Labeling of GE Foods on the Horizon?

May 9, 2013

By Riëtte van Laack

Senator Barbara Boxer (D-Calif.) and Representative Peter DeFazio (D-Ore.) recently introduced the Genetically Engineered Food Right-to-Know Act (S. 809 and H.R. 1699) that would direct FDA to require labeling to identify genetically engineered (“GE”) foods “so that consumers can make informed choices about what they eat” (see here).

The bill would require labeling of virtually all GE whole and processed food (including dietary supplements).  Exceptions include medical foods, foods served in restaurants and other similar eating establishments, and foods containing GE processing aids, such as yeast.  The proposed bill includes a provision that allows manufacturers to rely on guarantees by their suppliers that the food ingredients supplied are not GE, thereby reducing the testing burden on manufacturers.

Under FDC Act sections 403(a)(1) and 201(n), a food is misbranded if its labeling is false or misleading in any particular, including by  failing to disclose facts material with respect to the consequences which may result from use of the food under customary or usual conditions of use.  Since 1992, however, FDA has taken the position that bioengineered foods (FDA prefers the term bioengineered to GE) as a class are not materially different from conventional foods, and therefore there is no basis to require labeling that specifies their method of production. 

However, consumers (or at least consumer activists) appear to disagree.  In 2011, several consumer advocacy organizations petitioned FDA to develop regulations requiring labeling of GE foods, arguing that there is a material difference between GE and non-GE foods (see our previous post here).  In addition, legislation that would require labeling of GE foods has been introduced in a number of states.  Thus far, these efforts have met with limited success.  Recently, some retailers have stepped in.  A couple of months ago, Whole Foods announced that it will require that any GE foods sold in its stores must be labeled as such by 2018.

Which effort will succeed remains to be seen.  However, it appears that GE labeling of foods is could well become a reality, be it through legislation or other means.