- Food manufacturers have been given until January 1, 2028, to comply with changes to the National Bioengineered Food Disclosure Standard after a federal district court ordered the prospective vacatur of three key USDA regulations governing bioengineered food disclosures. The court rejected the USDA’s request to extend certain provisions until 2029, finding that further delay would perpetuate inadequate consumer access to bioengineering disclosures.
- The National Bioengineered Food Disclosure Standard (NBFDS) is the federal labeling program established by Congress in 2016 that requires certain foods containing bioengineered ingredients to disclose that fact to consumers. Under USDA regulations implementing the law, manufacturers have been permitted to use on-package text, a USDA symbol, or electronic and digital disclosures such as QR codes. The regulations also exempted certain highly refined foods from disclosure when modified genetic material was not detectable in the finished product. Those digital disclosure and “detectability” provisions became the subject of the Natural Grocers v. Rollins litigation, which resulted in courts invalidating both aspects of the rule.
- As a result of the litigation, the digital disclosure framework and detectability exemption are scheduled to be vacated effective January 1, 2028, unless the USDA adopts replacement regulations before that date. If replacement rules are not finalized in time, manufacturers relying on QR codes and other digital disclosures may need to transition to on-package text or USDA-approved symbols, while some products previously exempt from disclosure could become subject to labeling requirements.
- The agency is expected to pursue a new approach to highly refined foods and is conducting additional research on the accessibility of digital disclosures. However, the timeline is compressed, and the agency will need to complete notice-and-comment rulemaking before the court’s deadline takes effect.
- Keller and Heckman will continue monitoring USDA rulemaking, implementation timelines, and related litigation developments that may affect bioengineered food disclosure obligations.
