Minerva Dairy, Inc. v. Harsdorf

905 F.3d 1047
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 3, 2018
DocketNo. 18-1520
StatusPublished
Cited by27 cases

This text of 905 F.3d 1047 (Minerva Dairy, Inc. v. Harsdorf) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Minerva Dairy, Inc. v. Harsdorf, 905 F.3d 1047 (7th Cir. 2018).

Opinion

Flaum, Circuit Judge.

Minerva Dairy is an Ohio-based, family-owned dairy company that produces, among other products, Amish-style butters in small, slow-churned batches using fresh milk supplied by pasture-raised cows. Minerva challenges Wisconsin's butter-grading requirement as a violation of the Due Process Clause, the Equal Protection Clause, and the dormant Commerce Clause. The district court granted summary judgment to the state defendants, holding that the Wisconsin statute is rationally related to the state's legitimate interest in consumer protection and does not discriminate against out-of-state businesses. We agree with the district court's analysis and, therefore, we affirm the judgment.

I. Background1

A. Wisconsin's Butter Grading Law

Under Wisconsin law, "[i]t is unlawful to sell ... any butter at retail unless it has *1051been graded." Wis. Stat. § 97.176(1). In addition, "[n]o person shall sell ... any butter at retail unless its label bears a statement of the grade." Wis. Admin. Code ATCP § 85.06(2). To satisfy this requirement, the butter may be graded by either a Wisconsin-licensed butter grader or, alternatively, by the United States Department of Agriculture ("USDA").2 Wis. Stat. § 97.176(2) ; Wis. Admin. Code ATCP § 85.06(5). This grading requirement applies to butter manufactured both in-state and out-of-state. Wis. Stat. § 97.176(5).

Wisconsin recognizes four grades of butter: Grade AA ("fine and highly pleasing butter flavor"); Grade A ("pleasing and desirable butter flavor"); Grade B ("fairly pleasing butter flavor"); and "Wisconsin Undergrade Butter" (any butter that "fails to meet the requirements for Wisconsin Grade B"). Wis. Admin. Code ATCP § 85.03.3 The butter grade is based on an "examination for flavor and aroma, body and texture, color, salt, [and] package" according to "tests or procedures approved by" the Department of Agriculture, Trade, and Consumer Protection ("the Department"). Wis. Stat. § 97.176(3). Specifically, butter is graded on eighteen "[f]lavor characteristics," eight "[b]ody characteristics," four "[c]olor characteristics," and two "salt characteristics." Wis. Admin. Code ATCP § 85.04(1). The Department further qualifies all of these characteristics by "intensity"-"[s]light," "[d]efinite," or "[p]ronounced." Id. § 85.04(2). To grade a batch of butter, a tester tastes a "representative butter sample" and identifies "[e]ach applicable flavor characteristic" and its "relative intensity." Id. § 85.02(1). This results in a "preliminary letter grade," which can be reduced if there are defects in the "body, color and salt characteristics." Id. § 85.02(1)-(3); see also id. § 85.05. There is an appeal process for producers who dispute the grade a batch of butter receives. See id. § 85.08.

To become a licensed butter-grader in Wisconsin, one must apply to the Department and pay a $75 fee. Wis. Admin. Code ATCP § 85.07. On the application form, the applicant must "nam[e] the location where the grading is to be done." Id. § 85.07(1). The applicant must then take the butter-grading exam at either the Department, the University of Wisconsin, or a prearranged butter-making facility in Wisconsin. The exam includes a written test covering applicable Wisconsin law and the butter-making process. In addition, the applicant must grade butter in front of the Department's licensed grader. Although formal education or experience is not required to take the exam, most applicants have some previous experience at a butter plant or facility. Some applicants prepare for the exam by taking a short course offered by the Center for Dairy Research at the University of Wisconsin. Approximately ninety percent of applicants pass the butter-grading exam. The license is renewable every two years upon payment of the $75 fee. Id. § 85.07(2).

On its face, the statute does not prohibit out-of-state individuals from applying to become Wisconsin-licensed butter-graders. See Wis. Stat. § 97.175(2) ("A person desiring a license shall apply ..."). In fact, there are currently twelve Wisconsin-licensed butter graders who work either in Wisconsin, at an out-of-state facility, or *1052both.4 However, plaintiffs allege that, prior to the filing of this lawsuit in April 2017, the Department did not allow Wisconsin-licensed graders to grade butter at out-of-state facilities. To support this assertion, plaintiffs' counsel submitted two declarations in which counsel states that she called the Department in March 2017 to inquire whether Wisconsin-licensed graders could grade butter at out-of-state facilities.

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905 F.3d 1047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minerva-dairy-inc-v-harsdorf-ca7-2018.