According to Keller and Heckman LLP ,  the U.S. Department of Agriculture’s Agricultural Marketing Service (AMS) has issued an FAQ for manufacturers concerning its bioengineered (BE) food labeling rule (formally known as the National Bioengineered Food Disclosure Standard (NBFDS)). The final rule was issued in December 2018 and does not come into effect for several years, but questions are being raised by industry regarding its obligations under the rule.

For example, BE labeling is not required if you are processing food using a “validated refining process” or when the food is tested to confirm that genetically modified material is not present. However, there is little information in the regulations as to what constitutes a validated refining process and what testing would be acceptable to demonstrate that genetically modified material is present or absent in a food.

The FAQ itself is not very helpful in answering these questions; for example, it states, “AMS does not specify which tests must be used, but we provide standards of performance regarding detectability testing methodology.” That said, it does state that the agency will be providing industry with future guidance on these issues.

The FAQ addresses questions ranging from record keeping to how to determine whether BE material is present as a result of inadvertent contamination, which largely tracks information previously provided in the 63-page preamble to the final rule and the regulations themselves. We have a summary of the NBFDS available here.