Preparing for GMO labeling in 2022 | 2020-12-23

CHICAGO — Genetically modified organisms (GMOs) are living entities with deoxyribonucleic acid (DNA) that has

CHICAGO — Genetically modified organisms (GMOs) are living entities with deoxyribonucleic acid (DNA) that has been artificially manipulated. This allows for the creation of plants, animals and microorganisms that do not occur in nature or through traditional crossbreeding methods.

The ingredient development technique has become controversial as competing narratives have emerged about the safety of the ingredients and end products containing GMOs. The controversy has led to a segment of consumers who do not want such products in their diet.

Beverage marketers are assisting by calling out the exclusion of GMOs. Blue Sky Beverage Co., Corona, Calif., a beverage brand of The Coca-Cola Co., Atlanta, is one example as it flags on front labels that its sodas are sweetened with cane sugar and flavored by nature. The cans feature the Non-GMO Project verified seal.

The simpler the product, the easier this is to do. But as is the case with all claims, there are risks and protocols in place to best communicate the absence of ingredients. Soon, there will be a law requiring declaration of the presence of GMOs.

The National Bioengineered Food Disclosure Standard applies to most food manufacturers and importers in the United States. There currently is an exemption for those generating less than $2.5 million in annual sales.

Bioengineered declaration compliance

Many countries require genetically modified foods to be labeled. The National Bioengineered Food Disclosure Standard (NBFDS), which was published in the Federal Register in December 2018, marked the start of mandatory GMO labeling in the United States.

Manufacturers will be required to label products containing GMOs by 2022. The standard mandates the use of the term “bioengineered” instead of “GMO” in disclosures.

It also allows a 5% ingredient threshold for GMO contamination. For context, the European Union uses a 0.9% threshold for most foods. The Non-GMO Project has the same 0.9% maximum to obtain certification.

The NBFDS law applies to most food manufacturers and importers in the United States. There currently is an exemption for those generating less than $2.5 million in annual sales.

Non-GMO is not organic

Non-GMO is not to be confused with organic. Organic is non-GMO, but non-GMO is not necessarily organic. Non-GMO labeling is attractive to marketers who cannot produce organic foods and beverages for any number of reasons, including supply and cost, but want to appeal to shoppers looking for “cleaner” formulations.

“The use of GMOs is an ‘excluded method’ and is prohibited in the production and handling of organic products,” said Jacqueline Kuler, senior counsel, Amin Talati, Chicago. “This means farmers are not allowed to grow crops from GMO seeds. Animals cannot eat GMO feed. Producers cannot use GMO ingredients.”

This extends to all organic categories, including those labeled 100% organic, organic and “made with organic (ingredients).” It also covers all ingredients, both organic and non-organic, in the products.

“To be clear, all non-organic ingredients allowed in the 5% or 30% non-organic portion of organic-certified products must be non-GMO,” Ms. Kuler said.

The NBFDS states organic certification received under the NOP is considered sufficient to make a claim regarding the absence of bioengineering in the food. The products may be labeled as non-GMO.

“Since organic certification is process based, if all aspects of an organic production and handling system plan are followed, the presence of detectable GMO residue alone does not constitute a violation of NOP regulations,” Ms. Kuler said. “Certifying agents may test when there is reason to believe an excluded method is used in the production or handling of an organic product. If detected, the certifying agent will work with the organic producer to identify the source and implement preventive measures to avoid contact with GMOs in the future.”

Non-GMO labeling is attractive to marketers who cannot produce organic foods and beverages.

Ms. Kuler cautioned that The National List of Allowed and Prohibited Substances, which identifies synthetic substances that may be used and the non-synthetic substances that may not be used in organic crop and livestock production, includes some high-risk food ingredients made from crops commonly grown with GMO technology. This includes derivatives and carriers often used in beverage formulations, such as starch, protein, fiber and lecithin.

