Summary Judgment Granted in Text Message Bioengineering Disclosure Claim

An order granting summary judgment was issued on Tuesday in the Northern District of California by Judge James Donato. The lawsuit was filed by plaintiff Natural Grocers, et al. against Secretary of Agriculture Thomas Vilsack and others, and alleged that the Agricultural Marketing Act of 1946 was in violation of several laws, including the Administrative Procedure Act and the U.S. Constitution.

The Agricultural Marketing Act of 1946 is intended to establish a uniform way that bioengineered food is labeled and marketed to consumers. Plaintiff Natural Grocers alleged in their amended complaint that the Act was in violation of the Administrative Procedure Act since it permits a text message disclosure option as an alternative to an electronic or digital link method of disclosure. Further, the Act requires disclosures to use the term “bioengineered” and excludes highly refined foods that do not contain detectable amounts of modified genetic material. The plaintiffs argued that the Act is also in violation of the first, fifth, and tenth Amendments to the U.S. Constitution.

The plaintiffs’ recent motion for summary judgment was granted in relation to their claim under the APA for the text message disclosure regulation. Apart from this claim, their motion was denied entirely.

The Act allows for companies to put their required bioengineering disclosure on the label in the form of a text, symbol, or electronic or digital link. While the method of disclosure is the choice of the food manufacturer, the Act requires the USDA to conduct research to determine whether or not consumers would have reasonable access to the bioengineering disclosure from the methods. The research revealed that the existing methods were not viable and recommended on-package identification.

The plaintiffs’ lawsuit argued that “the regulations concerning the text message disclosure, mandatory disclosure terminology, and the definition of bioengineering, are not in an accordance with law and are arbitrary and capricious,” and moved for summary judgment, which was granted on the electronic and text message disclosure options front.

While the court did grant that claim, they denied the remaining claims cited by the plaintiffs in their amended complaint. Further, they described the text message disclosure decision as a “significant error” but urged a “remand without vacatur so that the status quo is maintained” while further research is conducted on bioengineering disclosure methods.

Judge Donato’s decision to grant the plaintiffs’ APA claim for the text message regulation and to deny all other motions for summary judgment was made on Tuesday.