LRB-1703/1
MGG:jlg:arm
1997 - 1998 LEGISLATURE
April 11, 1997 - Introduced by Representatives M. Lehman, Huber, Ainsworth,
Albers, Brandemuehl, Coggs, Dobyns, Freese, Gard, Goetsch, Grothman,
Gunderson, Hahn, Harsdorf, Hasenohrl, Huebsch, Johnsrud, Kaufert, F.
Lasee, Meyer, Musser, Olsen, Ott, Otte, Ourada, Porter, Reynolds, Seratti,
Springer, Staskunas
and Ziegelbauer, cosponsored by Senators C. Potter,
Welch, Buettner, Clausing, Drzewiecki, Fitzgerald, Jauch, Plache, Rude,
Schultz
and Wineke. Referred to Committee on Consumer Affairs.
AB283,1,8 1An Act to renumber and amend 100.30 (2) (a); to amend 100.30 (2) (b), 100.30
2(2) (c) 1. a., 100.30 (2) (d), 100.30 (2) (f), 100.30 (2) (L) (intro.), 100.30 (2m) (a),
3100.30 (2m) (b), 100.30 (3), 100.30 (5) (a), 100.30 (6) (a) 7. and 814.04 (intro.);
4to repeal and recreate 100.33 (1) (h); and to create 100.30 (2) (a), 100.30 (2)
5(am) 1m., 100.30 (2) (cb), 100.30 (2) (cg), 100.30 (2) (cm), 100.30 (2) (j), 100.30
6(2) (m), 100.30 (4m), 100.30 (5m), 100.30 (6) (a) 9. and 100.30 (6) (a) 10. of the
7statutes; relating to: the regulation of the sale of merchandise below cost and
8providing a penalty.
Analysis by the Legislative Reference Bureau
Currently, with certain exceptions, the state unfair sales or "minimum
markup" law requires a wholesaler of cigarettes, other tobacco products, fermented
malt beverages, intoxicating liquor, wine or motor vehicle fuel to sell that
merchandise for at least 3% more than the cost of the merchandise to the wholesaler.
The law requires a retailer of cigarettes, other tobacco products, fermented malt
beverages, intoxicating liquor, wine or motor vehicle fuel to sell that merchandise for
at least 6% more than the cost of the merchandise to the retailer. Finally, the law
requires a retailer or wholesaler of other merchandise to sell that merchandise for
at least its cost to the retailer or wholesaler. Generally, under the unfair sales law,

cost is computed as the lesser of the invoice cost or the replacement cost of the
merchandise, plus excise taxes and overhead costs, and minus certain trade
discounts.
The unfair sales law prohibits offering loss leaders. A loss leader is the sale of
an item of merchandise at less than cost in order to induce the purchase of other
merchandise or to unfairly divert trade from a competitor.
This bill creates different minimum markup requirements for sellers of motor
vehicle fuel from those in current law. The minimum markup requirements under
the bill for retail sales of motor vehicle fuel vary depending on various factors,
including whether the retail seller is owned or operated by a refiner or wholesaler
of motor vehicle fuel. Depending on those factors, the minimum markup under the
bill for retail motor vehicle fuel sales is generally 6% over the cost of the motor vehicle
fuel to the retail seller, 6% or 9.18% over the retail seller's lowest selling price or
9.18% over the average posted terminal price. The average posted terminal price is
the average posted price at which motor vehicle fuel is sold at a motor vehicle storage
and distribution facility that is supplied by a pipeline or marine vessel, from which
facility motor vehicle fuel may be removed at rack and from which facility 5 or more
refiners sell motor vehicle fuel.
The minimum markup requirements under the bill for a wholesaler of motor
vehicle fuel are generally 3% over the wholesaler's cost or 3% over the average posted
terminal price, whichever is greater.
The bill also provides that a person may be liable for a violation of the minimum
markup law if the person is a partner, officer or director of a person who commits a
violation. The bill permits a person who is liable for a violation to obtain contribution
from any other person who may also be liable for the violation.
