On May 3, the U.S. Department of Agriculture’s (USDA’s) Agricultural Marketing Service (AMS) issued its proposed rule implementing the National Bioengineered Food Disclosure Standard (NBFDS) passed by Congress in July 2016. AMS is proposing a crop-based approach, where disclosure would be required when a food is or contains a crop, or a derivative of a crop, that is included on one of two lists to be developed by the agency. The first list would include crops that are commercially available in bioengineered (BE) forms where the BE form has been highly adopted, such as canola, field corn, soybean, and sugar beet. The second list would include list crops commercially available in a BE form but adopted at a rate of less than 85 percent, such as non-browning cultivars of apple, sweet corn, papaya, potato, and summer squash. In addition to the three disclosure options listed in the statute – text, symbol, or digital/electronic link – AMS proposes to allow use of a text message disclosure option.

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The Federal Trade Commission (FTC) has released the final revisions to its “Green Guides,” which constitute the Commission’s guidance for making claims about the environmental benefits of a product in a manner that is not deceptive under Section 5 of the Federal Trade Commission Act. The final revised Green Guides largely reflect the revisions the FTC posed in 2010, with some changes. The Green Guides were last updated in 1998, and, while the Commission has indicated it would consider reviewing discrete aspects of the guides if provided new information, it does not intend to conduct another full-scale review for another ten years. As guidance, the Green Guides reflect the “Commission’s current views about environmental claims” but do not reflect legal requirements or bind the Commission. They likely reflect, however, how the FTC would view a particular marketing claim in most situations, and the Commission notes recent enforcement actions based on environmental marketing claims in its discussion. The Green Guides will also likely inform state authorities and the class action bar in considering whether claims are reasonably considered deceptive.

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