LRB-2035/1
MCP:amn
2019 - 2020 LEGISLATURE
February 25, 2019 - Introduced by Senators Stroebel, Carpenter, Kapenga,
Kooyenga, Bernier, Jacque and Darling, cosponsored by Representatives
Ott, Hutton, Kuglitsch, Brooks, Duchow, Brandtjen, Neylon, Ramthun
and Gundrum. Referred to Committee on Economic Development, Commerce
and Trade.
SB52,1,3 1An Act to amend 100.30 (2) (am) 2., 100.30 (2) (c) 2., 100.30 (3) and 134.04 (1);
2and to create 100.30 (2) (ck) and 100.30 (6) (a) 10. of the statutes; relating to:
3regulating the sale of prescription drugs and other merchandise below cost.
Analysis by the Legislative Reference Bureau
This bill eliminates the prohibition on below-cost sales of prescription drugs
and certain other types of merchandise under the Unfair Sales Act.
This state's Unfair Sales Act, also known as the “minimum markup” law, 1)
prohibits below-cost sales of any merchandise, if the sale is intended to induce the
purchase of other merchandise or divert trade unfairly from a competitor; and 2)
requires a “minimum markup” (a specified amount over the cost of the merchandise
to the seller) to be added to sales of motor vehicle fuel, tobacco products, fermented
malt beverages, liquor, or wine. There is no minimum markup requirement for sales
of prescription drugs.
Under this bill, the prohibition on below-cost sales does not apply to
prescription drugs or to any merchandise other than groceries, motor vehicle fuel,
tobacco products, fermented malt beverages, liquor, or wine. The bill does not affect
the minimum markup requirements under current law for sales of motor vehicle fuel,
tobacco products, fermented malt beverages, liquor, or wine.

For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB52,1 1Section 1. 100.30 (2) (am) 2. of the statutes is amended to read:
SB52,2,102 100.30 (2) (am) 2. With respect to the sale of merchandise other than cigarettes
3or other tobacco products, fermented malt beverages, intoxicating liquor or wine, or
4motor vehicle fuel
groceries, “cost to retailer" means the invoice cost of the
5merchandise to the retailer, or replacement cost of the merchandise to the retailer,
6whichever is lower, less all trade discounts except customary discounts for cash, plus
7any excise taxes imposed on such merchandise or the sale thereof other than excise
8taxes collected by the retailer, and any cost incurred for transportation and any other
9charges not otherwise included in the invoice cost or the replacement cost of the
10merchandise as herein set forth.
SB52,2 11Section 2. 100.30 (2) (c) 2. of the statutes is amended to read:
SB52,2,2012 100.30 (2) (c) 2. With respect to the sale of merchandise other than cigarettes
13or other tobacco products, fermented malt beverages, intoxicating liquor or wine, or
14motor vehicle fuel
groceries, “cost to wholesaler" means the invoice cost of the
15merchandise to the wholesaler, or the replacement cost of the merchandise to the
16wholesaler, whichever is lower, less all trade discounts except customary discounts
17for cash, plus any excise taxes imposed on the sale thereof prior to the sale at retail,
18and any cost incurred for transportation and any other charges not otherwise
19included in the invoice cost or the replacement cost of the merchandise as herein set
20forth.
SB52,3 21Section 3. 100.30 (2) (ck) of the statutes is created to read:
SB52,3,2
1100.30 (2) (ck) “Groceries” means food or beverage items, other than fermented
2malt beverages or intoxicating liquor or wine.
SB52,4 3Section 4. 100.30 (3) of the statutes is amended to read:
SB52,3,164 100.30 (3) Illegality of loss leaders. Any sale of any item of merchandise
5either
cigarettes or other tobacco products, fermented malt beverages, intoxicating
6liquor or wine, motor vehicle fuel, or groceries
by a retailer, wholesaler, wholesaler
7of motor vehicle fuel or refiner, at less than cost as defined in this section with the
8intent or effect of inducing the purchase of other merchandise or of unfairly diverting
9trade from a competitor, impairs and prevents fair competition, injures public
10welfare and is unfair competition and contrary to public policy and the policy of this
11section. Such sales are prohibited. Evidence of any sale of any item of merchandise
12cigarettes or other tobacco products, fermented malt beverages, intoxicating liquor
13or wine, motor vehicle fuel, or groceries
by any retailer, wholesaler, wholesaler of
14motor vehicle fuel or refiner at less than cost as defined in this section shall be prima
15facie evidence of intent or effect to induce the purchase of other merchandise, or to
16unfairly divert trade from a competitor, or to otherwise injure a competitor.
SB52,5 17Section 5. 100.30 (6) (a) 10. of the statutes is created to read:
SB52,3,1918 100.30 (6) (a) 10. The merchandise sold is a prescription drug, as defined in s.
19450.01 (20).
SB52,6 20Section 6. 134.04 (1) of the statutes is amended to read:
SB52,4,1321 134.04 (1) No person, firm or corporation engaged in any enterprise in this
22state shall by any method or procedure directly or indirectly by itself or through a
23subsidiary agency owned or controlled in whole or in part by such person, firm or
24corporation, sell or procure for sale or have in its possession or under its control for
25sale to its employees or any person any article, material, product or merchandise of

1whatsoever nature not of the person's, firm's or corporation's production or not
2handled in the person's, firm's or corporation's regular course of trade, excepting
3meals, candy bars, cigarettes and tobacco for the exclusive use and consumption of
4such employees of the employer, and excepting tools used by employees in said
5enterprise and such specialized appliances and paraphernalia as may be required in
6said enterprise for the employees' safety or health and articles used by employees or
7other persons which insure better sanitary conditions and quality in the
8manufacture of food or food products. The provisions of this subsection shall not
9apply to lumber producers, loggers and dealers nor to any cooperative association
10organized under ch. 185 or 193. This section shall not be construed as authorizing
11the sale of any merchandise cigarettes or other tobacco products, fermented malt
12beverages, intoxicating liquor or wine, motor vehicle fuel, or groceries
at less than
13cost as defined in s. 100.30.
SB52,4,1414 (End)
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