Under current law, the department of agriculture, trade and consumer
protection (DATCP) or a district attorney may bring an action on behalf of the state
to recover a forfeiture against a person who violates the minimum markup law.
DATCP may also issue an order requiring certain retailers or wholesalers to cease
and desist from violating the minimum markup law. Finally, under current law,
DATCP or a district attorney may bring an action to enjoin a violation of the
minimum markup law. This bill permits a person who is injured or threatened with
injury as a result of a sale or purchase of motor vehicle fuel in violation of the
minimum markup law to bring an action against the violator for an injunction, or for
the recovery of 3 times the amount of any monetary loss sustained or an amount
equal to $2,000 multiplied by each day of continued violation, whichever is greater,
plus costs and reasonable attorney fees.
Current law contains certain exceptions to the minimum markup
requirements. One of those exceptions provides that the minimum markup
requirements do not apply if merchandise is priced in good faith to meet the existing
price of a competitor. This bill provides that the exception applies only if the price
of motor vehicle fuel is identical to the price of the same motor vehicle fuel sold by
a direct competitor at not less than the competitor's cost on the same day and is
established in good faith to meet the competitor's price.

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:
AB283, s. 1 1Section 1. 100.30 (2) (a) of the statutes is renumbered 100.30 (2) (am), and
2100.30 (2) (am) 1., as renumbered, is amended to read:
AB283,3,133 100.30 (2) (am) 1. With respect to the sale of cigarettes or other tobacco
4products, fermented malt beverages, or intoxicating liquor or wine, or motor vehicle
5fuel,
"cost to retailer" means the invoice cost of the merchandise to the retailer within
630 days prior to the date of sale, or replacement cost of the merchandise to the
7retailer, whichever is lower, less all trade discounts except customary discounts for
8cash, plus any excise taxes imposed on such merchandise or the sale thereof other
9than excise taxes collected by the retailer, and any cost incurred for transportation
10and any other charges not otherwise included in the invoice cost or the replacement
11cost of the merchandise as herein set forth, to which shall be added a markup to cover
12a proportionate part of the cost of doing business, which markup, in the absence of
13proof of a lesser cost, shall be 6% of the cost to the retailer as herein set forth.
AB283, s. 2 14Section 2. 100.30 (2) (a) of the statutes is created to read:
AB283,3,1915 100.30 (2) (a) "Average posted terminal price" means the average posted rack
16price at which motor vehicle fuel is sold at the close of business on the determination
17date by all refiners at a terminal plus any excise taxes imposed on the motor vehicle
18fuel or its sale and any cost incurred for transportation and any other fees or charges.
19In this paragraph, "average" means the arithmetic mean.
AB283, s. 3 20Section 3. 100.30 (2) (am) 1m. of the statutes is created to read:
AB283,4,2
1100.30 (2) (am) 1m. With respect to the sale of motor vehicle fuel, "cost to
2retailer" means the following:
AB283,4,153 a. In the case of a retailer who is not owned or operated, either directly or
4indirectly, by a refiner or by a wholesaler of motor vehicle fuel and who purchases
5motor vehicle fuel from a refiner or wholesaler of motor vehicle fuel for retail sale at
6a retail station, the invoice cost of the motor vehicle fuel to the retailer within 10 days
7prior to the date of sale, or the replacement cost of the motor vehicle fuel, whichever
8is lower, less all trade discounts except customary discounts for cash, plus any excise,
9sales or use taxes imposed on the motor vehicle fuel or on the sale of the motor vehicle
10fuel and any cost incurred for transportation and any other charges not otherwise
11included in the invoice cost or the replacement cost of the motor vehicle fuel, plus a
12markup of 6% of that amount to cover a proportionate part of the cost of doing
13business; or the average posted terminal price at the terminal located closest to the
14retailer plus a markup of 9.18% of the average posted terminal price to cover a
15proportionate part of the cost of doing business; whichever is greater.
