Jean Smith is kind of modern day bootlegger, but she doesn’t smuggle liquor—she moves butter.
Routinely crammed in her car is a stockpile of butter imported from Ireland. Whenever Smith leaves her home in Waukesha, Wisconsin, to visit relatives out of state, she’ll stop in Nebraska to load up on blocks of Kerrygold butter, which is banned in the state that calls itself, “America’s Dairyland.”
“Ms. Smith brings back as much Kerrygold butter with her when she visits family in Nebraska,” said a civil lawsuit she and three other butter-lovers filed against Wisconsin in a state court last month. “She keeps large amounts of the butter in her home refrigerator in the hopes that she will have enough to last her until her next out-state trip.”
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Kerrygold says the “winds, rain and warming influence of the Gulf Stream all contribute to the lush grass” where the Ireland-based company’s happy cows graze before they’re milked to create butter that’s “silky and creamy and glow a healthy, golden yellow.”
It may be specially crafted but the product is what’s called “ungraded butter,” which doesn’t carry the familiar USDA stamp of approval or in this case a Wisconsin grade. The state is the only one in the U.S. to declare it “unlawful to sell, offer or expose for sale, or have in possession with intent to sell, any butter at retail unless it has been graded.”
Smith’s lawsuit is the first of three dealing with the butter law this year. In one federal lawsuit, Kerrygold accuses a competitor of trademark infringement for selling “Irishgold” butter. In another federal lawsuit, a small ungraded artisanal butter company called Minerva claims its butter is getting cut out of the Wisconsin market over an outdated technicality.
The 1953 law was rarely enforced until now, maybe because the grading process is grueling.
A grader has to assess in sequential steps the “flavor and aroma, body and texture, color, salt, package and by the use of other tests or procedures approved by the department for ascertaining the quality of butter in whole or part,” according to the state’s website on the matter.
Passable butter must “cut clean… be spreadable” and be “attractive in appearance” (“show no free moisture droplets”). Good butter’s color must not become “uneven (mottled or streaked).”
Butter is “organoleptically determined by taste and smell” and a grader assessing a butter’s taste is expected to rely on 18 flavor characteristics; they include “acidic,” “scorched,” “malty,” or “musty,” among others.
It must also pass eight different “body characteristics” to determine if it’s too crumbly or lacks plasticity, four different “color characteristics,” and two different salt tests to prevent “gritty” butter “characterized by sand-like feel of grains of undissolved salt on the tongue or between the teeth when the butter is chewed.”
“Highly pleasing” butter that has “desirable flavor” earns Grade AA, or a 93 score, as a 1953 flyer by the Wisconsin Farm Bureau Federation explained. Just a few points down at 89, butter is Grade C if it “has defects in body, color and salt.” Anything below C, “is so poor in quality that there is no excuse for its production in Wisconsin.”
Kerrygold seems to have the opposite problem: It’s too high in quality.
Clint Woodman, president of Woodman’s Markets, told The Daily Beast customers pleaded with him to carry the Irish butter in his 13 stores Wisconsin-based stores, despite the law.
Only, stocking the stuff was illegal.
Because Kerrygold butter wasn’t playing by the state’s butter rules, Woodman refused to budge.
“We’d love to sell Kerrygold but we told them, ‘No,’” Woodman said. “A lot of people and customers were saying [they wanted] it and retailers that were following the rules were upset,” he said.
So he joined other people in the state to air their complaints to DATCP and get them to enforce the law, Woodman said.
“I just think it’s a little goofy that this exists and I can get it in any other state that I travel in and I’m hauling Kerrygold back in my suitcase and my coolers,” Smith told TMJ4 in February.
In her lawsuit that also names Slow Pokes Local Foods as a plaintiff, the law is called “anticompetitive, arbitrary, and irrational government regulation” that is creating a “butter black market” where dairy lovers must act like outlaws and are forced to pay premium prices.
“Protectionist laws like this cause confusion in the marketplace,” their attorney Jake Curtis said in an interview, claiming his clients suffered financially after obeying the statute which he deems unconstitutional. “The law has historically been unevenly applied, with complaints often being generated by other retailers. Wisconsin certainly doesn’t have the resources to have DATCP stormtroopers in every supermarket.”
What followed next was a kind of bitter butter love triangle.
Last September, Kerrygold, attempted to go about getting their butter Wisconsin-certified. They partnered with Sheboygan-based Weyauwega Cheese to have their butter graded and distributed.
Kerrygold’s parent company Ornua said in a federal lawsuit filed this month against Weyauwega’s affiliate Old World Creamery that it had shipped 40,000 pounds of Kerrygold to Old World. Then, the lawsuit claims, Old World turned around and partnered with another Irish producer, Waterford Butter, to package their butter and sell it as Kerrygold knockoffs in Wisconsin.
