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Baur v. Veneman

United States Court of Appeals for the Second Circuit

June 26, 2003, Argued ; December 16, 2003, Decided

Docket No. 02-6249


 [*627]  STRAUB, Circuit Judge:

This appeal centers on a narrow issue of standing in the context of a category of progressive neurological diseases, Transmissible Spongiform Encephalopathies ("TSEs"), of which the most widely publicized example is Bovine Spongiform Encephalopathy ("BSE," commonly known as "mad cow" disease), a fatal neuro-degenerative disease that affects the central nervous system of adult cattle. 2 Plaintiff,  [*628]  Michael Baur ("Baur"), has filed suit to require defendants, Ann M. Veneman, Secretary of Agriculture, and the United States Department of Agriculture ("USDA") to ban [**3]  the use of downed livestock as food for human consumption. "Downed" is an industry term used to describe animals that collapse for unknown reasons and are too ill to walk or stand prior to slaughter. Baur alleges that downed livestock are particularly likely to be infected with TSEs, as TSEs typically cause animals to lose coordination and the ability to stand upright.

Under current USDA regulations, downed livestock may be used for human consumption after passing a mandatory post-mortem inspection by a veterinary officer. Baur claims that this policy violates the Federal Meat Inspection Act ("FMIA"), 21 U.S.C. §§ 601-605, and the Federal Food, Drug,  [**4]  and Cosmetic Act ("FFDCA"), 21 U.S.C. §§ 301-399, and further alleges that the consumption of downed animals creates a serious risk of disease transmission - most specifically the risk that humans will contract a fatal form of TSE known as variant Creutzfeldt-Jacob disease ("vCJD") by eating BSE-contaminated beef products.

Without reaching the merits of Baur's suit, the District Court, (Naomi Reice Buchwald, Judge), granted defendants' motion to dismiss for lack of standing, concluding that Baur's exposure to meat products from downed livestock was insufficient to establish a cognizable Article III injury-in-fact. Focusing on Baur's inability to allege that BSE has ever been detected in the United States or that BSE-contaminated food products had ever been offered for sale in this country, the District Court reasoned that the alleged risk of disease transmission was too hypothetical and speculative to support standing. See  Farm Sanctuary, Inc. v. Veneman, 212 F. Supp. 2d 280, 282-84 (S.D.N.Y. 2002). Because we conclude that exposure to an enhanced risk of disease transmission may qualify as injury-in-fact in consumer food and drug safety [**5]  suits and further find that Baur has alleged a sufficiently credible risk of harm to survive a motion to dismiss, we vacate the judgment of the District Court and remand for further proceedings.


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352 F.3d 625 *; 2003 U.S. App. LEXIS 25297 **

MICHAEL BAUR, Plaintiff-Appellant, FARM SANCTUARY, INC., Plaintiff v. ANN M. VENEMAN, in her official capacity as Secretary, United States Department of Agriculture & UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants-Appellees.

Subsequent History: As Amended February 11, 2004.

Prior History:  [**1]  Appeal from a judgment of the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge), granting defendants' motion to dismiss for lack of Article III standing. The District Court held that plaintiff lacked standing to challenge the USDA's refusal to prohibit the use of downed livestock for human consumption, because plaintiff did not allege that Bovine Spongiform Encephalopathy ("BSE"), commonly known as "mad cow" disease, had ever been detected in the United States. The District Court concluded that the alleged risk to the food supply caused by the threat of BSE was, therefore, too remote and speculative to constitute a cognizable injury for standing purposes. Because we conclude that plaintiff need not allege that BSE has been detected in the United States to allege a credible risk of harm sufficient to satisfy the injury-in-fact requirement at the pleading stage, we vacate the judgment of the District Court and remand for further proceedings.

 Farm Sanctuary, Inc. v. Veneman, 212 F. Supp. 2d 280, 2002 U.S. Dist. LEXIS 13950 (S.D.N.Y., 2002)

Disposition: Vacated and remanded.


BSE, meat, disease, animals, cattle, consumer, USDA, allegations, injury in fact, exposure, injury-in-fact, livestock, imminent, speculative, district court, eating, infected, detected, FSIS, vCJD, adulterated, inspection, purposes, cases, environmental, cognizable, faces, pleading stage, transmission, chokehold

Civil Procedure, Appeals, Standards of Review, De Novo Review, Justiciability, Standing, General Overview, Pleading & Practice, Pleadings, Rule Application & Interpretation, Constitutional Law, Case or Controversy, Preliminary Considerations, The Judiciary, Governments, Courts, Authority to Adjudicate, Mootness, Administrative Law, Judicial Review, Reviewability, Standing, Ripeness, Evidence, Burdens of Proof, Injury in Fact, Judicial Precedent, Admissibility, Scientific Evidence