April 27, 2017 by Chris

Artisanal Butter & Antiquated Laws

On April 20, Ohio-based Minerva Dairy sued the State of Wisconsin in federal district court over its “newly enforced ban on the sale of ungraded butter,” calling the law “an unjustified, anti-competitive restriction that protects large Wisconsin-based dairies.” The thrust of Minerva’s allegations are clear: protectionism is alive and well in the dairy industry.

Plaintiff Minerva is a family-owned, fully licensed business that has produced Amish-churned butter and other dairy products since the late 1800’s. Minerva sold their butter in Wisconsin from the mid-1980’s until early 2017, when the state issued a cease and desist order invoking Wisconsin Statute 97.176. That statute mandates that all butter sold at retail within the state must be “graded.”  Failure to obtain a grade and affix a corresponding label may result in penalties including fines of up to $1,000 dollars and imprisonment for up to six months for the first offense, and additional fines or forfeitures for subsequent violations.

Because Minerva is based in Ohio, the company is not eligible to have their butter graded onsite by Wisconsin-licensed butter graders.  Instead, Minerva would need a Chicago-based USDA official to independently grade each batch of their slowchurned butter, of which there are multiple batches produced a day. Minerva calls this both cost prohibitive and pig-headed. But for Wisconsin’s “grading” requirement, their butter has complied with all health and safety regulations imposed by the United States and Wisconsin.  Nor can it be said Wisconsin’s “grades” are particularly important, Minerva adds, as the law’s prescribed testing method focuses on flavor, color, and body characteristics, intensity, and taste — none of which serve a legitimate government interest.

Minerva asserts three causes of action.  First, Wisconsin law violates the Commerce Clause by discriminating against out-of-state butter makers and “violates Plaintiffs’ right . . . to participate in the national marketplace.”  Second, Wisconsin’s law  as written (and enforced) violates the Fourteenth Amendment’s Equal Protection guarantee in that it irrationally and arbitrarily shields Wisconsin businesses. Finally, Wisconsin’s law (and the enforcement thereof) violated Minerva’s procedural and substantive Due Process rights.

Plaintiff Minerva is represented by the Pacific Legal Foundation (“PLF”), a leading public interest law firm committed to limited government, property rights, and economic liberty.

If you wish to support Minerva and pretend to be a government butter tester, which, apparently, is a thing, you can buy their products here.