Sugar and other highly processed foods don’t have to be labeled as “bioengineered” as long as genetic modifications are undetectable, according to a federal judge.

The ruling has affirmed the U.S. Department of Agriculture’s policy of excluding ingredients from federal labeling requirements if they’ve been refined too much for tests to uncover genetically engineered DNA.

Though future testing methods may reveal such “bioengineered components,” that doesn’t mean USDA’s current labeling regulations are “defective,” said U.S. District Judge James Donato in San Francisco.

“To the contrary, it would be wrong for the agency to require results impossible to obtain with existing technology,” Donato said.

The American Farm Bureau Federation and other agriculture groups have opposed label requirements for highly refined ingredients, fearing public misconceptions about biotechnology.

They’ve come out in favor of USDA’s decision to only require labels for detectable levels of modified DNA, which excludes highly processed ingredients from corn and sugar beets.

Biotech critics represented by the Center for Food Safety nonprofit said the USDA’s policy amounts to “a huge loophole that misses the vast majority of GE foods,” contrary to a labeling law passed by Congress in 2016.

Highly processed ingredients from genetically engineered crops are more commonly consumed than whole foods, such as squash, that have been genetically modified, the complaint said.

Just because the altered DNA isn’t detectable doesn’t mean it’s absent from a food product, the plaintiffs said.

Tests are rapidly becoming better at detecting genetic modifications, but the USDA’s rules don’t set a minimum sensitivity level or distinguish among different methods, the complaint said.

The current regulation “virtually ensures inconsistent standards” for labeling, the complaint said.

As a result, federally mandated “bioengineered” labels will create confusion and distrust among consumers, since genetically engineered ingredients will remain undisclosed, the plaintiffs said.

“The absence of this information — the same information provided to consumers in many other countries across the globe — injures consumers by leaving them in the dark as to the fact that these foods are actually made with GE ingredients, yet unlabeled,” the complaint said.

The lawsuit raised several other claims against the USDA’s labeling regulations, alleging the terminology, methods and restrictions have chilled free speech while falling short of the law’s intent to inform consumers.

However, USDA’s policy for highly processed ingredients was of particular interest to the agriculture industry, which argued “bioengineered” labels carry a stigma that would reduce demand and prices for beet sugar.

Sugar beets are grown in several Western states while farmers in Oregon produce most of the industry’s seed, which is largely genetically engineered to withstand glyphosate herbicides. Groups representing sugar beet growers and processors intervened to oppose the lawsuit along with the Farm Bureau.

Though most sugar beets are genetically modified, the refined sugar product contains “no trace of the bioengineered genetic material,” the industry groups said. “Consumers could mistakenly believe that being derived from bioengineered crops means the food product is itself bioengineered, which in turn could decrease demand for those products and the crops on which they rely.”

Aside from affecting consumption, the labeling requirement would “create an expensive logistical nightmare for farmers and harvesters,” who’d have to separate conventional and biotech crops throughout the supply chain, the intervenors said.

“These increased costs will either be borne by farmers or passed along to farmers by harvesters and ultimately lead to higher food prices,” they said.

The judge has now agreed with farm groups and the USDA that the labeling regulations comply with the law and do not “ignore the likelihood of progress,” since the agency has committed to requiring labels for ingredients if modified genetic material becomes detectable.

The USDA has reasonably determined the labeling requirement only applies to “the products of technology, rather than the technology itself,” the judge said. “Plaintiffs do not seriously dispute this observation.”

The plaintiffs also failed to convince the judge that USDA’s rules impermissibly restricted free speech by requiring that foods be labeled as “bioengineered.”

While the regulations require use of the “bioengineered” term, that doesn’t stop retailers and manufacturers from also using their preferred acronyms, such as GE for genetically engineered or GMO for genetically modified organism, the judge said.

“Overall, the record does not establish that plaintiffs face a well-founded fear of enforcement for using GE, GMO, or any other words above and beyond the mandatory disclosure terminology,” Donato said.

Requiring the term “bioengineered” isn’t “arbitrary or capricious” contrary to administrative law, since USDA reasonably decided that alternate terms “could blur the scope of regulations and lead to inconsistent disclosures,” he said.

The judge also rejected the claim that USDA wrongly barred state regulations that require labeling for genetically engineered seeds. The law is “a valid exercise of Congress’ power” to pre-empt a patchwork of state rules.

The federal law is allowed to create a national labeling standard even if it lacks seed-specific provisions, he said.

However, the judge has agreed with the lawsuit’s contention that USDA “did nothing to fix the problem of inaccessible electronic disclosures,” such as codes that must be scanned with a smartphone.

Under the regulations, USDA offered several options to comply with the law, such as using the term “bioengineered” or a “bioengineered” symbol. Food manufacturers could also provide an “electronic or digital link” or text message instructions for bioengineering information.

The USDA found that electronic links are too technologically challenging for many consumers, but the text messaging option didn’t resolve that issue, Donato said.

The judge has ordered the agency to reconsider those disclosure options but allowed the labeling regulations to remain effective until they’re revised.