The Trump Administration’s latest executive orders have effectively prevented the USDA from promulgating rules on GMO food labeling. The development will likely throw a wrench in the USDA’s anticipated plans to give more direction to the food industry about what and how manufacturers need to disclose about products containing bioengineered products.
Last August, we reported on a bill that President Obama signed into law amending the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 et seq.), to insert a new provision requiring disclosure (i.e., labeling in some manner) of bioengineered foods. The law, known as the National Bioengineered Food Disclosure Standard, is historically significant, as it is the first nationwide law requiring disclosure of foods containing GMO ingredients. It was designed, in large part, to expressly preempt states from requiring labeling of foods containing GMO ingredients (such as Vermont’s controversial labeling law). A provision in the bill expressly preempts state labeling requirements.
The new law tasked the USDA with conducting research and surveys to determine what labeling process would be most effective for consumers, the agriculture industry, and food manufacturers. Thus the “pre-rule” law does not define the disclosure standard. Instead, the law gives the USDA near carte blanche to define and implement mandatory disclosure and labeling procedures for bioengineered foods. The law gives the USDA two years to implement the finalized rules.
However, as a result of President Trump’s January 20 memo to department heads, the Office of Management and Budget has, excepting emergency situations, returned all rules and proposals pending review to the federal agencies, including the USDA. The White House’s decree puts a halt on any new regulations until March 21 and essentially freezes the USDA’s ability to conduct its research and surveys. With a fairly narrow two-year window for rule promulgation, even a two-month delay could significantly impact the USDA’s implementation of GMO labeling standards.
Further, President Trump’s latest move may slow the USDA even more. An executive order signed Monday, January 30, 2017, requires all federal agencies to cut two regulations before a new regulation may take effect. Before signing the order, President Trump told reporters that “if you have a regulation you want, number one, we’re not going to approve it . . . but if we do, the only way you have a chance is we have to knock out two regulations for every new regulation.” This regulation only applies to Fiscal Year 2017, but, as analysts suggest, Trump may at a later date extend it to include regulations slated for issuance in 2018.
This additional barrier imposed by the Trump administration suggests that regulatory agencies will struggle in the next four years to implement rules. In the meantime, the USDA not only faces a standstill until at least March 21 on GMO labeling research, but the agency may be tasked with considering which two regulations may have to be cut in order to make room for the GMO labeling regulations. This is no small task, as regulations cannot simply be deleted from the code of federal regulations. An important note is that because the new law expressly preempts state regulation of GMO labeling, no state can step in and fill this regulatory void. At this point, it is impossible to know what the future holds for GMO labeling standards. Regardless, we’ll keep you updated on the USDA’s progress.
Emilee Hargis is a litigation associate who represent food and biotech companies in litigation.