<strong>Wisconsin butter ban<br>faces constitutional test</strong>

Ohio company claims odd state law violates rights
Posted at 10:41 AM, May 03, 2017
and last updated 2017-05-05 14:40:14-04

The battle over your right to buy butter is heading to federal court after Wisconsin forced a second dairy company off store shelves.

Minerva Dairy of Ohio filed suit in April after the state Department of Agriculture, Trade and Consumer Protection began enforcing an obscure law from 1953.

That law says all butter sold in Wisconsin must be approved through a state-mandated taste test and issued a grade.

Executives at Minerva Dairy argue that process is unconstitutional.

"It's been place since the 1950s, but it's been a dormant law," said Adam Mueller, a fifth-generation butter maker at Minerva Dairy.


Using the proverbial hot knife, workers at Minerva Dairy cut butter into two-pound rolls they package for retail sale.


Mueller and his company have produced Amish butter since 1894. 

It's a product with a higher butterfat content than mass-produced commodity butter.

Amish butter contains at least 84 percent butterfat and is made only from the milk of pasture-fed cows.

Commodity butter contains at least 80 percent butterfat.

"We haven't changed our recipe or how we make our product since the inception," Mueller said.

But as a small dairy in eastern Ohio, Minerva can't afford to fly in butter graders in keeping with Wisconsin law.

After 25 years on the market in the dairy state, Minerva was ordered in February to pull its product from store shelves across Wisconsin.

"It is in your company's best interest to have any and all ungraded butter removed from retail sale in Wisconsin retail outlets immediately," state officials said in an e-mail to Mueller.

In this February e-mail, state officials threatened Minerva Dairy with an order to "cease and desist" the sale of its butter at stores acoss Wisconsin.

Legislative records show the butter grading law enforced by DATCP was passed as a way to protect Wisconsin dairy producers from competition.

In the 1950s, farmers feared the popularity of margarine.

A number of laws, some of them long since repealed, were passed to ensure Wisconsin-made butter had an advantage in the marketplace.

In their lawsuit against DATCP and the state of Wisconsin, attorneys for Minerva Dairy say those laws deprive companies of "the liberty of doing business in Wisconsin."

"Wisconsin has no constitutional basis to require Plaintiffs to conform Minerva Dairy butter to a Wisconsin government-mandated taste," the lawsuit said.

As a product made in Ireland, Kerrygold is not tasted and graded in accordance with state law.

“The department's role is to administer the laws of the state.”

—Bill Cosh, spokesman
Wisconsin Department of Agriculture, Trade and Consumer Protection

In March, attorneys for the Wisconsin Institute for Law and Liberty filed suit against the state for its action against Kerrygold.

That suit represents clients across the state who say the butter grading law deprives them of their right to buy a product they like.

"This archaic labeling regime prevents very popular butter such as Kerrygold from being enjoyed by Wisconsin residents," said a spokesperson for WILL.

Spokespersons for DATCP and Attorney General Brad Schimel declined to comment on pending litigation.

DATCP spokesman Bill Cosh said in an e-mail his department would enforce the butter grading law as long as it is on the books.

"The department's role is to administer the laws of the state," he said.