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. Background
A. Wisconsin's Butter Grading Law
Under Wisconsin law, "[i]t is unlawful to sell ... any butter at retail unless it has *1051been graded."
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").
To become a licensed butter-grader in Wisconsin, one must apply to the Department and pay a $75 fee.
On its face, the statute does not prohibit out-of-state individuals from applying to become Wisconsin-licensed butter-graders. See
In this litigation, Peter Haase, director of the Department's Bureau of Food and Recreational Businesses, testified that to his knowledge there had been no out-of-state butter graders prior to 2017. When asked whether there was a Department policy that prohibited out-of-state butter graders from being licensed in Wisconsin, Haase testified that there was not a "written policy" to that effect. When asked whether there was an "unwritten policy," Haase answered: "I can't speak definitively to what may or may not have been allowed prior to my tenure as bureau director, but I would have to agree that prior to 2017 there may have been a nonwritten understanding that individuals outside of Wisconsin could not hold a Wisconsin butter-graders license." When asked why the Department had that understanding, Haase said, "It's my understanding that clear interpretation of statute or administrative rule didn't prohibit it nor allow it." Haase later filed a declaration in which he explained that, after the filing of this lawsuit, Department officials "confirmed the butter grading law allowed both in-state and out-of-state butter makers to become licensed Wisconsin butter graders and could grade butter in any location, so long as that location was identified on the application and license."
B. Factual and Procedural Background
Adam Mueller is the president of Minerva Dairy, a family-owned dairy company located in Minerva, Ohio. Among other products, Minerva Dairy produces Amish-style butters in small, slow-churned batches using fresh milk supplied by pasture-raised cows. Minerva Dairy does not pay to have its butter graded under the voluntary USDA grading system and has never had its butter graded by a Wisconsin-licensed butter grader. Minerva Dairy has sold its artisanal butter to consumers in every state, including Wisconsin. However, in early 2017 the Department received an anonymous complaint about ungraded Minerva Dairy butter being sold at a retail store called Stinebrink's Lake Geneva Foods. After verifying the complaint, the Department sent Minerva Dairy a warning letter on February 28, 2017. As a result, the company stopped selling its butter at retail stores in Wisconsin.
Mueller and Minerva (collectively, "Minerva" or "plaintiffs") sued several Department officials under
The parties filed cross-motions for summary judgment on Minerva's three claims. The district court denied Minerva's motion and granted summary judgment in favor of the Department. In doing so, the court ruled that Wisconsin's butter-grading law did not violate the Due Process Clause or the Equal Protection Clause because it is rationally related to the state's legitimate interest in consumer protection. The court further held that the statute did not violate the dormant Commerce Clause because it did not discriminate against out-of-state businesses.
II. Discussion
"We review a grant of summary judgment de novo , and examine the record and all reasonable inferences in the light most favorable to the non-moving party." Spurling v. C & M Fine Pack, Inc. ,
A. Wisconsin's Butter-Grading Law Does Not Violate the Due Process Clause
The Fourteenth Amendment prohibits the state from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. One component of substantive due process is the right to earn a living free from "unreasonable governmental interference." Greene v. McElroy ,
Here, Wisconsin's butter-grading statute is rationally related to at least two conceivable state interests. First, as the district court explained, "[t]he state could believe that required butter grading would result in better informed butter consumers" and allow consumers to "purchase butter with confidence in its quality." Courts have routinely held that consumer protection is a legitimate state interest. See, e.g. , SPGGC, LLC v. Blumenthal ,
Second, and relatedly, Wisconsin's mandatory butter-grading scheme is rationally related to the state's legitimate interest in promoting commerce. On this point, the "historical pedigree" behind Wisconsin's butter-grading law is "telling." See
Similarly, Wisconsin also had its own voluntary grading system, but it proved ineffective because many producers of low-quality butter simply skipped grading and went straight to market. See Wis. Farm Bureau Fed'n, A Butter Grading Law: Yes or No (1953)
In this way, the butter-grading requirement is rationally related to the state's legitimate interest in "protect[ing] the integrity of interstate products so as not to depress the demand for goods that must travel across state lines."
*1055United States v. 40 Cases, More or Less of Pinocchio Brand 75% Corn, Peanut Oil & Soya Bean Oil Blended with 25% Pure Olive Oil ,
Minerva counters that, even if these are legitimate state interests, the butter-grading law is not rationally related to these interests because consumers do not understand what the butter grade means. To support this assertion, Minerva points out that state administrative officials who are familiar with the grading system could not even describe some of the butter characteristics used in the grading process during their depositions. Minerva further argues that, even if consumers understand the different butter characteristics, the grade would not convey information about any particular characteristic because it is expressed as a composite score. Finally, Minerva contends that, even if consumers understand the grade, they might disagree with the grader's "subjective" taste preferences. According to Minerva, the district court failed to adequately engage this evidence in the record to determine whether the law actually furthers the government's stated purpose.
