“The general rule applicable to federal court suits with multiple plaintiffs is that once the court determines that one of the plaintiffs has standing, it need not decide the standing of the others.” (citation omitted)
How later courts described this case
- “The general rule applicable to federal court suits with multiple plaintiffs is that once the court determines that one of the plaintiffs has standing, it need not decide the standing of the others.” (citation omitted)
- “Generally, an appellee waives any argument it fails to raise in its answering brief.”
- noting that “[s]ometimes the better overall reading of the statute contains some redundancy,” such as when “Congress employ[s] a belt and suspenders approach to make sure” that a particular rule is established (citation omitted)
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATURAL GROCERS; CITIZENS No. 22-16770
FOR GMO LABELING; LABEL
GMOS; RURAL VERMONT; GOOD D.C. No. 3:20-cv-
EARTH NATURAL FOODS; PUGET 05151-JD
CONSUMERS CO-OP; CENTER
FOR FOOD SAFETY; NATIONAL OPINION
ORGANIC COALITION,
Plaintiffs-Appellants,
v.
BROOKE L. ROLLINS, Secretary of
the United States Department of
Agriculture; ERIN MORRIS,
Administrator of the Agricultural
Marketing Services; UNITED
STATES DEPARTMENT OF
AGRICULTURE,
Defendants-Appellees,
and
AMERICAN FARM BUREAU
FEDERATION; UNITED STATES
BEET SUGAR ASSOCIATION;
AMERICAN SUGARBEET
GROWERS ASSOCIATION,
2 NATURAL GROCERS V. ROLLINS
Intervenor-Defendants-
Appellees.
Appeal from the United States District Court
for the Northern District of California
James Donato, District Judge, Presiding
Argued and Submitted October 22, 2024
San Francisco, California
Filed October 31, 2025
Before: Ronald L. Gilman, * Kim McLane Wardlaw, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Collins
SUMMARY **
Administrative Procedure Act / Agricultural Marketing
Service
In a case in which a group of grocery retailers and public
interest organizations (“Plaintiffs”) challenge the federal
regulations establishing a national uniform disclosure
standard governing the use of genetically modified
*
The Honorable Ronald L. Gilman, United States Circuit Judge for the
Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NATURAL GROCERS V. ROLLINS 3
ingredients in food, the panel reversed the district court’s
judgment in part, affirmed in part, and remanded.
The Secretary of Agriculture delegated the authority to
establish the uniform disclosure standard to the Agricultural
Marketing Service (“AMS”). Plaintiffs asserted that the
AMS’s disclosure standard was unlawful or arbitrary and
capricious and should be set aside under the Administrative
Procedure Act (“APA”).
The district court’s summary judgment order and
accompanying judgment stated only that (1) Plaintiffs were
granted summary judgment on their claim challenging two
specific disclosure option regulations; and (2) summary
judgment was denied in all other respects. The panel
construed the district court’s ambiguous September 2023
judgment as implicitly granting summary judgment to the
AMS and intervenor-defendants as to the remaining claims,
thereby finally disposing of all claims and creating an
appealable final judgment.
The panel held that Plaintiffs had Article III standing.
Here, Plaintiffs seek non-monetary relief under the APA and
the scope of the relief does not differ among each Plaintiff.
The panel held that because at least one Plaintiff had
standing to assert each of the three APA claims at issue, there
was jurisdiction to consider the merits of those claims,
without the need to consider the standing of the other
Plaintiffs.
The panel held that the district court erred in rejecting
Plaintiffs’ claim that the AMS committed legal error by
generally excluding highly refined foods from the definition
of the phrase “bioengineered foods,” which generally
described the foods that were subject to the disclosure
requirement. The panel reversed the grant of summary
4 NATURAL GROCERS V. ROLLINS
judgment to Defendants on Plaintiffs’ APA cause of action
challenging relevant regulatory provisions, and remanded to
the district court with instructions (1) to grant summary
judgment to Plaintiffs on that cause of action; (2) to remand
the relevant regulations to the AMS; and (3) to determine,
after receiving input from the parties, whether any
provisions of the regulations should be vacated in connection
with that remand to the agency.
The panel affirmed the district court’s decision rejecting
Plaintiffs’ claim that the regulations were arbitrary and
capricious to the extent that those regulations provide that
the required disclosures must use the term “bioengineered.”
The panel held that the agency’s decision to choose
“bioengineered” as the uniform disclosure term, as opposed
to “genetically engineered” or “genetically modified,”
reflected a reasonable consideration of the relevant issues.
The panel also held that the district court abused its
discretion in declining to vacate the two disclosure-format
regulations, contained in 7 C.F.R. §§ 66.106 and 66.108, that
it held were invalid. The panel reversed and directed the
district court to prospectively vacate those rules after
receiving the parties’ input as to the proper form of such a
prospective vacatur.
NATURAL GROCERS V. ROLLINS 5
COUNSEL
George A. Kimbrell (argued), Meredith Stevenson, and Amy
L. Van Saun, Center for Food Safety, Portland, Oregon, for
Plaintiffs-Appellants.
Adam C. Jed (argued) and Mark B. Stern, Attorneys,
Appellate Staff, Civil Division; Ismail Ramsey, United
States Attorney; Brian M. Boynton, Principal Deputy
Assistant Attorney General; United States Department of
Justice, Washington, D.C.; for Defendants-Appellees.
Bridget S. McCabe (argued), Baker Hostetler LLP, Los
Angeles, California; Geraldine Edens, Geraldine Edens PA,
Tampa, Florida; Christopher Marraro, Baker Hostetler LLP,
Washington, D.C.; David Y. Chung and Daniel W. Wolff,
Crowell & Moring LLP, Washington, D.C.; Emily T.
Kuwahara, Crowell & Moring LLP, Los Angeles,
California; for Intervenor-Defendants-Appellees.
Jessica L. Blome, Greenfire Law PC, Berkeley, California,
for Amici Curiae the Non-GMO Project and the Health
Research Institute.
Trenton H. Norris, Hogan Lovells LLP, San Francisco,
California, for Amicus Curiae for Amicus Curiae the
Consumer Brands Association.
6 NATURAL GROCERS V. ROLLINS
OPINION
COLLINS, Circuit Judge:
This case involves a challenge under the Administrative
Procedure Act (“APA”) to the federal regulations
establishing a national uniform disclosure standard
governing the use of genetically modified ingredients in
food. In 2016, Congress enacted a statute directing the
Secretary of Agriculture to establish such a uniform
disclosure standard and generally preempting state
disclosure laws relating to such foods. Pub. L. No. 114-216,
130 Stat. 834 (2016); 7 U.S.C. §§ 1639b(a)(1), 1639i(b).
The Secretary delegated the relevant authority to the
Agricultural Marketing Service (“AMS”), which
promulgated the final regulations in late 2018. See National
Bioengineered Food Disclosure Standard, 83 Fed. Reg.
65814 (Dec. 21, 2018). The AMS’s disclosure standard,
which became fully mandatory as of January 1, 2022,
generally requires that the covered foods disclose, in one of
several prescribed formats, that the food is “bioengineered”
or contains a “bioengineered” ingredient. 7 C.F.R.
§§ 66.102–66.108.
Plaintiffs, who are a group of grocery retailers and public
interest organizations, brought this suit asserting, inter alia,
that the AMS’s disclosure standard was unlawful or arbitrary
and capricious in various respects and should be set aside
under the APA. See 5 U.S.C. § 706(2)(A). As relevant here,
Plaintiffs asserted three APA claims. First, Plaintiffs argued
that the AMS erred in excluding from the disclosure
requirement any food that, even though made with
genetically modified ingredients, was subsequently subject
to a high level of processing that assertedly rendered any
NATURAL GROCERS V. ROLLINS 7
genetically modified material “undetectable.” Second,
Plaintiffs asserted that the AMS should have required or
allowed the mandated disclosures to be made using more
familiar terms such as “genetically engineered,” “genetically
modified organism,” or “GMO,” rather than
“bioengineered.” Third, Plaintiffs challenged two regulatory
provisions governing, respectively, the optional use of quick
response (“QR”) codes or text-messaging to accomplish the
disclosures (in lieu of more conventional on-package
statements or symbols). The district court rejected the first
two claims, but it granted summary judgment to Plaintiffs on
the third. As to the latter claim, however, the district court
remanded the two challenged regulatory provisions to the
AMS without vacating them.
We hold that the district court erred in rejecting
Plaintiffs’ claim that the AMS committed legal error by
generally excluding highly refined foods from the definition
of the phrase “bioengineered foods,” which generally
describes the foods that are subject to the disclosure
requirement. We remand that issue to the AMS for further
consideration in light of other statutory authorities that the
agency failed to consider, and we direct the district court to
address in the first instance whether the AMS’s error on this
score requires vacatur of any relevant portion of the
regulations. We also conclude that the district court abused
its discretion in declining to vacate the two disclosure-format
provisions that it held were invalid, and we direct the district
court to prospectively vacate those rules after receiving the
parties’ input as to the proper form of such a prospective
vacatur. In all other respects, we affirm the district court’s
judgment.
8 NATURAL GROCERS V. ROLLINS
I
We begin with an overview of the relevant statutory and
regulatory history to provide the necessary context to
Plaintiffs’ claims. We then summarize the factual and
procedural history of this case.
A
Public Law No. 114-216, which was enacted in July
2016, amends the Agricultural Marketing Act of 1946
(“AMA” or “the Act”) by adding two new subtitles, which
have been classified as subchapters V and VI of chapter 38
of the unenacted title 7 of the United States Code. See Pub.
L. No. 114-216, § 1, 130 Stat. 834 (2016); see also 7 U.S.C.
§§ 1639–1639j. 1 Specifically, the AMA’s new subtitle E is
titled “National Bioengineered Food Disclosure Standard,”
see 130 Stat. at 834, and § 293 of that subtitle sets forth the
requirements that apply to a “national bioengineered food
disclosure standard” that must be promulgated by the
Secretary of Agriculture within 2 years, see 7 U.S.C.
§ 1639b(a)(1). New subtitle F of the AMA generally sets
forth the preemptive scope of this national disclosure
standard. See 130 Stat. at 838; see also 7 U.S.C. §§ 1639i–
1639j.
