Please Pass the Butter: State Butter-Grading Requirements Withstand Challenge

An artisanal butter company based in Ohio recently lost a three-pronged constitutional challenge to Wisconsin’s butter-grading requirement, concluding the grading system requirements are rationally related to legitimate state interests.

Minerva Dairy Inc., a family-owned dairy company, produces Amish-style butter using milk from pasture-raised cows. The small batches are slow-churned.

Minerva was selling its artisanal butter at a retail store in Lake Geneva, but the company stopped selling in Wisconsin after receiving a warning letter from the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP).

The warning letter informed Minerva that it could not sell “ungraded” butter in Wisconsin, butter not graded under the state’s butter-grading requirement.

In Wisconsin, butter sold at retail must be graded by a Wisconsin-licensed butter grader or the U.S. Department of Agriculture. This requirement applies to in-state and out-of-state butter manufacturers. Licensed graders grade butter based on numerous characteristics relating to body, flavor, color, and salt – 18 characteristics in total.

The statute does not prohibit an out-of-state individual from becoming a Wisconsin-licensed butter grader. That is, those with a Wisconsin license can grade butter produced at out-of-state facilities for purposes of retail sale in Wisconsin.

However, Minerva sued DATCP officials under 42 U.S.C. section1983, alleging the state’s butter-grading statute violates three clauses of the U.S. Constitution: the Due Process Clause, the Equal Protection Clause, and the dormant Commerce Clause.