day one project

Protecting Consumers by Reforming Food Labeling Regulations

06.29.23 | 9 min read | Text by Jonathan Burbaum


The Biden-Harris Administration has consistently prioritized consumer protectioninvigorating rural communities and natural technologies that address climate change. These three priorities are embodied in this proposal and present an opportunity for a bipartisan win-win. Agriculture directly connects rural Americans with urban ones and is central to practical climate solutions. But as biotechnology advances, consumers face a myriad of new ingredients and labels to parse through at the supermarket. These labels, including ‘organic’ and ‘non-GMO,’ can often be confusing. There are competing views about the proper regulatory framework that will provide the highest nutrition to the most citizens at the lowest possible cost while respecting the environment. Comprehensive food labeling regulation reform can help consumers avoid deceptive marketing and allow farmers and grocers to compete fairly. In addition, it can be a tool to leverage the marketplace to implement climate-friendly solutions.

There are two possible approaches to implementing this reform: The best alternative would be to pass legislation that expands the BE labeling program, enhancing the labeling authority of USDA, strengthening Truth-in-Advertising laws, and providing a legal framework to address misleading claims across Federal agencies. Alternatively, the Federal Trade Commission (FTC) is already empowered to enforce existing Truth-in-Advertising laws. It can use this authority to reinforce the USDA’s existing labeling programs to ensure that consumer information aligns with scientific evidence. 

Challenge and Opportunity

In the past 50 years, the idea of “health foods” has gone mainstream. Despite the lack of hard scientific evidence, the term has morphed from denoting foods that help individuals avoid diet-related diseases to marketing foods that claim to help every American live healthier. This change in the market has also generated healthy profit margins for certain grocery retailers.1 But the distinction is more than marketing—most physicians now agree that there is a strong relationship between diet and disease based on scientific evidence. For example, scientific communities agree that specific ingredients like saturated fats can affect health. To ensure consumers can make informed choices about these ingredients, their presence is explicitly listed on the FDA’s nutrition labels.

Unfortunately, the zealous proponents of health foods have gone beyond advocacy of ingredients the medical establishment deems “healthy.” Foods whose heritage can be traced to intentional genetic modification in a modern laboratory are ominously labeled as “genetically modified organisms” (GMOs). Although this label has taken on a negative connotation, it’s simply a descriptor and, by itself, cannot convey whether or not a product is “healthy.” Such labeling is like singling out children born using modern in vitro fertilization and treating them differently than children conceived “naturally”! Conflating the nutritional composition of food with its genetic heritage allows marketers to extract a premium for foods labeled “non-GMO” while failing to acknowledge the actual health benefits of some GMOs.

In 2016, Congress established the National Bioengineered Food Disclosure Standard (NBFDS), a US federal law that mandates “BE” labeling for bioengineered foods. These foods contain genetic material not accessible via breeding, added using in vitro recombinant DNA techniques. This law empowers USDA to specify whether ingredients should be labeled BE depending on their supply chains and to define analytical tests that establish whether labeling is necessary. These analytical tests allow the agency to define bioengineered products precisely. While GMO and BE foods may overlap, the two labels are inconsistent and have different criteria specified by different organizations. 

Science has weighed in on GMO/BE foods, and numerous studies have shown no health risks associated with the consumption of GMO/BE foods.2 Indeed, bioengineering improves the nutritional content of some foods. For example, low linoleic acid canola oil has less trans-fat, a dietary component associated with increased rates of heart disease. In such cases, the nutritional differences are reflected on food labels following FDA guidelines. In addition, bioengineering can reduce the number of agricultural chemicals needed to prevent spoilage, eliminating potentially toxic residues and food waste. But marketers of “health(y) foods” have spent millions to support “non-GMO” labels that are unrelated to health while continuing to sow irrational fears to help maintain their margins.

To make matters worse, marketers have added to the confusion by labeling certain foods with another vague descriptor, “organic”. Organic farming is a cultivation practice that avoids synthetic pesticides and artificial fertilizers. It is how the crops are grown, not what. But even the USDA’s National Organic Program (65 FR 80547. 12/21/2000)3 conflates the two, specifying that even animals fed with GMO feed cannot be labeled USDA Organic! From a scientific perspective, it is inaccurate to consider any GMO an “ingredient” because the genes themselves are present in minuscule amounts and can be fully digested. The changes are in the code, not the composition. They are made up of natural building blocks, as are the proteins produced.

