As mandated by the 2016 National Bioengineering Food Disclosure Standard Act, the Agricultural Marketing Service ("AMS") of USDA recently released a study titled "Study of Electronic or Digital Disclosure." The Act, which requires AMS to establish by July 29, 2018, a national mandatory bioengineered food disclosure standard for how food for human consumption will be disclosed as containing bioengineered ingredients, also required AMS to conduct a study to "identify potential technology challenges that may impact whether consumers would have access to the bioengineering disclosure through electronic or digital disclosure methods." AMS sought comments to design the study on September 1, 2016, and requested a vendor to conduct it and submit it to the agency by May 30, 2017, for publication by AMS on July 29, 2017. Although a few days late (and facing a complaint filed by the environmental advocacy organization Center for Food Safety for not meeting the deadline), AMS released the study on September 6, 2017.
As required by the Act, the study considers five factors: (i) the availability of wireless internet or cellular networks; (ii) the availability of landline telephones in stores; (iii) challenges facing small and rural retailers; (iv) the efforts that retailers and other entities have taken to address potential technology and infrastructure challenges; and (v) the costs and benefits of installing in retail stores electronic or digital link scanners or other evolving technology that provide bioengineering disclosure information. The results of the study show that the majority of Americans own a smartphone (77 percent), and ownership rates are trending upward; most Americans live in areas with sufficient broadband access (93.6 percent) to scan a digital link; all national chain stores and most regional chain stores (97 percent) provide Wi-Fi in store; and 37 percent of small retailers already provide Wi-Fi to consumers in store. However, consumers may recognize digital links but lack familiarity with scanning, and many consumers (85 percent) experienced technical challenges using certain mobile software applications for scanning digital links. In addition, scanning digital links requires access to the internet; therefore, some retailers may need to install Wi-Fi networks for consumers without access to cellular data or local Wi-Fi networks.
In furtherance of drafting a proposed rule to establish a national mandatory bioengineered food disclosure standard, in June 2017, AMS requested public comments on 30 questions. The questions related to different matters, including what factors or conditions AMS should consider for a food to be considered a bioengineered food, how "small food manufacturers" or "similar retail food establishments" should be defined for purposes of excluding them from the requirements of the regulation, and what the appropriate procedures should be for audits and other compliance actions, including opportunities for hearing, for AMS to consider prior to conducting an examination of noncompliance. Questions related to electronic or digital disclosure were also on the list. For instance, AMS requested comments on what electronic or digital disclosure (or text or symbol) AMS should require (including for bioengineered food sold in bulk, vending machines, or online), and how AMS should ensure that an electronic or digital disclosure can be easily and effectively scanned or read by a device. The deadline to comment on these questions was August 25, 2017. Interested parties also will be able to comment on the proposed rule when published.
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