Section 293(a)(1) of the AMA specifies that the required
disclosure standard generally applies “with respect to any
bioengineered food and any food that may be
1
Because title 7 has not been enacted as positive law, we will generally
refer to the AMA’s provisions by their section numbers in the AMA,
while also providing citations to the corresponding section numbers
in title 7 of the U.S. Code. The current text of the AMA is available
on the website of the Government Publishing Office at
https://www.govinfo.gov/content/pkg/COMPS-10259/pdf/COMPS-
10259.pdf.
NATURAL GROCERS V. ROLLINS 9
bioengineered.” 7 U.S.C. § 1639b(a)(1). The “foods”
covered by the Act generally include only those foods
subject to the “labeling requirements” of various federal
statutes, including the Federal Food, Drug, and Cosmetic
Act. Id. § 1639a(c). The Act defines “‘bioengineering’, . . .
with respect to a food,” to “refer[] to a food . . . that contains
genetic material that has been modified through in vitro
recombinant deoxyribonucleic acid (DNA) techniques” if
“the modification could not otherwise be obtained through
conventional breeding or found in nature.” Id. § 1639(1).
Under the Act, however, the actual language that regulated
parties must use in the required disclosure is not necessarily
limited to the specific statutory term “bioengineered,”
because the Act expressly gives the Secretary the authority
to “determine[]” that a “similar term” also adequately
captures the required disclosures. Id. Other terms in
common use in the marketplace at the time of the enactment
of subtitle E included “genetically engineered,” “genetically
modified organism,” and “GMO”. See 83 Fed. Reg. at
65836, 65851–52, 65858.
In addition to directing the Secretary to determine the
exact language to be used in the required disclosures, the Act
also addresses the format of those disclosures. Specifically,
§ 293(b)(2) states that the Secretary must “require that the
form of a food disclosure . . . be a text, symbol, or electronic
or digital link, . . . with the disclosure option to be selected
by the food manufacturer.” 7 U.S.C. § 1639b(b)(2)(D). The
Act contains a number of provisions designed to bolster the
efficacy of the electronic or digital link option, which (under
current technology) would generally involve scanning a QR
code with a smartphone. These include a requirement that
any such QR code must be accompanied by on-package
language instructing the consumer to “Scan here for more
10 NATURAL GROCERS V. ROLLINS
food information,” as well as a “telephone number that
provides access to the bioengineering disclosure.” Id.
§ 1639b(d)(1), (4). To address the possibility that the
electronic or digital link disclosure option still might not
prove to be an adequate method of disclosure, Congress
directed the Secretary to “conduct a study to identify
potential technological challenges” to consumers’ access to
the bioengineering disclosure through that option. Id.
§ 1639b(c)(1). If, after conducting the study, the Secretary
determines that electronic or digital link disclosures would
not afford consumers “sufficient access to the
bioengineering disclosure,” then the Secretary, after
consulting “with food retailers and manufacturers,” must
“provide additional and comparable options to access the
bioengineering disclosure.” Id. § 1639b(c)(4).
Section 293(b)(2) also requires the Secretary to establish
certain parameters concerning the scope of the disclosure
standard. For example, the Secretary must “determine the
amounts of a bioengineered substance that may be present in
a food, as appropriate, in order for the food to be a
bioengineered food” for purposes of the disclosure standard.
7 U.S.C. § 1639b(b)(2)(B) (emphasis added); see also infra
section III(B). The Secretary shall also “establish a process
for requesting and granting a determination by the Secretary
regarding other factors and conditions under which a food is
considered a bioengineered food.” Id. § 1639b(b)(2)(C).
Moreover, the Secretary’s disclosure standard must prohibit
“food derived from an animal” from being “considered a
bioengineered food solely because the animal consumed
feed produced from, containing, or consisting of a
bioengineered substance.” Id. § 1639b(b)(2)(A). In
addition, the Secretary must provide certain alternative
disclosure options in the case of “food contained in small or
NATURAL GROCERS V. ROLLINS 11
very small packages” or “in the case of small food
manufacturers.” Id. § 1639b(b)(2)(E), (F). The Act further
specifies that the disclosure standard shall exempt entirely
“food served in a restaurant or similar retail food
establishment” and “very small food manufacturers.” Id.
§ 1639b(b)(2)(G).
As noted earlier, new subtitle F of the AMA sets forth the
general preemptive scope of the Act with respect to such
disclosures. Specifically, § 295 expressly preempts any state
or local “requirement relating to the labeling of whether a
food . . . is genetically engineered . . . or was developed or
produced using genetic engineering.” 7 U.S.C. § 1639i(b).
Section 296, however, states that nothing in subtitles E or F
or in any regulation promulgated under them “shall be
construed to preempt any remedy created by a State or
Federal statutory or common law right.” Id. § 1639j.
Section 293(e) of subtitle E also addresses the subject of
preemption, providing that, “[n]otwithstanding section 295
[7 U.S.C. § 1639i],” no state or local law shall “establish . . .
or continue in effect . . . any requirement relating to the
labeling or disclosure of whether a food is bioengineered or
was developed or produced using bioengineering . . . that is
not identical” to the Secretary’s disclosure standard
governing such food. 130 Stat. at 837; 7 U.S.C. § 1639b(e).
The Act also contains various provisions addressing how the
required disclosure standard relates to other statutes
concerning claims about foods, including the “Organic
Foods Production Act of 1990.” 7 U.S.C. § 1639b(f)(2); see
also id. § 6501 et seq.
Section 293(g) of the AMA addresses the enforcement of
the disclosure standard. In particular, § 293(g)(1) makes it
“a prohibited act for a person to knowingly fail to make a
disclosure as required under this section.” 7 U.S.C.
12 NATURAL GROCERS V. ROLLINS
§ 1639b(g)(1). Entities subject to the disclosure requirement
are required to maintain such records as the Secretary
determines by regulation are necessary “to establish
compliance with this section,” and the Secretary is given
power to conduct an “examination” or “audit” of such
records. Id. § 1639b(g)(2), (3). The Act also provides,
however, that “[t]he Secretary shall have no authority to
recall any food subject” to the disclosure requirement “on
the basis of whether the food bears a disclosure that the food
is bioengineered.” Id. § 1639b(g)(4).
B
The Secretary of Agriculture delegated the authority to
establish and administer the national bioengineered food
disclosure standard to the AMS. See National Bioengineered
Food Disclosure Standard, 83 Fed. Reg. 19860, 19860 (May
4, 2018). After receiving preliminary input from the public
based on responses received to “30 questions posted on its
website,” the AMS issued a notice of proposed rulemaking
in May 2018. Id. The AMS received “approximately 14,000
comments” on the proposed rule, and it thereafter issued its
final rule in December 2018. See National Bioengineered
Food Disclosure Standard, 83 Fed. Reg. 65814, 65814 (Dec.
21, 2018); see also 7 C.F.R. § 66.1 et seq. We highlight three
particular aspects of the final regulations that are relevant to
this appeal.
First, the AMS’s regulations sought to address how the
required disclosure standard should apply in the context of
“refined foods” that were made from bioengineered
ingredients. 83 Fed. Reg. at 65816. As the notice of final
rulemaking explained, the AMS’s earlier notice had “invited
public comment on two different interpretations of the
statutory definition of ‘bioengineering’ and on the scope of
NATURAL GROCERS V. ROLLINS 13
the regulatory definition of ‘bioengineered food.’’’ Id. The
AMS described the two different interpretations as follows:
The first interpretation, identified as
Position 1 in the NPRM [Notice of Proposed
Rulemaking], stated that refined products do
not ‘‘contain genetic material that has been
modified through in vitro recombinant
deoxyribonucleic acid (DNA) techniques’’
because the refining process rendered genetic
material undetectable using common testing
methods. The second interpretation,
identified as Position 2 in the NPRM, stated
that the scope of the definition of
‘‘bioengineering’’ applies to all foods
produced from bioengineering, such as
refined products.
Id.
In its final rule, the AMS adopted “Position 1 with some
modifications.” 83 Fed. Reg. at 65816. In implementing
that approach, the AMS adopted a regulatory definition of
the term “bioengineered” that differed from the statutory
definition. Whereas the Act defines “bioengineering, . . .
with respect to a food,” as generally referring to a food that
“contains genetic material that has been modified through in
vitro recombinant [DNA] techniques,” 7 U.S.C. § 1639(1),
the AMS’s regulation adds a proviso to that definition stating
that “[s]uch a food does not contain modified genetic
material if the genetic material is not detectable pursuant to
§ 66.9.” 7 C.F.R. § 66.1 (emphasis added). Section 66.9, in
turn, sets forth the various ways in which manufacturers
could attempt to establish such non-detectability, and it
14 NATURAL GROCERS V. ROLLINS
requires them to keep sufficient records to support any such
claim. Id. § 66.9.
Second, the final rule requires all disclosures—in
whatever format—to use the statutory term “bioengineered.”
See 7 C.F.R. §§ 66.102–66.108. Thus, while manufacturers
remain free to add additional terms that otherwise comply
with applicable law, see 83 Fed. Reg. at 65852; see also
7 C.F.R. § 66.118, they can satisfy the disclosure
requirement only by using the term “bioengineered.” The
AMS explained that it was requiring this uniform term
because it was the term “used by Congress in the amended
Act”; that term “clearly and accurately describes the
technology” being disclosed and “provides consumers with
the information they desire”; and this approach would
“ensur[e] disclosure consistency and minimiz[e]
marketplace confusion.” 83 Fed. Reg. at 65851–52.
Third, the final rule addressed the Secretary’s response
to the statutorily required study about the electronic or
digital link disclosure option. That study, the Secretary
concluded, demonstrated that this option would not provide
consumers with adequate access to the disclosure “under
ordinary shopping conditions at this time.” 83 Fed. Reg. at
65828. As a result of this finding, the AMS was required to
“provide additional and comparable options to access the
bioengineering disclosure.” 7 U.S.C. § 1639b(c)(4). The
AMS stated that it was therefore adopting an independent
text-message disclosure option as a fourth alternative, in
addition to the statutorily mandated text, symbol, and
electronic or digital link disclosure options. See 83 Fed.
