May 09, 2018

Dear Valued Customer:

USDA Proposes Labeling Rule on Bioengineered Foods

On May 3, 2018 the USDA issued a press release seeking comments on a proposed rule for a National Bioengineered Food Disclosure Standard. The proposed rule by USDA’s Agricultural Marketing Service (AMS) will require new labeling requirements to begin in 2020 for genetically engineered foods, which would affect importers, manufacturers and retailers of foods containing ingredients found on a list of “bioengineered” (BE) foods.

The rule would require the inclusion of a statement on labeling, in one of several forms including text, a symbol or an electronic code. Very small businesses would be exempt, as would foods meeting certain requirements. Comments on the proposed rule are due July 3.

The labeling requirements would apply to foods subject to Food and Drug Administration labeling requirements, such as raw produce, seafood, dietary supplements and most prepared foods, as well as to foods subject to the Federal Meat Inspection Act, Poultry Products Inspection Act or Egg Products Inspection Act, unless the most predominant ingredient is meat, poultry or egg products (or the second most predominant if the most predominant is stock, broth or water).

Seafood (except siluriformes; i.e., catfish), and meats such as venison and rabbit also are subject to FDA regulation and would require labeling if the product contains BE ingredients, unless the product is otherwise exempt.

The definition of “bioengineered food” is as follows:

  • A food that contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques, and:
  • A food for which the modification could not otherwise be obtained through conventional breeding or found in nature.

Bulk food products, such as cornmeal in a bin or unpackaged produce that are frequently displayed without packaging and placed on display by retailers would have to be labeled by the retailer, and not the importer or manufacturer.

AMS plans to enter into recognition arrangements with foreign countries that have set labeling standards for BE foods to allow importers to sell food products in the U.S. that comply with the source country’s labeling standards, and U.S. exporters could sell their products abroad if they meet AMS standards.

AMS plans to develop two initial lists of BE foods that would be subject to disclosure requirements. Only foods or products on either of those lists or made from foods on either of the lists would be subject to disclosure:

  1. Highly adopted: canola, field corn, cotton, soybean and sugar beet.
  2. Not highly adopted: apple (non-browning cultivars), sweet corn, papaya, potato and summer squash.

The lists would be subject to annual revisions, with a proposed 18-month grace period for importers, manufacturers and retailers to revise food labels following any revisions.

  • Very small food manufacturers with annual receipts of less than $2.5 million
  • Food served in a restaurant
  • Foods where the BE ingredient falls below a certain threshold*
  • Food derived from an animal that may be considered BE only because the animal consumed BE feed
  • Certified organic foods

*AMS is considering three options on the level it should use for the threshold exemption:

  1. The food has an ingredient containing a BE substance that is inadvertent or technically unavoidable, an accounts for no more than 5% of the specific ingredient by weight.
  2. The food has an ingredient containing a BE substance that is inadvertent or technically unavoidable (if its presence resulted from the coexistence of BE and non-BE foods in the supply chain), and accounts for no more than 0.9% of the specific ingredient by weight.
  3. BE ingredients make up less than 5% of the total weight of the product.

Labeling options include a text disclosure, symbol, electronic code or an invitation to send a text message. Food from small manufacturers would have the additional option of listing a phone number or internet address on packaging. Modified re­quirements would apply to very small packages, using shortened versions of required disclosure statements.

The disclosure would have to be located in one of the following places on food packaging:

  • The information panel adjacent to the statement identifying the name and location of the manufacturer/distributor or similar information;
  • Anywhere on the principal display panel; or
  • An alternate panel if there is insufficient space to place the disclosure on the information panel or the principal display panel.

For detailed information on the proposed types of disclosures allowed (text, symbol, electronic code, or text message) and proposed requirements thereof, please see the Federal Register Notice.

Recordkeeping would be for at least 2 years by Importers, manufacturers and retailers, and in some cases longer. Entities with foods on the lists that claim they don’t include BE ingredients would be required to include additional documentation justifying the omission.

Because legislation did not authorize civil penalties, AMS would not be able to assess fines for non-compliance with labeling requirements. Instead, AMS would publish public summaries of any audits that find non-compliance with the BE disclosure requirements.

AMS intends to set compliance dates of Jan. 1, 2020, for most companies, and Jan. 1, 2021, for small businesses with between $2,500,000 and $10,000,000 in receipts, once it issues its final rule. Import­ers, manufacturers and retailers would be able to sell their food using labels already printed by the compli­ance date until Jan. 1, 2022. Food products in circulation after that date would not need to be recalled to add disclosure statements.

Thank you for your attention and cooperation. If you have any questions, please contact your nearest JJB representative.

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