Chapter 97

97.176 Annotation Wisconsin’s butter-grading law does not violate the due process clause, the equal protection clause, or the dormant commerce clause. This section is rationally related to the state’s legitimate interest in consumer protection and does not discriminate against out-of-state businesses. Minerva Dairy, Inc. v. Harsdorf, 905 F.3d 1047 (2018).

97.177 97.177 Cheese; grading; labeling.

97.177(1) (1) The department shall by rule adopt standards for grades of cheese manufactured in Wisconsin.

97.177(2) (2) Cheese which carries a state grade must be graded by a cheese grader licensed under s. 97.175 and must conform to the standards for the grade. Graded cheese must be plainly labeled to indicate the grade of the cheese and the license number of the cheese grader.

97.177(3) (3) Cheese manufactured in Wisconsin must be labeled on either the cheese itself or the container at the factory where it is manufactured. The label must remain on the cheese until the cheese is used in a different food manufacturing process or relabeled by the buyer for later sale. The label must contain all of the following:

97.177(3)(a) (a) The type or variety of cheese.

97.177(3)(b) (b) The word Wisconsin or the code number 55.

97.177(3)(c) (c) The factory number designated by the department.

97.177(3)(d) (d) The date of manufacture.

97.177(3)(e) (e) The number of the vat in which the cheese was manufactured if more than one vat of cheese was manufactured in the factory on the same day.

97.177(4) (4) The department may adopt rules for the administration of this section.

97.177 History History: 1983 a. 131.

97.177 Cross-reference Cross-reference: See also ch. ATCP 81, Wis. adm. code.

97.18 97.18 Oleomargarine regulations.

97.18(1) (1) 

97.18(1)(a) (a) For the purposes of this section “oleomargarine” or “margarine” includes oleomargarine, margarine, butterine and other similar substances, fats and fat compounds sufficiently adaptable to the ordinary uses of butter, to lead readily to use as an alternative to butter, but this section shall not apply to lard, cream cheese, cheese food compounds, nor to any other dairy product made exclusively of cow’s milk or milk solids with or without added vitamins, if such product is sold or distributed in such manner and form as will clearly distinguish it from butter. Nor shall this section apply to shortenings not churned or emulsified in milk or cream or having a melting point of 112 degrees Fahrenheit or more as determined by the capillary tube method unless there is sold or given away with such shortening any compound which, when mixed with such shortening, makes oleomargarine, butterine or similar substances.

97.18(1)(b) (b) “Colored oleomargarine” or “colored margarine” is oleomargarine or margarine having a tint or shade containing more than 1 6/10 degrees of yellow or of yellow and red collectively but with an excess of yellow over red, as measured in terms of Lovibond tintometer scales or its equivalent.

97.18(3) (3) No person shall sell, offer or expose for sale at retail any oleomargarine or margarine unless:

97.18(3)(a) (a) Such oleomargarine or margarine is packaged;

97.18(3)(b) (b) The net weight of the contents of any package sold in a retail establishment is one pound;

97.18(3)(c) (c) There appears on the label of the package the word “oleomargarine” or “margarine” in type or lettering at least as large as any other type or lettering on the label in a color of print which clearly contrasts with its background, and a full accurate statement of the ingredients contained in the oleomargarine or margarine; and

97.18(3)(d) (d) Each part of the contents of the package is contained in a wrapper or separate container which bears the word “oleomargarine” or “margarine” in type or lettering not smaller than 20-point type.

97.18(4) (4) The serving of colored oleomargarine or margarine at a public eating place as a substitute for table butter is prohibited unless it is ordered by the customer.

97.18(5) (5) The serving of oleomargarine or margarine to students, patients or inmates of any state institutions as a substitute for table butter is prohibited, except that such substitution may be ordered by the institution superintendent when necessary for the health of a specific patient or inmate, if directed by the physician in charge of the patient or inmate.

97.18(6) (6) Any person who violates any provision of this section may be fined not less than $100 nor more than $500 or imprisoned not more than 3 months or both; and for each subsequent offense may be fined not less than $500 nor more than $1,000 or imprisoned in the county jail not less than 6 months nor more than one year.

