BELOVED AMERICAN CHEF Julia Child learned to cook in France, where butter is indispensable. When she taught her recipes to American audiences in the 1960s, she had a favorite mantra: “With enough butter, anything is good.”
Indeed, whether it’s being spread on a fresh-out-of-the-oven dinner roll or baked into your mother’s famous chocolate chip cookies, butter is the backbone of American home cooking.
If these arduous rules were in place as a means of keeping consumers safe, that would be one thing. But safety has nothing to do with it.
And the American butter market is rich in variety—from Vermont’s Cabot Creamery to Georgia’s Banner Butter.
But in one state, butter bureaucrats and their absurd regulations make it difficult for the butter of your choice to make it onto your table.
Wisconsin is widely recognized as the dairy capital of the world. Nicknamed “America’s Dairyland,” the state lures tourists from all over to sample its one-of-a-kind cheese curds, beer cheese soup, and custard.
Yet, instead of allowing these delicious products to speak for themselves in the robust dairy marketplace, Wisconsin officials have gone to extreme lengths to protect in-state brands from out-of-state competition, placing a specific target on the butter industry.
Competition is an essential feature of a free economy. Not only does brand competition give consumers access to a wide variety of goods and services from which to choose, but it also challenges each company to strive for perfection and capitalize on the unique qualities that set it apart from others.
But the Wisconsin dairy industry doesn’t care to compete with “outside” dairies—as Minerva Dairy learned the hard way several years ago.
MINERVA DAIRY—located in the small town of Minerva, Ohio—is America’s oldest family-owned cheese and butter dairy. Since 1935, it has been churning out artisanal Amish butter. “Our delightful 85% butterfat butter is richer, creamier, and more flavorful than anything you’ve had before,” the company promises. In addition to its popular sea salt and unsalted varieties, Minerva also offers specialty butters like lemon poppy seed butter, pumpkin spice butter, and smoked maplewood butter.
Brother and sister Adam Mueller and Venae Watts (née Mueller) are the fifth generation in their family to make butter. Their great-greatgrandfather Max Radloff started making butter and cheese in the 1890s in—ironically—Wisconsin. Minerva Dairy was founded two generations later by Adam and Venae’s star-crossed grandparents, Lorraine Radloff and Delbert Mueller, who were born into competing dairy families. The Radloffs and Muellers had such competitive animosity between them that the Muellers were rumored to have set the Radloffs’ facilities on fire. It’s no surprise, then, that when Lorraine and Delbert got married, they moved to Minerva, Ohio, for a fresh start.
Adam Mueller has been Minerva’s president since 2010 and takes pride in his work. While Minerva Dairy started humbly, Adam has been able to expand the business by selling products online, as well as working with regional distributors to sell in other states.
He had never encountered any problems working across state lines—that is, until he tried to get Minerva butter on Wisconsin store shelves.
In the 1950s, Wisconsin policymakers implemented laws that forced dairies to jump through costly and burdensome hoops before being allowed to sell within the state. The specifics of the law are ridiculous, to say the least.
To obtain the proper licenses needed to sell butter within the country, the United States Department of Agriculture (USDA) requires dairies to make their products in approved facilities. If interested, companies can also choose to have their butter taste-tested, or what it calls “graded,” but this process is not required by the federal government and is used solely as a marketing tool for bigger brands that can afford to pay to participate. These federal rules are not enough for Wisconsin.
Wisconsin demands that all out-of-state dairies pay to have each batch of butter independently taste-tested.
For Minerva, which produces small batches of slow-churned butter 14 to 18 times a day, this is an extremely burdensome process, and it’s a poor fit to the company’s model, because Minerva deliberately seeks an artisanal taste that’s different from generic butter.
Even though this is a Wisconsin-specific law, the state does not allow its own butter graders to leave the state. To comply with the law, outside dairies are forced to fly in Chicago-based USDA graders and pay for all their travel costs.
This isn’t a one-time or even an annual procedure, either. The law demands that this process take place weekly.
But the law doesn’t stop there.
After receiving its grade, Minerva would then need to create Wisconsin-specific labels for its butter. But Minerva Dairy sells its products both online and through regional distributors that cover several states. So it cannot easily predetermine which batches of butter might ultimately be sold in Wisconsin, creating yet another logistical difficulty.
If these arduous rules were in place as a means of keeping consumers safe, that would be one thing. But safety has nothing to do with it.
Instead, the process is meant solely to determine the taste quality of each brand based on state-created criteria. Each butter grade is a composite score based on 31 separate butter characteristics, all meant to determine if the butter is “highly pleasing,” “pleasing,” or “fairly pleasing.”
In other words, this entire system is based on where the particular government official doing the testing thinks the butter falls on the pleasing spectrum.
Taste is subjective. What tastes good to me may not taste good to you. Yet this law purports to tell out-of-state butter brands that they may sell their product in Wisconsin only if the flavor comports with state-established taste standards—if it pleases the crown, so to say.
This is as ludicrous as letting the federal government determine what clothing you could wear or what haircut you could have, based on their officials’ preference.
No other state has laws like this. And when Adam Mueller gazed into this sea of red tape, he could scarcely believe it was real.
