USDA’s Bioengineered Food Disclosure Rules Head Back to the Drawing Board

The U.S. Department of Agriculture (USDA) has officially placed revisions to its National Bioengineered Food Disclosure Standard on the regulatory calendar, signaling that significant changes may be coming for food manufacturers, importers, retailers, and others throughout the food supply chain. According to USDA’s 2026 Unified Agenda, the agency is targeting August 2026 for publication of a Notice of Proposed Rulemaking (NPRM) to address deficiencies identified by the U.S. Court of Appeals for the Ninth Circuit.

For companies that have spent years navigating the bioengineered (“BE”) food disclosure framework, the message is clear: the rules are not changing today, but they are changing. Now is the time to start paying attention.

A Quick Refresher: How We Got Here

Congress enacted the National Bioengineered Food Disclosure Standard in 2016, creating a federal disclosure regime for foods containing bioengineered ingredients. USDA finalized implementing regulations in December 2018. Those regulations provided several disclosure options, including:

• On-package text disclosures;
• A USDA-approved symbol;
• Electronic or digital links (commonly QR codes); and
• Later, text-message disclosures.

The rule also included a particularly significant exemption. Foods derived from bioengineered crops could avoid disclosure if modified genetic material was not detectable in the finished product. In practice, this meant many highly refined ingredients—such as certain oils, sweeteners, and starches—often fell outside the disclosure requirement.

Not everyone agreed with USDA’s approach.

The Lawsuit That Changed the Conversation

In 2020, consumer advocacy organizations and organic food retailers challenged the rule, arguing that USDA had exceeded its statutory authority by exempting many refined foods and by allowing disclosures that relied heavily on digital technologies.

The district court largely upheld the rule in 2022. But the story did not end there.

In October 2025, the Ninth Circuit issued a decision that substantially reshaped the legal landscape. While the court upheld USDA’s decision to use the term “bioengineered” rather than alternative terminology, it struck down two major portions of the rule:

1. The detectability exemption; and
2. The digital and text-message disclosure provisions.

The court concluded that USDA’s reasoning was inconsistent with the governing statute. Simply put, the absence of detectable modified genetic material does not mean a food does not “contain” such material. According to the court, USDA had improperly treated those concepts as legally interchangeable when Congress did not.

In regulatory terms, that is the equivalent of telling the agency, “Nice try, but show your work.”

What USDA Appears Ready to Fix

The newly listed rulemaking indicates USDA is preparing to address the Ninth Circuit’s concerns through formal revisions to the BE disclosure regulations. The Unified Agenda entry specifically states that the proposed rule will address deficiencies identified in the court’s decision regarding the 2018 final rule.

Although the details of USDA’s proposal remain unknown, several possibilities appear likely.

First, USDA will need to reconsider how foods derived from bioengineered sources are treated when modified genetic material cannot be detected in the finished product. The Ninth Circuit made clear that “not detectable” cannot automatically mean “not bioengineered.”

Second, USDA will need to revisit disclosure methods. The court invalidated the digital-link and text-message options that many companies have relied upon to satisfy disclosure obligations. Whether USDA develops alternative disclosure mechanisms, imposes additional accessibility requirements, or returns to more traditional labeling methods remains to be seen.

As with most rulemaking proceedings, the devil will likely be located in the footnotes, preamble language, and economic-impact analysis—not just the regulatory text itself.

The Compliance Timeline Remains Fluid

An important question remains unresolved: When will companies actually have to comply with any changes?

The parties are currently litigating the timing of vacatur—the date when the invalidated regulatory provisions formally cease to have effect. Plaintiffs have urged a January 1, 2028 compliance date, while USDA has sought a longer runway for certain disclosure-method provisions, proposing that the digital and text-message portions remain in place until January 1, 2029.

One area of agreement has emerged. Both sides have supported a January 1, 2028 vacatur date for the detectability provision. The district court has not yet issued a final ruling on the timing questions.

Until the court acts and USDA completes rulemaking, the current regulatory framework remains in effect.

Practical Takeaways for Industry

For now, food manufacturers should resist the urge to make abrupt labeling changes. The current regulations remain operative, and USDA’s revised proposal has not yet been published.

That said, companies would be wise to begin evaluating:

• Products that currently rely on the detectability exemption;
• Labeling programs that depend primarily on QR-code or digital disclosures;
• Supply-chain documentation supporting BE disclosure decisions; and
• Future packaging updates that may coincide with regulatory implementation dates.

The companies most likely to feel the impact are those using highly refined ingredients derived from bioengineered crops while relying on the current exemption structure.

Looking Ahead

USDA’s forthcoming NPRM represents more than a technical regulatory adjustment. It marks the next chapter in a decade-long debate over transparency, biotechnology, consumer access to information, and the limits of agency discretion.

For the food industry, the lesson is familiar: what began as a seemingly settled disclosure regime is once again in motion. Regulatory certainty, much like a QR code in a grocery aisle with poor cell service, may prove harder to access than expected.

We will continue monitoring both the rulemaking process and the ongoing litigation and will provide updates as USDA releases its proposed revisions and the compliance timeline becomes clearer.

For more information on USDA’s bioengineered food disclosure standards, or for questions on FDA compliance and enforcement across the FDA-regulated categories, please email info@garg-law.com.