Author: Jana Caracciolo

As of January 1, 2022, most foods that contain bioengineered ingredients—some of which are grown or processed in the southern United States—are required to carry a disclosure that informs consumers that the food contains bioengineered ingredients. According to USDA’s regulations, food manufacturers and producers can make this disclosure by either (1) including a statement on the package, (2) including USDA’s bioengineered symbol on the package, (3) including an electronic or digital link on the package that allows consumers to read the disclosure online, or (4) including a number on the package that when texted provides consumers with the disclosure via text message. To learn more about the Bioengineered Food Disclosure Standard, click here.

When directing USDA to create these regulations, Congress required USDA to “provide additional and comparable options to access the bioengineering disclosure” if USDA determines “that consumers, while shopping, would not have sufficient access to the bioengineering disclosure through electronic or digital disclosure methods.” 7 U.S.C. § 1639(c)(4). Because of this provision, USDA conducted a study that found that many consumers, while shopping, would have difficulty accessing the internet. Therefore, USDA included the fourth text message disclosure option as the additional and comparable option to the third electronic disclosure option. 

Among other things, the plaintiffs in Natural Grocers v. Vilsack, 3:20-cv-05151-JD (N.D. Cal. 2022), argued that USDA acted arbitrarily and capriciously in deciding to include the fourth text message option as the additional and comparable option. The court agreed and found that the “text message option merely provided a fourth disclosure option that regulated entities can select instead of the electronic disclosure method.” As a result, the court remanded the text message disclosure regulation, but without vacatur. This means that until USDA updates the regulations, food manufacturers and producers can still choose to include the electronic or text message disclosures as a method to disclose bioengineered ingredients. 

Caracciolo, Jana. “USDA’s Text Message Bioengineered Food Disclosure Regulation Determined Unlawful”. Southern Ag Today 2(41.5). October 7, 2022.

On March 11, 2022, the United States Court of Appeals for the Tenth Circuit dismissed a case holding that beef products labeled as “Product of the U.S.A” are not misleading. Thornton v. Tyson Foods, Inc., — F.4^th —, No. 20-cv-2124, 2022 WL 727628 (10th Cir. 2022). Robin Thornton, one of the plaintiffs, is a beef consumer and claimed that “Product of the U.S.A.” labels deceived her into thinking the labeled beef originated from cattle born, raised, and slaughtered in the United States. The other plaintiff, Michael Lucero, is a beef producer who claimed he was paid less for his domestic cattle as a result of Defendant’s labeling practices. Both plaintiffs claimed that “Product of the U.S.A.” labels are misleading when the beef is derived from cattle either imported live or imported post-slaughter. Both plaintiffs brought their claims under New Mexico state law, not under the Federal Meat Inspection Act (FMIA). However, the main issue in the case was whether the FMIA preempts such state law claims.

This case dealt with two provisions of the FMIA. Under the first provision, meat labels must not be “false or misleading” and must be “approved by the Secretary” of Agriculture. 21 U.S.C. § 607(d). Secondly, the FMIA prohibits states from imposing any additional requirements which are “in addition to, or different than” the requirements imposed by the FMIA. 21 U.S.C. § 678.

The court reasoned that there is a presumption that labels are not false or misleading if the Secretary of Agriculture, through the Food Safety and Inspection Service (FSIS), approves the labels. Because FSIS approved Defendant’s labels, the court found that the labels were not misleading. Therefore, the court held that the plaintiffs failed to state a false advertising claim.

Additionally, the court found that the plaintiffs’ state law claims are expressly preempted by the FMIA. The court explained that if a federal statute expressly preempts state laws, then the corresponding state law must be interpreted and applied the same way as the federal law. Therefore, the court held that the FMIA expressly preempts state laws, and therefore, New Mexico state law must be interpreted and applied exactly as the FMIA.  

However, not all of the Circuit Court judges who heard this case agreed. One dissenting judge disagreed with the majority opinion, and argued that just because FSIS approved a label does not mean that the label is not false or misleading. The dissent focused on the language of the FMIA, which states meat labels must “not [be] false or misleading and … [must be] approved by the Secretary.” Thornton v. Tyson, (quoting 21 U.S.C. § 607(d)). The dissent argued that the use of “and” to connect these two requirements suggests the FMIA “contemplates the existence of—and indeed proscribes—labels that are both misleading and approved by the Secretary.”   

If the plaintiffs choose to, they can appeal the 10th Circuit’s opinion to the Supreme Court of the United States. However, the Supreme Court only hears a fraction of the cases appealed to them. Also, regarding “Product of the U.S.A” labeling, FSIS currently has an information collection request awaiting approval from the Office of Management and Budget (OMB). FSIS is seeking approval to conduct a “web-based survey/experiment to help gauge consumer awareness and understanding of current ‘Product of USA’ labeling claims on meat (beef and pork) products and consumer willingness to pay”.

Caracciolo, Jana. “The 10th Circuit Dismisses “Product of the U.S.A.” Mislabeling Claims“. Southern Ag Today 2(14.5). April 1, 2022. Permalink