Under the final rule, a food producer marketing a food that is genetically modified (GMO) or that contains GMO ingredients may comply with the rules in any one (or more) of four ways: 1) by clear wording on a food label; 2) by using the USDA's new symbol "BE" to designate that it is bioengineered food; 3) via a QR code printed on a food label; or 4) by giving the consumer the option to send a text message to the manufacturer seeking more information. Food manufacturers will have until 2022 to come into compliance with the rule.
These silly rules took years to develop. That's largely a function of the National Bioengineered Food Disclosure Act, the terrible 2016 law that required the U.S. Department of Agriculture USDA to develop regulations to implement the law. I argued earlier this year that the real reason the rules took so long to write is that the law mandating their creation is pretty much unworkable. As generally happens, a bad law has produced bad regulations.
In a statement touting the final rule, USDA Secy. Sonny Purdue said the final rule "increases the transparency of our nation's food system [and] ensures clear information and labeling consistency for consumers about the ingredients in their food."
But critics of the final rule—including many supporters of mandatory GMO labeling—are predictably (if not justifiably) angry. They're not buying what Perdue's selling.
Rep. Chellie Pingree (D-ME) called the final rule "an insult to consumers."
The Sustainable Food Policy Alliance, founded recently by Mars, Unilever, Danone, and Nestlé after those companies left the Grocery Manufacturers Association, the leading grocery-food lobby group, said in a statement that the new rule "fall[s] short of consumer expectations."
Sharon Jones, an attorney with the Institute for Agriculture & Trade Policy, argued that the final "rule is intended to hide, not disclose, information about genetically modified foods."
These and other critics charged the final rules suffer from a host of shortcomings. Some attacked the comparatively high percentage of GMO ingredients—five percent—that will trigger the USDA labeling requirement. European Union rules have a much lower threshold—just 0.9 percent. Others noted that requiring food producers to use the USDA's uncommon term "BE" (for "bioengineered") foods on their labels, rather than the commonly used term "GMO," will confuse consumers. Still others blasted an exemption in the rules for foods which are produced using genetic engineering but which contain no genetic material—some vegetable oils, for example.
One needn't be a supporter of mandatory GMO labeling to hate the new final rule. Take me, for example. I find the law's chief flaw to be that it requires any GMO labeling at all.
But a deeper look reveals other defects. Earlier this year, I called out two key features of the National Bioengineered Food Disclosure Act as particularly troubling. The first is the fact the law ponders "other factors and conditions" that could trigger mandatory GMO labeling. The second feature, noted above by others, is that the law allows food marketers to declare GMO content via text message, symbol, or a QR code. I suggested that these two features were "certain to sow confusion and spur litigation" in the future.
Nothing in the final rule alleviates my concerns. That's no surprise. Confusion and litigation are hallmarks of the last decade or so of debate over mandatory GMO labeling.
For example, one of the main practical criticisms of mandatory GMO labeling laws—one I've lobbed many times over the years, including at Vermont's short-lived labeling law—was that labeling schemes proposed by anti-GMO advocates were always intended to scare and confuse consumers about genetically engineered foods, rather than to educate them. But the USDA's final rule simply embraces these shortcomings.
What this means is that what we have now is a mandatory nationwide GMO labeling law for people who hate mandatory GMO labeling laws but love the confusion these laws sow. There's nothing to celebrate in that.