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USDA files new, ‘non-smiley’ symbols for GMO disclosure with patent office

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USDA has filed six new symbols that are less “smiley” than the three controversial alternatives originally included along with the proposed rule for the National Bioengineered Food Disclosure Standard (NBFDS) for labeling of GMO foods with the U.S. Patent and Trademark Office (USPTO), to “certify that a product…is a bioengineered food.”

The new symbols, which were filed with the USPTO for trademark protection Aug. 7, may signify that USDA has taken some of the criticism lodged against the original symbols for foods containing GMOs to heart – all of the original symbols use the term "BE" for "bioengineered" and each one includes a black and white option.

six bioengineered food symbols with US Patent and Trademark OfficeAt the time the original symbols were released, USDA said they are "designed to communicate the bioengineered status of a food in a way that would not disparage biotechnology or suggest BE food is more or less safe than non-BE food."

USDA declined to comment on the new symbols with the USPTO, and the agency had also sought to gain trademark protection for the originally proposed symbols ahead of releasing the proposed GMO labeling rule.

Environmentalists and the organic industry, which blasted the original symbols for conveying a more inviting message than even the USDA organic symbol does, did not seem pleased with the new symbols either.

“Consumers have the right to know how their food was grown and processed, and the Organic Trade Association (OTA) strongly supports mandatory labeling of all genetically modified foods,” the group said in an Aug. 15 statement. “We know the importance of labels and symbols. The USDA Organic label has deservedly become one of the most trusted and sought-after labels by consumers. The GMO symbol about to be unveiled will be critical in giving consumers information on whether the products they buy are GMO products or contain GMO ingredients, and as our official comments to USDA’s proposed standard said, the GMO symbol must clearly, and in a neutral fashion, communicate that information.”

But USDA’s recently submitted symbols “contain a bucolic representation of blue skies, bright sun and green land, and USDA has even publicly proposed a smiley face,” OTA said. Unlike the neutral USDA Organic seal, the proposed “BE” symbol “evokes sunshine, offers visual appeal, and conveys a feeling of happiness and safety. These symbols are highly misleading and could convey to consumers that GM foods are safer than non-GM foods, which is prohibited by the statute. We are deeply disappointed that instead of taking the neutral approach that Congress intended, the USDA has chosen such biased and promotional stylized symbols to convey critical information to consumers.”

Laura Batcha, CEO and executive director of OTA said: “If USDA wants to redesign informational symbols into artsy, feel-good promotions, we’d be glad to offer designs for the USDA Organic label that would more creatively illustrate all the positive – and beautiful -- benefits of organic.”

What the new GMO symbols may mean for industry

But the traditional food industry may have a different view of the new symbols.

Sam Jockel, an associate with the law firm Keller and Heckman, and Mel Drozen, a partner at the firm, spoke with IEG Policy Wednesday (Aug. 15) about what the new symbols could mean for industry and what the USPTO filing says about when USDA may release the final GMO labeling regulations.

While the Grocery Manufacturers Association (GMA) “did not state a preference for one symbol over another” in its comments to USDA, the group “did stress the importance of the need for USDA to inform and educate the public about the symbols and their meanings,” Brian Kennedy, GMA spokesman, said in an Aug. 15 email to IEG Policy

“The statute doesn’t provide prescriptive requirements for what the symbol should look like,” Keller and Heckman’s Jockel said. “A lot of the comments to the proposed rule on the three different alternatives proposed critique the symbols as ‘smiley’ and ‘friendly’. The requirement that the symbols be neutral, that’s not in the statute. What’s in the statute is that bioengineered foods cannot be treated as safer than, or not as safe as, their non-bioengineered counterparts.”

Jockel noted that in the preamble for the proposed rule, AMS sought comment on various aspects of the symbol, including on how it looks, and whether the word “bioengineered” should be incorporated into the symbol, “which they did with the new symbols, so they’re reflective of what AMS was seeking comment on. Certainly, the biggest take-away is that none of them have the smiley face background that was in the original [images] 2B and 2C.”

What does the recent filing with the USPTO forecast for how soon USDA will release the much-anticipated final regulations?

USDA, Secretary of Agriculture Sonny Perdue and Bruce Summers, administrator of USDA’s Agricultural Marketing Service (AMS), were slapped with a lawsuit earlier this month after missing the July 29 deadline to issue the Congressionally mandated regulations for the new GMO labeling law.

Perdue had predicted the delay at an April 20 meeting with Mid-Atlantic state agriculture and industry leaders, saying that USDA had pressed the White House Office of Management and Budget (OMB) to release the proposed rule, which USDA had sent over for review on Dec. 26, so that the agency could meet the statutory deadline.

But OMB did not release the proposed rule until May 3, possibly due to an onslaught of comments from stakeholders, including other federal agencies, which needed to be addressed. Comments continued to roll in on the proposal itself during the comments period, which closed July 3.

“If you look at the filings for the USPTO, the original three went live – they were filed Jan. 5, 2018 – a few months before the proposed rule came out,” Jockel said. “Those filings occur because they need to get intellectual property protection over any potential symbols that they’re using, so to me this is a signal that they’re currently working to get the final rule out. In terms of when, your guess is as good as mine. The agency in recent comments has said they’re working hard to implement the final rule.”

Drozen said it depends “on your definition of soon. It’s hard to imagine that it will occur before the end of the year, frankly. With all the comments and the work they have to do, and with the manpower that they’re going to [need], it’s just hard to imagine that they’re going] to be able to do it before the end of the year… as opposed to early in the fall, for example.”

Jockel noted that of the six new symbols, three don’t include the abbreviated ‘BE’, and that some of the comments on the proposal had criticized “consumer understanding of what ‘BE’ means, let alone ‘bioengineered.’”

The other difference, he said, is that two of the new symbols say: “made with bioengineering,” which he noted, “was not necessarily contemplated in the proposed rule vs. just bioengineered or ‘may be bioengineered food’, so those two symbols [that] say ‘made with bioengineering’ – that’s a noteworthy distinction.”

The phrase “made with” implies something about the process, Jockel said. But “may be,” or just “bioengineered,” doesn’t say anything about the process, it’s talking about the end product, he explained.

Drozen noted that “made with” could refer to ingredients in the product, as opposed to the finished food, too.

Jockel underscored that the symbol is not the only option for food companies, and that manufacturers and other regulated entities will be able to choose one of three options to make their GMO labeling disclosure from various options – the symbol, a text disclosure, or an electronic virtual link disclosure – “so I know that the symbol gets a lot of attention, most likely because it is a symbol, but there are other important options under consideration that regulated entities will have in the final rule.”

Drozen speculated that most food processors would be more likely to include a written disclosure or link to their website on their label than use the logo, which "stands out a bit more than the non-logo options.”

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