Butter lawsuit proceeds in Ozaukee County
Judge denies motion to throw out case

By Melanie Boyung - News Graphic Staff

August 22, 2017

PORT WASHINGTON — Ozaukee County Circuit Judge Paul Malloy last week rejected a motion to dismiss a lawsuit challenging the state requirement for butter taste tests, allowing the case to move forward into discovery.

Wisconsin currently has a law requiring that butter carry a label indicating the grade given by a government- licensed taste tester in order to be legally sold in Wisconsin.

The criteria for grading listed in the statute pertain entirely to flavor, appearance, scent and texture, with no reference to safety or health.

A lawsuit was filed in March by four Wisconsin residents, including Kathleen McGlone, owner of Slow Pokes Local Foods in Grafton, challenging the statute.

McGlone sold Kerrygold, an Irish butter, in her store, while three other plaintiffs were consumers.

McGlone did not know about the butter law or that Kerrygold was illegal until about a year ago, when enforcement ticked up. She said she has lost sales from no longer carrying a popular product, and consumers must now get Kerrygold from outside the state.

Represented by the Wisconsin Institute for Law & Liberty, the group claims the law is unconstitutional by violating:

due process by limiting business and consumer freedom of choice absent compelling need

equal protection by creating restrictions for the butter seller and no others, therefore treating that select group differently than all others without compelling reason

freedom of speech, by compelling a government-mandated message serving no valid government interest.

The Aug. 15 hearing considered a motion by Wisconsin Assistant Attorney General Katherine Spitz to dismiss the first two claims. She filed the motion in May and WILL filed the plaintiff’s response in July.

While Spitz argued the law has a reasonable basis in providing information to consumers and does not violate due process or equal protection, Malloy denied the motion; as such, the case now moves into the discovery phase.

“This was a big hurdle,” Jake Curtis, litigator for WILL, said following Malloy’s decision.

Had Malloy approved the motion for dismissal, the first two counts – due process and equal protection – would have ended there. Instead, the case now enters discovery, which Curtis said will likely take about six months as both sides of the litigation research and build their arguments.

After discovery, the judge can either grant a summary judgment in favor of either the plaintiff or defendant in the case, or the case can go to trial.

“Typically, both parties will file opposing motions for summary judgment,” Curtis said. Where there is a disagreement over the facts in a case, it needs to go to trial, according to Curtis, though in the current case, the facts themselves are not in question. Curtis said the question in the butter lawsuit is about the law itself, and so Malloy may issue summary judgment when those requests are made.

Curtis has termed the law “protectionist” in the past, saying that such laws are designed to favor Wisconsin businesses by creating extra obstacles for imports. Such laws are enforced sporadically, leading to confusion, he said, and serve no purpose of health, safety or well-being.

The law has been compared in the lawsuit to the state’s attempt to ban oleomargarine, which was struck down in 1927; Curtis has said such laws are promoted by the local industry to inhibit competitors from other states or countries, by creating restrictions – such as state-mandated taste-tests and labeling specific to Wisconsin – more difficult to meet for those who are not in Wisconsin.

Email: mboyung@conleynet.com