These arguments fail for two reasons. First and foremost, on rational-basis review "[the state] does not need to present actual evidence to support its proffered rationale for the law, which can be 'based on rational speculation unsupported by evidence or empirical data.' " Monarch ,
Second, even if the state were required to present actual evidence to support its rationale, Wisconsin's butter-grading statute would still survive rational-basis review. The state has presented some evidence that (1) the industry standards reflect dominant consumer preferences, and (2) the butter-grade statute effectively conveys those preferences. One of the Department's experts, Steve Ingham, testified that, as compared to other products like cheese, "the range of widely accepted characteristics" is "considerably narrower for butter." In particular, he explained that, based on "knowledge or tradition or habit," consumers generally expect "that the word 'butter' means a sweet cream AA grade butter." See also Know Your Butter Grades , supra ("[T]he grade terms describe certain well-defined characteristics that are important to the consumer in buying butter."). Perhaps for this reason, higher-grade butter has traditionally sold better than lower-grade butter. See id. ("[T]op grades frequently command a higher price."). Moreover, although Wisconsin's butter grade is reflected as a composite score, some scholars have concluded that "brief, simple, easy disclosures" that "us[e] symbols instead of sentences" can effectively convey information to consumers. See Omri Ben-Shahar & Carl E.
*1056Schneider, The Failure of Mandated Disclosure ,
B. Wisconsin's Butter-Grading Law Does Not Violate the Equal Protection Clause
Like the Due Process Clause, the Equal Protection Clause "allows states great latitude in regulating the economy, provided the decision is not wacky." Saukstelis v. City of Chicago ,
Plaintiffs contend that Wisconsin's butter-grading statute violates the Equal Protection Clause in two ways. First, they claim that there is no rational reason for the state to treat graded and ungraded butters differently. On this point, plaintiffs raise many of the same arguments they raised with respect to their substantive due process claim. For example, they argue that there is no consumer-protection rationale for the disparate treatment because the butter-grading process is subjective and consumers do not understand what the grades mean. We have already rejected that argument for the reasons outlined supra . In addition, plaintiffs argue that there is no market-based reason for the disparate treatment because "there's no evidence that the butter trade would suffer without grading." As explained supra , the state need not present such evidence under rational-basis review; rather, the burden is on plaintiffs to present evidence that negates every conceivable basis for the statute. In any event, the historical background strongly suggests that the statute is rationally related to the state's legitimate interest in stimulating demand and protecting Wisconsin's national reputation in the butter industry.
Second, plaintiffs claim that the law irrationally discriminates between butter and other similarly situated commodities. Although the Department requires mandatory grading for butter, it makes grading for several other commodities-including cheese, honey, and maple syrup-voluntary. See
*1057(allowing the sale of ungraded maple syrup). As a result, plaintiffs argue that if Wisconsin's true goal is to inform consumers and promote commerce, the state's regulatory scheme is underinclusive. However, the Department presented at least some evidence that butter is materially different than other commodities, thus warranting different treatment. For example, a Department official testified that personal butter preferences are less diverse and idiosyncratic than cheese, which suggests that objective grading is possible for butter but not for cheese. In addition, plaintiffs have not presented any evidence that other commodities were historically graded in the same way as butter to promote commerce. Moreover, even if mandatory grading of cheese, honey, and maple syrup would similarly advance consumer protection and promote commerce, "[t]he Equal Protection Clause allows the State to regulate 'one step at a time, addressing itself to the phase of the problem which seems most acute.' " Clements v. Fashing ,
Plaintiffs rely heavily on the Supreme Court's decision in City of Cleburne, Texas v. Cleburne Living Center ,
City of Cleburne is inapplicable here. For starters, we have cautioned against *1058overly-broad readings of that case. See, e.g., Monarch ,
If a law is challenged as a denial of equal protection, and all that the government can come up with in defense of the law is that the people who are hurt by it happen to be irrationally hated or irrationally feared by a majority of voters, it is difficult to argue that the law is rational if "rational" in this setting is to mean anything more than democratic preference.
Milner v. Apfel ,
For all these reasons, plaintiffs' equal protection claim fails.
C. Wisconsin's Butter-Grading Law Does Not Violate the Dormant Commerce Clause
The Commerce Clause grants Congress the authority "[t]o regulate Commerce ... among the several States." U.S. CONST. art. I, § 8, cl. 3. Because the framers gave the federal government the exclusive power to regulate interstate commerce, and because federal law preempts state law, the Supreme Court has inferred the existence of a "dormant" Commerce Clause that limits states' abilities to restrict interstate commerce. See New Energy Co. of Ind. v. Limbach ,
For purposes of dormant Commerce Clause analysis, we consider state laws in three categories. Park Pet Shop, Inc. v. City of Chicago ,
Importantly, the dormant Commerce Clause "does not apply to every state and local law that affects interstate commerce," but rather "only to laws that *1059discriminate against interstate commerce, either expressly or in practical effect." Id. at 501. If the state law "affect[s] commerce without any real-location among jurisdictions" and "do[es] not give local firms any competitive advantage over those located elsewhere," we apply "the normal rational-basis standard." Id. at 502 (quoting Nat'l Paint ,
Wisconsin's butter-grading statute does not expressly discriminate against interstate commerce. The labeling requirement applies to all producers, whether they reside in-state or out-of-state. See
Nor does the statute have a discriminatory effect on interstate commerce. At the outset, it is important to note that many of Minerva's complaints about the law are not specific to out-of-state butter makers and are therefore irrelevant under dormant Commerce Clause analysis. For example, Minerva argues that the butter-grading requirement damages the brand equity of artisanal butter-makers who do not want to be associated with other commodity butters. But the statute affects all artisanal butter-makers in that respect, regardless of whether they reside in Wisconsin or out-of-state. In addition, Minerva complains that employing a permanent Wisconsin-licensed butter grader is "cost-prohibitive for artisanal butter makers like Minerva Dairy." Again, though, both in-state and out-of-state artisanal butter-makers must bear the cost of employing a Wisconsin-licensed butter grader if they want to sell their butter at retail in Wisconsin.
