New Labels for Bioengineered Foods: What the Public Needs to Know

In July 2016, Congress passed the National Bioengineered Food Disclosure Law (2016). This law required that the U.S. Department of Agriculture (USDA) create a standard to determine how and when bioengineered foods must be labeled. Subsequently, on December 20, 2018, the Secretary of Agriculture released the National Bioengineered Food Disclosure Standard (NBFDS, 2018), which provided specific guidance about how the law would be implemented. Many of the disclosures identified in the NBFDS have recently been enacted and all will be required as of January 1, 2022. Although such foods have been sold in the United States since 1994, this law marks the first time that that the federal government will require the disclosure of bioengineered foods to consumers. In doing so, the U.S. joins more than 60 other countries that require some form of labeling or on-package disclosure of bioengineered foods or ingredients (Center for Food Safety, 2021).

This fact sheet describes:

1. What is counted as a bioengineered food in the NBFDS
2. What information will be included in the disclosure, and
3. How the disclosure will be communicated to consumers.

What Do the New Labels Mean for Me and My Family?

Familiar foods may soon have text or a symbol disclosing that they contain bioengineered food, or you may notice a QR (quick response) code that was not there before. This does not indicate that the food itself has changed, simply that it now must be labeled under the new law. The USDA says on their website (USDA Agricultural Marketing Services (AMS), 2021a) that a bioengineered food disclosure is "…a marketing label, and does not convey any information about the health, safety, or environmental attributes of bioengineered food as compared to non-bioengineered counterparts." The new law does not change how bioengineered foods are regulated for safety or the approval process for human consumption.

When Will the Labels Appear on Foods I Purchase?

Although the new labeling system began in 2019, bioengineered foods meeting the requirements for labeling must be labeled beginning January 1, 2022. Some food companies have already begun voluntarily labeling their products in advance of the deadline.

Are Bioengineered Foods the Same Thing as GMOs or Genetically Modified Organisms?

Bioengineered foods are defined by the NBFDS as foods which "…contain genetic material that has been modified through in vitro rDNA techniques and for which the modification could not otherwise be obtained through conventional breeding or found in nature." These products are a subset of those likely familiar to most Americans as genetically modified organisms (GMOs) that are produced through the process of genetic modification (GM). They are also sometimes called genetically engineered (GE) foods and/or bioengineered (BE) foods.  While there are technical differences between the different terms, "bioengineered" is the term the USDA has chosen for its labeling requirements. They have also created a very specific definition and set of rules for determining what qualifies as a bioengineered food.

What Is Considered a Bioengineered Food in the NBFDS?

As the definition states, a food that contains genetic material that has been modified through in vitro rDNA techniques is considered to be bioengineered. That means that foods in which the modified genetic material is not detectable are not considered bioengineered foods for the purposes of this labeling requirement. So, a food that is grown as a bioengineered crop but does not retain its DNA once it reaches consumers would not be considered bioengineered. This is the case with many highly refined foods and ingredients. For example, if bioengineered corn is used to make corn oil, the processing from whole corn to oil destroys its DNA and the final product would not be labeled as "bioengineered food." However, if that same corn were used in a less processed food where the DNA remained intact, it would be considered bioengineered.

Animals that have been fed bioengineered feed (such as bioengineered corn or soy) are not considered bioengineered. Only animals whose own DNA has been altered, such as bioengineered salmon, will need to be labeled as bioengineered. Bioengineered foods are also distinct from foods that were created by humans through longstanding techniques such as cross-breeding and selective breeding. Many groups interpret this requirement as also exempting foods developed using gene editing and other techniques that do not use recombinant DNA. The USDA has suggested that it will address whether to apply the labeling requirements to gene edited foods on a case-by-case basis. The USDA maintains a list of bioengineered foods that it will review annually (USDA AMS, 2021a).

Why Was This Law Passed?

The National Bioengineered Food Disclosure Law was supported by the food industry as a consistent way of informing consumers about which grocery products contain bioengineered ingredients. It was also seen as a way to create uniform, national-level labeling rules that would prevent a patchwork of state laws related to bioengineered foods that might be inconsistent across the country (Plumer, 2016). Concern about the development of a patchwork of state laws was based on efforts by over 30 individual states to require that "genetically engineered" foods be labeled within their borders. While state-wide referenda failed to garner majority support in California in 2012, Washington in 2013, and both Oregon and Colorado in 2014, over 30 state legislatures introduced bills to label bioengineered foods. Vermont's labeling law was the first to go into effect on July 1, 2016. However, its implementation was short-lived as the NBFDS overrides any state level regulations.

Weren't Bioengineered Foods Already Labeled?

Prior to July 1, 2016, bioengineered foods were not required to be labeled anywhere in the United States. However, some food manufacturers have voluntarily labeled their products as containing GM or GE ingredients. For example, Campbell's, Mars, General Mills, and Kellogg's all began voluntarily labeling some products containing at least some bioengineered ingredients (though they largely used the term "genetic engineering").

More frequently, however, companies have labeled their products as not containing these ingredients (Hamilton & Raison, 2019). For example, many foods labels included phrases such as "GMO free." In addition to these largely unregulated manufacturer labels, there are also a number of third-party labels, where an organization will certify (for a fee) that a food product meets their requirements to be considered non-GMO. The most common third-party label is from the Non-GMO Project, which uses other third-party auditors to verify that a product contains less than 1% genetically modified ingredients and meets other requirements for their certification.

