Opening brief filed in challenge to Wisconsin’s butter taste test

April 18, 2018 | By JOSHUA THOMPSON

We filed our opening brief in the appeal to our challenge to Wisconsin’s irrational butter grading law. I have written about this case a number of times, but the essence of the case is that Wisconsin has adopted an irrational and protectionist scheme to keep out-of-state artisanal butters from entering the Wisconsin market.  In order for any butter maker to enter the Wisconsin market it must first have its butter “graded” by a Wisconsin-licensed taste tester.  In order to achieve the “highly pleasing” grade from the State, a butter maker must ensure that its product conforms to the precise taste, color, saltiness, and texture desired by the State of Wisconsin. The state tests each butter over 32 separate criteria which it then distills into a grade on its “pleasingness” scale.  In essence, this grading law means that a butter maker must either conform the taste of its butter to Wisconsin’s specific specifications, or have their butter labeled less “pleasing” than the butters that have conformed.

Our client is Minerva Dairy, an artisanal butter maker based in Ohio. Minerva Dairy makes delicious butter. It is sold nationwide. It is a premium product that taste loads better than traditional commodity butter. It’s like choosing a delicious micro-brew over a Budweiser.  Although Minerva can sell its delicious butter in 49 states, in order to sell in Wisconsin, the company must either change its product to conform to Wisconsin’s taste test, or label it as inferior on Wisconsin’s “pleasingness” scale. Because these are not acceptable options to Minerva Dairy, it brought suit challenging the law under the Fourteenth Amendment’s Due Process and Equal Protection Clauses as well as the Constitution’s dormant Commerce Clause.

In January, the district court ruled in favor of the State. It held that the butter taste test was a “rational” way for the state to ensure that consumers weren’t duped into buying “unpleasing” butter.  Our appeal was filed on Monday in the Seventh Circuit. Our opening brief explains why the lower court got it wrong, and why the Seventh Circuit should hold that Wisconsin should not be in the business of telling consumers how “pleasing” it thinks certain butters are. Although the government (unfortunately) enjoys wide latitude in the things it can regulate, there are limits.  The pleasingness of butter is one of those things. Consumers are perfectly capable of determining whether their butter is pleasing themselves.

We are confident in our appeal and are waiting for Wisconsin to file its appellate brief. If all goes well, Wisconsinites will be able to be pleased with Minerva Dairy’s delicious butter soon.