AB283,5,216 b. In the case of the retail sale of motor vehicle fuel by a refiner at a retail station
17owned or operated either directly or indirectly by the refiner, the refiner's lowest
18selling price to other retailers or to wholesalers of motor vehicle fuel on the date of
19the refiner's retail sale, less all trade discounts except customary discounts for cash,
20plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale and
21any cost incurred for transportation and any other charges not otherwise included
22in the invoice cost of the motor vehicle fuel, plus a markup of 9.18% of that amount
23to cover a proportionate part of the cost of doing business; or the average posted
24terminal price at the terminal located closest to the retail station plus a markup of

19.18% of the average posted terminal price to cover a proportionate part of the cost
2of doing business; whichever is greater.
AB283,5,143 c. In the case of the retail sale of motor vehicle fuel by a wholesaler of motor
4vehicle fuel at a retail station owned or operated either directly or indirectly by the
5wholesaler of motor vehicle fuel, the wholesaler of motor vehicle fuel's lowest selling
6price to other retailers on the date of the wholesaler of motor vehicle fuel's retail sale
7less all trade discounts except customary discounts for cash, plus any excise, sales
8or use taxes imposed on the motor vehicle fuel or on its sale and any cost incurred
9for transportation and any other charges not otherwise included in the invoice cost
10of the motor vehicle fuel, plus a markup of 6% of that amount to cover a proportionate
11part of the cost of doing business; or the average posted terminal price at the terminal
12located closest to the retail station plus a markup of 9.18% of the average posted
13terminal price to cover a proportionate part of the cost of doing business; whichever
14is greater.
AB283,5,1815 d. In the case of a retail sale of motor vehicle fuel at a retail station by a person
16not described in subd. 1. a. to c., the average posted terminal price at the terminal
17located closest to the retail station plus a markup of 9.18% of the average posted
18terminal price to cover a proportionate part of the cost of doing business.
AB283,6,419 e. In the case of a retail sale of motor vehicle fuel at a place other than a retail
20station, the invoice cost of the motor vehicle fuel to the retailer within 10 days prior
21to the date of the sale, or the replacement cost of the motor vehicle fuel, whichever
22is lower, less all trade discounts except customary discounts for cash, plus any excise,
23sales or use taxes imposed on the motor vehicle fuel or on its sale and any cost
24incurred for transportation and any other charges not otherwise included in the
25invoice cost or the replacement cost of the motor vehicle fuel, plus a markup of 3%

1of that amount to cover a proportionate part of the cost of doing business; or the
2average posted terminal price at the terminal located closest to the place of delivery
3plus a markup of 3% of the average posted terminal price to cover a proportionate
4part of the cost of doing business; whichever is greater.
AB283, s. 4 5Section 4. 100.30 (2) (b) of the statutes is amended to read:
AB283,6,186 100.30 (2) (b) "Cost to retailer" and , "cost to wholesaler" and "cost to wholesaler
7of motor vehicle fuel"
as defined in pars. (a) and (am), (c) and (cb) mean bona fide
8costs; and purchases made by retailers and, wholesalers and wholesalers of motor
9vehicle fuel
at prices which cannot be justified by prevailing market conditions
10within this state shall not be used in determining cost to the retailer and, cost to the
11wholesaler and cost to the wholesaler of motor vehicle fuel. Prices at which
12purchases of merchandise other than motor vehicle fuel are made by retailers or
13wholesalers cannot be justified by prevailing market conditions in this state when
14they are below the lowest prices at which the manufacturer or producer of such
15merchandise sells to other retailers or wholesalers in this state. Prices at which
16purchases of motor vehicle fuel are made by retailers and wholesalers of motor
17vehicle fuel cannot be justified by prevailing market conditions in this state when
18they are below the average posted terminal price.
