[Federal Register Volume 89, Number 70 (Wednesday, April 10, 2024)]
[Proposed Rules]
[Pages 25187-25189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07592]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 66
[Doc. No. AMS-FTPP-23-0019]
National Bioengineered Food Disclosure Standard; Request for
Information on Electronic and Digital Link Disclosures
AGENCY: Agricultural Marketing Service (AMS); Department of Agriculture
(USDA).
ACTION: Notice; request for information.
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SUMMARY: The Agricultural Marketing Service of the USDA is soliciting
information about potential amendments to the electronic or digital
link disclosure option as it pertains to the National Bioengineered
Food Disclosure Standard (Standard).
DATES: Comments must be received by June 10, 2024 to be assured of
consideration.
ADDRESSES: Interested parties are invited to submit written comments
via the internet at https://www.regulations.gov. Enter ``AMS-FTPP-23-
0019'' in the Search field. Select the Documents tab, then select the
`Comment' button in the list of documents. Comments may also be filed
by mail or by fax with the Docket Clerk, 1400 Independence Ave. SW,
Room 2069--South, Washington, DC 20250; Fax: (202) 260-8369. All
comments submitted in response to this notice, including the identity
of individuals or entities submitting comments, will be made available
to the public on the internet via https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Kenneth Becker, Research and
Rulemaking Branch Chief, Food Disclosure and Labeling Division, Fair
Trade Practices Program, Agricultural Marketing Service, U.S.
Department of Agriculture, Telephone (202) 570-3661, Email
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On July 29, 2016, Public Law 114-216 amended the Agricultural
Marketing Act of 1946 (7 U.S.C. 1621 et seq.) (amended Act) to require
USDA to establish a national, mandatory standard for disclosing any
food that is or may be bioengineered (BE). In accordance with the
amended Act, USDA published final regulations to implement the Standard
on December 21, 2018 (83 FR 65814). The regulations became effective on
February 19, 2019, with a mandatory
[[Page 25188]]
compliance date of January 1, 2022. Under 7 CFR 66.1, a bioengineered
food is a food that--subject to certain factors, conditions, and
limitations--contains detectable genetic material that has been
modified through in vitro recombinant deoxyribonucleic acid (rDNA)
techniques and for which the modification could not otherwise be
obtained through conventional breeding or found in nature.
The amended Act requires USDA to implement the following three BE
food disclosure options: on-package text; on-package symbol; and an
electronic or digital link, with the disclosure option to be selected
by the food manufacturer. 7 U.S.C. 1639b(b)(2)(D). The amended Act
directs USDA to require food manufacturers selecting the electronic or
digital link disclosure option to include a telephone number that
provides access to the disclosure. 7 U.S.C. 1639b(d)(4). Additionally,
the amended Act requires USDA to conduct a study to identify potential
technological challenges that may impact whether consumers would have
access to the BE food disclosure through electronic or digital
disclosure methods prior to promulgating regulations establishing the
Standard. 7 U.S.C. 1639b(c)(1). If after reviewing the study, the
Secretary determines that consumers, while shopping, would not have
sufficient access to the BE food disclosure through electronic or
digital disclosure methods, the amended Act requires, after
consultation with food retailers and manufacturers, additional and
comparable options to access the BE food disclosure be provided. 7
U.S.C. 1639b(c)(4).
As required by the amended Act, AMS conducted a study in 2017. The
study identified ``potential technological challenges that may impact
whether consumers would have access to the bioengineering disclosure
through electronic or digital disclosure methods.'' On September 6,
2017, the results of the study were made publicly available on the AMS
website.\1\ As described in the December 21, 2018, final rule
establishing the standard, upon reviewing the results of the study, and
in consideration of public comments on a proposed rule published on May
4, 2018 (83 FR 19860), the Secretary determined consumers would not, at
that time, have sufficient access to the BE food disclosure through
electronic or digital means under ordinary shopping conditions. 83 FR
65828. In response to the Secretary's determination, and following
consultation with food retailers and manufacturers and in consideration
of public comments, AMS added a text message disclosure option at 7 CFR
66.108 as an additional and comparable option to access the disclosure.
Accordingly, the current regulations provide four different disclosure
options for food retailers and manufacturers to disclose the presence
of a BE food or BE food ingredient: on-package text; the BE symbol; an
electronic or digital link accompanied by a telephone number; and a
text message. The requirements for on-package text disclosures are
described at 7 CFR 66.102, which mandates that the on-package language
must state ``Bioengineered food,'' ``Contains a bioengineered food
ingredient,'' or, if multiple BE food ingredients are present,
``Contains bioengineered food ingredients.'' The BE symbol requirements
are described at 7 CFR 66.104. The symbol can be found at https://www.ams.usda.gov/rules-regulations/be/symbols. The requirements for
electronic or digital link disclosure are explained at 7 CFR 66.106,
which mandates that the electronic or digital link be accompanied by
on-package statements that read, ``Scan here for more food
information'' and ``Call 1-000-000-0000 for more food information.''
