Top Problems With New Senate Dark Act

We’ve completed a new legal analysis of the bill, and here are the top problems:

The definition of bioengineering—another word for genetic engineering—includes fewer methods than the definition used by states with GMO labeling laws, the food labeling guidelines developed by the the World Health Organization and federal organic regulations. By adopting a narrow definition of genetic engineering, many GMO products could be exempt from labeling.

Even though consumer polling shows that they prefer a simple on-package label, companies would be free to make voluntary disclosures through a so-called smart label, on a company website, social media or even through a toll-free telephone number.

It would be at least five years before companies were required to disclose whether there are GMOs in their food. And that’s only if the U.S. Department of Agriculture concluded that fewer than 70 percent of the "most frequently consumed" packaged foods lacked a clear GMO disclosure. However, the bar for voluntary disclosure is so low it’s unlikely a mandatory requirement would ever be triggered. As the bill envisions it, the industry could meet this test by simply responding to consumer inquiries through call centers or on social media.

Even if industry somehow failed to provide enough information about GMOs voluntarily to meet the USDA test, the mandatory requirements wouldn't mean much. The food industry could comply with the mandate virtually any way it wants, including through social media, a toll-free telephone number, on its website, through smart labels or “any other means the [USDA] considers appropriate.”

With so many compliance options for the industry, consumers may not even know where to look to find information about GMOs. Once they figure out how to get the information, they may be expected to make a phone call, log onto Facebook, scan a code or go to a different website for each product they want to buy. It’s ridiculous to expect consumers to jump through so many hoops to find out what’s in their food.

Some companies, like Campbell’s, have already agreed to label their GMO products. However, under this new proposal the only way a company can share information about GMOs is through the USDA guidelines, which could take as a long as year to come out. If a product used a genetic engineering method not included in the narrow definition in Roberts' bill, companies could not tell consumers about it. The new proposal also requires USDA to set a threshold level at which GMOs must be present to require labeling. If a product with GMO ingredients didn't meet this threshold, the company could not label it even if it wanted to.

This proposal bars companies from making or even implying that a product is safe or not safe, or of higher quality due to genetic engineering—which seems like just the kind of information consumers would want to know. For example, acrylamide is a chemical linked to cancer that can form in some foods during high-temperature cooking processes. One GMO potato producer claims it altered the DNA of its potatoes to make less acrylamide and reduce exposure. But could the producer tell consumers that? Not under this bill.

In the absence of a national mandatory labeling standard, states have led the way in the fight for GMO labeling. Maine, Connecticut and Vermont have all passed their own GMO labeling laws, with Vermont’s law scheduled to take effect on July 1 this year. Alaska has a bill requiring labeling of GMO salmon. This version of the DARK Act would supersede those state laws and prevent future state actions related to GMO labeling. The bill is broad enough that it could even block states from enforcing GMO seed labeling laws designed to prevent cross-contamination of GMO and non-GMO crops.