USDA Requests Information on Electronic or Digital Link Bioengineered Disclosure Options

USDA’s Agriculture Marketing Service (AMS) recently solicited public information about possible amendments to the electronic or digital link option for disclosing a bioengineered food. 
By way of background, the National Bioengineered (BE) Food Disclosure Standard regulations (BE regulations) currently provide that a BE disclosure may be made by on-package text, on-package symbol, electronic or digital link, or text message. 7 CFR 66.100(b).
However, as we have previously reported, in September 2022, a district court held that USDA had exceeded its statutory authority in authorizing the text message option as a standalone means of disclosure. The law which the BE regulations implement (7 USC 1639 et seq.) instructed USDA to provide “additional and comparable” options to the electronic or digital link if it determined that consumers would not have sufficient access to the BE disclosure. However, the Court determined that the text message was not an “additional” option and did nothing to cure the issues which USDA identified with the digital or electronic link disclosure. Accordingly, the Court ordered USDA to reconsider both the text message and electronic or digital link disclosure methods, although both remain in place pending the reconsideration. 
Pursuant to the Court order, last month USDA requested public input on the effectiveness and usage of the electronic or digital link disclosure, potential “additional and comparable options,” and other questions related to the BE disclosure methods more generally. The detailed questions can be found in 89 Fed. Reg. 25187 (Apr. 10, 2024). Comments are due by June 10, 2024

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