The Center for Food Safety and several food retailers have filed a lawsuit against the U.S. Department of Agriculture (USDA) alleging that the agency “fell far short of fulfilling the promise of meaningful labeling” of bioengineered (BE) foods with its 2019 labeling rules. Natural Grocers v. Perdue, No. 20-5151 (N.D. Cal., filed July 27, 2020). The complaint takes issue with four aspects of USDA’s BE labeling rule. First, the plaintiffs allege that allowing companies to use QR codes to disclose BE ingredients will “discriminate against major portions of the population—the poor, elderly, rural, and minorities—with lower percentages of smartphone ownership, digital expertise, or ability to afford data, or who live in areas in which grocery stores do not have internet bandwidth.”

The plaintiffs also object to the terminology USDA chose. The rule uses “bioengineered” rather than “genetically engineered” (GE) or “genetically modified” (GM) and prohibits the use of the latter terms, a decision the plaintiffs allege was arbitrary and capricious. Third, the plaintiffs argue that USDA “decided to exclude highly refined GE foods, creating a new extra-statutory limitation.”

Finally, the plaintiffs assert that limiting the use of “GE” or “GM” on packaging is contrary to manufacturers’ and retailers’ First Amendment rights. “In this context, manufacturers and retailers have the right to label foods as produced through genetic engineering or as genetically engineered. 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 1st Amendment’s guarantees.”

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.