USDA's Agricultural Marketing Service has issued a proposed rule to implement the landmark legislation requiring some form of disclosure of biotech ingredients on food packaging.

The 106-page proposed rule – officially dubbed the National Bioengineered Food Disclosure Standard (NBFDS) – offers up definitions on what is considered a bioengineered ingredient, suggestions on how disclosure of those ingredients should occur, and the scope of exemptions available under the law.

The proposed rule seeks to satisfy the requirements of legislation passed in 2016 to create a national standard of ingredient disclosure in an effort to avoid individual states or municipalities passing legislation of their own. Vermont was the first state to require mandatory labeling of genetically engineered food ingredients.

USDA’s proposal maintains the bioengineered food definition set by the 2016 law: a food “that contains genetic material that has been modified” and “for which the modification could not otherwise be obtained through conventional breeding or found in nature.” AMS does, however, note that it is seeking comment on whether the final rule should include definitions for “conventional breeding” and “found in nature.”

To determine ingredients that would be subject to disclosure, AMS proposes creating two lists: one list of bioengineered foods “that are commercially available in the United States with a high adoption rate” and another of commercially available foods “that are not highly adopted.” (The suggested high adoption rate, which signifies the percentage of that commodity considered bioengineered, is 85 percent, as determined by USDA’s Economic Research Service.)

Those two lists, the proposal says, “would serve as the linchpin in determining whether a regulated entity would need to disclose a BE food.”

Under the proposed rule, refined ingredients would not necessarily be on the list for required disclosure, but would still have to meet the same disclosure requirements as those that are listed. The list, AMS says, would recite the general commodities but not the derivatives. Those derivatives, however, “would be subject to the same disclosure requirement as foods on the list.”

AMS uses the example of field corn. Since 92 percent of U.S. field corn is bioengineered, USDA notes, “foods made from or containing ingredients made from field corn are likely to contain BE corn. Those foods might include corn starch, cornmeal, corn syrup, grits, corn chips, corn tortillas, and corn cereal, among others, and would be subject to BE disclosure.”

AMS lists non-browning apples, sweet corn, papayas, potatoes, and summer squash varieties as examples of commercially available bioengineered foods that are not highly adopted. The proposed rule also contains a mechanism for revising the two lists on an annual basis. Those not highly adopted ingredients would still be subject to disclosure, but could note that the product “may contain” bioengineered ingredients.

The method of required disclosure was one of the most contentious topics during the debate that ultimately led to the 2016 law. Many called for plain text or a symbol, while a push from the food industry sought to use methods such as a telephone number or a QR code. Under the law that was passed and the proposed rule to implement it, an “all of the above” approach is taken, giving companies a number of methods to disclose bioengineered ingredients.

USDA mandates that disclosure must be “of sufficient size and clarity to appear prominently and conspicuously on the label, making it likely to be read and understood by the consumer under ordinary shopping conditions.” Disclosure must happen on the product's information panel, on the principal display panel, or an alternate panel “if there is insufficient space” on the other listed panels.

In an effort to ensure compliance with the Vermont law and other potential pieces of legislation, many food companies started to voluntarily disclose the presence of bioengineered products, typically through language such as “partially produced with genetic engineering.” USDA, however, suggests using “bioengineered food” or “bioengineered food ingredient.”

“AMS considered using alternative phrases, such as ‘genetically modified’ or ‘genetically engineered,’” the proposed rule notes. “However, AMS is not proposing any similar terms because we believe that the statutory term, ‘bioengineering,’ adequately describes food products of the technology that Congress intended to be within the scope of the NBFDS.”

The proposed rule also creates symbols that can be used for disclosure. The symbols (pictured above) use the letters “BE” to denote the presence of bioengineered products. Some of the symbols also offer “may be” text for the products that are not highly adopted.

Electronic disclosure, presumably through the use of QR codes, is also discussed in the proposed rule. AMS suggests that companies using this method should use the statement “’Scan here for more food information’ or equivalent language that reflects technological changes.”

The 2016 law also called on USDA to determine a threshold of bioengineered food present that would necessitate disclosure. AMS does not set that threshold in this proposal, but rather calls for comments on three different proposals.

The first two proposals discuss exemptions for ingredients containing a bioengineered substance that is inadvertent or technically unavoidable. One suggested exemption would be for ingredients with no more than 5 percent of a BE substance by weight; the other for no more than 0.9 percent. A third proposal would allow for use of bioengineered ingredients up to a level of 5 percent of the total weight of the product before being required to disclose.

The Coalition for Safe Affordable Food, which includes most major commodity groups, praised the publication, calling it a crucial step in the process.

“The proposed rule … is a critical step towards establishing a National Bioengineered Food Disclosure Standard by the July 29, 2018, deadline” set in the law, the coalition said. “Given the importance of ensuring the final rule is in place by the statutory deadline, the Coalition will be analyzing the proposed rule and developing coordinated food and agricultural industry comments over the next 60 days.”

Leslie Sarasin, president and CEO of the Food Marketing Institute, said FMI plans to join the Grocery Manufacturers Association in “a consumer education campaign beginning in June 2018 to help guide consumers to the information they seek – a program that creates a mechanism to share information that goes well beyond that included on the label and well beyond whether the product contains ingredients that result from genetic engineering.”

AMS sets Jan. 1, 2020 as the date for compliance for large food companies, and a year later for small companies, defined as those with less than $10 million in annual receipts.

The release in the Federal Register, expected to happen tomorrow, will trigger a 60-day comment period on the proposed rule.

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