Reg. at 65828; see also 7 C.F.R. § 66.108. Moreover,
despite finding that the study had shown the electronic or
digital link disclosure option to be inadequate, the AMS
stated that the rule would nonetheless retain that option,
NATURAL GROCERS V. ROLLINS 15
because it was “mandated by the amended Act,” 83 Fed.
Reg. at 65853, and the AMS therefore lacked the “authority
to eliminate” it, id. at 65855. See 7 C.F.R. § 66.106.
C
Plaintiffs Natural Grocers, Citizens for GMO Labeling,
Label GMOs, Rural Vermont, Good Earth Natural Foods,
Puget Consumers Co-op, National Organic Coalition, and
Center for Food Safety are a collection of retailers and public
interest organizations. They brought this action in July 2020
against the United States Department of Agriculture, the
Secretary of Agriculture, and the Administrator of the AMS.
Because the relevant authority conferred on the Secretary
under the Act has been delegated to the AMS, we will, for
simplicity, generally refer to these Defendants collectively
as “the AMS.”
In three separate causes of action under the APA,
Plaintiffs’ operative complaint challenged the three above-
described aspects of the AMS’s regulations, asserting that
the relevant regulations were inconsistent with the amended
AMA and were “arbitrary and capricious” and contrary to
law within the meaning of the APA. 2 See 5 U.S.C.
§ 706(2)(A). Specifically, Plaintiffs asserted APA claims
challenging (1) the exclusion of highly refined foods from
the definition of “bioengineered foods”; (2) the requirement
to use the term “bioengineered” in the mandated disclosures;
and (3) the two provisions governing the options of using
QR codes or text-messaging to accomplish the required
disclosures.
2
Plaintiffs also asserted three constitutional claims on various grounds,
but these claims were rejected by the district court, and Plaintiffs have
abandoned them on appeal.
16 NATURAL GROCERS V. ROLLINS
Acting under Federal Rule of Civil Procedure 24(b), the
district court in June 2021 allowed three organizations to
intervene permissively as additional Defendants, viz., the
United States Beet Sugar Association, the American
Sugarbeet Growers Association, and the American Farm
Bureau Federation (collectively, “Intervenors”).
Plaintiffs moved for summary judgment on all of their
claims in November 2021. In accordance with the parties’
joint proposal in the district court concerning summary
judgment briefing, the AMS and Intervenors did not
formally cross-move for summary judgment. Instead, as
explained in that joint submission, the AMS and Intervenors
stated that they would rely on the court’s sua sponte power
to “enter summary judgment in their favor on all or some
claims pursuant to Federal Rule of Civil Procedure 56(f),”
and Plaintiffs correspondingly agreed that they were “on
notice that the Court may grant summary judgment for the
nonmovants on all or some claims and that Plaintiffs will
have an opportunity to respond to Defendants’ and
Intervenors’ arguments in their reply brief.” See FED. R. CIV.
P. 56(f)(1) (stating that, “[a]fter giving notice and a
reasonable time to respond, the court may . . . grant summary
judgment for a nonmovant”). Accordingly, the AMS’s
opposition to Plaintiffs’ motion expressly asked the district
court to deny Plaintiffs’ motion and to “enter judgment in
favor of Defendants pursuant to Federal Rule of Civil
Procedure 56(f).” Intervenors’ opposition likewise
requested that the district court deny Plaintiffs’ motion “and
enter judgment in favor of Defendants and Intervenors.”
On September 13, 2022, the district court granted
summary judgment to Plaintiffs on their APA cause of action
challenging the two regulatory provisions addressing,
respectively, the electronic or digital link disclosure option
NATURAL GROCERS V. ROLLINS 17
(7 C.F.R. § 66.106) and the AMS’s new text-message
disclosure option (id. § 66.108). However, the district court
rejected Plaintiffs’ request to vacate these two provisions,
and it instead remanded them “without vacatur.” The district
court denied Plaintiffs’ summary judgment motion “in all
other respects.” The district court entered a corresponding
judgment the same day. Plaintiffs timely appealed.
II
Before turning to the merits of Plaintiffs’ appeal, we first
address two issues concerning our jurisdiction, one statutory
and one constitutional.
A
By statute, we have jurisdiction over “all final decisions
of the district courts.” See 28 U.S.C. § 1291 (emphasis
added). Ordinarily, “a denial of a motion for summary
judgment is not a final order and thus not appealable.”
Abend v. MCA, Inc., 863 F.2d 1465, 1482 n.20 (9th Cir.
1988). However, if that denial is coupled with a “grant of
summary judgment” on all remaining claims to the non-
moving party, the result will be a final decision that would
then give us jurisdiction to review the denial as well. See id.
The problem in the instant case is that both the district
court’s summary judgment order and its accompanying
judgment stated only (1) that Plaintiffs were granted
summary judgment on their claim challenging two specific
disclosure-option regulations; and (2) that “[s]ummary
judgment is denied in all other respects” (emphasis added).
Thus, although the AMS and Intervenors had both expressly
asked the district court to enter summary judgment in their
favor sua sponte under Rule 56(f), the district court’s order
and judgment failed to state that explicitly.
18 NATURAL GROCERS V. ROLLINS
To resolve any potential ambiguity in this court’s
jurisdiction, Plaintiffs (after having already appealed the
judgment) filed an unopposed motion in the district court for
an indicative ruling under Federal Rule of Civil Procedure
62.1. See FED. R. CIV. P. 62.1(a)(3) (allowing the district
court, in response to a motion seeking relief while an appeal
is pending, to “state either that it would grant the motion if
the court of appeals remands for that purpose or that the
motion raises a substantial issue”); see also FED. R. APP. P.
12.1(b) (authorizing the court of appeals, in response to such
a statement by the district court, to “remand for further
proceedings” while retaining jurisdiction). That motion
asked the district court to state that, if a limited remand were
granted, the district court would amend its judgment to
clarify that it was indeed a final judgment that affirmatively
resolved the remaining claims in the AMS’s and Intervenors’
favor. Specifically, Plaintiffs’ motion suggested that the
district court should amend the judgment by replacing the
statement that “Summary judgment is denied in all other
respects” with the following: “Because plaintiffs’ summary
judgment motion is denied in all other respects, judgment is
entered for defendants and intervenors on all other claims
pursuant to Federal Rules of Civil Procedure 56(f)(1) and
58.” In March 2023, the district court denied the motion for
an indicative ruling, stating that “the judgment provides total
clarity on the disposition of the case.”
Contrary to what the district court thought, the literal
language of the judgment did not provide “total clarity” as
to the disposition of the case, because it lacked any language
actually disposing of the claims as to which it announced that
summary judgment had been denied. At the same time, the
district court’s formal entry of judgment certainly indicates
that the court thought that it had disposed of all claims and
NATURAL GROCERS V. ROLLINS 19
that it intended to do so. We therefore deem the judgment to
be facially ambiguous. In such situations, our obligation is
“to construe the judgment so as to give effect to the intention
of the issuing court, considering the entire record before the
issuing court,” including its prior rulings. United States v.
DAS Corp., 18 F.4th 1032, 1041 (9th Cir. 2021) (simplified).
Viewing the September 2022 judgment in the context of “the
record before the district court at the time it issued the
judgment,” id., including the procedural history of the case,
the parties’ motion papers, and the district court’s prior
orders, we have little doubt that the district court’s intention
was to grant summary judgment sua sponte under Rule 56(f)
to the AMS and Intervenors with respect to those claims as
to which Plaintiffs’ summary judgment motion had been
denied. We therefore construe the ambiguous September
2022 judgment as implicitly granting summary judgment to
the AMS and Intervenors as to those remaining claims,
thereby finally disposing of all claims and creating an
appealable final judgment.
B
Although the AMS has not challenged Plaintiffs’ Article
III standing in its appellate brief, we have “an independent
obligation to assure that standing exists, regardless of
whether it is challenged by any of the parties.” Summers v.
Earth Island Inst., 555 U.S. 488, 499 (2009).
“[T]o satisfy Article III’s standing requirements, a
plaintiff must show (1) it has suffered an ‘injury in fact’ that
is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it
is likely, as opposed to merely speculative, that the injury
will be addressed by a favorable decision.” Friends of the
20 NATURAL GROCERS V. ROLLINS
Earth, Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S. 167, 180–
81 (2000). Plaintiffs must satisfy these requirements “for
each claim that they press and for each form of relief that
they seek.” See TransUnion LLC v. Ramirez, 594 U.S. 413,
431 (2021). However, where (as here) Plaintiffs seek non-
monetary relief under the APA and the scope of the relief
available does not differ among each Plaintiff, see infra note
7, it suffices if at least one Plaintiff has Article III standing
as to each of the claims at issue. See Secretary of the Interior
v. California, 464 U.S. 312, 319 n.3 (1984) (“Since the State
of California clearly does have standing, we need not address
the standing of the other [plaintiffs], whose position here is
identical to the State’s.”); Melendres v. Arpaio, 695 F.3d 990,
999 (9th Cir. 2012) (“The general rule applicable to federal
court suits with multiple plaintiffs is that once the court
determines that one of the plaintiffs has standing, it need not
decide the standing of the others.” (citation omitted)).
In connection with their summary judgment motion,
Plaintiffs presented a number of declarations in an effort to
establish their Article III standing to assert their various
claims. In their oppositions to Plaintiffs’ motion, neither the
AMS nor Intervenors contested these declarations for
standing purposes or presented any contrary evidence as to
Plaintiffs’ standing. Accordingly, we take the facts set forth
in those declarations as uncontested with respect to Article
III standing for purposes of both Plaintiffs’ summary
judgment motion and the AMS’s and Intervenors’ request for
sua sponte summary judgment in their favor.
