February 5, 2018

Court upholds Wisconsin’s irrational butter grading law

By Joshua P. Thompson Senior Attorney

We received some unfortunate news today from the federal court in Wisconsin. The court ruled against Minerva Dairy’s claims that the Wisconsin butter grading law violates the Constitution. In this case, Wisconsin adopted a law that even the government’s own experts fail to understand. A butter grade provides the consumer with essentially no information, is required by no other state in the nation, but significantly hampers an artisanal butter maker’s ability to sell its product. As I explained previously, “[t]he government might just as well place a Sesame Street sticker on the butter packaging—it would reveal just as much information.”

The court disposed of our Fourteenth Amendment claims by stating that the law is a “rational” way of protecting consumers. We all know the problems with the rational basis test, but this law is so ridiculous and nonsensical that we do not believe it meets even that low bar. With respect to our Commerce Clause claim, the Court ruled that to state a valid Commerce Clause claim under Pike, a plaintiff must show that the law specifically discriminates against out-of-state commerce. Needless to say, we will be appealing the ruling.

Minerva Dairy will fight on. Today’s decision is disappointing, but it’s not the final say. In the meantime, buy some Minerva Dairy butter. Take it from me, a former Wisconsinite, it’s delicious.

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Minerva Dairy v. Brancel

Minerva Dairy, and its President, Adam Mueller, are challenging a Wisconsin law that prevents butter makers from outside the state from selling their products in Wisconsin unless they go through an arduous and costly process of getting their butter “graded.” 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. Because Minerva Dairy makes artisanal butter that has its own unique taste, it does not want to submit to Wisconsin grading. Representing Minerva, PLF filed a lawsuit challenging the law as an unconstitutional violation of the Commerce Clause, Due Process, and Equal Protection.

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