The Agriculture Department's decision to allow a standalone text message option on food packaging does not comply with a 2016 GMO labeling law requiring an accessible alternative to QR codes, a federal judge has ruled. 

The USDA policy providing "a separate text message disclosure option did nothing to fix the problem of inaccessible electronic disclosures,” U.S. District Judge James Donato in the Northern District of California found

His decision means that a QR code by itself will not be enough to inform consumers of the presence of bioengineered ingredients in foods, according to the Center for Food Safety, an advocacy group that is a plaintiff in the and also representing the plaintiffs. 

“USDA will now need to revise the portions of its 2018 rules that allow for QR code labeling and remove the option of QR codes alone on the package,” CFS said in a news release. “Instead, USDA will be required to add an additional disclosure option to QR code labeling accessible to all Americans.”

The judge sent the matter back to USDA without vacating the regulations and rejected the plaintiffs’ challenges to other parts of the 2018 regulations, such as USDA’s exclusion of “highly refined” foods from the requirements unless the bioengineered material is “detectable.” CFS said it is considering whether to appeal those parts of the judge’s rulings.

In mandating a study on the accessibility of the electronic disclosure, and directing the USDA to act only if the electronic disclosure was determined to be inaccessible, Congress clearly intended for the USDA to provide ‘additional and comparable options’ to improve the accessibility of the electronic disclosure method,” Donato said, citing the 2016 law.

The government has argued that USDA's Agricultural Marketing Service acted within the law because it adopted recommendations from a Deloitte Consulting study to give manufacturers another option to disclose bioengineered ingredients.

But Donato said adding the text message option “merely provided a fourth disclosure option that regulated entities can select instead of the electronic disclosure method.”

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The government “says the words ‘additional and comparable options’ only obligated AMS to provide ‘similar’ disclosure options rather than improvements on the electronic disclosure,” Donato said. But he found those arguments “are not consonant with the rest of Section 1639b(c) [in the 2016 law], which expressly addresses whether consumers can access the electronic disclosure at all.”

“The court has now confirmed that the USDA acted unlawfully in allowing stand-alone QR code and other digital and electronic GMO labeling,” said Andrew Kimbrell, CFS executive director. “This should be a warning to the industrial food sector that avoiding clear on packaging labeling by using QR codes alone will not pass legal scrutiny. CFS will continue to work to ensure every American's right to know what is in their food.”

In addition to CFS, plaintiffs in the case are Natural Grocers, Citizens for GMO Labeling, Label GMOs, Rural Vermont, Good Earth Natural Foods, Puget Consumers Co-op, National Organic Coalition.

The American Farm Bureau Federation, U.S. Beet Sugar Association and American Sugarbeet Growers Association intervened on the side of USDA.

AFBF, U.S. Beet Sugar Association and Consumer Brands Association did not respond immediately to requests for comments.

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