Natural Grocers’ uncontested declaration from one of its
officers suffices to establish the company’s standing to
challenge the disclosure standard’s exclusion of those foods
that, due to refining processes, have no detectable
genetically modified material under the rule’s detectability
NATURAL GROCERS V. ROLLINS 21
standards. The declaration explains that, based on the
company’s “founding principles as well as customer
demand,” Natural Grocers’ 162 stores in 20 States are
committed “to avoid selling genetically engineered (GE)
products,” which in the company’s view include the sort of
highly refined foods excluded by the challenged provision of
the AMS’s final rule. The declaration explains that, had the
AMS complied with its obligation to include such foods in
its labeling program, Natural Grocers would thereby have a
ready-made way to identify such foods and to keep them off
its shelves. Instead, Natural Grocers asserts, it must continue
to undertake expensive efforts to identify such items on its
own. Because these added expenses in meeting its
customers’ market-based demands would be avoided if the
AMS included highly refined foods in its labeling program,
Natural Grocers has identified a concrete injury to itself that
is fairly traceable to the AMS’s alleged unlawful conduct and
that would be redressed by a decision in Natural Grocers’
favor.
Declarations from an official of the Center for Food
Safety (“CFS”) and from several of CFS’s members are
sufficient to establish that organization’s associational
standing to assert, on behalf of its members, APA claims
challenging (1) the requirement to use the term
“bioengineered” in disclosures; and (2) the AMS’s decision
to allow the use of allegedly unlawful and deficient QR-code
and text-message disclosure options. Under Hunt v.
Washington State Apple Advertising Commission, 432 U.S.
333 (1977), an organization has “associational standing” to
sue on behalf of its members if it can demonstrate that
“(a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are
germane to the organization’s purpose; and (c) neither the
22 NATURAL GROCERS V. ROLLINS
claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” Id. at
343. CFS’s unchallenged evidence establishes all of these
required elements under Hunt with respect to these two APA
claims.
Multiple CFS members’ declarations confirm that these
members find the term “bioengineered” to be unclear and
confusing, in contrast to the more familiar terms “genetically
engineered” or “GMO.” They also confirm that the use of
disclosure options (such as QR codes and text-messaging)
that require use of a smartphone in the grocery store aisle
would create concrete logistical hurdles for them in
accessing the disclosures. These CFS members (and
inferentially many others like them) are injured by the
asserted lack of immediate on-the-spot access to clear and
readily accessible disclosure information; those injuries are
fairly traceable to the challenged regulatory provisions; and
they would be redressed by a decision upholding these
challenges and invalidating the regulations in question. The
first element of the Hunt associational standing test—viz.,
that CFS’s members would have Article III standing in their
own right—is therefore met.
The other two elements of the Hunt test are also satisfied.
Given the declaration from a CFS official setting forth the
organization’s long history of promoting clear and accessible
labeling of genetically engineered foods, the interests that
CFS seeks to represent in these two APA claims are plainly
“germane to the organization’s purpose.” Hunt, 432 U.S. at
343. And, as the course of this litigation has shown, these
APA claims do not require the participation of individual
members of CFS. Id.
NATURAL GROCERS V. ROLLINS 23
Because at least one Plaintiff has standing to assert each
of the three APA claims at issue, we have jurisdiction to
consider the merits of these claims, without the need to
consider the standing of the other Plaintiffs. See Melendres,
695 F.3d at 999. We therefore proceed to address the merits
of those three claims.
III
We first address Plaintiffs’ APA claim challenging the
AMS’s decision to effectively exempt from the disclosure
standard most highly refined foods made from
bioengineered ingredients. Specifically, Plaintiffs contend
that the AMS acted arbitrarily and capriciously, and contrary
to law, when it adopted regulations stating that foods made
with bioengineered ingredients would nonetheless be
excluded from the definition of “bioengineered foods,”
which delineates the scope of the disclosure standard, if (due
to refining or other processing) the “genetic material” in
those ingredients “is not detectable” in the final food product
under the detectability standards set forth in the regulations.
7 C.F.R. § 66.1. Instead, Plaintiffs assert, the AMS was
required to mandate disclosure for “all foods”—including
such “highly refined” foods—“that so much as may contain
genetic material that has been modified at some point during
production, not just some foods.” We agree with the first
argument, but not the second.
A
As we have explained, § 293(a)(1) of the Act requires the
Secretary of Agriculture to adopt regulations that “establish
a national mandatory bioengineered food disclosure
standard with respect to any bioengineered food and any
food that may be bioengineered.” 7 U.S.C. § 1639b(a)(1).
The Act does not itself define exactly what that “standard”
24 NATURAL GROCERS V. ROLLINS
should be, but it does set forth a list of various
“requirements” that must be included in the regulations
establishing the standard. Id. § 1639b(b)(2). Because the
disclosure standard established by the agency must be one
“with respect to” foods that are or may be “bioengineered,”
the meaning of the latter term is crucial to understanding the
outer bounds of what that disclosure requirement can be. Id.
§ 1639b(a)(1).
Strictly speaking, the Act does not define the term
“bioengineered,” but it does include a definition of the
related term “bioengineering.” Specifically, § 291(1) states
that “[t]he term ‘bioengineering,’ . . . with respect to a food,
refers to a food” (1) that “contains genetic material that has
been modified through in vitro recombinant
deoxyribonucleic acid (DNA) techniques”; and (2) “for
which the modification could not otherwise be obtained
through conventional breeding or found in nature.” 7 U.S.C.
§ 1639(1) (emphasis added).
In its regulations establishing the required “national
mandatory bioengineered food disclosure standard,” the
AMS generally mandated a disclosure label only for a “food
[that] is a bioengineered food or contains a bioengineered
food ingredient,” 7 C.F.R. § 66.3(a)(1), and the AMS
adopted a definition of “bioengineered food” that generally
follows the statutory definition of “bioengineering” almost
verbatim, id. § 66.1. However, there is one crucial
difference: although it otherwise tracks the statutory
definition, which focuses on whether the food “contains”
modified genetic material, the regulation’s definition of
“bioengineered” adds an explicit proviso stating that “[s]uch
a food does not contain modified genetic material if the
genetic material is not detectable pursuant to § 66.9.” Id.
§ 66.1 (emphasis added). Section 66.9 of the regulations
NATURAL GROCERS V. ROLLINS 25
provides, in turn, that genetic material is not “detectable” in
a food if the responsible entity maintains sufficient records
to show that one of the following three alternatives is true:
(1) “the food is sourced from a non-bioengineered crop or
source”; (2) “the food had been subjected to a refinement
process validated to make the modified genetic material in
the food undetectable”; or (3) “analysis or . . . testing
appropriate to the specific food . . . confirm[s] the absence
of modified genetic material.” Id. § 66.9(a) (emphasis
added). Accordingly, under the regulations, a food that
meets any one of these three alternative non-detectability
standards is wholly exempt from the regulation’s
bioengineering disclosure requirement.
Plaintiffs do not contest that, if all of a food’s sources are
themselves non-bioengineered, see 7 C.F.R. § 66.9(a)(1)
(listing this as the first non-detectability option), then that
food clearly does not “contain” modified genetic material
and is properly excluded from the disclosure standard. But
Plaintiffs contend that, with respect to foods that were made
from bioengineered ingredients, the AMS committed an
error of law in concluding that such a food does not
“contain” modified genetic material if that material is not
“detectable” under one of the other two regulatory
alternatives. We agree.
Because the Act does not define what it means for a food
to “contain” modified genetic material, we construe that
term in accordance with its ordinary meaning. Burrage v.
United States, 571 U.S. 204, 210 (2014). In common
parlance, “contain” means “[t]o have within” or “[t]o have
as a component or constituent part.” Contain, AMERICAN
HERITAGE DICTIONARY 396 (5th ed. 2018); see also Contain,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 490–
91 (1981 ed.) (“to have within” or “to consist of wholly or in
26 NATURAL GROCERS V. ROLLINS
part”). Thus, a food is “bioengineered” if it actually has
modified genetic material within it. That understanding of
when a food “contains” modified genetic material is plainly
distinct from one’s ability to ascertain the actual presence of
such material using a particular means of detection. Even
without having to resort to epistemological philosophizing,
there is an obvious and important difference between
whether a substance is actually present and whether, using a
particular method, one is able to detect that the substance is
present.
The AMS suggests that this theoretical distinction
ultimately does not matter, because our legal system does not
require that something be “establish[ed] with certainty,” but
only that it be established by a preponderance of the
evidence. Thus, according to the AMS, if a manufacturer
carries its burden to show that the genetically modified
material is undetectable under the regulation, it has
sufficiently established the legal conclusion that the food in
question does not “contain” the substance. In that sense, the
AMS posits, saying that genetic modified material is not
“detectable” in a food under the described methods is legally
equivalent to saying that the food does not “contain” such
material. We reject this contention.
The AMS regulation itself confirms that a showing of
non-detectability of genetically modified material under its
particular standards is not legally equivalent to a
determination that the food in question does not “contain”
such material. The regulation explicitly recognizes that, if a
particular detection technique is not “sufficiently sensitive,”
7 C.F.R. § 66.9(c)(4), it will inaccurately fail to detect that
the food really does “contain” modified genetic material.
Similarly, the administrative record confirms the undisputed
fact that different detection methods will have different
NATURAL GROCERS V. ROLLINS 27
“limits of detection”—meaning that, even if a given method
finds no modified genetic material, such material may
nonetheless be present in quantities below that method’s
limit. Moreover, the AMS’s analysis accompanying the final
rule explicitly states that, if a “future” detection method is
more accurate than earlier ones, a food that would currently
be exempted from disclosure under the regulation’s non-
detection proviso would then become subject to the
disclosure requirement. See 83 Fed. Reg. at 65834. But
despite recognizing the crucial role that measurement
sensitivity plays in any effort to use particular detection
methods to establish that a food does not “contain”
genetically modified material, the regulation does not define
what counts as a “sufficiently sensitive” detection method.
