Judge allows challenge to Wisconsin butter law
PORT WASHINGTON - Consumers know what they like, and they don't need the state deciding what butter they can buy based on a bureaucrat's subjective standards about flavor, texture and smell, a lawyer argued earlier this week.
At issue is the constitutionality of a Wisconsin law that bans the sale of butter that hasn't been graded by the state or federal government. That means Kerrygold, a popular Irish brand, can't be sold here — though it is available in other states.
Some butter eaters and a Grafton food shop — a former seller of Kerrygold — sued in March, claiming the law violates the state constitution's protections of due process, equal protection and even free speech.
They are represented by the Wisconsin Institute for Law & Liberty, or WILL, a conservative nonprofit law firm. Its director, Rick Esenberg, argued Tuesday against the state's effort to have the case thrown out.
Katherine Spitz, an assistant attorney general representing the state, argued that the due process and equal protection claims should be dismissed because the state has "a rational basis" for the 1953 law — providing consumers with information about the quality of butter.
In such a constitutional challenge, that's all it should take for a law to be upheld, Spitz argued.
But Ozaukee County Circuit Judge Paul V. Malloy, who said he was reluctant to throw out the challenge before some record could be built in the case, denied the state's motion and set the case to move forward.
Critics say the law's real purpose appears to be protecting the local dairy industry, something the courts have repeatedly struck down over the decades, starting in 1927 when the state tried to ban the sale of oleomargarine.
WILL argues that the grading doesn't reflect the butter's safety concerns or even measure nutritional values.
For example, to be graded AA, the top grade, butter must have "a pleasing butter flavor" and “possess a feed or culture flavor to a slight degree or cooked flavor to a definite degree, or any combination of these characteristics.”
Butter graders are to consider such taste factors as acid, aged, bitter, coarse, cooked, culture, feed, flat, malty, musty, neutralizer, old cream, scorched, smothered, storage, utensil, weed and whey.
"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," Esenberg wrote in a brief opposing the state's motion.
"Courts will not substitute their own judgment for that of the legislature, but they will insist that the relationship between a legitimate state purpose is sufficiently plausible," he wrote in a brief.
He argues that under the state's view, the same grading could logically be extended to wine, beer, fruit — even car tires and cleaning products.
"Is there a reason — other than the power of the dairy lobby — that fish and sausage or wine and beer are not subject to grading requirements that make it more difficult for foreign competitors, like Kerrygold, to enter the market?"
The plaintiffs' suit also claims Wisconsin's butter law violates freedom of speech by banning butter that lacks a compelled government message, the grade. That claim was not a subject of the state's motion.
Kathleen McGlone, owner of Slow Pokes Local Foods in Grafton and one of the plaintiffs in the case, said everyone, including larger grocers, sold Kerrygold before word got around last year that it was actually illegal.
She said she stopped selling it before any warnings or enforcement action from the Wisconsin Department of Agriculture, Trade and Consumer Protection.
Now, she said, people who used to buy from her get it from other places or go without.
"It seems like the state should be taking care of more serious problems," McGlone said.
In April, an Ohio dairy also sued in federal court over Wisconsin's ban on the sale of ungraded butter, claiming it is nothing but an effort to protect local businesses and an interference with interstate commerce.