Further, because farm animals digest food to these components, any “pass-through” of GMO characteristics would require extraordinary proof. While it is impossible to prove a negative, there is no evidence of adverse consumer reactions (even among those with severe food allergies) to GMOs themselves. For this reason, USDA’s BE designation expressly excludes animals fed with bioengineered foods (NBFDS, Sec 293(a)(2)(A)]. The current regulatory regime around bioengineered foods, organic farming, and GMOs is inconsistent and requires reform. Consumers deserve objective and relevant information about the foods they consume, but current sources of information can be inaccurate or incomplete.. As consumers have become more health- and origin-conscious, corporations have seized on this awareness to promote their products. Unfortunately, health(y) food marketers often use scientifically tenuous and potentially deceptive labels. Corporations fund academic researchers and non-governmental organizations to conduct independent research to legitimize these marketing messages, often as philanthropic, tax-advantaged donations.

While such funding is not necessarily nefarious, it can confuse consumers and undermine more trusted and objective sources of nutrition information – federal agencies. The Government’s responsibility is to provide accurate ratings that support fact-based competition. Free and fair competition in the marketplace has long been the objective of Federal regulations. While corporations should be allowed to differentiate their goods in the eye of the consumer, they shouldn’t be allowed to instill irrational fear of health hazards lacking robust scientific support. This is not unique to the agricultural industry – in fact, it is the core of the regulatory framework for pharmaceuticals.

Corporations currently exploit the hodgepodge rating system, but it can be improved through Government regulation. As shown in the figure, surveys show that U. S. consumers trust Government ratings more than any other source except for “experts” and find such ratings to be more understandable, particularly in contrast to those expressed by experts.

Figure 1

Data from Rupprecht, CDD, et al., “Trust me? Consumer trust in expert information on food product labels”, Food and Chemical Toxicology 137 (2020) 111170, https://doi.org/10.1016/j.fct.2020.111170

There is an opportunity for regulatory improvement in the food labeling space, both legislatively and through executive action. Because USDA labeling covers agricultural food sources (including Bio-Engineered and Organic labels), adding a non-Bio Engineered label would further enable consumers to make an informed choice. The dissonance between BE and USDA Organic labels should also be resolved by removing the prohibition on using BE/GMO sources as a condition of Organic labeling. However, this is an issue that must be corrected legislatively.

Furthermore, because of the significant market advantages gained through advertising unsubstantiated health claims, market players have taken to the courts, where dozens of lawsuits have been filed against USDA, attempting to force the Department’s labels to support spurious health claims due to ambiguities in the legal definitions of both “organic” and “bioengineered”. Affirming that USDA is empowered by statute to determine specific criteria for its own labels when legislative language is ambiguous will help negate any claims to the contrary. 

Plan of Action

Food labeling is central to the flow of accurate and unbiased information from farm to table. Currently, two primary agencies are responsible for food labeling, USDA and FDA (under HHS), and one agency is responsible for truth in advertising, FTC (under Commerce). These responsibilities are split: USDA covers farm products, FDA covers nutrition, and FTC prosecutes false advertising. The recommended actions below will improve coordination among these agencies, produce a more uniform response to labeling issues, and increase consumer confidence in and knowledge of the food they purchase.

Because food labels are often relied upon during a purchase decision in the grocery aisle, the Bioengineered Food Labeling Standard established in 20164 and mandated in 20225 should be strengthened. Specifically:

Congress should pass legislation removing redundancy in USDA’s Organic and BE labeling requirements.Simple, mutually exclusive legal definitions will lead to more explicit decisions by the judiciary.
USDA’s Agricultural Marketing Service should certify a non-BE label through independent laboratory analysis to supplement its BE labeling program.Accountability to a laboratory analytical standard for content, rather than a judgment call by a non-profit NGO, will provide clarity.
The Secretary of Commerce should direct FTC to prosecute false advertising for improperly labeled Organic or non-GMO consumer goodsImpartial & objective treatment of consumer-facing advertising allows consumers to choose based on their needs.

Congress should pass legislation removing redundancy in USDA’s Organic and BE labeling requirements. 

Although this may be a more long-term solution, the current regulatory regime is confusing and conflates agricultural methods with content. Congress should take up this issue in future Farm Bills and appropriations cycles and develop clear, mutually exclusive legal definitions. This will create more transparent labels for consumers and lead to more explicit decisions by the judiciary in marketing lawsuits. 

USDA’s Agricultural Marketing Service should certify a non-Bioengineered label. 

AMS currently oversees the assignment of BE labels. Through independent laboratory analysis, the agency should also offer a service to firms to certify a non-BE label, using the NBFLS criteria. USDA already has analytical laboratories and staff conducting spot inspections of meat producers. These capabilities could be leveraged to confirm a non-BE label. In addition, producers who wish to label their goods as “non-BE” would be willing to pay an evaluation fee comparable to fees paid to non-governmental certification agencies, so the budgetary impact should be minimal. Alternatively, because the NBFLS establishes methods that can be performed in certified testing facilities, USDA’s resources could be deployed to spot-check the claims. Further, because non-BE labeling would not be mandatory, producers can choose to remain silent on the content of their goods if their bioengineered content is unknown.

Any ingredients with known health benefits should appear on the FDA nutrition label, and any marketer that uses either Organic or non-GMO labeling without adhering to USDA’s authorities should be prosecuted for false advertising.

