Judge Dismisses Lawsuit Over Ungraded Butter Ban

A federal judge has dismissed a lawsuit filed by an Ohio dairy operation against Wisconsin officials over the state’s ban on the sale of ungraded butter.

Minerva Dairy, of Minerva, Ohio, argued the ban unconstitutionally protected large Wisconsin-based dairies. The dairy had sold artisanal butter in Wisconsin until February 2017 when state inspectors discovered its product was ungraded and ordered the company to comply with the law.

U.S. District Judge James Peterson, in a ruling Monday, said the state has the right to require grade labels on retail butter so that consumers can “purchase butter with confidence in its quality.” The decision said consumer protection is a “legitimate governmental interest” and the state has the right to protect citizens low-quality butter.

Joshua Thompson, attorney for Minerva Dairy, said he doesn’t buy that argument.

“The Wisconsin government was unable to present any evidence of how butter grades actually inform Wisconsin consumers,” Thompson said. “If you went on the street or even asked yourself what a butter grade means, you would have no idea.”

But some butter industry officials feel grading does serve a purpose.

Marianne Smukowski, outreach program manager at the Wisconsin Center for Dairy Research, said she believes consumers know top-graded butter by the taste, even if they aren’t looking for the grade label on the packaging.

“If you see Wisconsin on that label, you know the quality and you know how good the product is,” Smukowski said. “There’s certain attributes that the consumers are looking for: they want to know if its salted or unsalted, they want to know what flavors there are and how they work best for cookies or cooking with it.”

Thompson said Minerva plans to appeal the decision.

“We knew this was a long battle from the outset and this is just the first step in the process,” Thompson said.

Another lawsuit involving Kerrygold Irish butter is challenging Wisconsin’s butter laws in Ozaukee County Circuit Court. The Wisconsin Institute for Law and Liberty filed the lawsuit on behalf of consumers and a grocery store last March.

Rick Esenberg, president of WILL, said their case is different from Minerva Dairy’s, in part because it claims the grading requirement violates free speech rights of butter producers. Esenberg said a “taste test” to establish a butter’s grade is not a good enough reason to require businesses include the state’s grading label.

“It’s one thing to protect consumers against a hazard that might not be apparent to them,” said Esenberg. “Consumers are perfectly able to decided it they like the taste of something.”

The case is scheduled for a motion hearing in May.

Editor’s Note: This story was updated at 4:45 p.m. Tuesday, Feb. 6, 2017 with additional reporting by WPR.