In mid-September, a federal district court in California issued a decision ordering USDA’s Agriculture Marketing Service to modify food manufacturers’ disclosure options available under the National Bioengineered Food Disclosure Act Standard (BE Rule). The court’s ruling requires USDA to modify the “digital or electronic link” (QR Code) disclosure option to make it more accessible to consumers, and invalidates the “text message” disclosure option.

The court reasoned that once USDA’s study found the digital/electronic link inaccessible to many consumers, the statute directed USDA to provide manufacturers with “additional and comparable” disclosure options that would allow consumers to access the digital/electronic link. Instead of fixing the access problems, USDA added a new and separate text message disclosure option. The court determined that USDA must modify the digital/electronic link to make it accessible to consumers. Moreover, the court invalidated the text message option because Congress did not authorize USDA to expand disclosure options beyond “text, symbol or electronic or digital link.”

While much of the legal focus has been on the disclosure methods, it is important to note that the court upheld USDA’s exclusion of highly refined foods lacking detectable levels of modified rDNA from mandatory disclosure as a reasonable interpretation of the statute. Moreover, the court concluded that USDA’s mandate to use the term “bioengineered” was also a reasonable interpretation of the statute. The plaintiffs have signaled their intent to appeal the ruling.

Next steps: The court remanded the BE rule to USDA to conduct a rulemaking that will remove the text message option and modify the electronic/digital link option. In the meantime, the court is allowing the current BE rule to remain in effect to avoid manufacturer and customer labeling disruption and confusion. This means that dairy companies can continue to use QR codes and text message disclosures until such time as USDA finalizes a rule. IDFA will be actively engaged in the new rulemaking and advocating for a sufficient implementation time to meet supply chain challenges. 

IDFA members with questions should contact me at

Danielle Quist

Vice President, Regulatory Affairs and Counsel