Wisconsin butter law survives legal challenge

Wisconsin’s ban on the sale of ungraded butter does not violate the rights of an Ohio dairy, a federal judge has ruled.

U.S. District Judge James Peterson on Monday found the law “rationally related to Wisconsin’s legitimate interest in helping its citizens make informed butter purchases.”

The decision came in a lawsuit filed last year in Madison federal court by Minerva Dairy, which had been selling its butter in Wisconsin until a complaint prompted state inspectors to stop the sales unless the butter was graded.

Minerva claimed the Wisconsin requirement was protectionism and an illegal interference with interstate commerce.

Later in 2017, some Wisconsin retailers filed a similar lawsuit in Ozaukee County Circuit Court, saying the law prevented them from selling a popular Irish butter named Kerrygold.

Wisconsin’s 1953 law bans the sale of butter that hasn’t been graded by the state or the federal government. The grading, however, relies on taste factors including acid, aged, bitter, coarse, cooked, culture, feed, flat, malty, musty, neutralizer, old cream, scorched, smothered, storage, utensil, weed and whey.

Attorney Rick Esenberg, who represents plaintiffs in the Ozaukee County case, said, “It is unlikely that a taste test, like this one, which considers 35 vague and subjective characteristics, can result in anything other than an idiosyncratic judgment of no use to anyone,”

In the Ohio case, Peterson noted that Wisconsin’s butter law has changed to allow out-ofstate grading of butter. Someone can become a licensed grader after paying $75 and passing a written and performance exam, then paying another $75 every two years to keep up the certification.

Just because artisanal butter makers in Wisconsin or neighboring states have an easier time coming to get licensed doesn’t mean the rule discriminates against those who must travel farther.

Joshua Thompson, an attorney with the public interest law firm Pacific Legal Foundation, represents Minerva and said they will appeal.

“When even the government’s own experts and officials have no idea what a butter grade signifies,” he said, “we believe that is strong evidence that the grade does nothing to protect consumers and unconstitutionally frustrates interstate commerce.”

Esenberg said Tuesday that Peterson’s decision in the Minerva Dairy case will have no bearing on the Ozaukee County case, which is scheduled for arguments on summary judgment motions in the spring.

“Our claims are brought under the state constitution,” he said. “In addition, we are bringing a free speech claim that does not appear to have been addressed by Judge Peterson.”