A new lawsuit challenges a USDA rule allowing manufacturers to use QR codes read by smartphones to disclose genetically engineered ingredients in food.

The Center for Food Safety leads the coalition that filed the suit, which seeks to nullify the rule and have a court "return the issue to USDA with orders to fix the unlawful portions," according to a release. 

“The final regulations, issued in 2019, include provisions which will leave the majority of GMO-derived foods unlabeled; discriminate against tens of millions of Americans; prohibit the use of the widely known terms ‘GMO’ and ‘GE’; and prohibit retailers from providing more information to consumers,” CFS said in a news release Tuesday.

“This case is about ensuring meaningful food labeling, the public’s right to know how their food is produced, and retailers’ rights to provide it to them,” CFS legal director and counsel George Kimbrell said in the release.

In an interview, Kimbrell said the case is not just about the disclosure rule but about how information is disclosed to consumers down the road. “Are we going to be OK with QR labeling for food ingredients in the future?” he asked, raising the prospect of nutrition and calorie count information being subject to QR code requirements.

USDA issued regulations last year to implement the GE disclosure law passed by Congress in 2016. But the plaintiffs in the lawsuit claim many people won’t be able to determine GE ingredients only through the use of QR codes on the packaging, and that a study conducted for USDA showed "it was wholly insufficient and discriminatory," Kimbrell said.

“Requiring a smartphone discriminates against at least 20 percent of the American adult population — primarily poor, elderly, rural, and minority populations — who have lower percentages of smartphone ownership, or live in areas in which grocery stores do not have internet bandwidth,” Caroline Gordon of plaintiff Rural Vermont said.

Another aspect of the rule being challenged is use of the term “bioengineered.”

“When on-package text is used, the rules limit it to only ‘bioengineered,’ despite the law allowing use of similar terms,” CFS says in its release.

“For 25 years, all aspects of the public dialogue around GE foods — scientific, policy, market, legislative, consumer — have used either ‘genetically engineered’ (GE) or ‘genetically modified’ (GMO) to refer to genetically engineered foods,” the lawsuit says.

The suit also claims that USDA is allowing 70% or more of bioengineered foods to be exempt from disclosure.

“The vast majority of GE foods are not whole foods but rather highly processed foods with GE ingredients like sodas and oils, which by some estimates account for over 70% of all GE foods,” the complaint says. “The act provided broad scope to USDA to cover all GE foods, and the legislative history shows that USDA and Congress made assurances that the majority of GE foods — those highly refined GE foods — would be covered. Yet in the final rulemaking, USDA decided to exclude highly refined GE foods, creating a new extra-statutory limitation.”

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Lastly, the rule restricts the kind of information manufacturers and retailers can disclose, the groups say.

“Manufacturers and retailers have the right to label foods as produced through genetic engineering or as genetically engineered,” the suit says. “Yet the final rule attempts to restrict that right in multiple ways, providing only limited and restricted voluntary labeling beyond its narrow scope. Those speech-chilling restrictions violate the statute’s text and purposes as well as the First Amendment’s guarantees.”

“Manufacturers and retailers have a fundamental First Amendment Right to provide truthful commercial information to consumers, and consumers have a right to receive it,” the lawsuit says.

The Department of Agriculture did not immediately respond to a request for comment. 

In addition to CFS, plaintiffs include Natural Grocers, Citizens for GMO Labeling, Label GMOs, Rural Vermont, Good Earth Natural Foods, and Puget Sound Consumers Co-Op.

Kimbrell said he was pleased with the diversity of the plaintiffs, whom he called “a broad coalition of retailers and advocacy groups.”

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