97.18 History History: 1971 c. 125; 1973 c. 90; 1975 c. 41; 1977 c. 289 ss. 3m, 11; Stats. 1977 s. 97.18; 1995 a. 27 s. 9126 (19); 1995 a. 225; 1997 a. 35; 2007 a. 20 s. 9121 (6) (a); 2013 a. 374; 2015 a. 55, 242.

97.20 97.20 Dairy plants.

97.20(1) (1) Definitions. In this section:

97.20(1)(a) (a) “Dairy plant” means a processing plant, receiving station, or transfer station.

97.20(1)(b) (b) “Dairy product” means any of the following:

97.20(1)(b)1. 1. Milk or any product or by-product derived solely from milk.

97.20(1)(b)2. 2. Hooved or camelid mammals’ milk or any product or by-product derived solely from hooved or camelid mammals’ milk.

97.20(1)(b)3. 3. An item that meets a definition or standard of identity under 21 CFR 131, 133, 135.3 to 135.140, or 184.1979 or under 21 USC 321a or 321c.

97.20(1)(b)4. 4. An item that fails to meet a definition or standard of identity specified in subd. 3. solely because the item contains hooved or camelid mammals’ milk or milk from goats or sheep instead of or in addition to milk from cows.

97.20(1)(b)5. 5. A product that is ready to eat, sell, distribute, or market and that is made solely of 2 or more of the items under subds. 1. to 4.

97.20(1)(c) (c) “Fluid milk product” has the meaning given under s. 97.24 (1) (ar).

97.20(1)(d) (d) “Grade A dairy plant” means a dairy plant required to hold a permit under sub. (3).

97.20(1)(e) (e) “Grade A milk” has the meaning given under s. 97.24 (1) (b).

97.20(1)(f) (f) “Grade A milk product” has the meaning given under s. 97.24 (1) (c).

97.20(1)(fg) (fg) “Hooved or camelid mammal” includes water buffalo, yaks, and other bovine species; camels, llamas, alpacas, and other camelid species; and horses, donkeys, and other equine species.

97.20(1)(fm) (fm) “Hooved or camelid mammals’ milk” means the lacteal secretion, practically free of colostrum, obtained by the complete milking of one or more healthy hooved or camelid mammals.

97.20(1)(gm) (gm) “Milk producer” has the meaning given in s. 97.22 (1) (f).

97.20(1)(h) (h) “Processing plant” means a facility engaged in pasteurizing or manufacturing dairy products, or processing dairy products into other dairy products, for sale or distribution.

97.20(1)(i) (i) “Receiving station” means a facility which is designed for the receipt and bulk storage of milk, and which is used to receive or store milk in bulk. “Receiving station” does not include a processing plant or a facility used to distribute pasteurized milk in bottled or packaged form to consumers.

97.20(1)(j) (j) “Transfer station” means a facility which is designed and used solely to transfer milk from one bulk transport vehicle to another without intervening storage.

97.20(2) (2) Dairy plant license.

97.20(2)(a) (a) License requirement. Except as provided in par. (e), no person, including this state, may operate a dairy plant without a valid license issued by the department for that dairy plant. A dairy plant license expires on April 30 annually, except that a license issued for a new dairy plant on or after January 30 but before May 1 expires on April 30 of the following year. A dairy plant license is not transferable between persons or locations.

97.20(2)(b) (b) License application. An application for a dairy plant license shall be made on a form provided by the department and shall be accompanied by each applicable fee required under subs. (2c) and (2n) to (2w). The application shall include all information reasonably required by the department for purposes of licensing. The application shall state whether the dairy plant is a processing plant, receiving station or transfer station, and shall describe the nature of any processing operations conducted at the dairy plant.

97.20(2)(d) (d) Issuance or renewal of license. The department may not issue or renew a dairy plant license unless all of the following conditions are met prior to licensing:

97.20(2)(d)1. 1. The license applicant pays all fees that are due and payable by the applicant under subs. (2c) to (2w), as set forth in a statement from the department. The department shall refund a fee paid under protest if the department determines that the fee was not due and payable as a condition of licensing under this subsection.

97.20(2)(d)2. 2. The license applicant has filed all financial information required under s. 126.44 and any security required under s. 126.47. If an applicant has not filed all financial information under s. 126.44 and any security required under s. 126.47, the department may issue a conditional dairy plant license under s. 93.06 (8) which prohibits the licensed operator from purchasing milk or fluid milk products from milk producers or their agents, but allows the operator to purchase milk or fluid milk products from other sources.