Irishgold’s packaging depicted “black and white dairy cattle grazing in a field of grass,” according to Oruna’s lawsuit, “just as packaging for Kerrygold butter features a black and white dairy cow grazing in a field of grass.” Ornua alleges this was part of “deliberate attempts to trade off the good will and strong reputation of Ornua’s Kerrygold’s mark in violation of Ornua’s rights under federal and state law.”
In a court brief opposing the motion for a restraining order, Old World Creamery said they “should have their chance to respond with facts and law that will demonstrate the Irishgold mark does not infringe and Ornua.”
Meanwhile, federal judge J.P. Stadtmueller issued a temporary restraining order against Old World Creamery last week to quit selling Irishgold branded-butter at Woodman’s Market. Stadtmueller said the Ornua would “suffer irreparable harm” if Old World Creamery continued to use “the Irishgold mark and associated packaging.”
Old World Creamery said in the opposing court brief it “would have to pay its retailers to remove Irishgold butter from store shelves and this cost could be approximately $20,000.” The judge said the butter could be donated but not sold, according to Milwaukee Business News.
“We sold it for a week,” Woodman admitted, but didn’t know the sum of the many Irishgold butter purchases that were made. “I don’t have any figures. I haven’t looked at numbers.”
Much of the fuss over butter stems from the 1953 statute that began to be enforced again in January.
That’s when Minerva, a small mom and pop dairy staple in the state, said it received emails warnings from DATCP.
“If further regulatory action is warranted, we will not hesitate to move forward. It is in your company’s best interest to have any and all ungraded butter removed from retail in Wisconsin retail outlets immediately,” according to Minerva’s lawsuit, which includes the email exchange as an exhibit.
The company then received a formal “warning letter” that relied on an “anonymous complaint” to open an investigation to expose the company for failing to “bear a Wisconsin or USDA grade label” when retailing its butter.
And Minerva dug in and sued.
In their complaint filed last week in federal court, they name two DATCP officials and the attorney general as defendants for using the “antiquated statute” to muscle the Amish-churned buttermakers out of Wisconsin.
DATCP and the attorney general’s office declined to comment on “pending litigation,” but the AG did suggest the vintage statute might be getting a fresh look.
“There is some indication of legislative interest in addressing this issue,” a spokesperson told The Daily Beast.
Meantime, Minerva is trying to reverse its ban and calls out state officials for mistakenly assuming graded butter is better than ungraded butter.
“America’s oldest family owned dairy” stretches back five generations to 1894 in Wisconsin. In a YouTube video the company’s president claims Wisconsin it’s not fair to be judged by the same standards as big creameries.
“The butter has to meet the quality standards of commodity butter and that’s a problem for us because we are not commodity butter,” Adam Mueller said. “We are an artisanal butter that has a higher butterfat, different salt, different types of texture, different types of flavor profiles.”
For Mueller, it’s a badge of honor to avoid the butter grading system.
“I don’t want to pass the commodity standards because I am above the commodity standards.”
Minerva also goes about producing its logs of butter or cheese by sourcing their milk from small family farms.
One of them is Herron Jersey Farm in Salem, Ohio, where three generations of dairy farmers have supplied Minerva. Today they ship 13,000 pounds of milk every other day to be made into Minerva butter logs or cheese.
Their 130 jersey milk cows (the breed produces more butterfat) are all named Eleanor because for his dad, “It was real easy to remember.”
They not only produce but also consume.
“We drink the raw milk and everything,” dairy farmer Tim Herron told The Daily Beast. “We genuinely strive to have the best quality product.
“We get paid on quality not quantity here,” he said.
That means milk with low bacteria and a low somatic cell count, which shows how stressed the cow might be.
In its civil complaint Minerva states it’s unable to afford alternatives like summoning a USDA-certified official (the nearest one would be in Chicago) to its site to “independently grade” each and every small batch of slow-churned butter.
“Unlike large commodity butters [Minerva] butter is produced in separate batches every two hours, totaling 14 to 18 batches of butter per day.”
Mueller’s attorney Joshua Thompson is pushing a federal judge in the case to chuck the statute.
“We’re asking the court to say this law is unconstitutional and prevent Wisconsin from ever enforcing it,” he said. “As soon as the court declares it unconstitutional and issues an injunction, Minerva will be back in Wisconsin stores.”
This artisanal butter ban, the lawsuit adds, threatens Minerva’s family business “with fines and jail time if they were to continue to sell butter in Wisconsin without first obtaining a Wisconsin or United States grade.”
The very reason for the ban, Minerva concludes in its lawsuit, isn’t to achieve butter greatness, but a way for Wisconsin to push their protectionist aims.
“Wisconsin’s artisanal butter ban serves only the goal of protecting Wisconsin business from economic competition.”
