Wisconsin flunks constitutional law with artisanal butter grading

Minerva Dairy, a family-owned business based in Ohio and selling its product nationwide, has been producing artisanal, slow-churned butter in small batches since 1935. It currently sells via its website and through regional distributers that cover several states. For the vast majority of the country, this business model works. Not in Wisconsin.

At the behest of large, in-state butter producers wishing to limit their competition, Wisconsin enacted a law that requires all out-of-state butter makers to jump through a series of very expensive hoops to get the butter “graded” before they can make a sale. Wisconsin requires out-of-state butter producers to bring in a U.S. Department of Agriculture taste tester based in Chicago. Because Minerva’s butter is produced in 14-18 small batches over the course of each day, the dairy would have near-constant need for a USDA tester on site. This is cost-prohibitive.

None of this serves any legitimate purpose. Butter “grading” is a matter of marketing, not safety, because all it affirms is that the butter has a particular standardized taste as certified by the government. Minerva does not want its butter identified with that commodity taste. Instead, it makes artisanal butter with a unique taste created by its special recipe with high butter fat, different salt contents, and various flavor profiles. Discerning customers in every state other than Wisconsin can legally purchase this ungraded butter.

Represented by PLF, Minerva’s lawsuit in federal court argued that Wisconsin’s law violates several constitutional provisions intended to protect economic liberty and the right to earn a living. Wisconsin’s grading mandate serves to shield favored businesses, while harming competitors and the general public by restricting consumer choice. The law also violates the constitution by blocking the free exchange of goods in interstate commerce.