Jan. 1 was the date for food manufacturers to decide whether and how they will need to make biotech ingredient disclosures and what records they will be required to keep, but industry officials said manufacturers and retailers didn’t have enough information yet from the Agriculture Department on how to comply with new GMO labeling regulations.
Companies are waiting in part for instructions from USDA’s Agricultural Marketing Service on the process that food manufacturers will use to detect whether food products or ingredients fall under the disclosure requirement.
The rules, known collectively as the National Bioengineered Food Disclosure Standard, include definitions of bioengineered food products. These definitions do not include highly refined ingredients such as vegetable oils, sugar and other foods in which the genetically altered DNA of the bioengineered crop can’t be detected.
The rules are already in effect for large and medium-size companies, but the mandatory compliance date isn’t until Jan. 1, 2022, so companies essentially have a two-year implementation period. Because the NBFDS is a labeling standard and not a health or safety issue, AMS will not do its own testing but instead will conduct a records audit on any complaints it receives.
Companies that are members of both the Grocery Manufacturers Association and the Corn Refiners Association are waiting for AMS guidance before making decisions on how to comply, according to spokespeople for both organizations.
Randy Russell, an industry lobbyist with the Washington-based Russell Group, said companies “won’t want to make decisions about whether to disclose or not disclose until they know what the rules are. Once AMS comes out with its guidance on the entire testing regime — what’s going to be required, what kinds of tests and measurements will be used — companies will be in a better position to make decisions.”
A few companies have already started voluntarily disclosing biotech ingredients on product labels. For example, cartons of Yoplait yogurt, a product of General Mills Inc., includes this phrase after the ingredient list: "Contains Bioengineered Food Ingredients. Learn more at Ask.GeneralMills.com."
A law that Congress passed in 2016 to preempt state GMO labeling laws mandated that companies start disclosing biotech food ingredients to consumers. But the law allows them to do so via electronic codes, such as QR codes that can be read by smartphones, rather than through wording on the labels themselves.
USDA was authorized to decide what bioengineered (BE) ingredients would be exempted from mandatory disclosure.
AMS will provide two different sets of instructions for use by food manufacturers, importers and certain retailers. The first set of instructions, released Dec. 17, covers how companies can validate or verify the accuracy of a refining process to render bioengineered material undetectable. AMS is taking comments on the draft instructions until Jan. 16.
AMS also will publish a second set of instructions to provide guidance for companies to use to select testing methods to determine whether a food product or ingredient contains detectable levels of BE genetic material.
USDA’s rules provide food manufacturers several options they can use to disclose whether a product contains BE foods.
Companies with annual sales of more than $2.5 million can use digital codes, list BE ingredients in text on their label, put one of two BE symbols on their packaging, or supply consumers with a number they can text to receive information via their cellphone. Companies with $2.5 million to $10 million in annual revenues can also disclose via a website or a phone number that consumers can call to hear the disclosure. Companies with less than $2.5 million in sales are exempt from the disclosure rules.
One of the two BE symbols is for products that require mandatory disclosure, while the other is for products with refined ingredients made from BE sources that cannot be verified. On products made from non-verifiable BE sources, companies can voluntarily choose to disclose that the food contains ingredients “derived from bioengineering.”
Allison Cooke, senior director of food policy for the Corn Refiners Association, said manufacturers of food ingredients will have to supply a certificate of analysis or some other record that discloses whether their ingredient was produced using BE inputs from the list of BE products supplied by AMS.
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In the past, ingredient manufacturers only supplied information as to whether a food ingredient was made from BE products if a firm requested certification because it was looking to source non-BE ingredients, she said.
“We are waiting on information from AMS that is pretty critical for manufacturers of refined products as to what detectable means,” Cooke says. “That was not clear in the final rule.”
Some CRA members have started to do some preliminary testing but will wait to invest significant time and resources into testing until they receive guidance from AMS, she said.
But Andrew Harker of the Russell Group cautions that while “a company can require its suppliers to do the testing, the ultimate responsibly for disclosure rests with the manufacturer.”
Food companies that use refined corn ingredients have already started to ask Cooke for information regarding whether they will need to disclose if they use certain ingredients.
“A lot of these customers are now making buying decisions for months and years to come,” she said. While highly refined food ingredients do not require mandatory disclosure, “we presume that some of our members’ products that go through less processing and refining will have to be disclosed.”
For many highly refined products, including high fructose corn syrup and vegetable oils, there is no way to detect whether they were made from BE crops because all genetic material is destroyed during processing. Thus, if a manufacturer has a multi-ingredient product that includes a highly-refined product, such as high-fructose corn syrup, but no detectable BE ingredients, it can use the voluntary disclosure that says, “derived from bioengineering” and continue using that disclosure after full implementation of the standard.
“If a food company has any knowledge or record that they are using a BE ingredient, they have to disclose it,” Cooke says.
According to AMS, 32% of all the corn produced globally was bioengineered in 2017, and more than half the corn produced in Argentina, Brazil, Canada, Honduras, South Africa, the United States, and Uruguay is BE. Generally, when corn is used in a product, it can be presumed to be BE corn unless certified as non-BE.
At this point, Cooke doubts whether many companies have decided to reformulate their products based on the standard. “Depending on what comes out of AMS as to how to verify detectable — depending on how that shakes out — disclosure could be voluntary and not mandatory,” she says.
Industry sources say they expect most companies to disclose bioengineered ingredients via digital codes, such as the SmartLabel system.
Currently 70,000 products have SmartLabel landing pages, and 80% of those products are foods and beverages, according to GMA data.
The SmartLabel system, which requires a landing page for each product, was designed by GMA, the Food Marketing Institute, and 300 industry representatives representing 90 companies.
Sixty companies are using the SmartLabel system, including Hershey, PepsiCo, Coca-Cola, and General Mills. The system allows companies to disclose a variety of information consumers could be looking for. Hershey was the first company to go live with the system in late 2015.
Revised Jan. 3 to provide additional details of the labeling requirements and how companies can comply with them, and to explain what companies were supposed to do by Jan. 1.
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