Wait. Before you order that replacement packaging bearing the updated Nutrition Facts Panel due out July 26, 2018, there’s one more change standing in the wings. Mandatory declaration of a food’s genetically modified organism (GMO) content could get underway as soon as mid-2019. Or maybe not.

Congress fast-tracked passage of the National Bioengineered Food Disclosure Law (NBFD) to turn back the rising tide of state laws calling for labeling of GMOs in foods. While NBFD got the job done in time, it may wait longer for implementation.

Although most food manufacturers accept such labeling as necessary, they are not happy about swallowing the expense of yet another packaging change. Also, anti-GMO and advocacy groups claim the law does not make labels transparent enough to meet the consumers’ right to know what is in their foods. And it sets up a potential conflict between the US Department of Agriculture (USDA), tasked with writing the rules, and the Food and Drug Administration (FDA) in the Health and Human Services Department, charged with regulating food labels.

“A constructive solution to a complex issue” is how Laura Batcha, CEO and executive director of the Organic Trade Association, described the new law.

Around the world, 64 countries require labeling to alert the consumer to the presence of GMOs in foods. Until passage of the 2016 law, labeling of GMO content in the US was strictly voluntary. In November 2015, FDA released final guidance on such voluntary labeling, updating draft guidance published 14 years earlier.

What NBFD says

Basically, any food sold in the US that contains genetically modified (GM) content — whether an ingredient or the whole food itself — must say so on its packaging, according to NFBD.

During hearings about the Stabenow-Roberts bill that became NBFD, USDA defined the purpose of the legislation. The law provided the department with authority to: 1) mandate labeling of food including all commercially grown GMO corn, soybeans, sugar and canola crops; 2) require labeling of food products that contain GM material resulting from gene-editing techniques; and 3) mandate labeling of food, including products that may contain highly refined oils, sugars or high-fructose corn syrup that has been produced or developed from genetic modification techniques. Still, some food ingredients were exempted, such as products of animals fed GMO feed.

Food processors are given the option to make their declaration by printing a quick response (QR) code on the label that, when scanned by a smartphone, will reveal the GMO content by linking the user to a website. Although food companies have long used QR technology as a marketing tool to gather information from consumers, such practice is not allowed with GMO labeling. Small processors are permitted to print phone numbers instead.

Some consumer advocacy groups are unhappy about this provision. The NPD Group reported that consumers, who already rely on packaging as a guide in determining what is in a food product, prefer on-package labeling over using a QR code.

Consumers and food producers favor the terms GMO or GM, but the law uses “bioengineering” and “bioengineered” instead. The law defines those terms as referring to a food “that contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques; and for which the modification could not otherwise be obtained through conventional breeding or found in nature.”

Congress wrote specific requirements into the law. Among other things, USDA must set the threshold amounts of GM material present that would trigger labeling. It also specified an electronic or digital link be offered to disclose such content. Small manufacturers have less restrictive options, and foodservice operators and very small manufacturers are exempted.

The law also stated that a bioengineered food that has successfully completed pre-market federal regulatory review cannot be described as safer than (or not as safe as) a non-bioengineered counterpart of the food solely because it is bioengineered or developed through use of bioengineering.

One additional point: The GMO labeling law spells out no penalties for non-compliance.

Read on to learn how the FDA is enacting this law.

Putting it in action

Congress designated USDA to interpret NFBD, a task the department handed to its Agricultural Marketing Service. The service has two years to write the regulations, with an implementation date no earlier than one year later for on-package labeling. This work is tracked on a USDA website, www.ams.usda.gov.

On Aug. 1, USDA sent preemption letters to the governors of all US states, plus Guam and the Virgin Islands. In October, the working group requested proposals to study electronic or digital link disclosure technologies.

Normally, the regulatory process runs on rails, with predictable stops for public comment periods, circulation of preliminary rules, more comments and then publication of final rules. The process then provides another one-to-three-year period for compliance by the larger companies and a year or two more for medium and small businesses. Thus, the regulatory process would not require industry compliance much before mid-2019.

