As the New York Times reported recently, USDA recently approved the use of the third-party Non-GMO Project verification seal on labels for meat raised on a GMO-free diet. If a product contains meat or poultry, the label must be pre-approved by USDA. And this is the first time that USDA has approved a “non-GMO” label claim. USDA initially rejected the label submitted by Mindful Meats, which included the Non-GMO Project seal, because the agency had no rule in place for handling “GMO-free” claims. However, after reviewing the Non-GMO Project’s certification procedures, USDA changed its mind.

UnknownThis story highlights the complications food producers can face in trying to market their products as GMO free. Like Mindful Meats’ products, foods increasingly are labeled with  statements that they are made without genetically engineered ingredients, and many carry the seal of the Non-GMO Project. But, in many circumstances, USDA and FDA do not consider such claims to be appropriate.

Importantly, USDA’s decision to allow the Non-GMO Project seal reflects only a determination that the seal is accurate and not misleading for products that have been verified by the Non-GMO Project. The decision does not reflect a broader policy change on “no GMO” claims.  In fact, USDA has no regulation or policy defining when “no GMO” claims are permissible. And, without a regulatory definition in place, USDA does not allow such labeling claims, even for certified organic products, unless they can be verified. Thus, manufacturers of USDA-regulated products who have not gone through Non-GMO Project’s verification process are likely to have GMO-free labeling claims rejected.

Furthermore, manufacturers of FDA-regulated foods must be careful to ensure that their “no GMO” claims are verifiable and not misleading. In 2001, FDA issued guidance to industry in which it warned that “no GMO” type claims may be misleading and, therefore, illegal. For example, FDA stated that “GMO free” claims would be misleading because trace amounts of bioengineered material may be present. FDA also said that “non-GMO” statements would be misleading if they imply that the product is superior to ones that contain genetically engineered ingredients. Even though FDA’s guidance does not have the force of law, it signals the position the agency may take in enforcement proceedings.

Thus, USDA’s decision does not clear regulatory hurdles for most manufacturers to use “non-GMO” type claims. However, it may cause more meat and poultry processors to seek the Non-GMO Project verification.