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Why a Bad GMO Law Makes Good GMO Regulations Impossible

The National Bioengineered Food Disclosure Act is a bad law, and bad laws make good regulations nearly impossible

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Photo illustration credit: WLADIMIR BULGAR/SCIENCE PHOTO LIBRARY/Newscom

The U.S. Department of Agriculture earlier this week finally released long awaited proposed rules for labeling genetically modified foods, or GMOs. But for the last year or so, it seemed like these rules would never come up for public discussion.

Secretary of Agriculture Sonny Perdue announced last month that the agency would likely miss the July deadline for introducing the final rules mandated under a controversial 2016 law, the National Bioengineered Food Disclosure Act.

Nearly a year ago, USDA Senior Policy Analyst Andrea Huberty forecasted this problem. "We're still on track, but a little behind," she said. Soon after Huberty's remarks, food-industry groups warned the Office of Management (OMB) "that failing to implement federal GMO labeling legislation in a timely manner could cause major headaches for the food industry." The groups pegged OMB as the potential roadblock, and Purdue has said the OMB is to blame for the slow pace.

But the real reason the rules have taken so long is because the National Bioengineered Food Disclosure Act is a bad law, and likely unworkable.

Two features of the National Bioengineered Food Disclosure Act are particularly troubling. First, the law leaves room for "other factors and conditions" that would trigger mandatory GMO labeling. That vague language is sure to sow confusion and, likely, litigation for years to come.

The law also allows food marketers to declare GMO content via "text, symbol, or electronic or digital link." That leaves open the possibility that labels could declare GMO content using anything from words to graphics to QR codes—the latter referring to the boxed, coded graphics that invite consumers to scan them with a mobile device to learn just what the hell the code means. (The codes, long thought dead, may be making an unwanted comeback.) Like the "other factors and conditions" language, the notification requirement also seems certain to sow confusion and spur litigation.

One good feature of the law is that prohibits states from implementing their own GMO-labeling laws. If that's all the law did, then it might be worth supporting.

Food-related regulations are delayed across the federal government. Earlier this year, for example, the USDA announced it would delay establishment of milk-marketing orders in California. Last year, the agency said it would delay implementing animal-welfare rules. The FDA delayed implementing its awful menu-labeling rules until now. These delays aren't unique to the Trump administration. Delays in shaping USDA and FDA rules were also common under the Obama administration, which was sued in 2012 over FDA delays in implementing the terrible Food Safety Modernization Act.

Some of those who will be impacted by the proposed GMO-labeling rules are already criticizing them.

The Alliance for Biotech Facts, which represents thousands of farmers, producers, and food manufacturers, issued a statement this week, shortly after the proposed rules were released, arguing that "a government mandated label singling out [some foods that contain no genetic material] would wrongly signal to consumers that there is something different or unusual about these products."

One key lesson, then, is that Congress's proclivity to pass poorly thought out and vague food laws—and to leave it to the USDA and FDA to iron out the key details in a timely fashion—is a recipe for disaster.