Ohio dairy loses lawsuit challenging Wisconsin's ban on ungraded butter

Bruce Vielmetti
Journal Sentinel
Wisconsin butter law survives legal challenge.

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 mere 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

A supply of Kerrygold Pure Irish Butter sits amidst other butters on a store shelf Friday, March 17, 2017 in Edina, Minn. Wisconsin consumers tired of trekking across state lines to buy a popular Irish butter are taking their fight to court. A 1953 state law bans the sale of Kerrygold butter in Wisconsin, along with any other butter that hasn’t been locally graded for quality. A handful of butter aficionados filed the lawsuit, saying it’s unconstitutional to require butter sold in the state to undergo a government-mandated taste test.

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-of-state 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.

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

Just because artisanal butter makers in Wisconsin, or neighboring states, have an easier time coming to the Dairy State 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.”