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A federal appeals court struck down a loophole that exempted ultraprocessed foods containing genetically engineered (GE) ingredients, such as corn and soy oils, from federal labeling requirements.
In an opinion published last week, the U.S. Court of Appeals for the 9th Circuit also ruled that a lower court erred by allowing genetically modified organism or GMO products labeled only with a QR code to remain on the market, after a lower court acknowledged that relying solely on QR codes as a labeling method was unlawful.
Center for Food Safety (CFS) filed the lawsuit against the U.S. Department of Agriculture (USDA) on behalf of a coalition of nonprofit labeling advocates and organic retailers, including Natural Grocers.
George Kimbrell, CFS’ legal director, called the ruling a “landmark victory for the public’s right to know what they eat and feed their families.”
“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,” he said in a statement.
Only ‘detectable’ GMOs required disclosure under USDA loophole
Although federal law required the disclosure of any food containing modified genetic material, the USDA — responsible for implementing the law — created a loophole by declaring that genetically modified material that wasn’t “detectable” didn’t have to be disclosed.
However, the 9th Circuit judges said detection methods may not be 100% accurate.
“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,” they wrote in their opinion.
Zen Honeycutt, founder and executive director of Moms Across America — a nonprofit representing hundreds of thousands of mothers who want safer food for their kids — told The Defender:
“We are thrilled the U.S. Court of Appeals has ruled sensibly regarding GMO labeling. Just because a laboratory is using a method that ‘does not detect’ the GMO proteins in highly processed foods, when the known origin is GMO, does not mean the consumer does not deserve to know.”
According to CFS, the USDA loophole was “significant,” as GMO ultraprocessed foods — such as cooking oils and soda — account for about 70% of all GMO food ingredients.
Alan Lewis, Natural Grocers’ vice president of Advocacy & Governmental Affairs, also applauded the court’s decision to close the loophole.
“The public’s rejection of hidden GMOs has been weighed by the Court to be greater than the agrochemical industry’s desire to hide GMOs behind incomprehensible bureaucratic rules,” Lewis said in a statement.
QR codes aren’t enough for GMO labeling, court rules
The appeals court also ruled that the U.S. District Court for the Northern District of California “abused its discretion” by refusing to vacate, or strike down, the USDA’s QR code rule.
Although the District Court ruled in 2022 that food companies could not rely solely on QR codes to disclose GMOs to the public, it didn’t strike down the rules allowing companies to sell foods labeled only with QR codes.
The appeals court said the USDA must now issue new rules clarifying that QR codes alone can’t adequately inform consumers that products contain GMOs.
The USDA must also provide an additional disclosure option accessible to everyone, including people who do not have cellphones to scan QR codes.
“QR codes alone do not provide meaningful access to all Americans, and USDA now will have to remedy that failing and provide accessible labeling,” Kimbrell said.
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Court stands by ‘bioengineered’ as GMO labeling term
CFS filed its original complaint in 2020, challenging the USDA’s choice of “bioengineered” as the uniform disclosure term for GMO foods instead of the more widely known terms “GMO” and “GE.”
According to CFS, the USDA in 2019 prohibited food companies from using “GMO” or “GE” on their disclosure labels, directing them to use “bioengineered” instead.
The 9th Circuit upheld the USDA’s use of “bioengineered” as the uniform disclosure term but clarified that food manufacturers may include more familiar terms such as “GMO” or “GE” on their labels.
A USDA spokesperson told The Defender the agency “will not comment on pending litigation.”
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