AB283, s. 5 19Section 5. 100.30 (2) (c) 1. a. of the statutes is amended to read:
AB283,7,620 100.30 (2) (c) 1. a. With respect to the sale of cigarettes or other tobacco
21products, fermented malt beverages, or intoxicating liquor or wine, or motor vehicle
22fuel,
"cost to wholesaler" means, except as provided in subd. 1. b., the invoice cost of
23the merchandise to the wholesaler within 30 days prior to the date of sale, or the
24replacement cost of the merchandise to the wholesaler, whichever is lower, less all
25trade discounts except customary discounts for cash, plus any excise taxes imposed

1on the sale thereof prior to the sale at retail, and any cost incurred for transportation
2and any other charges not otherwise included in the invoice cost or the replacement
3cost of the merchandise as herein set forth, to which shall be added, except for sales
4at wholesale between wholesalers, a markup to cover a proportionate part of the cost
5of doing business, which markup, in the absence of proof of a lesser cost, shall be 3%
6of the cost to the wholesaler as herein set forth.
AB283, s. 6 7Section 6. 100.30 (2) (cb) of the statutes is created to read:
AB283,7,198 100.30 (2) (cb) With respect to the sale of motor vehicle fuel, "cost to wholesaler
9of motor vehicle fuel" means the invoice cost of the motor vehicle fuel to the
10wholesaler of motor vehicle fuel within 10 days prior to the date of the sale or the
11replacement cost of the motor vehicle fuel, whichever is lower, less all trade discounts
12except customary discounts for cash, plus any excise, sales or use taxes imposed on
13the motor vehicle fuel or on its sale and any cost incurred for transportation and any
14other charges not otherwise included in the invoice cost or the replacement cost of
15the motor vehicle fuel, plus a markup of 3% of that amount to cover a proportionate
16part of the cost of doing business; or the average posted terminal price at the terminal
17located closest to the place of delivery plus a markup of 3% of the average posted
18terminal price to cover a proportionate part of the cost of doing business; whichever
19is greater.
AB283, s. 7 20Section 7. 100.30 (2) (cg) of the statutes is created to read:
AB283,7,2321 100.30 (2) (cg) 1. Except as provided in subd. 2., "determination date" is the day
22preceding the day of the sale of motor vehicle fuel by a retailer or wholesaler of motor
23vehicle fuel.
AB283,8,424 2. If a retailer or a wholesaler of motor vehicle fuel sells motor vehicle fuel on
25a day other than the day on which the retailer or wholesaler of motor vehicle fuel last

1purchased any motor vehicle fuel and the sale of the motor vehicle fuel by the retailer
2or wholesaler of motor vehicle fuel occurs no later than 10 days after its last purchase
3by the retailer or wholesaler of motor vehicle fuel, "determination date" means any
4of the following dates selected by the retailer or the wholesaler of motor vehicle fuel:
AB283,8,65 a. The day preceding the day of the sale of motor vehicle fuel by the retailer or
6wholesaler of motor vehicle fuel.
AB283,8,87 b. The day on which motor vehicle fuel was last purchased by the retailer or
8wholesaler of motor vehicle fuel.
AB283, s. 8 9Section 8. 100.30 (2) (cm) of the statutes is created to read:
AB283,8,1210 100.30 (2) (cm) "Refiner" means a manufacturer, producer or refiner of motor
11vehicle fuel or a person who purchases motor vehicle fuel for sale to wholesalers of
12motor vehicle fuel.
AB283, s. 9 13Section 9. 100.30 (2) (d) of the statutes is amended to read:
AB283,8,1814 100.30 (2) (d) "Replacement cost" means the cost computed as specified in par.
15(a) or (am), (c) or (cb) at which the merchandise sold could have been bought by the
16retailer or, wholesaler or wholesaler of motor vehicle fuel at any time if bought in the
17same quantity as the retailer's or, wholesaler's or wholesaler of motor vehicle fuel's
18last purchase of the said merchandise.
AB283, s. 10 19Section 10. 100.30 (2) (f) of the statutes is amended to read:
AB283,8,2420 100.30 (2) (f) "Retailer" and "wholesaler" shall both be applied to any merchant
21who buys merchandise for resale at retail from the manufacturer or producer thereof
22and to any wholesaler under par. (L) 2. and, as to that merchandise or that
23wholesaler, the terms "cost to retailer" and "cost to wholesaler" as defined in pars.
24(a) (am) and (c) shall both be applied, including the markup requirements.
