A federal court of appeals recently overturned a USDA rule governing the use of labels for genetically modified ingredients in food. Now, USDA will be required to rewrite much of its 2018 genetically engineered (GE) foods labeling rule.
The 9th Circuit Court of Appeals on Oct. 31 released its opinion reversing a California district court’s judgment in part, but also affirming in part, and remanded the matter back to USDA.
“Today’s decision is a landmark victory for the public’s right to know what they eat and feed their families,” said George Kimbrell, Center for Food Safety legal director and lead counsel in the case.
“We are gratified that the Court has struck down USDA’s loophole for ultra-processed GMO foods, the vast majority of which have been genetically engineered for increased pesticide tolerance,” Kimbrell said.
In a 52-page opinion, the court ruled that the district court erred in rejecting the plaintiffs’ claim that USDA unlawfully excluded highly refined foods from the definition of the phrase “bioengineered foods.” The court also determined the regulations were arbitrary and capricious. However, the panel held that USDA’s decision to use “bioengineered” as opposed to “genetically engineered” or “genetically modified” was reasonable.
The appeals court also found that the district court should have vacated USDA’s usage of QR codes or text messaging to share disclosures rather than conventional on-package statements or symbols. As such, the panel determined that the QR code disclosure labeling should be made null and void.
“The district court squarely held that (1) the Act does not allow the (Agricultural Marketing Service) to add a fourth option (text messaging) to the three statutory options (text, symbol, or electronic or digital link); and (2) the Act requires the agency to ‘fix the problem of inaccessible electronic disclosures’ by adding ‘additional and comparable options,’ like the alternative text message instructions, to the electronic disclosure,” Judge Daniel Collins wrote for the court panel.
The case was brought by Natural Grocers, Citizens for GMO Labeling, Label GMOs, Rural Vermont, Good Earth Natural Foods, Puget Consumers Co-op, Center for Food Safety and the National Organic Coalition.
While the suit was filed against USDA, several ag groups intervened, including the American Farm Bureau Federation, United States Beet Sugar Association and American Sugarbeet Growers Association.
Background
The National Bioengineered Food Disclosure Standard was finalized on Dec. 20, 2018, after Congress passed the National Bioengineered Food Disclosure Law in 2016. The law directed USDA to establish a national mandatory standard for disclosing foods that are or may be bioengineered. The rule became effective Dec. 29, 2023, and mandatory compliance began June 23, 2025.
The law defined bioengineered foods as those that contain detectable genetic material that has been modified through certain lab techniques and cannot be created through conventional breeding or found in nature.
Food manufacturers, importers and certain retailers are required to disclose bioengineered foods through text, symbol, electronic or digital link, and/or text message. Small food manufacturers or manufacturers of small packages were also authorized to use a phone number or web address.
Lawsuit plaintiffs argued the law contained a “loophole” by exempting “highly refined” or ultra-processed GMO foods—such as corn and soy oils—from disclosure. If modified material was not “detectable,” it was not “contained,” and therefore did not to be disclosed.
The court found that “there is an obvious and important difference between whether a substance is actually present and whether, using a particular method, one is able to detect that the substance is present.”
USDA was ordered to issue new rules, which may require more food products to include GE labels. — Anna Miller Fortozo, WLJ managing editor
