the respect of the country. It bred deep suspicions. Justice Harlan reflected some of that fear, but stoically refused to second guess the Pennsylvania lawmakers.


Whether the manufacture of oleomar- garine, or imitation butter, of the kind described in the statute, is, or may be, conducted in such a way, or with such skill and secrecy, as to baffle ordinary inspection, or whether it involves such danger to the public health as to re- quire for the protection of the people the entire suppression of the business, rather than its regulation in such man- ner as to permit the manufacture and sale of articles of that class that do not contain noxious ingredients, are ques- tions of fact and of public policy which belong to the legislative department to determine.55


The Vermont legislature expanded the


state labeling law in 1886, by requiring restaurants to post signs with three-inch- high letters, stating “Oleomargarine used here.”56


A similar law, enacted


Then, in 1890, Vermont required all imitation butter sold in stores in Ver- mont or placed on the tables of restaurants to be colored pink.57


in New Hampshire, was struck down by the U.S. Supreme Court in 1898, as violative of the Commerce Clause. Pink was virtual pro- hibition, according to Justice Rufus Peck- ham’s decision. “To color the substance as provided for in the statute naturally excites a prejudice and strengthens a repugnance up to the point of a positive and absolute refusal to purchase the article at any price.” To allow this, wrote Peckham, would jus- tify even more pernicious regulation, such as requiring oleo to come with an offensive smell.58


In 1902, the Congress responded with an act, which is still current law, deferring the regulation of all “articles known as oleomar- garine, butterine, imitation, process, reno- vated, or adulterated butter, or imitation cheese, or any substance in the semblance of butter or cheese not the usual product of the dairy and not made exclusively of pure and unadulterated milk or cream” to state law, whether the goods were manufactured in the state or not.59 Vermont repealed the law requiring pink oleo in 1900, but the war was not over. The vicissitudes of the dairy economy were re- flected in the continuing attempt to un- derscore the difference between real but- ter and its imitators with the consumer. In 1923 a statute prohibited any packaging of margarine that used the words “dairy,” “milk,” “cream,” or “butter,” or displayed a picture of a cow.60


Oleo was the “great-


est enemy of the dairy business,” according to the Vermont commissioner of agriculture in 1922.61


That was Elbert Brigham, who in www.vtbar.org


1931, as U.S. representative, co-sponsored the Brigham-Townsend Act, which prohib- ited the sale or manufacture of yellow oleo- margarine. Yellow, according to federal law, was “when it has a tint or shade contain- ing more than 1.6 degrees of yellow, or of yellow and red collectively, but with an ex- cess of yellow over red, measured in terms of the Lovibund Tintometer or its equiva- lent.”62


The Second World War changed every-


thing, and thereafter oleo and butter were treated equally by Vermont law and con- sumers. All Vermont laws regulating oleo- margarine were repealed in 1996.63


Today sale.64 exempt from attachment.65


It’s still against the law to dilute milk for Butter made from your own cow is An oral state-


ment on the quality of butter makes a war- ranty.66


You can be fined up to $5.00 for


mutilating, destroying, or polluting a but- ter crate or carrier, for the first offense, and up to $20.00 for each subsequent offense.67 Machinery used in the production of but- ter is exempt from the sales tax.68


Creamer-


ies, now called milk plants, must still be li- censed and biannually inspected.69 Today, butter is defined by administrative


rule of the secretary of agriculture, food and markets as “the food product usually known as butter, which is made exclusively from milk or cream or both, with or with- out common salt, and with or without ad- ditional coloring matter, and containing not less than 80 per centum by weight of milk fat, all tolerances having been allowed for, or any dairy-based product labeled as butter, including lower fat versions and fla- vored or cultured versions of butter.”70


The


U.S.D.A has standards for grades of butter, which Vermont has adopted.71


Butter may


earn the Vermont Seal of Quality “as long as the primary ingredient in the dairy or ma- ple product comes from Vermont and has not undergone substantial transformation,” if it meets the U.S.D.A. standards. Quebec still requires oleo to be color-


less.72 In 2011, there were about 134,000 milk


cows in Vermont, producing an average of 18,940 pounds of milk each, or 2.5 billion pounds in all.73


lated number of pounds of butter in 2012.74 The reason is simply that the amount is so small that the numbers are no longer calcu- lated by the Agency of Agriculture or even by the U.S. Department of Agriculture, spe- cifically to Vermont. Today, the laws on butter and creameries


are a museum of historical trends and leg- islative reactions. Although agriculture has earned a most favored industry status in the legislature over the years, it is also a busi- ness, and it is as regulated, in its own way,


THE VERMONT BAR JOURNAL • WINTER 2013 13 Vermont made an uncalcu-


Ruminations: The Legal History of Vermont Butter


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