In grocery store freezer cases, Impossible Foods’ ground plant-based meat stands out.
The packaging looks similar to its competitors in the space: heavy duty plastic formed around a square of the plant-based ground beef. A label proclaiming “burger made from plants” in all capital letters on the front, as well as a rundown of some nutritional benefits: 19 grams of protein per serving, no animal hormones or antibiotics, 0 milligrams of cholesterol.
The unique part is on the back of the package. In the lower right-hand corner, above symbols proclaiming the product is halal and kosher, is the new USDA-approved “Bioengineered” product label.
The Impossible Burger, which can “bleed” using heme made from genetically modified soy leghemoglobin, is among the first food products to use the soon-to-be federally mandated GMO label. According to AgNews, the symbol has been on product packages since at least October.
Jan. 1 began the official implementation period for the labeling law, which was signed by President Barack Obama in 2016. Large food companies can now start using the symbol to show consumers information about ingredients that meet the government’s definition of bioengineered, more commonly known among consumers as GMOs. They can also use simple text, a smartphone-scannable code, a telephone number or text message to provide the disclosure.
According to the law, large manufacturers — those with more than $2.5 million in annual receipts — are required to have one of the approved forms of disclosure on their packages by Jan. 1, 2022. Attorneys and analysts told Food Dive they think most of the other products in the grocery store won’t be featuring the disclosure until then.
“I don’t think a lot is going to happen quickly,” Jesse Zuehlke, general manager of Prime Label Consultants, told Food Dive. “I think my sense is people are feeling their way through this, and I think the supply chain is sort of trying to adjust.”
Though it’s been more than a year since USDA released its final regulations on the labeling law, there are still many issues that food manufacturers are trying to understand. Attorney Martin Hahn, a partner at Hogan Lovells who works with food manufacturers on several issues, has long said obtaining clarity on the labeling law — and what does and does not fall under the government’s definition of what needs a GMO label — is paramount.
While Hahn told Food Dive many of his clients started working on the process of adding GMO information to their labels soon after the regulations were published, questions about what actually meets the definition of GMO material and how the disclosure can appear on labels stopped them from charging forward. And as new definitions published for the sake of clarity appear to bring onerous processes and more confusion into the mix, Hahn said it gives manufacturers and suppliers more cause to pull back on adding the disclosure.
“We’re running into somewhat of a brick wall here because implementation requires that you develop the documentation from your ingredient suppliers, and the ingredient suppliers need to provide documentation that an ingredient’s been refined and does not contain detectable levels of DNA,” Hahn said. “And until we can get that document from the ingredient supplier, we’re not going to be, as a finished food manufacturer, in a position to be in compliance.”
What the law says
On its face, the law is quite simple. Food products with detectable biologically engineered DNA need to be labeled. Items deliberately containing GMOs, like the Impossible Burger, have to tell consumers they were made through bioengineering. And products that inadvertently contain 5% or more of biologically engineered material need to have a disclosure. The law exempts meat, poultry, dairy and egg products from animals given genetically modified feed, as well as products having one of those items as a primary ingredient, like broth.
Food manufacturers that make products that contain GMOs, but don’t meet these standards — ingredients that are made from GMO crops that are so highly refined there is no detectable biologically engineered DNA, or inadvertently containing less than 5% GMO material — are permitted to voluntarily disclose their GMO material, but are not required.
USDA representatives, who spoke to Food Dive on background, said the department may receive complaints about improper disclosure between now and the 2022 mandatory deadline, but will not enforce the labeling law until then. And even then, enforcement is likely to only come from complaints. The disclosure law is run out of the department’s Agricultural Marketing Service, which is not an enforcement agency, and USDA will not be in stores examining labels.
“I don’t think a lot is going to happen quickly. I think my sense is people are feeling their way through this, and I think the supply chain is sort of trying to adjust.”
General manager, Prime Label Consultants
However, there’s much more to how the law is interpreted. Many manufacturers are working to determine if their ingredients meet the definition of biologically engineered, and it’s not entirely clear what the testing procedure is. After all, according to USDA data, GMOs are widespread in common food crops — 94% of all soy grown in the U.S., 83% of domestic corn and, according to statistics reported by Harvest Public Media, 95% of U.S. sugar beets. Many food products contain the refined products of these crops, so it’s vital for manufacturers to know whether there’s anything that needs to be disclosed.
“They are guilty until proven innocent under this rule, if you will,” Zuelhke said. “…I need to have data on hand that proves that they’re non-BE. And it’s unclear what the rules of the road are. …I think that may help shake things loose when some of that gets resolved.”
While USDA representatives told Food Dive they are providing more information as quickly as they can, there are still gray areas. And some information intended to provide additional clarification actually has had the opposite effect, attorneys and analysts said.
A draft instruction that lays out how to validate a refining process — basically the way to ensure that a certain refined ingredient does not need to be constantly tested to prove the absence of detectable GMOs — has confused many, Hahn said. The draft was first published Dec. 17. Hahn said the regulation introduces food safety terminology to this process — a completely different realm of food manufacturing, since GMOs have nothing to do with whether food is safe — and requires ingredient suppliers to specifically designate the steps in the process that actually make the DNA non-detectable and monitor them.