97.20(2)(d)3. 3. If the dairy plant is a new dairy plant, the department has inspected the dairy plant for compliance with this chapter and rules promulgated under this chapter.

97.20(2)(e) (e) License exemptions. A dairy plant license under this section is not required for:

97.20(2)(e)1. 1. A farm manufacturing or processing dairy products solely for consumption by the owner or operator of the farm, or members of the household or nonpaying guests or employees.

97.20(2)(e)2. 2. The retail preparation and processing of meals for sale directly to consumers or through vending machines, if the preparation and processing is covered under a license issued under s. 97.605.

97.20(2)(e)3. 3. A retail food establishment licensed under s. 97.30 if the establishment processes dairy products solely for retail sale at the establishment.

97.20(2)(e)4. 4. A dairy plant that is exempted from licensing by department rule.

97.20(2)(e)5. 5. A food processing plant licensed under s. 97.29 that processes dairy products into a prepared food that is not a dairy product if the dairy products used by the food processing plant are manufactured at a dairy plant from ingredients that are pasteurized or are produced under other processes that eliminate or reduce to an acceptable level the food safety hazards associated with the dairy products, including aseptically processed foods, high acid foods, heat treated foods, aged foods, cold pack foods, and similarly processed foods.

97.20(2)(f) (f) Added operations. No dairy plant may add a new category of dairy plant operations during the time period for which a dairy plant license was issued unless the dairy plant first notifies the department and obtains written authorization for the new category of operations. In this paragraph, “new category of operations” includes the manufacture or processing of any of the following which was not identified on the dairy plant’s most recent license application:

97.20(2)(f)1. 1. Fluid milk products.

97.20(2)(f)2. 2. Cheese and related cheese products.

97.20(2)(f)3. 3. Frozen dessert dairy products.

97.20(2c) (2c) Dairy plant license fee.

97.20(2c)(a) (a) Annual license fee. An applicant for a dairy plant license shall pay an annual license fee specified under par. (b) as follows:

97.20(2c)(a)1. 1. An applicant for a license to operate a dairy plant that operated during the previous calendar year shall pay the basic annual license fee plus the supplementary dairy plant license fee based on the amount of milk that was delivered to the dairy plant from milk producers in the previous calendar year, whether or not that particular applicant operated the dairy plant during the previous calendar year.

97.20(2c)(a)2. 2. An applicant for a license to operate a dairy plant that has not been operated in the previous calendar year shall pay the basic annual license fee plus the supplementary dairy plant license fee that is established by department rule.

97.20(2c)(b) (b) License fee amounts. Unless otherwise established by department rule, the annual license fees required under par. (a) are a basic annual license fee of $80 for each dairy plant plus:

97.20(2c)(b)1. 1. For a grade A processing plant, a supplementary annual license fee of $650 if the plant received more than 2,000,000 pounds of milk from milk producers or of $500 if the plant received 2,000,000 pounds or less of milk from milk producers.

97.20(2c)(b)2. 2. For a processing plant that is not a grade A processing plant and that annually manufactures or processes more than 1,000,000 pounds of dairy products or more than 200,000 gallons of frozen dairy products, a supplementary annual license fee of $270.

97.20(2c)(b)3. 3. For a grade A receiving station, a supplementary annual license fee of $250.

97.20(2c)(c) (c) Surcharge for operating without license. An applicant for a dairy plant license shall pay a license fee surcharge if the department determines that within one year before submitting the license application, the applicant operated the dairy plant without a license in violation of sub. (2). The amount of the surcharge is $100, or $500 if the dairy plant operator procures milk or fluid milk products from milk producers or their agents. Payment of this license fee surcharge does not relieve the applicant of any other civil or criminal liability that results from the unlicensed operation of the dairy plant, but does not constitute evidence of any violation of law.

97.20(2g) (2g) Milk procurement fee.

97.20(2g)(a) (a) Monthly procurement fee. A dairy plant operator shall pay a milk procurement fee on or before the 25th day of each month in the amount specified under par. (b) as follows:

97.20(2g)(a)1. 1. The operator of a dairy plant that operated during the month preceding the month when the payment is due shall pay a milk procurement fee based on the amount of milk that was delivered to the dairy plant from milk producers in the month preceding the month when the payment is due, whether or not that particular dairy plant operator operated the dairy plant during the month preceding the month when the payment is due.

