USDA Requests Information on the Electronic or Digital Link Disclosure Option for Bioengineered Foods

On April 10, 2024, the Agricultural Marketing Service (AMS) of the Department of Agriculture (USDA) issued a notice requesting information on the electronic or digital link disclosure option for bioengineered (BE) foods under the National Bioengineered Food Disclosure Standard (Disclosure Standard). As previously covered in our client alert, AMS published its final regulations implementing the Disclosure Standard in December 2018, with a compliance date of January 1, 2022. The regulations require BE food disclosure to be made through one of four options: a text statement, a symbol, an electronic or digital link, or a text message.[1] In September 2022, a federal district court ruled that AMS’s text message disclosure option contravenes the Disclosure Standard and therefore violates the Administrative Procedure Act (APA).[2] The court remanded, without vacating, the regulations (at 7 C.F.R. §§ 66.106 to 66.108) to AMS for reconsideration. In its April 10^th notice, AMS seeks input on potential revisions to the electronic or digital link disclosure options in light of the court’s ruling.

Background

The Disclosure Standard (Public Law 114-216) amended the Agricultural Marketing Act of 1946 to require AMS to establish a national, mandatory standard for BE food disclosure. The law directed AMS to promulgate regulations that require the form of the BE disclosure to be a “text, symbol, or electronic or digital link.”[3] In addition, AMS was required to “conduct 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.”[4] If, based on the study, AMS determined that consumers while shopping would not have sufficient access to BE disclosure through electronic or digital disclosure methods, AMS was required to consult with food retailers and manufacturers and provide additional and comparable options for such disclosure.[5]

After conducting the study in 2017, AMS published its final rule implementing the Disclosure Standard in December 2018, in which AMS stated that, based upon the study, it had determined that consumers would not have sufficient access to BE disclosure through electronic or digital means under ordinary shopping conditions. AMS therefore adopted the text message disclosure option as a “comparable option” to access BE disclosure, in addition to the text, symbol, and electronic or digital disclosure options.[6]

After AMS issued its final regulations, the Natural Grocers filed suit alleging, among other things, that AMS’s decision to provide a text message disclosure option was contrary to the statute’s command to “provide additional and comparable options to access the bioengineering disclosure,” and consequently was unlawful under the APA. In September 2022, the United States District Court for the Northern District of California found that the text message disclosure option did not meet the statutory command because it “did nothing to fix the problem of inaccessible electronic disclosure” that the 2017 study found.[7] The text message option “merely provided a fourth disclosure option that regulated entities can select instead of the electronic disclosure method.”[8] The court also noted that the statute did not authorize AMS to expand the disclosure options beyond the text, symbol, or electronic or digital link.[9] While the court ruled in favor of plaintiffs, it did not vacate AMS’s regulations. It, instead, allowed the electronic or digital link and text message options to remain in place, and ordered AMS to reconsider those options in light of the court’s ruling on remand.[10]

AMS Request for Information

In reevaluating the electronic or digital link disclosure option, AMS is soliciting public input, including data and evidence to support the revision. AMS specifically requests the following information:

1. What are the current challenges associated with consumers accessing information on the BE status of foods by electronic or digital link disclosure in a retail setting?
2. If a company chooses to use an electronic or digital link to disclose a BE food, what additional and comparable option should AMS add to the electronic or digital link disclosure option that would be more helpful for consumers? In which location proximate to the electronic or digital link should an additional and comparable option be placed?
3. Provide information on current smartphone ownership among consumers. AMS is interested in the availability of wireless internet or cellular networks. AMS cites data showing that the vast majority of adults, and a majority of adults older than 65, own a smartphone.
4. Provide information on the availability of broadband in a retail setting. This includes broadband that is offered directly to consumers or the accessibility to other private networks while in a retail setting.
5. Provide information on the consumer usage of BE or other electronic or digital link disclosures in a retail setting. AMS is trying to determine whether accessibility to information through electronic and digital disclosure in retail settings is common.
6. Are there any advantages and benefits to using the electronic or digital link disclosure option?
7. Is there any information available on the percentage of usage for each of the four current disclosure options? How many small businesses use each of the four disclosure options?
8. How long does it take on average to update label art, print new labels, and deploy new labels to production lines? How frequently are labels reordered and label inventory updated? Is there any standard cycle for updating retail product labels? How frequently is product inventory updated at retail? What is the preferred optimum compliance period for incorporating new mandatory disclosure information into products for retail?

Currently, AMS is accepting comments until June 10, 2024. Manufacturers that have opted to use the electronic or digital link or text message BE disclosure options may be especially interested in submitting comments, as an update to those options may soon be forthcoming.

If you have any questions concerning the material discussed in this client alert, please contact the members of our Food, Beverage, and Dietary Supplements practice.