Wisconsin’s Butter Grading Law Is Udderly Ridiculous

Minerva Dairy, based in Ohio, is America’s oldest family-owned cheese and butter dairy. It has been producing artisanal, slow-churned butter in small batches since 1935. It has sustained its business through their website and by selling to regional distributers in several states. This model has worked well everywhere except Wisconsin, which requires butter manufacturers to jump through a series of cumbersome and expensive hoops to sell their product.

Of course, Wisconsin is America’s Dairyland, with many large producers who (big surprise) have an interest in limiting competition. At the behest of these companies, the state requires every batch of butter to be “graded” by a specifically state-licensed grader—all of whom live in Wisconsin, except for a half-dozen in neighboring Illinois and a handful around the country that have been licensed only in the last year—who must taste-test every single batch. Because Minerva’s butter is produced in multiple small batches over the course of each day, the law would effectively require the dairy to keep a licensed tester on-site at all times, which is cost-prohibitive. The state admits that the grading scheme has nothing to do with public health or nutrition, but claims that its grades, based largely on taste, inform consumers.

The fact that Wisconsin is trying to shape the taste of butter isn’t even the most absurd part of this story. The criteria used to grade the butter are a ludicrous mad-lib of meaningless jargon not even the state’s experts understand. The law purports to identify such flavor characteristics as “flat,” “ragged-boring,” and “utensil.” (All commonplace terms spoken by consumers in dairy aisles across the nation, no doubt.) The terminology hearkens to a freshmanic—not even sophomoric—term paper on the semiotics of postmodern agrarian literature. To claim that a grade calculated with reference to udder nonsense serves the purpose of informing anyone illustrates the danger inherent in judges’ deferring to government rationales for silly laws that burden people who are just trying to make an honest living.

Our friends at the Pacific Legal Foundation represent Minerva in a lawsuit that challenges the butter-grading law on the grounds that it burdens interstate commerce in violation of the Commerce Clause, and also hurts small dairies’ Fourteenth Amendment rights to due process and equal protection of law. Minerva lost at the district court when the judge applied a toothless, cheesy “rational basis” test to the law in question, giving little weight to the serious concerns described above, then again in the Seventh Circuit (where Cato filed an amicus brief).

Tireless in its pursuit of reasonable review of this silly law, Minerva has asked the Supreme Court to take its case. Because laws that abrogate constitutional rights warrant meaningful judicial oversight, Cato has again filed an amicus brief supporting Minerva’s petition.

Wisconsin’s law directly burdens the right to participate in the state’s butter market, and thus their economic liberty, for no sane or “rational” reason. There are simply no benefits to consumers that come from forcing producers to pay considerable sums to have an arbitrary process deposit a random letter on product packaging. It curdles the mind to argue otherwise.

The Supreme Court will decide before it breaks for the summer whether to take up Minerva Dairy v. Pfaff.