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Butter lawsuit filed by owner of Grafton shop to proceed PDF Print E-mail
Written by JOE POIRIER   
Wednesday, 16 August 2017 18:32

Judge rejects state’s motion to dismiss case challenging constitutionality of Wisconsin grading law

    An Ozaukee County judge on Tuesday rejected a motion to dismiss a lawsuit filed by a Grafton business owner and four other area residents against the State of Wisconsin over a law governing the sale of butter.
    The decision by Judge Paul Malloy means the case — filed March 16 by five plaintiffs including Kathleen McGlone, owner of Slow Pokes Local Food in Grafton, against Department of Agriculture, Trade and Consumer Protection Secretary Ben Brancel — will proceed.     
    McGlone used to sell Kerrygold butter, which is made in Ireland from grass-fed cows, while the other plaintiffs, including Nicole Batzel of Cedar Grove, want to be able to buy it.
    Kerrygold is sold in other states but Wisconsin prohibits the sale of Irish butter made from grassfed cows, and other brands of European butter, because it has not been graded according to state criteria.
    The law states a brand of butter may only be sold in Wisconsin if it has been graded by a state-licensed taster based on 35 characteristics that relate to flavor, appearance, aroma and texture. The statute makes no mention of the consumer’s safety or health.   
    The plaintiffs are represented by the Wisconsin Institute for Law & Liberty (WILL), a conservative legal group that argues Wisconsin’s butter law violates three elements of the state constitution:  due process, equal protection and guarantees of freedom of speech.
    The defense’s motion did not address the freedom-of-speech claim.
    Rick Esenberg, director of WILL, argued during Tuesday’s hearing that the butter law limits the options of butter sales based on the subjective criteria such as taste.
    “In this case, it seems appropriate to ask ourselves whether or not this law conveys any useful information at all. The state concedes it does not serve any safety interest and it doesn’t serve any health interest,” Esenberg said. “Why is it rational to assume that a state grader whose qualifications and training we do not know and these 35 vague and subjective criteria distilled down to a single letter grade will convey anything of value or interest to consumers.”    
    Wisconsin Assistant Attorney General Katherine Spitz, who is representing the state, said, “The law tells consumers it’s butter and it also tells them what kind of butter they are getting for their money.”
    In May, the defense filed a motion to dismiss two of the three claims brought by the plaintiffs. WILL filed a brief opposing the motion in July.

Last Updated on Wednesday, 16 August 2017 18:37
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