When accessed, the electronic or digital link product information page
must include either the same language requirements of the on-package
text disclosure in 7 CFR 66.102 or the symbol disclosure in 7 CFR
66.104. The requirements for the text message option are described at 7
CFR 66.108, which mandates an on-package statement that says ``Text
[command word] to [number] for bioengineered food information.'' When
the text message disclosure is used, the consumer must receive the BE
food disclosure using the same language required for on-package text
disclosures, as described at 7 CFR 66.102.
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\1\ The ``Study of Electronic or Digital Link Disclosure: A
Third-Party Evaluation of Challenges Impacting Access to
Bioengineered Food Disclosure,'' was made available to the public on
September 6, 2017, at https://www.ams.usda.gov/reports/study-electronic-or-digital-disclosure.
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In September 2022, the Federal Court for the Northern District of
California issued a decision addressing several claims raised in
Natural Grocers, et al. v. Vilsack, et al. regarding the Standard. The
Court found that AMS's action of providing a text message disclosure
option (7 CFR 66.108) as an additional and comparable option fell
outside of the statutory authority of the amended Act and failed to
address the problem of insufficient access to the BE disclosure through
the electronic or digital link disclosure option. The Court concluded
an additional and comparable disclosure option must be included with
the electronic or digital link disclosure (7 CFR 66.106). The Court
accordingly ordered that AMS reconsider the requirements in Sec. Sec.
66.106 and 108.
II. Request for Information
AMS is reevaluating the electronic or digital link disclosure
option at 7 CFR 66.106 and is soliciting public input on potential
revisions to the electronic or digital link disclosure option as it
pertains to the Standard. Commenting parties should submit responses to
questions and requests (1) through (8) below and, if available, provide
data and other evidence to support any suggested revision. AMS will not
consider comments providing recommendations that are not relevant to
the questions and requests below.
(1) What are the current challenges associated with consumers
accessing information on the BE status of foods by electronic or
digital link disclosure in a retail setting?
(2) If a regulated entity chooses to use an electronic or digital
link to disclose a BE food, what additional and comparable option
should AMS add to the electronic or digital link disclosure option that
would be more helpful for consumers? In which location proximate to the
electronic or digital link should an additional and comparable option
be placed?
(3) Provide information on current smartphone ownership among
consumers, if available. Context: AMS is interested in the availability
of wireless internet or cellular networks. AMS has found that as of
2021, most Americans (97 percent) owned a cellphone of some kind and
smartphone ownership was at 85 percent.\2\ In particular, the Pew
Research Center found that 89 percent of urban adults, 84 percent of
suburban adults, and 80 percent of rural adults in America own a
smartphone.\3\ The Pew Research Center also found that 61 percent of
individuals 65 and older own a smartphone.\4\
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\2\ Pew Research Center. 2021. Mobile Fact Sheet. Retrieved
December 14, 2022, from https://www.pewresearch.org/internet/fact-sheet/mobile/.
\3\ Pew Research Center. 2021. Some digital divides persist
between rural, urban, and suburban America. Retrieved December 15,
2022, from https://www.pewresearch.org/fact-tank/2021/08/19/some-digital-divides-persist-between-rural-urban-and-suburban-america/.
\4\ Pew Research Center. 2022. Share of those 65 and older who
are tech users has grown in the past decade. Retrieved January 17,
2023, from https://www.pewresearch.org/fact-tank/2022/01/13/share-of-those-65-and-older-who-are-tech-users-has-grown-in-the-past-decade/.
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(4) Provide information on the availability of broadband in a
retail setting, if available. This could include
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broadband that is offered directly to consumers, or the accessibility
to other private networks while in a retail setting.
(5) Provide current information on the consumer usage of BE or
other electronic or digital link disclosures in a retail setting.
Context: AMS is trying to determine if accessibility to information
through electronic and digital disclosure in retail settings is common;
responses can include use in restaurants or related retail sectors, in
addition to grocery.
(6) Explain any advantages and benefits to using the electronic or
digital link disclosure option.
(7) Provide any information available on the percentage of usage
for each of the four current disclosure options. In addition, provide
information on how many small businesses use each of the four
disclosure options. Context: AMS evaluates the costs that rulemaking
would impose on regulated entities according to each type of disclosure
option and is seeking additional data regarding how many products in
the marketplace use each of the four currently available options.
(8) How long does it take on average to update label art, print new
labels, and deploy new labels to production lines? How frequently are
labels reordered and label inventory updated? Is there any standard
cycle for updating retail product labels? How frequently is product
inventory updated at retail? What is the preferred optimum compliance
period for incorporating new mandatory disclosure information into
products for retail?
Authority: 7 U.S.C. 1621 et seq.
Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2024-07592 Filed 4-9-24; 8:45 am]
BILLING CODE P