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Illustration: DNA Strings
12.03.2019
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National Bioengineered Food Disclosure Standard Becomes US Law

After a lengthy delay, the United States Department of Agriculture (USDA) published the final National Bioengineered Food Disclosure Standard (NBFDS) in the Federal Register on December 21, 2018. This law, which you may have heard called the DARK Act, is the start of mandatory GMO labeling in the United States. It means that some—but not all—products containing genetically modified organisms will have to be labeled by 2022.

The NBFDS mandates the use of the new term “bioengineered” instead of the familiar “GMO” in disclosures. It also allows an unreasonably high five percent per-ingredient threshold for GMO contamination. For context, the European Union uses a 0.9 percent threshold for most foods—so does the Non-GMO Project.

Implementation of this law begins January 1, 2020; some food producers will choose to disclose the presence of GMO ingredients at this time. Mandatory compliance takes effect on January 1, 2022. All applicable food products must bear a bioengineered disclosure by this date.

Regulated Entities under the NBFDS

This law applies to most food manufacturers and importers in the United States, though there is an exemption for “very small” food manufacturers generating less than $2.5 million in annual receipts.

Retailers that package food in-store or sell food in bulk containers are subject to the NBFDS as well. This is true regardless of the size of the retail store; there are no exemptions for small or independent retail businesses. Food served in a restaurant is exempt. Salad bars, cafes, delis, bars, and similar food establishments are not subject to the NBFDS, even if they are inside a grocery store.

There are no penalties for failing to comply with the NBFDS—a stark departure from the USDA’s National Organic Program, which levies fines of up to $11,000 per violation.

Applicable Products

The National Bioengineered Food Disclosure Standard applies to most food products sold in the United States. Non-food items such as packaging, cosmetics, and wellness products are out of scope. Vitamins, supplements, and most forms of alcohol are also outside the purview of this law.

In its current form, categorical exemptions prevent the NBFDS from delivering the meaningful protections consumers deserve. Only GMO ingredients with detectable GMO DNA will be subject to disclosure, which means that many of the most prevalent GMOs will remain unlabeled. Highly processed ingredients will largely be exempt because refining processes degrade DNA to a point where laboratory testing cannot achieve meaningful results. The Non-GMO Project maintains that one cannot begin with a GMO and process it into something that is not the product of genetic engineering. Our standard demands testing of the source material (e.g., the canola used to make canola oil) before it has been refined in order to achieve meaningful results.

Many products of new genetic engineering techniques such as CRISPR and TALEN will also remain unlabeled because there are not yet commercial tests available for many of these new GMOs. When commercial testing is not possible, the Non-GMO Project Standard requires signed affidavits attesting to the non-GMO status of the input.

Additionally, animal feed is not covered by this law. Not only will animal feed itself go unlabeled, but meat, eggs, and dairy from animals fed a GMO diet will not require disclosure. This is in contrast to the Non-GMO Project Standard, which follows animal-derived products all the way back to animal feed. For milk to become Verified, for example, the cows that produced that milk would have their feed tested for GMOs. Most meat and all eggs are exempt, as are multi-ingredient products in which meat or egg is the first ingredient. All of these exemptions make it impossible to know whether a product lacks a disclosure because it is non-GMO or because there is an applicable loophole.

Explanation of the Bioengineered Disclosure Options

Even when a product does require disclosure, the disclosure options allowed under the NBFDS are likely to confuse consumers. GMO foods won’t say they contain GMOs, they will be labeled as “bioengineered food.” Many products will not even say that, because food producers may also choose to use an electronic or digital link. Food manufacturers can put a QR code, digital watermark, or another scannable element on their packaging along with text such as “scan here for more food information.” These types of disclosures are not required to say “bioengineered” on the package at all, so consumers may not be aware there is a GMO ingredient.

The USDA ordered a third-party study on the feasibility of digital disclosures—this study found that nearly all participants experienced trouble using their phone to scan a digital link. Scanning a package requires consumers to have a smartphone with them at the grocery store. It also requires them to have internet access and an app capable of scanning. In many cases, such scanning apps either cost money or come with advertisements.

Digital disclosures disproportionately impact people who face barriers to accessing a smartphone and data plan, such as people from low-income backgrounds, people who are senior citizens, and residents of rural areas. Ultimately, anything other than on-pack disclosures using plain language presents an unreasonable barrier for consumers.

Consumer groups have largely rejected the rule as insufficiently meaningful and transparent. Many products containing GMOs will not be labeled, meaning that the absence of a bioengineered disclosure does not mean a product is non-GMO. In light of these developments, the Non-GMO Project will continue to listen to consumers and provide North America’s most rigorous label for GMO avoidance.

About the Non-GMO Project
The Non-GMO Project is a nonprofit organization committed to preserving and building sources of non-GMO products, educating consumers, and providing verified non-GMO choices. Learn more at www.nongmoproject.org.
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