The NBFDS May Cause A Labeling Conundrum For Some Non-GMO Project Verified Products

Are products certified under a third-party Non-GMO certification, like the Non-GMO Project Product Verification Program, exempt from mandatory labeling under the National Bioengineered Food Disclosure Standard (NBFDS)?

My clients have recently started asking me this question and, according to my research, the answer is NO!

The NBFDS has a zero-tolerance policy for products that contain detectable bioengineered DNA from deliberately added ingredients that are not otherwise exempt, whereas the NGP Product Verification Program Standard allows for the intentional use of GMOs up to 0.9%. Products that include the slightest intentional use of detectable, bioengineered inputs must be appropriately labeled under the NBFDS.

According to my review of the Final Rule, we may soon see Non-GMO Project Verified products that also have to disclose that they contain bioengineered ingredients. (The implementation date is January 1, 2020, with an extended implementation date for small manufacturers of January 1, 2021, and a mandatory compliance date of January 1, 2022).

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I went to the Non-GMO Project’s website to see what their take on the NBFDS was. They said, “The final law explicitly states that Non-GMO Project participants are not expected to incur costs in association with this law according to a previously conducted regulatory impact analysis. This further suggests that Non-GMO Project Product Verification Program materials fulfill the necessary requirements to avoid disclosure.” The reference to cost was too ambiguous for my liking so I searched through the document the NGP linked to in their blog for more information.

Pages 126/127 of the document linked to above, state that only certified organic products are automatically exempt from BE disclosure. I’m not sure why the NGP isn’t telling participants in very clear terms that their verified products may require disclosure under the NBFDS, however, there are several exemptions in the federal standard that may apply to verified products:

  1. Ingredients that aren’t on the list of Bioengineered ingredients are exempt from disclosure.
  2. Companies with less than $2.5 million in sales are exempt from disclosure.
  3. The NBFDS only applies to human food/beverages and supplements. Pet food, most alcoholic beverages, and personal care items are not included in the scope of the regulation.
  4. Highly refined inputs, like sugar and oils, that do not contain detectable DNA are exempt from labeling. Detectable DNA content is the key to the NBFDS: if the product contains detectable bioengineered DNA then it must be labeled appropriately.
  5. Products that contain less than 5% detectable bioengineered DNA per ingredient are exempt from labeling, if the bioengineered content was unavoidable/not deliberately added to the product. The Non-GMO Project Product Verification Program has a maximum GMO contamination threshold of 0.9% in high-risk crop-derived inputs that contribute 5% or more to the product formulation. This means that any NGP-Verified product that is tested for GMO/BE content should test below the NBFDS threshold.

Assuming that manufacturers and brand owners will not want to have a “Bioengineered” logo or statement adjacent to the Non-GMO Project Verified butterfly, then they need to review their formulations for micro amount (less than 0.5%) high-risk inputs where DNA is still viable because these ingredients are allowed under the NGP PVP Standard but will, conversely, trigger mandatory disclosure under the National Bioengineered Food Disclosure Standard.

The time for action is now so that food companies have time to obtain documentation to determine whether these inputs are GMO/BE and if necessary, to reformulate to low-risk, Organic/Non-GMO/otherwise compliant, inputs to avoid including a BE disclosure on a Non-GMO Project Verified product label.

Alternately, testing finished products for BE DNA will also provide assurance that they are compliant with the NBFDS, but that can quickly get expensive.

Please contact me if you have questions or concerns about your compliance with the National Bioengineered Food Disclosure Standard.