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 complaint alleges, the Wisconsin law violates Minerva’s right to compete in interstate commerce, arbitrarily shields Wisconsin butter producers from out-­of-­state competition and deprives Minerva employees of their right to earn a living in their chosen profession.

A related consumer lawsuit alleges that Wisconsin’s enforcement violates their state constitutional rights by preventing residents from buying Irish­-made Kerrygold butter within the state. Kerrygold’s maker, Ornua Foods, filed a trademark lawsuit alleging a Wisconsin creamery adopted a similar appearance after enforcement of the ban led retailers to remove Kerrygold from shelves. Additional details on Ornua’s lawsuit appear in Issue 631 of this Update.


Issue 632

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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