The details of the AMS’s detection-method regulation
further confirm that non-detectability under its provisions is
not legally equivalent to a finding that the food does not
“contain” genetically modified material. For example, one
of the two non-detectability options allowed under the
regulation is to show, not that the particular food batch itself
has no detectable genetically modified material, but rather
that the batch was “subjected to a refinement process
validated to make the modified genetic material in the food
undetectable.” 7 C.F.R. § 66.9(a)(2) (emphasis added). The
regulation thus presumes that if the “process” used to refine
the food has been shown, as a general matter, to render
genetically modified material undetectable, then no actual
testing of the food itself is required. As the regulation states,
“[o]nce a refining process has been so validated, additional
testing is not necessary to confirm the absence of detectable
modified genetic material in food subsequently refined
through that process, provided that no significant changes
are made to the validated process and provided that records
28 NATURAL GROCERS V. ROLLINS
are maintained to demonstrate that the refining process has
been validated and that the validated refining process is
followed.” Id. § 66.9(b)(2). By its terms, the latter provision
allows a manufacturer to continue to use a previously
“validated” process so long as “no significant changes are
made” to that “process.” Id. (emphasis added). Because the
text of the regulation addresses only changes to the
“process” and not to the “testing” that was used to validate
it, the plain language of the rule thus allows manufacturers
to continue to use that unchanged process, even if
subsequently developed tests are now able to discern the
presence of genetically modified material. Although the
AMS insists in its appellate brief that “it would generally be
incumbent on regulated entities to make use” of any such
subsequently developed improved testing methods, the AMS
was unable to point to any language of the regulation that
actually says that.
For all of these reasons, the AMS committed legal error
in concluding that, under “the plain language of the amended
Act,” “if a food does not contain detectable modified genetic
material, it is not a bioengineered food” within the meaning
of the Act. 83 Fed. Reg. at 65835–36; see also id. at 65837
(stating that the AMS was adopting its detectability standard
“based on the plain language of the amended Act”); id. at
65843 (stating that its detectability standard follows from the
“statutory definition of bioengineering”).
The AMS nonetheless contends that the regulation may
still be upheld on an alternative ground that was identified
by the district court—namely, that the agency’s detectability
standard is a permissible exercise of its power, under
§ 293(b)(2)(B) of the Act, to set “amounts” below which the
potential presence of genetically modified material may be
disregarded. Even assuming arguendo that § 293(b)(2)(B)
NATURAL GROCERS V. ROLLINS 29
grants such discretion—a question we address infra in
section III(B)—this argument cannot save the regulations
challenged here.
Any invocation of the AMS’s authority under
§ 293(b)(2)(B) involves an exercise of agency discretion,
and it is firmly established that, under SEC v. Chenery Corp.,
332 U.S. 194 (1947), we may uphold an exercise of agency
discretion “only ‘on the same basis articulated in the order
by the agency itself.’” Calcutt v. FDIC, 598 U.S. 623, 624
(2023) (emphasis added) (citation omitted). In justifying its
detectability standard, however, the AMS relied entirely on
the flawed legal premise that the non-detectability of a
substance under the regulation was equivalent to its non-
presence. Indeed, the agency’s justification for that standard
never once even mentioned, much less relied on, its
discretionary authority under § 293(b)(2)(B). See 82 Fed.
Reg. at 65815–17, 65833–37. Instead, the AMS invoked its
discretionary authority under § 293(b)(2)(B) only in a
separate section of the regulations, in which it set “an
allowance for inadvertent or technically unavoidable
[bioengineered] presence of up to 5% for each ingredient,
7 C.F.R. § 66.5(c) (emphasis added), such as when non-
bioengineered crops are inadvertently cross-pollinated by
nearby bioengineered crops or are processed using
equipment that (from prior use) may contain trace amounts
of bioengineered substances, see 83 Fed. Reg. at 65848.
Moreover, the regulation’s express limitation of that 5%
exemption to only those situations in which the presence of
genetically modified material is “inadvertent or technically
unavoidable” was deliberate, because the AMS explicitly
rejected a proposal to apply a similar 5% exemption “for the
intentional use of a [bioengineered] substance” as an input.
Id. at 65850 (emphasis added). Because the AMS failed to
30 NATURAL GROCERS V. ROLLINS
analyze the detectability issue under the framework of its
discretionary authority under § 293(b)(2)(B), we cannot
uphold it on that basis, and the district court erred in doing
so.
At oral argument, the AMS suggested that its
detectability standard may be upheld on the further
alternative ground that, by directing the agency to “establish
a national mandatory bioengineered food disclosure
standard with respect to any bioengineered food and any
food that may be bioengineered,” 7 U.S.C. § 1639b(a)(1)
(emphasis added), the Act grants the agency wide discretion
to decide how to craft any disclosure requirement and what
exceptions to make to it. We disagree. Once again, the AMS
did not rely on any claimed exercise of this asserted
discretion when it adopted its detectability standard. Instead,
the AMS consistently took the contrary position that “the
definition of ‘bioengineering’ sets forth the scope of the
mandatory disclosure,” and it exempted foods that had no
detectable genetically modified material from that disclosure
only because, in its view, such foods did not “contain” such
material and therefore did not fall within the scope-
delineating definition of “bioengineering.” 83 Fed. Reg. at
65816 (emphasis added). The Chenery rule therefore bars
us from upholding the AMS’s detectability standard on that
basis. Moreover, the AMS never made this argument in its
answering brief, and we therefore deem it to have been
forfeited. See United States v. Dreyer, 804 F.3d 1266, 1277
(9th Cir. 2015) (“Generally, an appellee waives any
argument it fails to raise in its answering brief.”).
Accordingly, we conclude that, by exempting from the
definition of “bioengineered food” any food in which
“genetic material is not detectable pursuant to § 66.9,”
NATURAL GROCERS V. ROLLINS 31
7 C.F.R. § 66.1(1)(ii), the AMS acted “not in accordance
with law.” 5 U.S.C. § 706(2)(A).
B
As noted earlier, Plaintiffs contend that the AMS’s
detectability standard is contrary to law in a second and
broader respect—according to Plaintiffs, the AMS lacks any
discretionary authority, under § 293(b)(2)(B) or otherwise,
to adopt a detectability exception for highly processed foods
made from bioengineered ingredients. Instead, according to
Plaintiffs, the agency must impose a disclosure requirement
on all such highly processed foods, and the regulation here
is unlawful to the extent that it failed to do so. We conclude
that Plaintiffs’ legal position on this score cannot be squared
with the language of § 293(b)(2)(B).
By directing the agency to determine “the amounts of a
bioengineered substance that may be present in food, as
appropriate, in order for the food to be a bioengineered
food,” 7 U.S.C. § 1639b(b)(2)(B) (emphasis added), the
statute unmistakably directs the agency to set the levels of
bioengineered substances that, if present, will qualify the
food “to be a bioengineered food,” id. The necessary
concomitant of that level-setting authority is that, once an
“appropriate” level is set, the potential presence of
bioengineered substances below that level will not suffice
“in order for the food to be a bioengineered food.” Id.
Viewed that way, the discretionary authority granted under
§ 293(b)(2)(B) is directly relevant to the issue of the
detectability of bioengineered substances in a given food.
As we have explained, the detectability of a substance
necessarily turns on the relevant “limit of detection”
associated with a particular measure of detectability. See
supra at 26–27. If, for example, the agency were to adopt a
32 NATURAL GROCERS V. ROLLINS
particular limit of detection as fixing the “amount” of a
bioengineered substance that may be potentially present “in
order for the food to be a bioengineered food,” 7 U.S.C.
§ 1639b(b)(2)(B), then a showing that the substance cannot
be detected within that limit in a food would mean that the
food does not qualify as a “bioengineered food” under the
regulatory standard authorized by § 293(b)(2)(B). But even
then, that food would still otherwise meet the broad statutory
definition of “bioengineered” food that we have described;
it would not count as a “bioengineered food” under the
regulatory standard only because it was excluded under a
limit-of-detection-based standard promulgated under
§ 293(b)(2)(B).
Thus, while we agree with Plaintiffs that the particular
detectability standard that the AMS adopted here—which
did not rely on the discretionary authority conferred by
§ 293(b)(2)(B)—cannot be sustained based on that
provision, we also conclude that it remains open to the
agency to address the subject of detectability by a proper
exercise of that authority on remand. We therefore reject
Plaintiffs’ argument that the agency’s only option is to
require disclosure with respect to all highly processed foods
made from bioengineered ingredients, without regard to any
measure of detectability.
Plaintiffs present several arguments for a contrary
reading of § 293(b)(2)(B), but none of them are persuasive.
First, Plaintiffs assert that the provision grants authority only
to determine “amounts to include more foods in the scope of
disclosure, not exclude them.” However, when considered
in light of the Act’s broad definition of “bioengineer[ed]”
food, this reading of § 293(b)(2)(B) makes little sense. As
we have explained, a food falls within the definition of a
“bioengineer[ed]” food under § 239(1) if it “contains genetic
NATURAL GROCERS V. ROLLINS 33
material that has been modified,” 7 U.S.C. § 1639(1)
(emphasis added), and that definition does not require any
minimum threshold “amount” of such material in order for a
food to be considered a bioengineered food. Accordingly,
any presence of bioengineered material already suffices to
make a food “bioengineer[ed]” under the default statutory
definition. Against that backdrop, § 293(b)(2)(B)’s authority
to set “amounts” that may be present “in order for the food
to be a bioengineered food,” id. § 1639b(b)(2)(B), cannot
reasonably be read as granting authority to add anything to
the definition of “bioengineer[ed]” food. The only
conceivable purpose for setting an “amount” of a
bioengineered substance that may be present “in order for
the food to be a bioengineered food,” id., is to exclude those
foods in which the quantity of bioengineered substances that
may be present in that food is below that “amount.”
Second, Plaintiffs argue that the authority granted by
§ 293(b)(2)(B) may be exercised only to exclude those foods
that contain small amounts of bioengineered substances as a
result of “inadvertent” circumstances rather than
“intentional” acts. The problem with this argument is that
nothing in the text of § 293(b)(2)(B) imposes any such
limitation on the agency’s authority under that section, and
“we cannot rewrite the statute to insert an additional
restriction that Congress omitted.” Charboneau v. Davis, 87
F.4th 443, 454 (9th Cir. 2023). Plaintiffs note that, in a
separate part of its regulations that are not challenged here,
the agency created a distinct exception under § 293(b)(2)(B)
that applies only to the “inadvertent or technically
unavoidable” presence of bioengineered material. See
7 C.F.R. § 66.5(c); see also supra at 30. That point is
irrelevant here. Because the AMS did not address the issue
of detectability under the rubric of its authority under
34 NATURAL GROCERS V. ROLLINS
§ 293(b)(2)(B), the agency has not had the opportunity to
consider whether an inadvertence requirement makes sense
as a policy matter in that distinct context. And to the extent
that Plaintiffs contend that § 66.5(c)’s inadvertence
requirement reflects the agency’s legal view as to the limits
of its authority under § 293(b)(2)(B), there is nothing in the
administrative record to support the premise that the agency
adopted that legal view. And even if the AMS had adopted
that legal view, it would not be binding on us. See Loper
Bright Enters. v. Raimondo, 603 U.S. 369, 412–13 (2024).