AB283, s. 11 25Section 11. 100.30 (2) (j) of the statutes is created to read:
AB283,9,4
1100.30 (2) (j) "Terminal" means a motor vehicle fuel storage and distribution
2facility that is supplied by a pipeline or marine vessel, from which facility motor
3vehicle fuel may be removed at a rack and from which facility at least 5 refiners sell
4motor vehicle fuel
AB283, s. 12 5Section 12. 100.30 (2) (L) (intro.) of the statutes is amended to read:
AB283,9,96 100.30 (2) (L) (intro.) "Wholesaler" includes every person holding a permit as
7a multiple retailer under s. 139.30 (8) and every person engaged in the business of
8making sales at wholesale, other than sales of motor vehicle fuel at wholesale, within
9this state except as follows:
AB283, s. 13 10Section 13. 100.30 (2) (m) of the statutes is created to read:
AB283,9,1111 100.30 (2) (m) "Wholesaler of motor vehicle fuel" includes all of the following:
AB283,9,1412 1. Every person who acquires motor vehicle fuel from a refiner, stores the motor
13vehicle fuel and sells it through 5 or more retail outlets that the person owns or
14operates.
AB283,9,1615 2. Every person who acquires motor vehicle fuel from a refiner and stores it in
16a bulk storage facility other than a retail station for further sale and distribution.
AB283,9,1817 3. Every person engaged in the business of making sales of motor vehicle fuel
18at wholesale within this state.
AB283,9,2419 4. Every person engaged in the business of selling diesel fuel if that person's
20sales of diesel fuel accounted for at least 60% of that person's total sales of motor
21vehicle fuel in the previous year or, if that person did not engage in the business of
22selling diesel fuel in the previous year, if that person reasonably anticipates that
23sales of diesel fuel will account for at least 60% of that person's total sales of motor
24vehicle fuel in the current year.
AB283, s. 14 25Section 14. 100.30 (2m) (a) of the statutes is amended to read:
AB283,10,5
1100.30 (2m) (a) When one or more items of merchandise are furnished or sold
2in combination with or on condition of the purchase of one or more other items, or are
3so advertised, all items shall be included in determining cost under sub. (2) (a) or
4(am), (c) or (cb); and if any of the items included therein are separately priced, such
5separate price shall be subject to the requirements of this section.
AB283, s. 15 6Section 15. 100.30 (2m) (b) of the statutes is amended to read:
AB283,10,137 100.30 (2m) (b) Any retailer who also sells to other retailers shall use the
8invoice cost to other retailers in computing the selling price at retail under sub. (2)
9(a) (am) 1. and 2.; and if that retailer is a manufacturer or producer, both sub. (2) (a)
10(am) 1. and 2. and (c) 1. and 2. shall be used in computing the selling price at retail.
11In the absence of sales to other retailers, the manufacturer's or producer's invoice
12cost to wholesalers shall be used in computing the manufacturer's or producer's
13selling price at retail as provided in sub. (2) (a) (am) 1. and 2. and (c) 1. and 2.
AB283, s. 16 14Section 16. 100.30 (3) of the statutes is amended to read:
AB283,10,2415 100.30 (3) Illegality of loss leaders. Any sale of any item of merchandise
16either by a retailer or, wholesaler, wholesaler of motor vehicle fuel or refiner, at less
17than cost as defined in this section with the intent or effect of inducing the purchase
18of other merchandise or of unfairly diverting trade from a competitor, impairs and
19prevents fair competition, injures public welfare and is unfair competition and
20contrary to public policy and the policy of this section. Such sales are prohibited.
21Evidence of any sale of any item of merchandise by any retailer or wholesaler at less
22than cost as defined in this section shall be prima facie evidence of intent or effect
23to induce the purchase of other merchandise, or to unfairly divert trade from a
24competitor, or to otherwise injure a competitor.
