Preliminary injunction sought against Wisconsin's artisanal butter ban

This morning PLF filed a motion for preliminary injunction in our challenge to Wisconsin’s artisanal butter ban. It has been nearly four months since Wisconsin first told our client, Minerva Dairy, that its Amish-churned butter was not welcome in the state. And, as near as we can tell, there’s little hope of regulatory reform coming from the state of Wisconsin (or its officials.) Accordingly, it’s time that Minerva Dairy asks the court to let it back into Wisconsin’s butter market. 

Wisconsin’s artisanal butter ban prohibits butter from being sold within Wisconsin if it hasn’t first been “graded.”  Most butters sold in the United States are not graded, and graded butter is no more safe than ungraded butter. That’s why neither the USDA nor 49 states (not named Wisconsin) require butter to be graded for it to be sold.  In fact, all “graded butter” ensures is that the butter is going to taste exactly how the government wants it to taste. But Minerva Dairy sells an artisanal, Amish-churned butter. It does not want its butter identified with that government-mandated taste.

That’s why Minerva Dairy is likely to succeed on its motion for a preliminary injunction. The injunction is being sought on the grounds that the artisanal butter ban violates the dormant Commerce Clause.** The dormant Commerce Clause prohibits states from erecting protectionist barriers that benefit in-state businesses at the expense of out-of-state businesses. That’s exactly what Wisconsin has done here. By banning ungraded butter, but giving Wisconsin-located businesses an easy way to get their butter graded (not available to out-of-state butter makers), Wisconsin discriminates against out-of-state butter makers in violation of the dormant Commerce Clause.

In addition to Minerva Dairy’s strong legal claims, it is likely to prevail on its preliminary injunction motion because the artisanal butter ban does nothing to protect Wisconsin consumers. Graded butter is no more safe than ungraded butter. If it were otherwise, Wisconsin would have been enforcing its artisanal butter ban for the past 50 years. Indeed, the statute has been on the books that long. But no — it’s only when Wisconsin businesses saw an opportunity to use this law to their advantage, that the state started enforcing it.

Wisconsin consumers are fully capable of determining for themselves whether the butter they purchase is “pleasing” to their palates. They don’t need a Wisconsin taste tester to do that for them. Minerva Dairy’s preliminary injunction motion will give those consumers that opportunity again — a right they’ve enjoyed for the past half a century.

**We also brought constitutional challenges to the artisanal butter ban under the Due Process and Equal Protection Clauses but the preliminary injunction is not being sought on those bases, because they require further factual development.