Plaintiffs next suggest that allowing detectability to be
addressed under § 293(b)(2)(B) would render surplusage the
separate statutory exemption contained in § 293(b)(2)(A),
which requires that the AMS’s disclosure standard “prohibit
a food derived from an animal” from being “considered a
bioengineered food solely because the animal consumed
feed produced from, containing, or consisting of a
bioengineered substance.” 7 U.S.C. § 1639b(b)(2)(A).
According to Plaintiffs, because “[m]eat from livestock fed
GE [i.e., genetically engineered] corn or soy does not contain
detectable GE material” under any meaningful standard,
such meat would already be excluded under any detectability
standard set under § 293(b)(2)(B), thereby rendering
§ 293(b)(2)(A) wholly unnecessary and surplusage. We
disagree.
By its terms, § 293(b)(2)(A) is framed as a minimum rule
of construction generally specifying that, under the required
disclosure standard, foods derived from animals that have
been fed bioengineered feed shall not themselves be
considered to be bioengineered foods “solely” because of
that fact. 7 U.S.C. § 1639b(b)(2)(A). Congress thus
explicitly sought to ensure that, in all events, the standard
adopted by the agency would not rely on such purely
NATURAL GROCERS V. ROLLINS 35
derivative theories as to when a food “contains”
bioengineered material. Viewed in this context, the fact that
our reading of § 293(b)(2)(B) coheres with that explicit rule
of construction is a point in its favor, not a point against it.
To the extent that this introduces a measure of functional
redundancy between § 293(b)(2)(A) and § 293(b)(2)(B),
that is best understood as “a congressional effort to be
doubly sure” that such derivative theories of bioengineered
food were ruled out. Barton v. Barr, 590 U.S. 222, 239
(2020); see also Atlantic Richfield Co. v. Christian, 590 U.S.
1, 14 n.5 (2020) (noting that “[s]ometimes the better overall
reading of the statute contains some redundancy,” such as
when “Congress employ[s] a belt and suspenders approach
to make sure” that a particular rule is established (citation
omitted)).
Because we conclude that the discretionary authority
granted in § 293(b)(2)(B) could allow the AMS to address
the issue of detectability by setting relevant “amounts of a
bioengineered substance” that, if present, would qualify
“the food to be a bioengineered food,” 7 U.S.C.
§ 1639b(b)(2)(B), we reject Plaintiffs’ contention that we
should order the AMS, on remand, simply to impose a
disclosure requirement on all highly processed foods that
were made from bioengineered ingredients. 3
3
Given our analysis with respect to § 293(b)(2)(B), we need not address
the parties’ contentions as to whether the AMS’s authority under
§ 293(b)(2)(C) might also provide a regulatory basis for addressing
detectability. See 7 U.S.C. § 1639b(b)(2)(C) (stating that the agency’s
regulations must “establish a process for requesting and granting a
determination by the Secretary regarding other factors and conditions
under which a food is considered a bioengineered food”).
36 NATURAL GROCERS V. ROLLINS
C
Having concluded (1) that the AMS committed legal
error by exempting from the definition of “bioengineered
food” any food in which “genetic material is not detectable
pursuant to § 66.9,” 7 C.F.R. § 66.1(1)(ii); and (2) that the
AMS nonetheless has authority under § 293(b)(2)(B) to
address the issue of detectability, we next consider whether,
in connection with a remand to the agency, any relevant
provisions of the regulations should be vacated. Because
neither side argued for the particular combination of
conclusions that we have reached, neither side has provided
us with any relevant briefing on that vacatur issue. Although
we could conceivably request supplemental briefing on that
point, we are also mindful that this case does not come to us
directly from the agency by way of a petition for review, but
rather from the district court by way of an appeal from that
court’s judgment in this APA action. Consequently, we
conclude that it would be best to allow the district court to
address this issue in the first instance on remand and for it to
determine which portions of the relevant regulations, if any,
to vacate or to leave in place pending the district court’s
remand of the matter to the agency. See Diné Citizens
Against Ruining Our Env’t v. Haaland, 59 F.4th 1016, 1049
(10th Cir. 2023); Black Warrior Riverkeeper, Inc. v. U.S.
Army Corps of Eng’rs, 781 F.3d 1271, 1291 (11th Cir. 2015).
IV
Plaintiffs also challenge the AMS’s regulations as
arbitrary and capricious to the extent that they provide that
the required disclosures must use the term “bioengineered.”
According to Plaintiffs, terms such as “genetically
engineered” or “genetically modified” are more familiar to
consumers and less confusing than “bioengineered,” and
NATURAL GROCERS V. ROLLINS 37
requiring or allowing the use of those terms to satisfy the
disclosure requirement would better implement the Act’s
provisions. We affirm the district court’s decision rejecting
this claim.
A
In defining the term “bioengineering,” the Act expressly
provides that this same definition will apply to “any similar
term, as determined by the Secretary.” 7 U.S.C. § 1639(1).
In light of this provision, the AMS has the authority to
establish a “disclosure standard with respect to any
bioengineered food” under § 293(a)(1) that would require or
allow a regulated entity to make its disclosure by using an
agency-specified term other than “bioengineered.” Id.
§ 1639b(a)(1).
Other provisions of the Act reflect, on their face, some of
the possible alternative terms that the agency could
conceivably consider as potentially “similar.” For example,
§ 294(c) prohibits an entity from labeling or advertising a
food as “not bioengineered” merely because that food is not
subject to the disclosure standard established under the Act,
and § 294(c) extends that same prohibition to a claim that the
food is “non-GMO” or to “any other similar claim
describing the absence of bioengineering in the food.” 7
U.S.C. § 1639c(c) (emphasis added). Likewise, the Act’s
relevant preemption provision, in § 295(b), applies to any
state-law “requirement relating to the labeling of whether a
food . . . is genetically engineered (which shall include such
other similar terms as determined by the Secretary of
Agriculture).” Id. § 1639i(b) (emphasis added). And § 2 of
the public law that enacted the relevant amendments to the
AMA provides that, if a food has been certified as organic
“under the Organic Foods Production Act of 1990,” 7 U.S.C.
38 NATURAL GROCERS V. ROLLINS
§ 6501 et seq., then that “certification shall be considered
sufficient to make a claim regarding the absence of
bioengineering in the food, such as ‘not bioengineered’,
‘non-GMO’, or another similar claim.” Pub. L. No. 114-
216, § 2, 130 Stat. at 838–39 (emphasis added) (classified to
7 U.S.C. § 6524). Thus, under the AMA, the AMS had the
authority to establish a disclosure requirement that would
use the term “bioengineered” or alternative “similar term[s],
as determined by the [AMS],” 7 U.S.C. § 1639(1), which
might conceivably include “genetically engineered” or
“[]GMO,” id. §§ 1639c(c), 1639i(b). But whether to
actually employ such alternative terms in the disclosure
standard was expressly left for the AMS to “determine[].”
Id. § 1639(1).
In fashioning the disclosure standard, the AMS
ultimately decided that the required disclosure must use the
term “bioengineered.” 7 C.F.R. § 66.102(a). Thus, although
regulated entities were free to add additional terms
(presumably including “genetically engineered” or “GMO”)
“so long as such statements are consistent with all other
applicable laws and regulations,” 83 Fed. Reg. at 65852,
only the use of the term “bioengineered” would satisfy the
disclosure requirement. In opting to uniformly require the
particular term “bioengineered,” the AMS explained that
“[t]he Secretary believes that the language used by Congress
in the amended Act”—namely, “bioengineered”—“clearly
and accurately describes the technology and provides
consumers with the information they desire.” Id. After
expressly acknowledging that the statute granted it the
discretion to rely on other “similar terms,” the AMS
concluded that “using other terms such as genetic
engineering or genetically modified organisms may create
NATURAL GROCERS V. ROLLINS 39
inconsistencies with the preemption provisions or muddy the
scope of disclosure.” Id. at 65837.
B
Plaintiffs contend that the AMS’s decision on this score
was “arbitrary and capricious” under the APA and must be
set aside. 5 U.S.C. § 706(2). We disagree.
As an initial matter, we hold that the AMS permissibly
concluded that the disclosure standard should rely on a
single, uniform term that must be used in all disclosures.
That is, it was not arbitrary and capricious for the agency to
conclude that allowing regulated entities to satisfy the
disclosure requirement by picking and choosing from a
menu of different terms would “muddy the scope of
disclosure.” 83 Fed. Reg. at 65837. As the AMS explained,
requiring a single, uniform term would “ensur[e] disclosure
consistency and minimiz[e] marketplace confusion.” Id. at
65851. That conclusion is “reasonable and reasonably
explained,” and it is not arbitrary and capricious. FCC v.
Prometheus Radio Project, 592 U.S. 414, 423 (2021).
The key question, then, is whether the AMS properly
determined that the required uniform term should be
“bioengineered” rather than “genetically modified,”
“GMO,” or some other similar term. As noted, the AMS
selected “bioengineered” because it was the term “used by
Congress,” it “clearly and accurately described the
technology” being disclosed, and it would avoid
“inconsistencies with the preemption provisions” of the Act.
83 Fed. Reg. at 65837, 65852. In evaluating this
explanation, we begin with the latter comment, because it
bears on a proper understanding of the other two.
