The U.S. Court of Appeals for the Seventh Circuit has upheld a Wisconsin law requiring butter sold within the state to bear a grade issued by a Wisconsin-licensed butter grader or the U.S. Food and Drug Administration. Minerva Dairy Inc. v. Harsdorf, No. 18-1520 (7th Cir., entered October 3, 2018). The Ohio dairy challenging the law alleged it violated the Due Process Clause, the Equal Protection Clause and the dormant Commerce Clause of the U.S. Constitution, but a lower court granted summary judgment in favor of Wisconsin. The appeals court first found that the statute does not violate substantive due process or equal protection because the law is “rationally related to at least two conceivable state interests”—consumer protection and promotion of commerce. Turning to the dormant Commerce Clause allegation, the court found that the law does not have a discriminatory effect on interstate commerce. The dairy argued that requiring out-of-state…
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A federal court has granted summary judgment to Wisconsin in an Ohio dairy's lawsuit alleging a Wisconsin law requiring butter to be graded by the U. S. Department of Agriculture or a state-licensed grader violated the commerce, due process and equal protection clauses of the U.S. Constitution. Minerva Dairy, Inc. v. Brancel, No. 17-0299 (W.D. Wis., entered February 5, 2018). In its complaint, the dairy alleged that small companies are unable to afford USDA grading or the creation of separate packaging solely for Wisconsin sales, effectively blocking them from the state’s market. Finding that Wisconsin has a legitimate government interest in requiring grading labels on butter packages to assure consumers of product quality, the court held that the law does not violate the U.S. Constitution's equal protection or due process clauses. The court reasoned that the law does not give Wisconsin butter makers "a categorical ‘competitive advantage over their counterparts outside the…
A dairy trade group has filed a lawsuit against Wisconsin’s Department of Natural Resources (DNR) alleging that the agency both exceeded its authority and failed to follow required public rulemaking processes when it set new water pollution control regulations affecting dairy and animal feeding operations. Dairy Bus. Ass’n v. Wis. Dep’t of Nat. Res., No. 2017CV001014 (Wis. Cir. Ct., Brown Cty., filed July 31, 2017). The complaint involves recent administrative rules and guidance issued by DNR related to feed storage leachate runoff and calf hutches. DNR is the state agency tasked with enforcement of the federal Clean Water Act and is responsible for issuing state Pollutant Discharge Elimination System permits (WPDES) to entities that discharge pollutants into state waters. The complaint asserts that the goal of the permit system is “parity” with the Clean Water Act (CWA) and state regulations “shall comply with and not exceed the requirements of the…
A Wisconsin creamery selling "Irishgold" butter and the distributor of Kerrygold butter have agreed to a consent decree that will end a trademark dispute. Ornua Foods N. Am. v. Eurogold USA, No. 17-0510 (E.D. Wis., motion filed July 25, 2017). After Wisconsin began enforcing a 1950s law requiring all butter sold in the state to bear a state or federal grade mark, effectively banning all imports and out-of-state artisanal products, Wisconsin dairy Old World Creamery began selling its own butter in packaging similar to Kerrygold. Additional details about the ban and trademark suit appear in Issue 631 of this Update. Under the consent decree, the dairy will (i) continue to sell its Irish-style butter but will amend the mark to “Euro Gold” or “Euro-Gold"; (ii) withdraw its trademark application for “Irishgold” butter; (iii) refrain from using “substantially similar” packaging; (iv) not sell any Irish-themed dairy products under a mark that…
An Ohio company has filed a lawsuit alleging Wisconsin’s ban on sales of ungraded butter violates the Commerce Clause, due process, equal protection and free speech. Minerva Dairy, Inc. v. Brancel, No. 17299 (W.D. Wis., filed April 20, 2017). In early 2017, Wisconsin began enforcing a 1954 law requiring all butter sold in the state to bear either a state or a U.S. Department of Agriculture (USDA) grade mark, telling retailers and producers to remove out-of-state butter from store shelves or risk fines and imprisonment. Minerva Dairy, Inc. argues that the ban serves no rational or legitimate governmental interest. “In contrast to butter inspection, which ensures that the butter comports with health and safety regulations, butter grades are used only to ensure a government-mandated taste,” the complaint argues. Minerva alleges that small companies are unable to afford obtaining USDA grading and creating separate labels solely for Wisconsin sales. Accordingly, the…
