USDA’s Agricultural Marketing Service (AMS) posted 30 questions for stakeholder input regarding the establishment of a national disclosure requirement for identifying bioengineered foods and food ingredients. The legislation requiring the disclosure of bioengineered foods was enacted on July 29, 2016, and gave AMS two years to establish a national standard and the procedures necessary for implementation (see our LawFlash, New GMO Legislation Signed Into Law, for more information on the legislation). AMS is now seeking input from stakeholders in order to issue a proposed rule this fall, such that it may promulgate a final rule by the mandated July 2018 deadline.

With regard to the questions posed, several go to the scope of what will be considered a “bioengineered” food, including whether a bioengineered food should include highly refined products such as oils or sugars derived from crops, or what amount of a bioengineered substance would make a food be deemed “bioengineered.” Other questions seek information regarding the types of disclosures that would be adequate under the standard (e.g., text, symbols, electronic links) and the types of products that may be exempt from the disclosure requirement or that may be permitted to bear alternative disclosures (e.g., bulk products or small packages). AMS also asks what types of records would establish regulatory compliance and what an appropriate adjudication process would be like for audits and compliance actions.

As we have recommended in the past, food companies should participate in the rulemaking process given that the scope of the disclosure standard, as well as timing and logistics, pose challenges to the industry.

An unusually short time frame has been provided to submit comments to the USDA on this matter—about three weeks. Responses to the questions should be submitted to by July 17, 2017.