Blog: The Daily Intake
Timeline for Notice of Proposed Rulemaking for Bioengineered Food Disclosure Standards Published in Unified Agenda
- USDA recently published its 2026 Unified Agenda, which includes an August 2026 target date for a Notice of Proposed Rulemaking (NPRM) to revise the bioengineered (BE) foods disclosure regulations and address the deficiencies identified by the Ninth Circuit, which held that the absence of detectable modified genetic material is not legally equivalent to a food not containing such material, and invalidated the rule’s detectability exemption as well as its digital and text-message disclosure provisions.
- The 2016 National Bioengineered Food Disclosure Standard introduced federal disclosure requirements for BE foods, requiring manufacturers to disclose foods that contain BE ingredients. In December 2018, the USDA published its final regulations, which added a detectability exemption and text-message option. The detectability exemption excluded certain foods from the definition of a BE food if “the genetic material is not detectable,” and USDA added an additional disclosure option of text messaging to “provide additional and comparable methods” to access the BE disclosure. The original requirements only offered three disclosure options: on-label text, symbol, and electronic / digital link. Manufacturers used quick response (QR) codes when using the electronic or digital link disclosure options, and the other two options required a symbol designed by the U.S. Department of Food and Agriculture (USDA) and an on-label text of “bioengineered food” or “contains bioengineered food ingredients.”
- In July 2020, consumer advocacy groups and organic food retailers sued USDA, arguing that the rule improperly exempted many highly refined foods from disclosure and allowed companies to rely on QR codes and other digital disclosures that were not readily accessible to consumers.
- As we previously reported, the district court upheld most of the rule in 2022, but in October 2025, the Ninth Circuit invalidated the detectability exemption and the digital and text-message disclosure provisions, while upholding USDA’s use of the term “bioengineered.” The court found that the detectability provision was inconsistent with the statute because the absence of detectable modified genetic material was not equivalent to the food not containing such material.
- Now, both parties have submitted briefs regarding the appropriate timing for vacatur of the invalidated provisions, with plaintiffs arguing for a January 1, 2028, compliance date, and USDA seeking to delay vacatur of the digital and text-message disclosure provisions until January 1, 2029. While the district court has not yet ruled, both parties agreed on a January 1, 2028, vacatur date (requires PACER login) for the detectability provision.
- Keller and Heckman will continue to monitor developments regarding bioengineered food disclosure standards.