“It would appear based on the draft instruction that there’s an expectation that the industry would be expected to do all this continual testing, which seems to be unnecessarily burdensome and really costly,” he said.
Earlier this month, USDA reopened the comment period on that instruction, based on the year-end holidays and extension requests. People will have until Feb. 7 to offer input, according to the announcement in the Federal Register.
Attorneys and consultants working with labeling had nothing negative to tell Food Dive about USDA’s management of figuring out the law so far.
“I think they are being incredibly responsive, and I think we’re going to continue to get a lot of information from AMS that’s going to help with the rollout in the interim,” Robert Hibbert, a partner at law firm Morgan Lewis, who advises clients on food-related regulations, told Food Dive. “There’s certainly some questions about some of the detail of that regulation. A lot of that’s been cleared up.”
What will consumers think?
The GMO labeling movement was born out of consumers who wanted more information about what is in their food. The implications of actually having a label on a product, however, might not be good for consumer perception.
Across the board, studies on GMOs in food have shown consumers don’t understand what they are and are wary to try products containing them. In 2018, pro-GMO organization GMO Answers found 7 out of 10 adults don’t really know what GMOs are, and less than a third are comfortable having GMOs in their food. The same year, a study by researchers at Washington University in St. Louis and published in the Annual Review of Nutrition found even 20 years after wide cultivation of GMO food began, many consumers are still “grossed out” by them.
Kathy Musa-Veloso, director of health claims in the food and nutrition group of quality assurance testing company Intertek, presented some other study findings last summer at the Institute of Food Technologists conference. Consumers said they felt GMO crops — some of which are altered to be more pest-resistant — were harmful to the environment. In another study, the vast majority of people who avoid GMO crops said they were concerned about human health, although most health professionals say GMOs are just as healthy as their non-biologically engineered counterparts.
As far as a label goes, a consumer study of a product with a mocked up GMO label showed nearly a third of consumers noticed it, Musa-Veloso shared. And of those consumers who took notice, about half were influenced not to buy the product.
“We can sit here and talk about bioengineering, but most consumers don’t necessarily even resonate with the term ‘bioengineering.’ So how consumers will react is going to become one of the bigger question marks.”
Partner, Morgan Lewis
Adding to the potential confusion for consumers is how these ingredients will be represented on the label. While “GMO” has been the popular terminology for decades, the federal law requires these kind of ingredients to be called “bioengineered” or “derived from bioengineering.” This terminology is completely accurate, but Hibbert pointed out it’s another degree of uncertainty for consumers.
“We can sit here and talk about bioengineering, but most consumers don’t necessarily even resonate with the term ‘bioengineering,’ ” he said. “So how consumers will react is going to become one of the bigger question marks.”
From where he sits, Hibbert said he sees manufacturers are keeping product reformulation on the table as a potential option to avoid the GMO label. However, he said, many are still trying to figure out whether they need to disclose anything.
Soon after the GMO labeling law was passed, several companies did high-profile reformulations to replace ingredients that may lead to disclosure. Del Monte reformulated fruit, vegetable and tomato products with non-GMO ingredients, as did Hormel’s Applegate brand. Grocery store Earth Fare removed genetically modified ingredients from its private-label products. In the last two years, more brands may have worked toward reformulation, but quietly.
It’s still up in the air whether manufacturers will take steps to educate consumers on what “bioengineered” (or “GMO,” for that matter) actually means. Zuelhke said this has almost always been a question, especially considering some GMOs were created as a more high-tech alternative to cross-breeding to do things like increase yields or become more pest and disease resistant.
Hibbert said that companies could have an opportunity to explain what GMOs mean and are through the disclosure itself. After all, the disclosure law allows companies to offer a smartphone-scannable panel that provides a product’s GMO information. It isn’t inconceivable that manufacturers could use the same website that provides that information to explain the reasons behind using GMO-derived ingredients. The law also allows the disclosure to come through a telephone number or text message, both of which could also provide more in-depth information about GMOs.
However, Hibbert said, it’s likely that some food and drink categories have consumers who are less concerned with whether a product contains GMOs. In the more natural or health-oriented food space, he said, people are much more likely to be paying attention. In other areas, like private label, which entails many different kinds of product lines, manufacturers are likely to opt for digital disclosure.
Consumer acceptance of the label and the backstory of the products it is on has always been a big question for industry, Hibbert said. And it’s a question that it will be difficult to answer until the labels start to appear in larger quantities on grocery store shelves.
“Will consumers understand this?” Hibbert asked. “If they simply understand this as being genetically engineered, [they could think] ‘Maybe I’m OK with that.’ And if not, then yes, we’ll look at a reformulation, but [companies are] still sort of in fact-finding mode on their own products and on the consumer front first before they can reach a decision on whether to reformulate.”