suit filed March 16 by four Wisconsin residents —
including Grafton’s Kathleen McGlone, owner of Slow
Pokes Local Food — is against Wisconsin Department of
Agriculture, Trade and Consumer Protection Secretary Ben
Brancel, in his official capacity.
law requires a brand of butter may only be legally sold
in the state of Wisconsin if it has been graded by a
state-licensed taster based on 35 characteristics
pertaining to flavor, aroma, appearance and texture, and
the package marked with that grade. The statute makes no
reference to safety or health.
Curtis, a lawyer for the Wisconsin Institute for Law &
Liberty, who is representing the plaintiffs in the
lawsuit, has called the law protectionist. He said that
requiring a Wisconsin test, grade and label promotes
Wisconsin brands, which can easily attain the required
grading, while creating an unreasonable hurdle for
nonlocal butter makers.
lawsuit was triggered by prohibition of the sale of
Kerrygold, an Irish butter. McGlone had sold the butter
at Slow Pokes for years, until she was informed she
could be punished for it with heavy fines; the law has
long been on the books, but went years without active
enforcement until about two years ago, according to
other three plaintiffs are consumer who prefer Kerrygold.
They argue they now have to stock up the bands with
May, the defense filed a motion to dismiss two of the
three claims, making no argument pertaining to the
third. WILL filed a brief opposing the motion July 26.
The hearing is set for 11 a.m. Aug. 15 at the Ozaukee
County Justice Center. Judge Paul Malloy will hear the
argues the butter law, limiting options of butter sales
based solely on a subjective opinion of taste that must
be printed on butter packaging, violates the state
constitution in three ways:
Violates due process, limiting a seller’s economic
liberty to make sales and consumers’ liberty to make
their own choices of product without interference. Mc-Glone
has lost sales because of Kerrygold’s absence, and the
three other plaintiffs have to travel great distances to
obtain the product of their choice, when there is no
reason of health or safety for it to be prohibited.
defense, represented by Wisconsin Assistant Attorney
General General Katherine Spitz, argued to dismiss the
claim because courts consistently defer to the
legislature in due process matters, “as long as there is
some conceivable, legitimate basis for the law. Even if
the legislative decision is made without empirical data
or for a different reason, the existence of a rational
reason for the law should cause the court to favor the
plaintiffs argue against dismissal of the charge on the
grounds that no rational reason exists for mandating a
subjective grading. According to the brief, at this
point in the process, the facts of the argument are
assumed true, that dismissal requires an argument
showing that no valid claim exists in light of those
facts; the defense has not met the burden, having simply
contradicted the plaintiffs’ argument; not shown the
absence of a claim.
Violates the equal protection clause, creating
unnecessary restrictions for sellers of butter, and only
butter, thereby treating that group of people
differently than all others in similar pursuits.
defense requested dismissal on the same argument as
under due process — courts consistently side with the
legislature — as well as disclaiming the argument that
there is inequality. The defense’s motion stated all
butter sellers are treated the same under the taste-test
requirement, and it would make no sense to apply a
butter- specific law to businesses that do not sell
Violates constitutional guarantees of freedom of speech,
by mandating speech that serves no substantial
government interest. The defense’s motion did not
address the freedom of speech claim.