“Anything that comes from corn, such as high-fructose corn syrup, will likely not be non-GMO,” said Holly McHugh, marketing associate, Imbibe, Niles, Ill. “Ethyl alcohol, which is often used as a solvent to make flavors, may be derived from corn. There are other sources for ethyl alcohol that do not come from GMO crops, but they are more expensive. Soy is another ingredient that often comes from genetically modified crops.”

GMOs may sneak into beverages in many different forms. Vitamins, minerals and other fortificants may rely on carriers or encapsulating materials made with GMO technology. Microbial cultures may be grown on a medium made from a genetically modified crop, as sugar and amino acids are often required for fermentation.

Honey, which beverage manufacturers increasingly are embracing as a natural sweetener, is an example of a “threshold” ingredient. Honey in its natural state is a non-GMO food, because honeybees are not genetically modified; however, honey is produced from the nectar of plants. The pollen grains are the only component of honey in which genetically modified proteins might be found. However, the amount of pollen in honey averages 0.2%, which is well below the allowed threshold set forth in the NBFDS as well as by The Non-GMO Project.

While the new mandatory NBFDS label identifies products that contain bioengineered material, marketers may still find non-GMO labeling to be a useful tool with communicating to shoppers. But proceed with caution. There’s not a great deal of regulation specific to non-GMO labeling. But non-GMO claims, like any other claims, are subject to both federal and state labeling and advertising laws and regulation.

“As a result, when someone makes a non-GMO claim, it becomes subject to potential oversight and review by the appropriate federal and state regulators, as well as attorneys focused on bringing claims for false and misleading advertising,” said Bruce Copeland, partner and co-leader for food, beverage and agribusiness, Nixon Peabody LLP, San Francisco. “The key is to make claims on labels or other advertising or marketing materials that are not false and misleading.

“Because GMO ingredients have become so pervasive, a seller of consumer products should do its homework, and work with legitimate suppliers,” Mr. Copeland said. “Ignorance is not an excuse. If you are going to make a non-GMO claim, it is best to get the product analyzed and certified by a high-quality and reputable food lab.”

Making non-GMO claims without appropriate due diligence is risky. If such claims are arguably false or misleading, the seller is at risk of regulatory action, and lawsuits by private parties with aggressive counsel for false and misleading advertising. Such lawsuits can be expensive, and depending on the product, may even garner media attention, none of which are good for a brand.

If you are going to single out one or more ingredients in a formulation as being from non-genetically modified crops, it is paramount that the verbiage is not misleading, Mr. Copeland said.

Chobani has built its business around using only non-GMO ingredients.

Rocky Mountain Soda Co., Denver, recently introduced a line of zero-calorie sparkling cannabidiol (CBD) waters that promote being made with: carbonated Colorado water, pure cane sugar, natural flavors and non-GMO citric acid.

Chicago-based Koita Foods is growing its shelf-stable imported beverage line with plant-based milk alternatives in six options: organic almond, oat, soy, soy for coffee, rice and organic coconut. The company states the main ingredients are ethically sourced in Italy, with the exception of the coconuts, which come from Thailand. All flavors are non-dairy, vegan and non-GMO.

While the soy options are not organic, the front labels sport a non-GMO claim. The rice variety is described as being made with non-GMO Italian rice. (There are no genetically modified rice crops in the United States.)

Chobani, Norwich, NY, has built its business around the mantra of using only non-GMO ingredients. The company is making a non-GMO claim on the front panel of its new Little Chobani Probiotic Yogurt Drinks and Pouches.

Calling out “non-GMO” is trending in products targeted to children, as parents are often more cautious with the foods and beverages for their offspring. Minute Maid Kids juice and a number of Apple & Eve juice products, for example, have Non-GMO Project verified seals.

Zevia Kidz, from Los Angeles-based Zevia, is a new line of zero-sugar, zero-calorie slightly carbonated beverages designed for children. The cans have a Non-GMO Project verified seal like all of the company’s stevia-sweetened beverages.

If non-GMO is important to a brand, now’s the time to work closely with suppliers to secure a supply chain by 2022 when packages must be compliant with the NBFDS. The presence of genetically modified ingredients will require a bioengineered disclosure and non-GMO claim.