FDA: “Non-GMO” Could Be Deceptive Advertising, While Other Labels Get a Hall Pass
A week ago, headlines swirled that the GMO labeling bill that was introduced by the food industry was dead.
It wasn’t true.
It now appears that legislation could be tucked quietly into the spending bill, set for passage before year end.
This bill is controversial in many ways, but part of the concern is the precedent that this piece of legislation would set by taking away state rights.
State rights are critical for our government’s balance of power. Since our founding as a country, the states have played such an important role in setting policy.
If the states see something happening at the federal level of which they do not approve, they have the power to take action. One of the most recent examples of this is the legalization of gay marriage. It happened at the state level first and then drove change at the national level. Another example is the seat belt law. It started at the state level, too. New York State was the first to introduce seat belt laws in the early 1980s. Today, we all wear them. And perhaps most visibly. the women’s right to vote also began at the state level.
In other words, state rights are critically important to protect.
So what is happening here? A lot.
On December 2, U.S. Senator Jon Tester, the United States Senate’s only working farmer, took to the Senate floor to demand that a controversial genetically modified organism (GMO) bill not be included as a rider to the omnibus appropriations bill.
But in a very quiet move that came in conjunction with this jockeying and the FDA’s recent approval of genetically modified salmon, the FDA also announced that the term “non-GMO” could be considered deceptive advertising.
According to the legal website, JD Supra Business Advisor:
Labels describing food products as “Non-GMO” are a no-go for the Food and Drug Administration pursuant to new guidance released on labeling food with or without genetically altered plant ingredients.
Importantly, the agency did not mandate that manufacturers disclose the use of genetically modified ingredients, and held to its position that GE products are not materially different from non-engineered foods. (We find this ironic, as the United States Patent and Trademark Office grants patents on these products because of their unique characteristics, traits and attributes which have never before existed in the food supply).
The agency did set forth certain rules regarding terminology. The term “Non-GMO,” short for non-genetically modified organisms, conveys an overly broad and inaccurate meaning when applied to food products, the FDA said, as most foods do not contain entire organisms. Instead, the agency pushed for the use of label terminology such as “Not bioengineered” or “This oil is made from soybeans that were not genetically engineered.”
“In general, an accurate statement about whether a food was not produced using bioengineering is one that provides information in a context that clearly refers to bioengineering technology,” the FDA explained.”
Note, an accurate statement about whether a food was produced using bioengineering is one that provides information in a context that clearly refers to bioengineering technology.
The law site goes on to say: “The agency provided examples of potentially misleading labeling. A statement could be deceptive when evaluated in the context of the entire label, such as a claim that the product “does not contain bioengineered soybean oil” for a product that is made largely of flour derived from GE corn and a small amount of non-GE soybean oil. Such a statement may require a careful qualification “in order to ensure that consumers understand its significance,” the FDA cautioned.
If the U.S. Patent and Trademark Office patents genetically modified foods for their unique attributes and characteristics, in some cases requiring that these foods be regulated by the EPA not the FDA, it appears that the FDA might also want to call out genetically modified foods for failure to disclose, misleading labels and the failure to inform consumers of these material differences identified by the USPTO.
Also problematic are claims such as “None of the ingredients in this food are genetically engineered” when some of the ingredients, like salt, are incapable of being processed through genetic engineering. Similarly, a statement that suggests or implies that a food product or ingredient is “safer, more nutritious, or otherwise has different attributes” than comparable foods because it was not GE may be false or misleading, the FDA said.
Yet it is because of the concerns over material differences that GMOs are labeled for over 60% of the world’s population. So why does the FDA seem to operate under such a different standard?
The FDA said it has no plans to take action against labels making use of the “GMO” terminology, but cautioned advertisers that the use of terms like “GMO free” or “Non-GMO” could face false advertising challenges from consumers. It recommended that “manufacturers not use food labeling claims that indicate that a food is ‘free’ of ingredients derived through the use of biotechnology.”
To read the FDA guidance, click here.
Why it matters: The FDA’s guidance leaves manufacturers with a choice: they can decide not to disclose the use of genetically engineered ingredients in their products and avoid the headache of using the proper labeling terminology. Or they can opt for voluntary labeling and take a careful read of the final guidance to ensure their claims are not false or misleading.
What is absolutely fascinating here is how the FDA has honed in on this particular term. Consumers are quickly learning that the term “natural”, often used by the food industry on their products, has no legal definition. Several lawsuits have resulted because of the misleading nature of the term and claims by food manufacturers.
But these two aren’t the only terms. If the FDA wants to update its regulations and policies, it needs to look at all of the vocabulary, terms and adjectives currently employed by the food industry.
Because as consumers are quickly learning, “natural” isn’t the only meaningless term that the FDA has failed to define. Here are a few more that don’t have a definition, which again has consumers asking: Why is the FDA targeting only the non-GMO label here?
Terms with no FDA definitions include:
- 100% Natural
- Free-Range
- Pasture-Fed
- Grass-Fed
- Cage-Free
- Vegan
- No antibiotics
In the absence of any definition from the federal level, some states are trying to define these terms. Some companies are. Again, the lack of movement by the federal government speaks to the important role that states play in helping Americans understand what is in our food system, how our food is made and where it comes from.
Because, right now. We are eating in the dark. Want to let your Congressman know about this? Please contact them using the look up feature below. We can build a better food system together.
