United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
Minerva Dairy, Inc., under its president, plaintiff Adam
Mueller, produces Amish butter and cheese in small, artisanal
batches at its Ohio dairy. It filed this lawsuit challenging
the constitutionality of Wis.Stat. § 97.176, which
requires all butter offered for sale within Wisconsin to be
graded by the U.S. Department of Agriculture or a
Wisconsin-licensed butter grader. Minerva Dairy alleges that
this statute violates the Commerce Clause, Equal Protection
Clause, and Due Process Clause of the U.S. Constitution.
Defendants, several Wisconsin officials whom the court will
refer to as the state, disagree. Both sides move for summary
judgment. Dkt. 25 and Dkt. 33. Because the statute is
rationally related to Wisconsin's legitimate interest in
helping its citizens make informed butter purchases, the
court will grant summary judgment to the state and dismiss
Minerva Dairy's claims.
where noted, the following facts are undisputed.
The butter-grading law
1953, the Wisconsin legislature enacted a butter-grading law
now codified at Wisconsin Statute section 97.176. The law
requires butter offered for retail sale within the state to
be labeled with a grade: either a Wisconsin grade or a USDA
grade. The grade must be determined through an
“examination for flavor and aroma, body and texture,
color, salt, package and . . . other tests or procedures . .
. for ascertaining the quality of butter.” 97.176(3).
Wisconsin Department of Agriculture, Trade, and Consumer
Protection (DATCP) provides standards for the Wisconsin
butter grading system. Wis.Stat. § ATCP Ch. 85. These
standards mirror the USDA standards. U.S. Dep't of
Agric., U.S. Standards for Grades of
Butter.For example, Grade AA butter must “be
made from sweet cream of low natural acid, ”
“possess a fine and highly pleasing butter flavor,
” have no more than a “slight” “feed
or culture flavor, ” and have no more than a one-half
“disrating in body, color and salt
characteristics.” § ATCP 85.03(1).
that bears a Wisconsin grade label must be graded by a
Wisconsin-licensed butter grader, who must sample each batch.
To obtain a license, an individual must send the DATCP $75
and a written form listing, among other things, “the
location where the grading is to be done.” § ATCP
85.07. The individual must then appear at “a location
in Wisconsin, as convenient to the applicant as possible,
” to take written and practical examinations to
demonstrate proper grading of butter. Dkt. 48, ¶ 78. The
individual must answer at least 70 percent of the written
examination correctly and perform at least 70 percent of the
practical examination correctly (as measured against the
examiner's grading of the same samples) to obtain a
license. Once licensed, the individual must “pay a
biennial license fee of $75.” § ATCP 85.07(2).
Before April 2017, the DATCP did not have an official policy
about whether Wisconsin-licensed butter graders could grade
butter at out-of-state facilities, but it had “a
nonwritten understanding” that they could not do so.
Dkt. 42 (Haase Depo. at 28:24-29:2). It now allows that
DATCP ensures compliance with the butter-grading law in
several ways. If the DATCP learns of a retail store offering
ungraded butter for sale, it sends a warning letter to the
store. Stores generally comply with the law by removing the
ungraded butter from their shelves after receiving a warning
letter. The DATCP's sanitarians also randomly sample
butter at manufacturing plants and stores within the state to
confirm that the labeled grade is correct. If there is a
discrepancy between the grade assigned by the sanitarian and
the labeled grade, the DATCP sends a warning letter to the
butter manufacturer. Because of the “inherently
subjective” nature of butter grading, the DATCP allows
for arbitration of discrepancies by a panel of graders. Dkt.
50, ¶ 19.
Dairy is a family-owned dairy company that has been operating
since 1884, when it first opened in Wisconsin. It moved
operations to Ohio in 1935. Today, its 75 employees produce
Amish butter and cheeses. It produces butter in “small,
slow-churned batches using fresh milk supplied by
pasture-raised cows.” Dkt. 50, ¶ 4.
Dairy sold its butter in Wisconsin without incident until
early 2017, when the DATCP received an anonymous complaint
about ungraded Minerva Dairy butter being sold at a Wisconsin
retail store, Stinebrink's Lake Geneva Foods. A DATCP
sanitarian went to Stinebrink's, verified that ungraded
butter was being offered for sale, and asked that it be
removed. On February 28, 2017, the DATCP followed up with a
warning letter to Stinebrink's and Minerva Dairy
notifying them of the butter-grading law and asking for
“your future compliance with the State of Wisconsin
related to butter grade labeling requirements.” Dkt.
19-1. As a result, Minerva Dairy stopped selling its butter
at retail stores in Wisconsin. A few months later, Minerva
Dairy filed this lawsuit, alleging that Wisconsin's
butter-grading law violates its rights under the Commerce
Clause, Equal Protection Clause, and Due Process Clause. The
court has subject matter jurisdiction over Minerva
Dairy's claims under 28 U.S.C. § 1331 because they
arise under federal law.
sides move for summary judgment on all three of Minerva
Dairy's claims. Summary judgment is appropriate if a
moving party “shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). When, as here,
the parties have filed cross-motions for summary judgment,
the court “look[s] to the burden of proof that each
party would bear on an issue of trial; [and] then require[s]
that party to go beyond the pleadings and affirmatively to
establish a genuine issue of material fact.”
Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461
(7th Cir. 1997). If either party “fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden at trial, ” summary judgment
against that party is appropriate. Mid Am. Title Co. v.
Kirk, 59 F.3d 719, 721 (7th Cir. 1995) (quoting
Tatalovich v. City of Superior, 904 F.2d 1135, 1139
(7th Cir. 1990)). “As with any summary judgment motion,
this [c]ourt reviews these cross-motions ‘construing