The USDA "organic" certification also requires that foods not be bioengineered, as well as additional requirements such as prohibiting specific pesticides and fertilizers (USDA AMS, 2021b).  For shoppers looking to avoid bioengineered foods, the USDA Organic and Non-GMO Project labels have been two important ways of identifying foods that are not GMO. It is possible that a food may not qualify as "non-GMO" by some auditors while still falling outside the NBFDS law due to differences in criteria. In addition, the NBFDS specifically states that, "A food may not be considered to be 'not bioengineered,' 'non-GMO,' or any other similar claim describing the absence of bioengineering in the food solely because the food is not required to bear a disclosure that the food is bioengineered under this subchapter."

What Will Be On the New Labels Required by NBFDS?

Manufacturers can choose between four types of disclosure. Text-based disclosures, such as putting the word "Bioengineered" on the package, is permitted.

A second option is an electronic disclosure in the form of a QR (Quick Response) code along with a statement such as "scan here for more food information." The QR code must be accompanied by a telephone number and the statement "call [telephone number] for more food information." Consumers with smart phones can use a QR code by pointing their camera at it, and their phone will automatically take them to a website with the disclosure information. The law requires that this disclosure appear on the first screen that a consumer sees when following the link from a QR code. In the interim, the QR code takes consumers to the specific product description on the SmartLabel website. That website includes additional information about nutrition, ingredients, allergens, product features and benefits (including some certifications) and other information provided by the manufacturers. Right now, consumers can go directly to the website Smartlabel.org to find a voluntary "GMO Disclosure" for thousands of products. Once the NBFDS is fully implemented, it will include disclosures about foods being bioengineered when required.

A third option is a text message disclosure that must include the statement, "Text [command word] to [number] for bioengineered food information." When a consumer uses this option, they must immediately receive a response on their mobile device with the bioengineered food disclosure.

The fourth option is to disclose the presence of bioengineered foods or ingredients using a symbol. Two symbols have been developed by the USDA (available in color and black and white), both of which contain the word bioengineered (see below; USDA AMS, 2021a). These symbols will appear on bioengineered foods when the manufacturer chooses this disclosure option.

Foods in packages that are too small to otherwise label will have a modified requirement to "provide alternative reasonable disclosure options." This could include a telephone number or a website where consumers can find information about the presence of bioengineered ingredients in a food.

What Is the Difference between "Bioengineered" and "Derived from Bioengineering"?

Some foods that are not considered bioengineered under the NBFDS may still include the text or symbol "Derived from Bioengineering." As mentioned earlier, if a bioengineered crop is used to produce a food that is processed to the point that there is no longer any bioengineered DNA present, a manufacturer could still voluntarily use the "Derived from Bioengineering" label. However, they are not required to do so.

Where on Food Packages Will the Disclosures Appear?

The NBFDS allows the disclosure to appear in in different locations. It can be part of the information panel directly next to the statement that identifies the name and location of the distributor of the product. This information panel is often directly below the nutrition facts panel. The disclosure can also be placed on the part of the package that consumers will see first when shopping (typically the front of the package). If there is not enough space within the information panel or on the front of the package, the disclosure can be placed on another part of the package likely to be seen by the consumer when shopping.

Are All Bioengineered Foods Being Labeled under the NBFDS?

No. Foods that contain less than 5% of bioengineered materials will not be required to be labeled as bioengineered. Bioengineered additives that are "incidental" do not have to be labeled (Code of Federal Regulations, 2021). These are additives present in foods in very small amounts and have no technical or functional effects on the food. Bioengineered foods that are sold by small or very small manufacturers, defined as less than $2.5 million in annual sales, are also exempt from the labeling requirement. Finally, bioengineered foods served in restaurants or other venues where prepared foods are served such as cafeterias and airplanes do not have to be labeled or identified in any way.

References

1. Center for Food Safety. International labeling laws. (2021).
2. Code of Federal Regulations. Title 21 Food and Drugs, Chapter 1 Food and Drug Administration, Department of Health and Human Services, Subchapter B Food for Human Consumption, Part 1010, Subpart G, 101.100. (2021).
3. Hamilton, C., and Raison, B. (2019). Understanding food labels. Journal of Agriculture, Food Systems, and Community Development, 8(4), 13–22.
4. National Bioengineered Food Disclosure Act (PDF), Public Law No: 114-216. (2016).
5. National Bioengineered Food Disclosure Standard, Agricultural Marketing Service 83 Fed. Reg. 65814 (December 21, 2018).
6. Plumer, B (July 14, 2016). The controversial GMO labeling bill that just passed Congress, explained. Vox Media.
7. United States Department of Agriculture. Bioengineered foods list. Agricultural Marketing Service (USDA AMS) (2021a).
8. United States Department of Agriculture. Labeling organic products. Agricultural Marketing Service (USDA AMS) (2021b).
9. United States Department of Agriculture. National Bioengineered Food Disclosure Standard, Agricultural Marketing Service (USDA AMS) (2021c).

August 2021