UPDATE: Court Sets January 1, 2028 Deadline to Address Key USDA Bioengineered Rule Disclosure Provisions
Wiley continues to track the U.S. Department of Agriculture’s (USDA) rulemaking efforts in light of Natural Grocers v. Rollins. Building on 2025 and 2026 analysis, below are the latest developments that food manufacturers need to watch closely.
The U.S. District Court for the Northern District of California recently issued its remedy order in Natural Grocers v. Rollins, setting a January 1, 2028 deadline to vacate the successfully challenged provisions of the National Bioengineered Food Disclosure Standard (BE Rule). The BE Rule puts in place disclosure requirements for certain bioengineered foods.
The provisions to be vacated are:
- USDA’s exclusion of foods in which genetically modified material is “undetectable” from the definition of “bioengineered food” (7 C.F.R. § 66.1(1)(ii)), which particularly impacts those companies relying on the use of a “highly refined process” to render genetically engineered material undetectable; and
- Provisions allowing electronic/digital link and text message disclosures to identify a food as bioengineered. (7 C.F.R. §§ 66.106 and 66.108).
In making this ruling, the court rejected the government’s request to extend the electronic/digital link and text message disclosure rule until 2029.
According to the government’s supplemental briefing and the 2026 Unified Agenda of Federal Regulatory and Deregulatory Actions, USDA’s Agricultural Marketing Service (AMS) plans to publish a proposed rule this summer to revise the definition of “bioengineered food,” and to publish a proposed rule in spring 2027 to address the electronic/digital link and text message disclosure provisions. AMS has suggested a fast-track approach to get both provisions finalized before vacatur. However, if replacement regulations are not in effect by January 1, 2028, food manufacturers and distributors currently relying on the vacated provisions will need to modify their labeling practices to comply with the BE Rule as it would exist without those provisions.
What Does This Mean for Food Manufacturers?
Importantly, the current BE Rule remains in effect until January 1, 2028, and manufacturers may continue complying with the existing regulatory framework in the interim. Food manufacturers should closely monitor forthcoming AMS rulemaking activities, which could bring significant changes to the scope of products subject to disclosure and permissible disclosure methods under the BE Rule. Companies impacted by the expected changes should evaluate the forthcoming proposals and consider submitting comments on the proposed rules. Manufacturers should also consider how much time they need to change labeling to ensure they can be in compliance with the BE Rule on January 1, 2028, even in the absence of new rules from AMS addressing the vacated provisions.
Wiley’s Food & Drug and Agriculture and Agribusiness practices will continue to monitor developments in USDA’s rulemaking efforts. For more information about how these developments may affect your business, or if you require assistance in drafting comments on the expected proposed rules, please contact one of the authors of this alert.
