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See generally The Complete Patient, “Finally, the Main Event: FTCLDF vs FDA, Challenging Federal Ban on Inter-state Raw Milk Shipments,” available at <http://www.thecompletepatient.com/journal/2010/2/22/finally-the-main-event-ftcldf-vs-fda-challenging-federal-ban.html> (last visited January 6, 2010) (“[The FDA] resisted the efforts of consumer groups to involve the agency - feeling the matter was a local issue - until a federal judge in 1987 responded to a consumer group suit by ordering the agency to draft regulations about the interstate shipment of raw milk. Since then, it has shifted from reluctant participant to aggressive enforcer and warning source against raw milk consumption.”); see also Public Citizen v. Heckler, 653 F. Supp. 1229, 1242 (D.D.C. 1986) (ordering FDA to approve a rule banning interstate sales of raw milk products).+(last+visited+January+6,+2010)+(“[The+FDA]+resisted+the+efforts+of+consumer+groups+to+involve+the+agency+-+feeling+the+matter+was+a+local+issue+-+until+a+federal+judge+in+1987+responded+to+a+consumer+group+suit+by+ordering+the+agency+to+draft+regulations+about+the+interstate+shipment+of+raw+milk.+Since+then,+it+has+shifted+from+reluctant+participant+to+aggressive+enforcer+and+warning+source+against+raw+milk+consumption.”);+see+also+Public+Citizen+v.+Heckler,+653+F.+Supp.+1229,+1242+(D.D.C.+1986)+(ordering+FDA+to+approve+a+rule+banning+interstate+sales+of+raw+milk+products).>Google Scholar

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The initial plaintiffs in this case also included Nightlight Christian Adoptions, Embryos, Shayne and Tina Nelson, William and Patricia Flynn, and Christian Medical Association, but their claims were dismissed for lack of standing and their dismissal was not challenged on appeal. Sherley, 686 F. Supp. 2d 1, 3 (D.D.C. 2009); Sherley, 610 F.3d 69, 71 (D.C. Cir. 2010).Google Scholar

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The court of appeals departed from the district court's reasoning that competitor standing can only be established “when the particular statutory provision [or regulation] invoker reflect a legislative purpose to protect a competitive interest.” Sherley, 686 F. Supp. 2d at 6 (quoting Hardin v. Ky. Util. Co., 390 U.S. 1, 6 (1968)) (internal quotation marks omitted). The district court held that the plaintiffs had not shown that the Dickey-Wicker Amendment was intended to insulate ASC research from competition for NIH grants. Id. The court of appeals departed from the district court's narrow application of competitor standing to find that competitor standing is established if the complainant faces “an actual or imminent increase in competition” which causes a subsequent injury. Sherley, 610 F.3d at 73. Therefore, the plaintiffs only needed to show that increasing funding for hESC would cause them “some competitive injury,” not necessarily that it would lower funding for ASC research. Id. (noting that such a specific showing would address the merits of the plaintiffs’ case, not the issue of constitutional standing).Google Scholar

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