40 NATURAL GROCERS V. ROLLINS
We construe the AMS’s comment about “inconsistencies
with the preemption provisions” to refer to the discussion, a
few pages earlier in the AMS’s notice of final rulemaking,
concerning a subtle difference between the terms
“bioengineered” and “genetically engineered” and the
potential impact of that distinction on the scope of
preemption. Specifically, the AMS noted that one
commenter suggested that the agency’s regulations should
define “bioengineered” more broadly than in the Act in order
to avoid “state preemption concerns.” 83 Fed. Reg. at
65835. Given that the Act’s definition of “bioengineering”
was limited to “genetic material that has been modified
through in vitro recombinant deoxyribonucleic acid (DNA)
techniques,” 7 U.S.C. § 1639(1) (emphasis added), the
commenter expressed concern that foods containing genetic
material modified through other techniques (such as “gene
editing”) would not be included in the definition of
“bioengineering,” even though the Act’s preemption
provision in “Sec. 295[] was not intended to be limited to the
smaller subset of foods now defined as ‘bioengineered.’” 83
Fed. Reg. at 65835. The AMS concluded that no regulatory
alteration of the statutory definition of “bioengineering” was
warranted on this score, because the difference in language
between the disclosure provision (which uses the term
“bioengineered”) and the preemption provision (which uses
the phrase “genetically engineered”) reflected a deliberate
congressional choice to preempt state-law requirements that
exceeded the Act’s contemplated disclosure standard:
AMS does not find it necessary to further
define bioengineering. AMS also disagrees
with commenters’ concerns that failing to
further define bioengineering would result in
limiting preemption. Subtitle F of the
NATURAL GROCERS V. ROLLINS 41
amended Act addresses Federal preemption
of State and local genetic engineering
labeling requirements. 7 U.S.C. 1639i. The
preemption provisions extend beyond
bioengineering labeling and include genetic
engineering labeling requirements.
83 Fed. Reg. at 65835 (emphasis added).
Against that backdrop, the AMS’s comment that using
“genetically engineered” for the disclosure requirement
could lead to “inconsistencies with the preemption
provision” makes sense: it would suggest that the scope of
the Act’s preemption provision (which uses the term
“genetically engineered”) is the same as the scope of the
disclosure provision, even though, in the latter provision,
Congress used a different term that the AMS considered to
have a narrower scope. 4
Viewed in light of this context, the AMS’s choice to use
the particular term that Congress itself chose—
“bioengineered”—was not arbitrary and capricious. Given
that commenters had argued that Congress’s specific
definition of “bioengineering” did not cover food with
genetic material that had been modified using techniques
other than in vitro recombinant DNA techniques, whereas
the more general term “genetic engineering” reflected no
such limitation, the AMS reasonably concluded that it should
simply use the statutory term “bioengineered,” which (by
4
We therefore reject Plaintiffs’ contention that the AMS’s notice of final
rulemaking did not actually rely on this potential difference between
“bioengineered” and “genetically engineered” and that the AMS’s
argument on this score is therefore a “newly minted rationalization” that
violates the Chenery rule.
42 NATURAL GROCERS V. ROLLINS
definition) accurately describes the technology that
Congress intended to be disclosed.
Plaintiffs’ contrary arguments lack merit. Plaintiffs
contend that the Act’s use of the terms “bioengineered” and
“genetically engineered” are “interchangeable” and that the
definition of “bioengineering” therefore must be understood
“to include any foods with genetical material that has been
modified.” But this argument overlooks the fact that the Act
expressly limits the definition of “bioengineering” to those
foods “contain[ing] genetic material that has been modified
through in vitro recombinant deoxyribonucleic acid (DNA)
techniques.” 7 U.S.C. § 1639(1) (emphasis added). Thus,
while we agree that the Act suggests that terms such as
“genetically engineered” and “GMO” are potentially
“similar” terms to “bioengineer[ed],” see supra at 37–38, the
Act explicitly leaves it up to the AMS to “determine[]”
whether those terms are “similar” in the sense that they, too,
may be said to satisfy the statutory definition of
“bioengineering.” 7 U.S.C. § 1639(1). In light of that
definition’s specific limitation to genetic modifications
accomplished through in vitro recombinant DNA
techniques, and the potential that “genetic engineering” and
“GMO” might sweep more broadly, the AMS was not
arbitrary and capricious in declining to “determine[]” that
the terms were “similar” in the sense that the statute requires
and in declining to allow those terms to be used to satisfy the
disclosure requirement. 5
5
Plaintiffs correctly note that the AMS did not specifically conclude that
any other particular genetic modification technique does or does not fall
within the statutory definition of “bioengineered.” Instead, the agency
stated that, as “[t]echnologies continue to evolve,” it would consider, in
consultation with appropriate other agencies, whether “food produced
through a specific technology may or may not meet the definition of BE
NATURAL GROCERS V. ROLLINS 43
For similar reasons, Plaintiffs are wrong in contending
that the AMS did not adequately justify its rejection of the
more common terms “GMO” and “genetically engineered”
in favor of the statutory term “bioengineering.” The AMS
acknowledged that the former terms were more “familiar,”
83 Fed. Reg. at 65851, but (as we have discussed) it also
noted that those terms potentially bore a meaning that was
broader than the specific definition of “bioengineered.” The
agency further concluded that, to the extent that
“bioengineered” was less familiar, the proper response was
for the AMS to “engage in outreach and education to provide
information about the new disclosure term” rather than to
use a term that was freighted with a potentially different
meaning. Id.
For all of these reasons, we conclude that the AMS’s
decision to choose “bioengineered” as the uniform
disclosure term was “within a zone of reasonableness” and
reflects a “reasonabl[e] consider[ation] [of] the relevant
issues.” Prometheus Radio Project, 592 U.S. at 423. The
district court therefore correctly held that the agency’s action
was not arbitrary and capricious.
V
As noted earlier, the district court agreed with Plaintiffs
that two regulations concerning particular methods of
disclosure—viz., the regulations governing “electronic or
[bioengineered] food.” 83 Fed. Reg. at 65819; see also id. at 65835
(noting that “AMS is not making a blanket statement regarding the scope
of technologies that are covered” by the disclosure standard). But the
agency was not required to make such technology-specific
determinations in order to sustain its action here. It suffices that, as we
have explained, there were sufficient grounds, as a general matter, for the
agency to decline to conclude that the various terms were
interchangeable.
44 NATURAL GROCERS V. ROLLINS
digital link” disclosure, 7 C.F.R. § 66.106, and “text
message disclosure,” id. § 66.108—were unlawful under the
APA and had to be remanded to the agency. The district
court, however, expressly remanded those two regulations
“without vacatur,” and Plaintiffs appeal that refusal to vacate
these rules. In addressing this contention, we first
summarize the district court’s rulings concerning these two
regulations before turning to Plaintiffs’ specific challenges
to the district court’s choice of remedy.
A
Section 293(b)(2)(D) of the Act addresses the “form of a
food disclosure under this section,” stating that, subject to
certain exceptions, the regulations shall “require” that the
disclosure be made in either “[1] a text, [2] symbol, or
[3] electronic or digital link, . . . with the disclosure option
to be selected by the food manufacturer.” 7 U.S.C.
§ 1639b(b)(2)(D) (emphasis added).
Section 293 contains two other provisions that more
specifically address the Act’s third option of an “electronic
or digital link.” First, § 293(d) provides additional details
about the mechanics of any such disclosure. Thus, for
example, § 293(d) states that any “electronic or digital link
disclosure” shall be accompanied by “on-package language”
that “indicat[es] that the electronic or digital link will
provide access to an Internet website or other landing page
by stating only ‘Scan here for more food information’ or
equivalent language that only reflects technological
changes.” 7 U.S.C. § 1639b(d)(1)(A). As the AMS
acknowledged in its notice of final rulemaking, the
“[c]urrent technology” for providing such an electronic or
digital link “includes, among others, quick response (QR)
codes that are detectable by consumers and digital
NATURAL GROCERS V. ROLLINS 45
watermark technology that is imperceptible to consumers
but can be scanned anywhere on a food package using a
smart phone or other device.” 83 Fed. Reg. at 65828. The
regulation specifies that, if a QR code is used, the statutorily
required instruction to “Scan here for more food
information” must be directly above or below that QR code.
7 C.F.R. § 66.106(a)(1). Section 293(d) further provides that
“the electronic or digital link disclosure” must “also
include[] a telephone number that provides access to the
bioengineering disclosure.” 7 U.S.C. § 1639b(d)(4). The
regulations state that these “telephone number instructions
must be in close proximity to the digital link and
accompanying statement” and “must be accompanied by the
statement ‘Call [1-000-000-000] for more food
information.’” 7 C.F.R. § 66.106(a)(2). A consumer who
calls the number must be provided with the “bioengineered
food disclosure, . . . regardless of the time of day.” Id.
Second, § 293(c) directs the Secretary to promptly
“conduct a study to identify potential technological
challenges that may impact whether consumers would have
access to the bioengineering disclosure through electronic or
digital disclosure methods.” 7 U.S.C. § 1639b(c)(1). If the
Secretary determines, based on that study, “that consumers,
while shopping, would not have sufficient access to the
bioengineering disclosure through electronic or digital
disclosure methods, the Secretary, after consultation with
food retailers and manufacturers, shall provide additional
and comparable options to access the bioengineering
disclosure.” Id. § 1639b(c)(4). The required study was
conducted by Deloitte Consulting LLP, and, “[a]fter
reviewing the study” and considering the comments received
after publication of the study, the Secretary “determined that
consumers would not have sufficient access to the
46 NATURAL GROCERS V. ROLLINS
bioengineering disclosure through electronic or digital
means under ordinary shopping conditions at this time.” 83
Fed. Reg. at 65828 (emphasis added). The AMS was thus
required to “provide additional and comparable options to
access the bioengineering disclosure,” 7 U.S.C.
§ 1639b(c)(4), and the AMS stated that it would therefore
adopt “the text message option” that it set forth “in
§ 66.108.” 83 Fed. Reg. at 65828. Under that option, the
food’s “label must include this statement[:] ‘Text [command
word] to [number] for bioengineered food information.’”
7 C.F.R. § 66.108(a).
In the relevant cause of action in their operative
complaint, Plaintiffs asserted an APA challenge to both the
“electronic or digital link” disclosure in § 66.106 and the
“text message” disclosure in § 66.108. The district court
granted summary judgment to Plaintiffs on this claim.