Minerva's best argument is that the statute imposes a disparate cost on out-of-state individuals who apply to become Wisconsin-licensed butter graders. After all, out-of-state applicants must travel to Wisconsin to take the required examination, whereas in-state applicants do not have to travel outside the state. However, we recently *1060rejected a similar argument in Park Pet Shop . There, the plaintiffs challenged the Chicago "puppy mill" ordinance, which prohibits pet stores in the city from selling pets that were obtained through commercial breeders.
Finally, Minerva asks the Court to declare that the Department's pre-April 2017 enforcement of the butter-grading law was unconstitutional. Again, Minerva claims that, prior to the filing of this lawsuit, the Department would not allow Wisconsin-licensed graders to grade butter at out-of-state facilities. The district court held that Minerva waived this argument because it "did not adduce any evidence or make any argument concerning the pre-April 2017 understanding." As evidence that such a policy existed, Minerva pointed to Department official Peter Haase's deposition testimony. When asked about whether there was an "unwritten policy" with respect to out-of-state butter graders prior to 2017, Haase responded: "I can't speak definitively to what may or may not have been allowed prior to my tenure as bureau director, but I would have to agree that prior to 2017 there may have been a nonwritten understanding that individuals outside of Wisconsin could not hold a Wisconsin butter-graders license." Given his claimed lack of knowledge about policies in place before his tenure and his use of the word "may," however, Haase's deposition testimony cannot fairly be read as an admission that such a policy existed.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
The following facts are undisputed except where otherwise noted.
The USDA offers a butter-grading service to dairy product manufacturing plants for a price.
Wisconsin's butter-grading standards are materially identical to the USDA's butter-grading standards. See Agricultural Marketing Service, USDA, United States Standards for Grades of Butter (1989), https://www.ams.usda.gov/sites/default/files/media/Butter_Standard%5B1%5D.pdf.
See Wisconsin Department of Agriculture, Trade and Consumer Protection, Buttermaker License Holders, available at https://mydatcp.wi.gov/Home/ServiceDetails/8474e17b-fba1-e711-8100-0050568c4f26?Key=Services_Group (last visited Oct. 2, 2018).
This brochure can be found at ECF No. 28-1 on the district court's docket.
Minerva also contends that, even if the butter-grading law is rational on its face, it is not rational as applied to Minerva. This is so, Minerva argues, because it produces "artisanal butter that is not intended to taste, look, or feel like commodity butter." In other words, Minerva claims that Wisconsin's butter-grading law is irrational because it damages Minerva's brand equity. However, even if legislative classifications "incidentally affect adversely the market value of some of the [product] in question," that does not somehow render the law irrational. Clark ,
Alternatively, butter makers may comply with Wisconsin's butter-grading requirement by using the USDA's voluntary grading process. Minerva complains that this is too expensive.
Indeed, in its reply brief Minerva concedes that "[b]ecause a hypothetical artisanal butter maker located in Wisconsin would face similar costs to Minerva Dairy, it is not clear that the law disparately affects out-of-state businesses as required by this Court's precedent."
In its summary judgment motion, Minerva also pointed to declarations its counsel submitted with its preliminary injunction briefing regarding counsel's conversation with Mike Pederson, a food sanitarian-grader for the Department. Plaintiffs' counsel declared that Pederson advised her on a phone call prior to the filing of this lawsuit that the Department does not allow Wisconsin-licensed graders to grade butter at out-of-state facilities. Pedersen responded in his own declaration that he misunderstood counsel's question to be whether the Department permitted its butter graders to travel out of state to grade butter at out-of-state facilities. He clarified that while the Department does not send the graders it employs out of state, the Department allows Wisconsin-licensed butter graders to be employed out of state and that such a grader could grade Minerva's butter under Wisconsin's requirements. Minerva did not directly ask Pederson about this issue in his deposition, which occurred subsequent to these declarations, but Pederson testified consistently with his declaration that state law prevented him from visiting out-of-state butter plants. Thus, this evidence also fails to establish that, prior to this lawsuit, the Department had an unwritten policy of preventing Wisconsin-licensed butter graders from grading out-of-state butter.