Samuel Jockel, the lawyer who wrote the rule for the Agriculture Department’s Bioengineered Disclosure Standard, speaks at the Grocery Manufacturers Science Forum on Wednesday. At right are Martin Hahn, a partner at Hogan Lovells, and Greg Jaffe, director of the Project on Biotechnology at the Center for Science in the Public Interest.

Photo by Jerry Hagstrom/The Hagstrom Report

When Congress passed and President Barack Obama signed the National Bioengineered Food Disclosure Law in 2016, they hoped to end the debate and confusion over the labeling of foods for genetically modified ingredients.

The law did preempt state labeling laws, as the food industry wanted, but there are so many problems and inconstancies with the law and the rule promulgated by the Agriculture Department’s Agricultural Marketing Service that when the standard goes into force in January, there will be consumer confusion and lawsuits, three lawyers involved with the standard said Wednesday at the Grocery Manufacturers Association Science Forum.

Martin Hahn, a partner in the Hogan Lovells law firm and moderator of the discussion, said that it was extraordinary that he, who had been a “huge advocate” for strict disclosure of highly refined ingredients, Samuel Jockel, who wrote the rule when he was a lawyer at USDA and is now an associate at the firm of Keller and Hackman LLP, and Greg Jaffe, director of the Project on Biotechnology at the Center for Science in the Public Interest, all agree there will be problems.

Jockel said that the likely problems were inherent in the law itself and the interagency process that required compromises among federal agencies in writing the disclosure standard and choosing the language, symbols and electronic system to inform consumers.

“What you see is a compromise between different interests. There were lengthy debates” before the proposed rule was released in May 2018, Jockel said.

The most significant, he added, were about whether to require labeling of highly refined ingredients whose genetic modification is impossible to detect in the final form of the foods in question.

GMA and its member companies had urged that the genetic modification of those ingredients be disclosed, but USDA went along with the view of farm groups that did not want them disclosed.

But the law will still require companies to keep records of their presence and processes to justify the lack of labeling, Jockel said. And firms will also be allowed to voluntarily label the ingredients or disclose them with the term “derived from bioengineering.”

Jockel, who left USDA before the final rule was promulgated, said, “There is a lot of flexibility given to industry in the final rule, but is there certainty for consumers? By asking the question, you know what my thoughts are.”

Hahn said that the food industry has to be prepared for criticism of the labeling system and that there is a lot of confusion in the industry about what kind of testing is needed to prove claims.

The law exempts meat and poultry and forbids disclosure that animals may have eaten bioengineered feed, but in meat-containing products whether labeling is required depends on what ingredient is listed first on the label, Hahn said.

Jaffe said that the problems with the law and rule begin with the decision to use the term “bioengineered” rather than the better known genetically modified.

Some consumers may conclude “that someone is trying to trick them,” Jaffe said.

The second issue, he added, is that the mandatory labels will not say which ingredient is genetically modified, but the voluntary labels are allowed to list which ingredients are modified. If a food product contains a label that says it contains genetically modified ingredients, consumers may conclude that ingredients that are not genetically modified, such as wheat, are genetically modified.

Jaffe said he thinks the labeling scheme will also cause trade implications. Countries often “harmonize” regulations so that foods can be exported and imported, but the U.S. rules will make that difficult or impossible, he said.

Both Hahn and Jaffe said they expect there to be lawsuits over the rule.

Hahn noted that the law did not give USDA authority to recall products over improper labeling, but still said that AMS is supposed to enforce the law. That is likely to lead to labeling audits that will be publicly released, he said.

Then, Hahn said, “class action lawyers will file suit,” resulting in enforcement coming from the class action lawyers.

“There will be litigation challenging the rule” on many issues including the use of the term bioengineered, electronic disclosure, the question of whether the symbol for labeling is “too positive” and the decision not to include gene-edited foods for labeling, Jaffe said.

In a brief interview after the session, Jockel said that he knew when he was writing the rule that there would be problems with it, but that AMS had done its best to “grapple” with the law.