Addressing the Act’s instruction that the AMS “shall provide
additional and comparable options to access the
bioengineering disclosure” if the required study showed that
consumers would “not have sufficient access to the
bioengineering disclosure through electronic or digital
disclosure methods,” 7 U.S.C. § 1639b(c)(4), the district
court held that this provision required the agency to fashion
additional options “to fix the problem of inaccessible
electronic disclosures” (emphasis added). The district court
concluded that, rather than fix the inadequacies of the
electronic or digital link disclosure, the AMS simply left that
deficient option in place and instead added a fourth
alternative option, even though “nothing in the statute
permitted AMS to expand the disclosure options for
manufacturers beyond the ‘text, symbol, or electronic or
digital link’ choices” (quoting 7 U.S.C. § 1639b(b)(2)(D)).
The district court therefore held that the AMS acted contrary
NATURAL GROCERS V. ROLLINS 47
to law (1) by allowing manufacturers to use an unremedied
electronic or digital link option that the statutorily required
study had shown to be deficient; and (2) by adding a
freestanding non-statutory fourth option allowing for a text-
message disclosure. 6
The district court then turned to the issue of the
appropriate remedy. The district court acknowledged our
decision in Alliance for the Wild Rockies v. U.S. Forest
Service, 907 F.3d 1105 (9th Cir. 2018), which held that
“vacatur of an unlawful agency action normally
accompanies a remand.” Id. at 1121. As the district court
further noted, we have held that, in determining whether the
ordinary remedy of vacatur should be applied, the court must
consider “how serious the agency’s errors are and the
disruptive consequences of an interim change that may itself
be changed.” California Cmtys. Against Toxics v. U.S. EPA,
688 F.3d 989, 992 (9th Cir. 2012) (simplified). Addressing
these factors, the district court concluded that, although the
challenged “text message disclosure decision was a
significant error,” the AMS had presented “legitimate and
persuasive” concerns “that vacatur would disrupt consumer
access to bioengineering disclosures” and would “disrupt the
food industry, which was required to comply with the
regulations as of January 1, 2022.” Accordingly, the district
court remanded the two challenged rules (§ 66.106 and
§ 66.108) “without vacatur.”
6
We reject the AMS’s suggestion that the district court order should be
construed as adopting only the second of these holdings. That contention
ignores the reasoning set forth in the order and the district court’s explicit
decision to remand both § 66.106 and § 66.108 to the agency.
48 NATURAL GROCERS V. ROLLINS
B
On appeal, Plaintiffs challenge the district court’s refusal
to vacate the two challenged regulations when it remanded
them to the agency “for further consideration in a manner
consistent with [its] order.” The standards governing
whether to vacate a regulation under the APA are well settled
in our precedent. Where, as here, “a court holds an agency
action unlawful, vacatur and remand is the default remedy
under the APA, but the court retains equitable discretion in
‘limited circumstances’ to remand a decision without vacatur
while the agency corrects its errors.” Montana Wildlife Fed.
v. Haaland, 127 F.4th 1, 50 (9th Cir. 2025) (citation omitted).
“Whether agency action should be vacated depends on
[1] how serious the agency’s errors are and [2] the disruptive
consequences of an interim change that may itself be
changed.” Id. (simplified). The district court’s application
of these two factors in the context of particular regulations
“is reviewed for abuse of discretion.” Id. 7
7
The AMS acknowledges our established caselaw on these points, but it
contends that our precedent is incorrect, that “the APA does not authorize
vacatur,” and that Plaintiffs are limited to “traditional equitable remedies
like injunctions” that must be “‘limited’ and ‘tailored’ to redress the
parties’ ‘particular injury.’” As a three-judge panel, however, we are
bound to follow our existing precedent unless it is “clearly
irreconcilable” with intervening higher authority. See Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003). For substantially the reasons
explained at length by Justice Kavanaugh in his concurring opinion in
Corner Post, Inc. v. Board of Governors of the Federal Reserve System,
603 U.S. 799, 833–43 (2024) (Kavanaugh, J., concurring), our existing
precedent concerning vacatur of agency rules under the APA can be
reconciled with the Court’s more recent precedent limiting the scope of
equitable relief available in actions that rely on traditional equitable
causes of action rather than on the APA. Cf. Trump v. CASA, Inc., 606
U.S. 831, 841 & n.4 (2025) (noting that that decision’s limitation on
“universal injunctions” “rests solely on the statutory authority that
NATURAL GROCERS V. ROLLINS 49
The first factor—the seriousness of the agency’s error—
weighs in favor of vacatur. Because the AMS did not cross-
appeal the district court’s decision holding that § 66.106 and
§ 66.108 were unlawful, we take it as established that the
two rules are unlawful in the way that the district court
concluded and that the AMS’s adoption of them was
therefore “a significant error.” 8
In weighing this first factor, we have also considered
whether the agency’s error is a technical or procedural one,
such that the agency “could adopt the same rule on remand,
or whether such fundamental flaws in the agency’s decision
make it unlikely that the same rule would be adopted on
remand.” Pollinator Stewardship Council v. U.S. EPA, 806
F.3d 520, 532 (9th Cir. 2015); see also Migrant Clinicians
Network v. U.S. EPA, 88 F.4th 830, 848 (9th Cir. 2023).
Here, the substance of the district court’s ruling
unquestionably precludes readoption of the two challenged
rules in their current form: the district court squarely held
that (1) the Act does not allow the AMS to add a fourth
option (text messaging) to the three statutory options (text,
symbol, or electronic or digital link); and (2) the Act requires
the agency to “fix the problem of inaccessible electronic
disclosures” by “adding ‘additional and comparable
options,’ like the alternative text message instructions, to the
federal courts possess under the Judiciary Act of 1789”); id. at 873
(Kavanaugh, J., concurring) (noting that the Court’s decision did not alter
any power of a district court to “grant or deny the functional equivalent
of a universal injunction . . . by preliminarily setting aside or declining
to set aside an agency rule under the APA”). Because our precedent thus
can be reconciled with intervening Supreme Court authority, we are
bound to follow it in this case.
8
We therefore have no occasion to decide whether the district court’s
unchallenged ruling on that score was correct.
50 NATURAL GROCERS V. ROLLINS
electronic disclosure” (emphasis added). The AMS
emphasizes that the Act explicitly requires an electronic or
digital link option, but the AMS overlooks the fact that,
under the district court’s ruling, the existing form of that
option itself violates the Act and cannot lawfully be retained
on remand. In sum, the fact that the two challenged rules are
unlawful in a way that precludes their readoption on remand
to the agency underscores that the AMS committed a serious
error that weighs in favor of vacatur.
The question, then, is whether the district court abused
its discretion in concluding that the AMS had made a
sufficient showing of “disruptive consequences,” Montana
Wildlife Fed., 127 F.4th at 50, to “overcome the presumption
of vacatur,” Alliance for the Wild Rockies, 907 F.3d at 1122.
The district court identified two countervailing concerns, but
neither supports its complete refusal to vacate the two
remanded provisions.
First, the district court was persuaded by the concern that
“vacatur would disrupt consumer access to bioengineering
disclosures,” but this unadorned comment fails to account
for the Secretary’s own finding—which is well supported in
the record—that the existing electronic or digital link option
provides inadequate access to bioengineering disclosures.
See 83 Fed. Reg. at 65828. Allowing an inadequate
disclosure option to continue throughout the entirety of the
administrative process for amending the regulations would
itself perpetuate a disruption in “consumer access to
bioengineering disclosures.”
Second, the district court concluded that “vacatur would
disrupt the food industry,” which was already operating
under, and in reliance on, the existing menu of options.
Plaintiffs contend that this concern is without record support,
NATURAL GROCERS V. ROLLINS 51
but that is wrong: as Intervenors note, the administrative
record confirms that tens of thousands of products were
already being labeled with digital links as of 2018 and that
number was expected to grow. Moreover, the administrative
record also amply confirms the obvious point that changing
labels is a logistically cumbersome task that takes time to
accomplish. See 83 Fed. Reg. at 65832 (noting that
“regulated entities should have sufficient time to transition
their . . . labeling processes and procedures”); id. at 65861–
62 (noting that the AMS implemented compliance dates to
accommodate the “time and cost involved in,” inter alia,
“modifying labels”).
Although this disruptive concern is sufficiently
supported in the record, the district court nonetheless abused
its discretion in holding that this factor supported a complete
denial of vacatur. As Plaintiffs correctly note, this concern
would be fully addressed by ordering only a prospective
vacatur of the two challenged provisions—e.g., by delaying
the effective date of the vacatur or “setting a timeline” for
selling through any existing inventory of already-labeled
products. But there is no basis in the record for concluding
that this concern justifies a blanket allowance, for the
entirety of the administrative process, to continue using
disclosure options that have been found to be inadequate and
unlawful. Moreover, prospective vacatur would also
mitigate, if not eliminate entirely, the district court’s related
concern about disrupting consumer access to the
bioengineering disclosure during the administrative process.
Accordingly, we reverse the district court’s decision to
deny vacatur of § 66.106 and § 66.108, and we remand with
instructions to fashion an appropriate prospective vacatur of
these rules after receiving input from the parties on that
specific point.
52 NATURAL GROCERS V. ROLLINS
VI
We conclude by briefly summarizing our holdings. With
respect to the relevant regulatory provisions that exclude
from the definition of “bioengineered food” any food as to
which “the genetic material is not detectible pursuant to
[7 C.F.R.] § 66.9,” 7 C.F.R. § 66.1, we reverse the district
court’s grant of summary judgment to Defendants on
Plaintiffs’ APA cause of action challenging those provisions,
and we remand with instructions (1) to grant summary
judgment to Plaintiffs on that cause of action; (2) to remand
the relevant regulations to the AMS; and (3) to determine,
after receiving input from the parties, whether any portions
of the regulations should be vacated in connection with that
remand to the agency. We also reverse the district court’s
decision not to vacate the regulations contained in 7 C.F.R.
§§ 66.106 and 66.108, and we remand with instructions to
prospectively vacate those rules after receiving the parties’
input. We affirm the district court’s judgment in all other
respects.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED.