Ninth Circuit Issues Significant Ruling on Bioengineered Food Disclosure Standard

Key Takeaways

• The U.S. Court of Appeals for the Ninth Circuit recently issued a decision in National Grocers v. Rollins that has the potential to significantly alter the current landscape of bioengineered food disclosures.
• Among other things, the Ninth Circuit ruled that USDA acted contrary to law when it concluded that highly refined foods without detectable genetically modified material are exempt from BE disclosure.

Background: The National Bioengineered Food Disclosure Standard 

Congress passed the National Bioengineered Food Disclosure Standard (NBFDS) in 2016, requiring disclosure of bioengineered food ingredients. In 2018, the U.S. Department of Agriculture (USDA) promulgated regulations to implement the NBFDS.

USDA’s regulations set out standards for bioengineered food disclosures (BE disclosures). These standards included, but were not limited to:

• Adopting uniform use of the term “bioengineered” rather than other terminology, such as “genetically modified” or “genetically engineered”
• Recognizing that highly refined products undergo processes that remove genetic material such that it cannot be detected using common testing methods, so the agency exempted such products from disclosure
• Allowing regulated entities to use any one of four BE disclosure options on food packages: (1) a text statement, (2) a USDA-designed symbol, (3) an electronic or digital link, or (4) a text message

USDA implemented its regulations as of January 1, 2020, meaning that the agency has enforced its standards on BE disclosure for more than five years.

Procedural Posture

The National Grocers case was originally filed in July 2020. In September 2022, the district court granted summary judgment to plaintiffs upholding their challenge to the text message and digital link disclosure options. The court concluded the agency did not sufficiently “fix the problem of the inaccessible electronic disclosure,” as the agency was required under the statute. Notably, the court did not immediately vacate these challenged rules but instead remanded them back to the agency for further consideration. The district court denied summary judgment on all other grounds. In April 2024, USDA solicited public comment on these disclosure options following the district court’s ruling.

Plaintiffs appealed the district court’s summary judgment order, leading to the Ninth Circuit’s October 31, 2025, decision.

The Decision

In National Grocers, the Ninth Circuit made key procedural and substantive decisions, namely:

• Standing. The panel affirmed that the group of grocery retailers and public interest organizations had standing to challenge USDA’s rules implementing the NBFDS.
• Terminology. The panel affirmed USDA’s use of the term “bioengineered” as the uniform disclosure term in its regulations, rather than “genetically modified” or “genetically engineered.”
• Detectability of bioengineered genetic material. The panel held that USDA had acted contrary to the NBFDS statute by excluding from the definition of “bioengineered food” any item in which modified genetic material is merely “not detectable.” The appellate court noted that the NBFDS did not expressly define what it means for a food to “contain” modified genetic material. The Ninth Circuit evaluated the language of USDA’s regulations and concluded that the agency’s “non-detectability” rule was “not legally equivalent to a finding that the food does not ‘contain’ genetically modified material,” at least as currently worded. The panel directed the district court to enter summary judgment for plaintiffs on that claim and to remand the matter to USDA, while recognizing that USDA may address detectability issues on remand, including the agency’s consideration of the sensitivity of detection methods. The Ninth Circuit directed the district court to (1) enter summary judgment in plaintiffs’ favor on the issue of detectability, (2) remand the relevant regulations, 7 C.F.R. § 66.1 and § 66.9, to USDA, and (3) determine whether the regulations should be vacated in connection with that agency remand.
• Vacating text message and digital link disclosure methods. The panel held that the district court abused its discretion by declining to vacate certain regulations permitting the text message and digital link BE disclosure options, even though the lower court had found those regulations to be unlawful. The appellate panel directed the district court to vacate the challenged BE text message and digital disclosure rules after input from the parties. 

Conclusion

The National Grocers case represents a significant departure from current BE disclosure standards as implemented by USDA. Given the remand for further consideration by the district court and USDA, industry stakeholders should carefully monitor any changes that affect their BE disclosure practices.

If you have any questions concerning the developments discussed in this Update, please contact members of Perkins Coie’s Food Regulatory team.