[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