Court Sends GMO Disclosure Regulation Back to USDA for Review

A federal court in California has ruled that solely using QR codes on food packaging is not enough to disclose a product’s bioengineered status to consumers. Natural Grocers v. Vilsack, No. 20-5151 (N.D. Cal., entered September 13, 2022).

The ruling was in a suit brought by retailers and non-profit organizations against the U.S. Department of Agriculture (USDA). The plaintiffs challenged a USDA regulation that took effect in January that required food manufacturers to disclose, on product packaging, bioengineered foods and foods made with bioengineered ingredients.

The rule required all such products to include either a text, symbol or electronic or digital link to disclosure information. USDA also allowed food manufacturers to pair a text message hotline with a QR code on product packaging so that consumers could text the number or scan the code to receive the product’s disclosure information. The court determined that USDA’s decision to allow for electronic or digital-only disclosure was a “significant error.” The regulation will next return to the agency for review.

Shook Of Counsel John Johnson III recently discussed the litigation with Nosh, a food and beverage publication. Johnson said the decision raises questions about the accessibility of QR codes, but noted those concerns were pre-existing. He also cautioned against seeing the ruling as having a wider application beyond the immediate case.

“My caution would be comparing [this to other disclosures] since this was a very narrow question,” he said. “So much of the other food labeling requirements – statement of identity ingredients, nutrition labeling – those all come from the Food, Drug and Cosmetic Act, which has its own statutory elements and requirements … instead of making any broad strokes I’d say this was a highly nuanced statutory discussion.”