For budgetary purposes, USDA’s Animal and Plant Health Inspection Service (APHIS) and its Food Safety and Inspection Service (FSIS) are allocated approximately $1.7B and $1B, respectively. Additional staffing needs would likely be minimal because spot inspections of manufacturing facilities are already part of their routine.

The Federal Trade Commission (FTC) should increase enforcement of ‘Truth-in-Advertising’ regulations to prosecute improperly labeled Organic or non-GMO foods. 

Another angle agencies could take to support a more coordinated approach to consumer protections is through prosecution of improperly labeled Organic or non-GMO foods. While USDA would maintain the responsibility of conducting spot inspections, the FTC would be responsible for enforcing any transgressions through False Advertising Laws.6 

There is already precedent for this type of enforcement. Between 2003 and 2010, FTC successfully removed spurious health claims made by POM Wonderful, a marketer of pomegranate juice and related products, despite a vigorous appeal mounted by the company. While this example rejected false advertising based on specific health claims, it could also be extended to false advertising based on general health claims.


This proposal presents a more coordinated framework for food labeling regulations and would have wide-ranging effects. Among the stakeholders are farmers (both large and small), national grocery chains, food processing companies, agricultural biotechnology companies (particularly those that use laboratory-derived technologies that do not result in a “Bio-Engineered” label), and alternative protein companies that create consumer goods using processes developed in laboratories (e.g., Impossible Foods). In addition, various organizations, such as the Biotechnology Innovation Organization (BIO), have filed amicus briefs in lawsuits that target USDA labeling. There is significant interest in improving the current system.

In addition to providing the protection that consumers deserve, this proposal has health and climate impacts. Nutrition and health are tightly linked, and consumers know for themselves what foods are likely to aggravate their health outcomes. Accurate labeling empowers consumers to decide for themselves about their individual needs, to the extent that consumers believe that non-BE foods are more nutritious. Constraining both seed and method to organic, non-GMO can have a demonstrable negative impact on the climate mitigation capabilities of agricultural practices.

As suggested above, language suggesting that using seeds descended from laboratory methods of genetic modification anywhere in the chain precludes organic production methods should be eliminated. This can be more accurately communicated using two different labeling permutations, “organic & BE” and “organic & non-BE.”

Frequently Asked Questions
Doesn’t the current non-GMO labeling provide the same information?

No. The Non-GMO Project (the NGO responsible for certifying the labels) has extensive, published criteria that suggest that there is a precise definition of a GMO. But, unfortunately, there isn’t one: It’s a gray area whose definition is scientifically imprecise, to the extent that it is defined differently in the US than in the EU (for example). In particular, the Project’s definition is so broad that any food determined (by the Project) to be “unnatural”, including processes and products traced to the use of a genetically modified organism, can be denied a label. In contrast, the USDA’s BE Label is scientifically precise and focused on an analytical criterion that can be objectively determined in the laboratory.

What is an example where foods currently labeled non-GMO would be labeled BE?

Probably none. It’s hard to tell because, as mentioned above, The Non-GMO Project’s labeling criteria are subjective. According to their criteria, determining a new GMO is intrusive and requires surveillance of its entire development path. In contrast, determining a BE label requires inspection (much like the USDA’s meat grades), albeit in a laboratory setting.

What is an example where foods not currently labeled as non-GMO would be labeled non-BE?

Because The Non-GMO Project label includes processes and derivatives, foods such as the plant-based Impossible Burger could be labeled non-BE, even though the process involves a GMO, disqualifying it from their labeling. (A GMO is used to create the meat flavor of the protein, which is purified before blending.)

Will The Non-GMO Project have a role?

Of course! Because they already monitor new GMOs, this non-profit can help guide USDA inspectors to foods that should be labeled as BE but are not. In addition, they can guide analytical procedures that can be used to ascertain whether a given food product is, in fact, BE.

What does food labeling have to do with climate change?

Agriculture is a globally significant enterprise that can both capture and release greenhouse gases responsible for global warming. Under the current scheme, improving the efficiency of agricultural practices involving GMO processes is discouraged because of the stigma. Innovations such as PivotBio’s enhanced nitrogen fixation organism (a GMO that reduces the amount of fertilizer needed) may be avoided by farmers because of a fully-justified fear of being labeled.

Gross margins for Whole Foods, prior to its acquisition by Amazon, were around 34%, vs. bulk grocers in the Albertson’s family of stores of about 25%.
See, for example, the report from the National Academies. Foods made with GMOs do not pose special health risks.
See Organic 101: Can GMOs Be Used in Organic Products?, Feb. 21, 2017.
Public Law No: 114-216. National Bioengineered Food Labeling Standard 7 USC 1639
See 83 FR 65814, pgs 65814-65876
e.g., 15 USC § 1125