Appeals court upholds ruling affirming Wisconsin's butter grading law

Colleen Kottke
Wisconsin State Farmer

The Seventh Circuit Court of Appeals upheld a lower court ruling that a Wisconsin law requiring that all butter sold in the state be graded is constitutional.

AA butter makes big gains.

The decision was a defeat for an Ohio-based artisanal butter maker which argued that Wisconsin's taste test mandate was mere protectionism and illegally impeded interstate commerce.

Earlier this year, U.S. District Judge James Peterson ruled that Wisconsin's ban on the sale of ungraded butter did not violate the rights of Minerva Dairy Inc., and that the law "rationally related to Wisconsin’s legitimate interest in helping its citizens make informed butter purchases.”

Minerva Dairy had been selling its "Amish-style slow-churned" artisan butter in Wisconsin until an anonymous complaint prompted state inspectors to stop sales unless the butter was graded.

Butter maker Walker Lanham carts butter out of churn at Minerva Dairy in Ohio.

Minerva appealed the ruling, saying it made no sense that butter from big companies such as Land O’Lakes, based in Arden Hills, Minnesota, received Wisconsin’s highest grade of “AA,” while a product similar to Minerva’s scored just an “A.”

Pacific Legal Foundation, which represents Minerva Dairy in the lawsuit, said on its website that "...grading has nothing to do with quality or safety; it is graded by taste, as determined by government bureaucrats. Only Wisconsin has this type of law; neither the federal government nor any other state requires grading." 

Writing for the three-member panel, U.S. Circuit Court Judge Joel Flaum said the state's mandatory butter grading law is rationally related to the state’s legitimate interest in promoting commerce and informing consumers on the quality of butter.

"Wisconsin also had its own voluntary grading system, but it proved ineffective because many producers of low‐quality butter simply skipped grading and went straight to market," Flaum wrote. 

For that reason, in 1953, the Wisconsin Farm Bureau published a brochure in support of a proposed butter‐grading law in which it explained that wide disparities in butter quality had driven many consumers to abandon butter altogether and turn to butter substitutes instead, the court of appeals said in its decision.

Wisconsin’s butter grading law sets a scale from AA to B to under-grade spread and relies on several taste attributes including acid, aged, bitter, coarse, cooked, culture, and flat to name a few.

Any butter can be sold in the state, provide it’s undergone the grading process.

“Wisconsin’s butter-grading statute does not expressly discriminate against interstate commerce. The labeling requirement applies to all producers, whether they reside in-state or out-of-state,” Flaum wrote.

Minerva Dairy in Ohio, with the help of Pacific Legal Foundation, contested a law in Wisconsin prohibiting the sale of ungraded butter. Company officials say Wisconsin is the only state that has an outdated law that caters to "only a handful of large production butter makers, leaving small artisan butter businesses like Minera Dairy out of the market".

Minerva questioned the fairness of the grading.

“Wisconsin’s butter grading law mandates that all butter conform to Wisconsin’s preferred taste. Under Wisconsin’s preference, internationally loved butter like Minerva Dairy and Kerrygold do not receive Wisconsin’s highest grades,” attorney Joshua Thompson said in a statement for Minerva following the ruling.

“Those grades are reserved for commodity butters like Land O'Lakes. Obviously, we think this taste test mandate is nonsense and arbitrary and, moreover, it frustrates interstate commerce. We are determined to continue fighting for Minerva Dairy’s constitutional right to sell its delicious product to Wisconsinites without conforming to Wisconsin’s arbitrary standards," Thompson added. 

In the ruling, the judges wrote, “courts have routinely held that consumer protection is a legitimate state interest … and labeling laws like the one at issue here advance that interest by giving consumers relevant product information that may influence their purchasing decisions.”

The ruling continued: “Of course, not all consumers will care about a butter’s grade, just as not all consumers will care about whether a food item is genetically modified or organic. But it is reasonable to think that some consumers care about the quality of butter they purchase — for example, experienced bakers — and the state has a legitimate interest in ensuring that those consumers receive that information.”

Rick Barrett of the Milwaukee Journal Sentinel contributed to this report.