USDA was expected to publish an advanced notice of proposed rulemaking in November, but this is still on hold, according to Lee Sanders, the American Bakers Association’s senior vice-president of government relations and public affairs. “It is not likely to be released for comment until the USDA secretary is confirmed,” she said. As of press time, the Senate Agriculture Committee had yet to set a hearing date for Sonny Purdue, the proposed candidate.

Ms. Sanders also noted that the law requires the rule to be finished by July 29, 2018. “This is three days after the revised Nutrition Facts Panel rule is supposed to become effective, unless there is an extension,” she said.

In a somewhat related move, three notices published in the Federal Register of Jan. 19 show FDA and USDA digging into modernizing GMO regulations. They differentiate between older genetic engineering techniques and newer gene-editing methods related to animals and plants for food.

Learn how the US arrived at mandatory GMO labeling in the next segment.

Dichotomy of belief

How did the US arrive at mandatory GMO labeling?

Once upon a time, the debate about GMOs in food was about safety. FDA affirmed, based on science, that such foods were safe to eat and posed no more risk than conventional foods. Such findings were on the mind of Dean Folkvord, CEO, Wheat Montana Farms and Bakery, Three Forks, MT, when he spoke during a panel discussion at BakingTech 2017, the annual technical conference of the American Society of Baking (ASB). “There is no scientific data that says GMOs are less safe than non-GMOs,” he said. Even so, his company educates consumers on its website about how its baked goods are non-GMO and answers frequently asked questions about its production and farming techniques.

“People think wheat is a genetically modified organism, even though it is not,” Mr. Folkvord said. “People still think that is the case, so it’s all about how we respond.” The bakery labels all of its products with a Non-GMO Project verified icon.

In the realm of public opinion, food companies and their marketing departments must deal with both perception and reality. “If the consumer believes it, then it’s true whether it’s scientifically true or not,” said Todd Wallin, president of Ellison Bakery, Fort Wayne, IN, during the same panel. “They’re not going to buy a product if they are concerned about GMOs, and if they are, then you better have a product that is labeled as Non-GMO Project verified.”

With the Washington state ballot initiative and labeling laws that spread from Vermont throughout New England, the issue of GMOs in food changed into a “right to know” matter.

Bioengineered ingredients have become the fastest growing food concern as consumers increasingly prefer foods perceived as authentic and real, according to The NPD Group. News coverage and social media may be fueling these fears, noted Darren Seifer, an NPD food and beverage industry analyst. “With increasing awareness and concern, consumers would benefit hearing from food manufacturers the reasons why they use GMOs and how their use benefits their customers,” he said.

Mr. Wallin observed, “In a consumer climate where people don’t trust media or even good science, there are lots of opportunities for us to stay ahead of the curve.”

Food companies should take such consumer attitudes seriously in how they address GMOs and their labeling. “What is actually GMO and what is not GMO?” asked Julie Nargang, vice-president of marketing, Azteca Foods, Chicago, during the ASB panel. “It’s our responsibility to help educate the consumer, and that will help with our sales.”

In the meantime, more food manufacturers than ever voluntarily label their goods as non-GMO or GMO-free. One need only look at the thousands of food products verified by The Non-GMO Project as free of bioengineered components. As of press time, it listed 2,217 items in the bread and baked goods category, plus 1,305 cereal and breakfast foods. And its count of wholesale ingredients came to 3,869 items.

In 2015, 15.7% of new US food and beverage products made non-GMO claims vs. 2.8% in 2012, according to Lynn Dornblaser, director, innovation and insight at Mintel, a market research firm.

Washington politics may have put rulemaking for mandatory GMO labeling on hold temporarily, but there’s nothing transitory about efforts by bakers and snack food producers to ramp up their voluntary disclosure of the absence of such components. Assurance of “no GMOs” is what the public wants, and it’s what the public is getting at an increasing pace.