The Irish distributor of Kerrygold butter won an emergency restraining order against a Wisconsin creamery after alleging the creamery backed out of an agreement to process Kerrygold locally and later created its own nearly identical product, “Irishgold,” infringing Kerrygold’s trademark. Ornua Foods N. Am., Inc. v. Eurogold USA LLC, No. 170510 (E.D. Wis., filed April 10, 2017). A Wisconsin federal court granted the order after finding Ornua Foods, Kellygold’s maker, likely to win the trademark case it filed on the merits. After Kerrygold became the top-selling imported butter in the United States, Wisconsin removed Kerrygold butter from stores under a statute requiring all butter sold in the state to bear either a Wisconsin or federal grade mark. After the ban, Ornua Foods began working with Wisconsin state officials and defendant Old World Creamery to process the Irish-made butter a second time, making it eligible for a state grade mark. The…
A consumer has filed a proposed class action against Caribou Coffee Co. Inc. arguing the company violated the Telephone Consumer Protection Act (TCPA) by sending her “numerous unsolicited SMS text messages.” Farnham v. Caribou Coffee Co. Inc., No. 16-0295 (W.D. Wis., filed May 5, 2016). The plaintiff asserts that Caribou sent her 50 text-message advertisements from March to May 2016 without her consent. For allegations of negligent and willful violations of TCPA, the plaintiff seeks statutory damages of $500 per negligent violation and $1,500 per willful violation as well as an injunction and class certification. Issue 604
Public-interest group Cornucopia Institute has filed a lawsuit against Tom Vilsack in his capacity as Secretary of Agriculture alleging that he and the U.S. Department of Agriculture (USDA) violated the Organic Foods Production Act of 1990 by appointing “unqualified individuals” to the National Organic Standards Board (NOSB), which develops a list of synthetic substances allowed in the production of organic food, the National List of Allowed and Prohibited Substances. Cornucopia Inst. v. Vilsack, No. 16-0246 (W.D. Wis., filed April 18, 2016). Federal law requires the composition of the NOSB to be “balanced and independent,” Cornucopia argues, but USDA “inappropriately influenced” the board in a number of ways, including (i) disbanding its Policy Development Subcommittee, (ii) allowing the self-appointment of the board’s co-chairperson, and (iii) removing the board’s ability to set its own work plan. “USDA’s unlawful meddling with the composition and rules governing the NOSB has created a NOSB hostile…
The Wisconsin Supreme Court has ruled that a class of manufacturing-plant workers at Hormel Food Corp. should be paid for the time they need to change into and out of their required clothes and equipment. United Food & Commercial Workers Union, Local 1473 v. Hormel Food. Corp., No. 2014-AP-1880 (Wis., order entered March 1, 2016). The court found that under Wisconsin regulations, Hormel must compensate its employees for 5.7 minutes per day. The ruling affirms a circuit court decision finding that “the employees’ donning and doffing clothing and equipment at the beginning and end of the day brought Hormel into compliance with federal food and safety regulations and was integral and indispensable to sanitation and safety in the employees’ principal work activities, namely food production.” Issue 596
Subway has reached a settlement agreement in a case alleging its "footlong" sandwiches were not 12 inches in length. In re Subway Footlong Sandwich Mktg. & Sales Practices Litig., MDL No. 2439 (E.D. Wis., settlement agreement filed September 29, 2015). Under the agreement, Subway will require its franchisees to "use a tool for measuring bread in each Subway® restaurant to help ensure that the bread sold to customers is either 6 or 12 inches long" and will check for compliance during its monthly franchise inspections, with an increase in penalties for failure to measure up. If the court approves the agreement, Subway will pay each class representative $1,000 and the class counsel's attorney fees of $525,000, but no monetary awards will be distributed to class members. Additional information about the lawsuit appears in Issues 468 and 487 of this Update. Issue 582