97.20(2g)(a)2. 2. The operator of a dairy plant that has not been operated in the month preceding the month when the payment is due shall pay a milk procurement fee in the month when the payment is due that is established by department rule.

97.20(2g)(b) (b) Amount of fees. The department shall specify the amount of milk procurement fees by rule.

97.20(2g)(c) (c) Out-of-state milk shipments. A milk producer who ships milk to an out-of-state dairy plant shall pay a milk procurement fee, specified under par. (b), on that milk, unless the out-of-state dairy plant voluntarily pays that fee for the milk producer.

97.20(2n) (2n) Dairy plant reinspection fee.

97.20(2n)(a) (a) Reinspection fees. If the department reinspects a dairy plant because the department has found a violation of this chapter or rules promulgated under this chapter, the department shall charge the dairy plant operator the reinspection fee specified under par. (b). A reinspection fee is payable when the reinspection is completed, and is due upon written demand from the department. The department may issue a demand for payment when it issues a license renewal application form to the dairy plant operator.

97.20(2n)(b) (b) Reinspection fee amounts. Unless otherwise established by department rule, the fees for reinspection required under par. (a) are a basic fee of $40 for each dairy plant reinspection, plus:

97.20(2n)(b)1. 1. For a grade A processing plant, a supplementary reinspection fee of $160 if the plant received more than 2,000,000 pounds of milk from milk producers or of $125 if the plant received 2,000,000 pounds or less of milk from milk producers.

97.20(2n)(b)2. 2. For a processing plant that is not a grade A processing plant, a supplementary reinspection fee of $140.

97.20(2n)(b)3. 3. For a grade A receiving station, a supplementary reinspection fee of $60.

97.20(2r) (2r) Milk producer fees. A dairy plant operator shall pay milk producer license and reinspection fees on behalf of milk producers, subject to s. 97.22 (2) (c) and (4) (b). A milk producer reinspection fee is payable by a dairy plant operator when a dairy farm reinspection is completed, and is due upon written demand from the department. The department may issue a demand for payment when it issues a license renewal application to the dairy plant operator.

97.20(2w) (2w) Dairy product grading fee. An applicant for a license for a dairy plant that has been operated in the previous calendar year, that is not a grade A dairy plant and that produces butter or cheese shall pay a grading fee that, unless otherwise established by department rule, is 1.09 cents for each 100 pounds of butter or cheese that is gradable and produced by the dairy plant during the previous calendar year. An applicant for a license for a dairy plant that has not been operated in the previous calendar year, that is not a grade A dairy plant and that produces butter or cheese shall pay a grading fee that is established by the department by rule.

97.20(3) (3) Grade A dairy plant; permit.

97.20(3)(a) (a) Permit requirement. No person operating a dairy plant at which milk or fluid milk products are received, transferred, manufactured or processed may sell or distribute that milk or those fluid milk products as grade A milk or grade A milk products unless the person holds a valid grade A dairy plant permit issued by the department for that dairy plant. A grade A dairy plant permit expires on April 30 annually and is not transferable between persons or locations. A grade A dairy plant permit may be issued in the form of an endorsement on a dairy plant license under sub. (2). An application for a grade A dairy plant permit shall be made on a form provided by the department and shall be accompanied by each grade A dairy plant supplementary license fee required under sub. (2c).

97.20(3)(b) (b) Grade A standards. A grade A dairy plant shall comply with standards applicable to the receipt, transfer, manufacture, processing and distribution of grade A milk and grade A milk products under this chapter or rules of the department. A grade A dairy plant may not receive, transfer or process milk that is not grade A milk unless the department provides written authorization. Except as provided by the department by rule, the department may not grant that authorization unless the grade A dairy plant maintains separate facilities for the receipt, transfer and processing of milk that is not grade A milk.

97.20(3)(d) (d) Surcharge for operating without a permit. An applicant for a grade A dairy plant permit shall pay a grade A dairy plant permit surcharge of $100 if the department determines that, within one year prior to submitting the permit application, the applicant operated the dairy plant as a grade A dairy plant without a grade A permit, in violation of par. (a). Payment of this surcharge does not relieve the applicant of any other civil or criminal liability which results from a violation of par. (a), but does not constitute evidence of a violation of any law.