”; and prohibit retailers from providing more information to consumers. Additionally, the 2016 federal law invalidates state laws pertaining to labeling GE foods and seeds.
The CFS filing details how the law and rules violate retailers’ First Amendment rights to truthful, non-misleading speech about GE foods in their stores and how the Act violates states’ Tenth Amendment rights to pass legislation labeling GE seeds.
“It’s critical to shoppers that they know what ingredients are in their food and how they were produced,” said Heather Isely, EVP of Natural Grocers. “Hiding the presence of genetically engineered products from consumers is a blatant attempt to hide agricultural practices that continue to destroy soils, biodiversity, communities, and public health. Education is part of our core mission and we refuse to misinform our customers.”
“Now more than ever, families want to know how their food was produced and what system of agriculture they are supporting with every purchase. PCC believes they deserve that information,” said Aimee Simpson, Director of Advocacy & Product Sustainability at PCC Natural Markets. “Retailers should have the right to communicate with customers in a truthful way, but under the final GMO labeling rules, we have been improperly silenced, leaving customers in the dark about GE foods.”
CFS’s lawsuit, originally filed in July 2020, makes a number of arguments. First, the case challenges USDA’s unprecedented allowance of electronic or digital disclosure on packaging, also known as “QR code” or “smartphone” labeling, without requiring additional on-package labeling. Second, CFS is challenging USDA’s labeling language restrictions. When on-package text is used, the rules limit it to only “bioengineered,” despite the law allowing use of similar terms. But for 25 years, every aspect of the issue—science, policy, and marketplace—has used genetically engineered (GE) or genetically modified organism (GMO). This deprives consumers of their right to receive the disclosure in the language they understand and deprives retailers of their First Amendment right to provide it.
“Widespread cultivation of crops genetically engineered to resist herbicides has resulted in increased use of these toxic chemicals on our nation’s farm fields, which, in turn, threatens organic farming through drift,” said Abby Youngblood, Executive Director at the National Organic Coalition. “This is one of many reasons consumers may wish to avoid GE foods, but unfortunately, they do not have this choice because the GE labeling rules do not provide consumers with meaningful, accessible, and transparent information about which foods are derived from GE crops.”
“I believe that USDA’s GMO labeling law forces me, as a grocer, to engage in deceptive labeling,” said Mark Squire, co-owner and manager of Good Earth Natural Foods. “I cannot look my customers in the eye unless I do whatever I can to stop this misleading labeling system that is so obviously designed to protect the agro-chemical and biotech industry at the expense of consumers everywhere.”
Additionally, the case challenges USDA’s severe restriction on which foods are covered and require disclosure. The vast majority of GE foods (by some estimates over 70%) are not whole foods, but highly processed foods with GE ingredients, like sodas and oils. Yet in the final rule USDA excluded these “highly refined” products, unless the GE material is “detectable.” Lastly, the statute invalidates state GE seed labeling laws and prohibits future GE seed labeling laws in violation of states’ Tenth Amendment rights to regulate in the absence of federal regulation. The statute and regulations do not regulate GE seed labeling, instead leaving consumers and farmers deprived of this critical information without any means of pursuing state-based labeling.
“This law does absolutely nothing to ensure consumers that they can clearly understand what foods are genetically engineered and which aren’t,” said Pamm Larry, organizing director of Label GMOs. “Once again, the agencies that are supposed to protect and inform the people are abandoning us.”
“Vermont’s state laws provided meaningful labeling of both GE food and GE seeds, on which Vermonters relied,” said Caroline Gordon, legislative director at Rural Vermont. “This new federal system does away with that but leaves us with no good state alternative. Vermonters, and all Americans, deserve better and we are asking the Court to require it.”
“Citizens for GMO labeling continues to believe that consumers in the United States deserve clear and transparent on-package GMO labeling so that they can make informed choices about what to feed themselves and their families,” said Tara Cook-Littman, co-founder of Citizens for GMO Labeling. “The current state of the federal law falls severely short of achieving what Americans deserve.”
The 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. The lawsuit also seeks to have numerous provisions of the Disclosure Act severed and declared unconstitutional.