9th Circuit Tells USDA to Rework Bioengineered Food Disclosure Standard

By David Graham

The U.S. Court of Appeals for the Ninth Circuit has directed the United States Department of Agriculture (USDA)'s Agricultural Marketing Service (AMS) to revisit a central feature of the National Bioengineered Food Disclosure Standard (NBFDS). In Natural Grocers v. Rollins, the court held that AMS acted unlawfully when it excluded from the disclosure framework foods whose modified genetic material is not detectable in the finished product. For food manufacturers, importers, and retailers, the immediate significance is not that the labeling rules changed overnight. It is that a core assumption underlying many compliance programs, namely that non-detectability ends the federal disclosure inquiry, is no longer on the same legal footing.

What the Ninth Circuit Did, and Did Not, Decide

The court rejected AMS's legal premise that foods with no detectable modified genetic material simply fall outside the statutory definition of a bioengineered food. At the same time, the court did not hold that USDA must now require disclosure for every highly refined ingredient derived from a bioengineered source. Instead, it pointed back to 7 U.S.C. § 1639b, which authorizes USDA to determine the amounts of a bioengineered substance that may be present in food and to establish a process for other factors and conditions under which a food is considered bioengineered. In other words, USDA still has room on remand to craft a threshold-based or otherwise more defensible framework. What it may not do is rely on the same shortcut that treated non-detectability itself as dispositive.

That distinction matters. Companies should not read the opinion as an immediate universal disclosure mandate. They should instead read it as a signal that USDA may need to rebuild this part of the standard on a different legal foundation, one that could materially affect refined sweeteners, oils, starches, lecithins, and other highly processed inputs that trace back to bioengineered crops.

Why Highly Refined Ingredients Are Back in Focus

The statutory definition in 7 U.S.C. § 1639 covers food that contains genetic material modified through in vitro recombinant DNA techniques where the modification could not otherwise be obtained through conventional breeding or found in nature. USDA's existing program materials have long treated detectability as central to whether many processed ingredients require disclosure. The current AMS BE disclosure resources still reflect that framework, and AMS also notes that the 2023 update to the List of Bioengineered Foods, including sugarcane, has been in mandatory compliance since June 23, 2025. That means this is not a theoretical issue. It touches product categories that are widely used across the food sector.

The Real Issue for Manufacturers Is No Longer Just Testing

The more practical consequence of the decision is that compliance is becoming less about whether a laboratory can find modified genetic material in today's finished product and more about whether a company has a record architecture strong enough to support its disclosure position under a revised rule. AMS already expects regulated entities to maintain customary and reasonable records, and its manufacturer FAQs and compliance guidance identify the kinds of records AMS expects to see, including supply chain documents, bills of lading, invoices, supplier attestations, labels, contracts, third-party certifications, laboratory results, and validated process verifications.

That is where to expect the next real pressure point to emerge. Many companies have built their NBFDS programs around validated refining processes and non-detectability assumptions. On remand, the better question may be whether the company's records, specifications, and supplier controls would still support its conclusion if USDA moves from a binary detectability premise to an amount-based standard. For many businesses, this becomes a procurement, documentation, and claims-governance issue before it becomes a package redesign issue.

Do Not Treat NBFDS Status as a Safe Harbor for Absence Claims

There is another point manufacturers should not miss. The federal bioengineered disclosure regime is not a blanket safe harbor for voluntary absence claims. Under 7 U.S.C. § 1639c, a food may not be treated as "not bioengineered," "non-GMO," or similar solely because it is not required to bear a BE disclosure. The same provision also makes clear that the statute does not create rights or obligations under the Federal Food, Drug, and Cosmetic Act. That matters because companies sometimes assume that if a product does not trigger a mandatory BE disclosure, the analysis for website copy, front-of-pack messaging, supplier representations, or absence claims is effectively finished. It is not.

That is especially true where refined ingredients are involved. A revised USDA approach may not only change disclosure analysis, but also sharpen questions plaintiffs, competitors, regulators, and retailers ask about what exactly a company means when it makes affirmative claims about the absence of bioengineering. The safer course is to treat NBFDS status as one piece of the claims analysis, not the whole of it.

What Food Companies Should Be Doing Now

Manufacturers, producers, distributors, and importers should use this period to take a disciplined look at both their product portfolios and the records supporting current disclosure positions. In practical terms, that means:

• Identifying Products That Rely On Inputs From Foods On The AMS List
• Revisiting The Records Behind Any Conclusion That Disclosure Is Not Required
• Pressure-Testing Voluntary Claims That May Rest Too Heavily On The Current Detectability Framework
• Reviewing What Company Records Show About Source Material, Supplier Assurances, and Process Validation, especially for products involving refined sweeteners, oils, starches, and similar ingredients

Waiting for USDA to act before revisiting those files may be a mistake. By the time a revised rule is proposed, the harder work may not be deciding what to put on a label. It may be reconstructing the internal evidence needed to defend the company’s position.

How Gardner Law Can Help

Gardner Law helps food companies address the overlap between labeling, administrative law, litigation risk, and claims governance. We can assess whether current documentation is sufficient, review how mandatory disclosure analysis intersects with voluntary absence claims, evaluate where supplier records and specifications may be vulnerable, and help prepare a practical response to the next phase of USDA rulemaking. In a setting like this, the companies best positioned are usually the ones that treat labeling not as an isolated packaging issue, but as a supply-chain and risk-management issue from the start.