The National Bioengineered Foods Disclosure Standard & Absence Claims: The Cost of the Butterfly

The National Bioengineered Foods Disclosure Standard (“NBFDS”) is a step in the right direction in providing a uniform labeling standard for genetically engineered organisms (“GEOs”) that meet the statutory definition of “bioengineered.” Importantly, the law provides a consensus that GEOs are safe and that labeling standards should be uniform across the United States. However, the law largely fails to settle the broader debate and the issues associated with GEO labeling. Namely, the NBFDS’s use of the term “bioengineered” causes additional confusion, and terms like “genetic modification” and “genetic engineering” remain ambiguous. Furthermore, the Final Rule promulgated by the U.S. Department of Agriculture’s (“USDA’s”) Agricultural Marketing Service also creates critical grey areas that work against Congress’s intent in passing the NBFDS. This Comment uses research from the areas of biotechnology, psychology, law, economics, and public policy to examine a key failure of the NBFDS and overall labeling framework. Under the current regulations, companies are allowed to use deceptive absence claims, like “Non-GMO,” which causes significant harm to consumers and competitors. Companies using absence claims could also be harmed in the form of costly litigation and legal penalties if they are sued for false advertising. This Comment concludes that additional regulations are needed to better fulfill the NBFDS’s purpose and to mitigate the deception caused by absence claims. Specifically, this Comment recommends that the USDA’s labeling authority be expanded to include absence claims, the “Non-GMO” label be prohibited entirely, and the use of other absence claims be better regulated. This Comment explains how courts, agencies, or Congress could improve the NBFDS to include these recommendations.