Wisconsin’s law means that the butter has to meet the quality standards of commodity butter, Adam explained. “That’s a problem for us,” he added, “because we are not a commodity butter.”
WITH SUCH A BURDENSOME and costly process, it should surprise no one that only the biggest out-of-state brands are able to submit themselves to this regulatory procedure without suffering setbacks. The grading process might even make sense for their business models: They want the Wisconsin stamp of approval that says their butter lives up to the taste standards of other butters.
But that is the exact opposite of what Minerva Dairy wants. Their butter isn’t like every other butter: It has a one-of-a-kind flavor that sets it apart from others on the market.
“We are an artisanal butter that has a higher butter fat, different salt contents, different types of texture, different types of flavor profiles,” Adam said. “I don’t want to pass the commodity standards that Wisconsin is enforcing, because I am above the commodity standards. We are able to sell our butter in every other state. Wisconsin is unique in its restrictions, and that is blocking interstate commerce.”
Put simply, this rule exists to benefit one very specific group of people: big butter.
The Constitution’s Commerce Clause protects a national, interstate market and the free exchange of goods. Wisconsin is not allowed to create barriers that unduly interfere with the exchange of goods across states.
Not only is this law unconstitutional, but it also robs dairy farmers like Adam and Venae of their right to earn a living and violates their Fourteenth Amendment rights to due process and equal protection under the law.
IN 2017, MINERVA DAIRY decided to fight back against the law—with Pacific Legal Foundation by the Mueller family’s side.
As PLF attorney Joshua Thompson said at the time, “Wisconsin’s butter-grading mandate scores a failing grade for being unnecessary, unreasonable, and unconstitutional.” He argued that Wisconsin was engaging in illegal economic protectionism. “The proper purpose of economic regulations is to protect public health and safety,” Joshua said. “In contrast, Wisconsin’s grading mandate serves to shield favored businesses, while harming competitors and the general public by restricting consumer choice.”
Anti-competitive laws enacted on behalf of large corporations to crush competition from smaller businesses and artisans have no place in a free market economy. By making it more difficult for small buttermakers to compete, Wisconsin is lowering the variety and quality of butter choices for Wisconsin consumers.
In short, everyone loses except for big dairies.
We wish we could say this was a fight PLF won. The case of Minerva Dairy v. Brancel was an egregious case of government violating a working family’s economic liberty. We were proud to represent Adam and everyone at Minerva Dairy in their fight to defend their rights and their butter business.
But sometimes even a strong case loses in the courts.
A Wisconsin federal court ruled against Minerva Dairy’s claims and upheld the state’s unconstitutional law. The court rejected the Fourteenth Amendment claims by stating that the law is a “rational” way of protecting consumers.
By making it more difficult for small buttermakers to compete, Wisconsin is lowering the variety and quality of butter choices for Wisconsin consumers.
Nothing could be further from the truth: This grading has no discernable value for consumers. Taste is subjective: Some people prefer Kerrygold and others favor Land O’Lakes. Minerva has been churning a uniquely creamy butter since 1935. Generations of Muellers have sold Minerva butter to customers who like its taste. How are customers protected by having government officials grade the butter’s taste? And why should the company pay for that government taste-tester?
Instead of protecting consumers, mandatory grading only drives up costs and places a stamp of inferiority on some perfectly good products. These unnecessary laws also keep small and artisanal buttermakers out of business.
As for the Commerce Clause claims brought up in the lawsuit, the court ruled that a plaintiff must show that the law specifically discriminates against out-of-state commerce, not just show that the law burdens it.
MINERVA DAIRY IS THE KIND of business you want to see succeed in America. They’re a creative, fun, family company rich with history—and they make incredible butter. When Adam and Venae were kids, they got rolls of butter in their Christmas stockings and ate butter sandwiches after school. Now they each have families and are raising 12 kids between them—kids they hope will continue the traditions of Minerva and become the sixth generation of buttermakers in the family.
This is a family that knows its butter—and they’ll keep on making butter the way they always have, despite Wisconsin regulators’ attempts to inhibit economic liberty and restrict consumer choice.
Likewise, PLF continues to fight for economic liberty in cases where entrepreneurs face burdensome laws and regulations. We’ve referred back to the case of Minerva Dairy in recent filings—because even when we don’t win a case, our clients’ stories advance the cause of liberty.
OATMEAL LACE COOKIES
Mrs. Fields calls oatmeal lace cookies “the church of cookies” because they look like stained glass windows. This recipe will make a lot of cookies—so use it when you’re gathering together with friends or family. Nothing is better to share with loved ones than a tray of crisp, buttery cookies.
To make your cookies: Preheat oven to 375 degrees. Line your baking sheet with parchment paper. In a saucepan over medium heat, heat butter and brown sugar. Stir until butter is melted and the mixture is smooth. Stir in oats, egg, flour, salt, and vanilla extract, then remove from heat. Use a teaspoon to drop balls of cookie batter onto your prepared baking sheet, leaving two inches of space between cookies. Bake for 5-7 minutes, until golden brown.
2 sticks (or 16 tbsp) butter
2 ¼ cups light brown sugar
2 ¼ cups rolled oats (not instant)
3 tbsp flour
1 tsp salt
1 egg lightly beaten
1 tsp vanilla extract
