Wisconsin is well known as the Dairy State, and — as demonstrated by Green Bay Packer fans wearing foam-cheese wedges as hats — its citizens are justly proud of that moniker. But when government takes a good thing like dairy prowess and tries to make it mandatory, the result is not pretty. Recently the Wisconsin Institute for Law and Liberty sued the state of Wisconsin to win “butter freedom” for the state’s consumers and retailers.
At issue is the freedom of Wisconsin retailers and consumers to sell and purchase butters that do not include a butter grade as determined by a licensed butter taste tester. The grade has nothing to do with the health and safety or even nutritional value of the butter. It is nothing but a compulsory government “taste test.” Unless a butter is submitted to the taste testers and labeled with the result, retailers can’t sell it in the state.
Apart from the obnoxious notion that Wisconsin consumers must be told by the government whether a food “tastes good,” the law has prevented Wisconsin grocers from selling certain butters — most notably those produced internationally that cannot be readily graded. The most prominent example is the popular Kerrygold butter, made in Ireland. Kerrygold claims to produce a “silky and creamy” butter with a “healthy, golden yellow” glow.
One might think that Wisconsin consumers and retailers are more than capable of deciding how “silky” and “golden yellow” Kerrygold butter really is. But they won’t get a chance unless a bureaucrat gets to try it first and stamp his opinion on the package. As a result, our clients and other Wisconsinites have been forced to travel to other states — often to Illinois — on “Kerrygold runs” in search of the creamy contraband. This isn’t new to Wisconsin. In the mid 20th century, its citizens made “oleo” runs to Illinois because state law prohibited the sale of margarine colored yellow.
Our lawsuit — aided by the preternatural silliness of the law and the fact that it was announced on St. Patrick’s Day — has resulted in a significant amount of attention and generated a bit of fun. We’re happy go along and acknowledge that butter freedom may not be the most pressing civil-rights issue of our time. But economic liberty is. When the state erects artificial barriers to the entry of goods and services, businesses and consumers bear the ultimate burden. In the most extreme examples, individuals are prevented from earning a living, and consumers are prohibited from obtaining the most competitive prices for goods and services.
We acknowledge that the state must have room to enact economic regulations. But when the government restricts the freedom to engage in otherwise lawful businesses or transactions — particularly when it compels the communication of a message such as the result of a government taste test — there must be some meaningful justification for doing so. In addition, that justification cannot be protection of local or otherwise preferred businesses. Our freedoms to work as we wish and to purchase what we want ought not to be completely at the mercy of the government and the special interests that often control it.
We have all the confidence in the world that Wisconsin’s butter producers can compete with the likes of Kerrygold. But the government should not place its thumb — or boot — on the scale. It ought to allow Wisconsin’s citizens to decide — and let them eat butter.
— Rick Esenberg is the president and general counsel of the Wisconsin Institute for Law and Liberty. Jake Curtis is an associate counsel at the Institute’s Center for Competitive Federalism.
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