AB283, s. 17 25Section 17. 100.30 (4m) of the statutes is created to read:
AB283,11,7
1100.30 (4m) Liability. Any person who violates this section is liable, and every
2partner, officer or director of the person is liable jointly and severally with and to the
3same extent as the person, unless the person liable under this subsection proves that
4he or she did not know, and in the exercise of reasonable care could not have known,
5of the existence of the facts by reason of which the liability is alleged to exist. A
6person who is liable under this subsection may obtain contribution as in cases of
7contract from any other person who is liable under this subsection.
AB283, s. 18 8Section 18. 100.30 (5) (a) of the statutes is amended to read:
AB283,11,179 100.30 (5) (a) The department may issue a special order as provided in s. 93.18
10against a retailer or, wholesaler, wholesaler of motor vehicle fuel or refiner requiring
11the retailer or wholesaler person to cease and desist from violating this section in the
12sale of cigarettes or other tobacco products, fermented malt beverages, intoxicating
13liquor or wine or motor vehicle fuel. The department or a district attorney may
14commence an action on behalf of the state against a retailer or, wholesaler,
15wholesaler of motor vehicle fuel or refiner
who violates a special order issued under
16this paragraph to recover a forfeiture of not less than $200 nor more than $5,000 for
17each violation.
AB283, s. 19 18Section 19. 100.30 (5m) of the statutes is created to read:
AB283,12,219 100.30 (5m) Private cause of action. Any person who is injured or threatened
20with injury as a result of a sale or purchase of motor vehicle fuel in violation of sub.
21(3) may bring an action against the person who violated sub. (3) for temporary or
22permanent injunctive relief or an action against the person for 3 times the amount
23of any monetary loss sustained or an amount equal to $2,000, whichever is greater,
24multiplied by each day of continued violation, together with costs, including
25accounting fees and reasonable attorney fees, notwithstanding s. 814.04 (1). An

1action under this subsection may not be brought after 180 days after the date of a
2violation of sub. (3).
AB283, s. 20 3Section 20. 100.30 (6) (a) 7. of the statutes is amended to read:
AB283,12,74 100.30 (6) (a) 7. The price of merchandise, other than motor vehicle fuel, is
5made in good faith to meet an existing price of a competitor and is based on evidence
6in the possession of the retailer or wholesaler in the form of an advertisement, proof
7of sale or receipted purchase.
AB283, s. 21 8Section 21. 100.30 (6) (a) 9. of the statutes is created to read:
AB283,12,109 100.30 (6) (a) 9. Motor vehicle fuel is sold by a refiner to a wholesaler of motor
10vehicle fuel, who may sell the motor vehicle fuel at either retail or wholesale.
AB283, s. 22 11Section 22. 100.30 (6) (a) 10. of the statutes is created to read:
AB283,12,1712 100.30 (6) (a) 10. The price of motor vehicle fuel is identical to the price of the
13same merchandise sold by a direct competitor at not less than the competitor's cost
14to retailer or cost to wholesaler of motor vehicle fuel, whichever is applicable, on the
15same day, is established in good faith to meet the competitor's price and is based on
16evidence in the possession of the retailer or wholesaler of motor vehicle fuel in the
17form of an advertisement, proof of sale or receipted purchase.
AB283, s. 23 18Section 23. 100.33 (1) (h) of the statutes is repealed and recreated to read:
AB283,12,2219 100.33 (1) (h) "Sales at wholesale" includes any transfer, for a valuable
20consideration made in ordinary course of trade or the usual conduct of the
21wholesaler's business, of title to tangible personal property to the purchaser for
22purposes of resale or further processing or manufacturing.
AB283, s. 24 23Section 24. 814.04 (intro.) of the statutes is amended to read:
AB283,13,2 24814.04Items of costs. (intro.) Except as provided in ss. 93.20, 100.30 (5m),
25106.04 (6) (i) and (6m) (a), 769.313, 814.025, 814.245, 895.035 (4), 895.75 (3), 895.77

1(2), 895.79 (3), 895.80 (3), 943.212 (2) (b), 943.245 (2) (d) and 943.51 (2) (b), when
2allowed costs shall be as follows:
AB283, s. 25 3Section 25. Initial applicability.
AB283,13,54 (1) This act first applies to violations of section 100.30 (3) of the statutes that
5occur on the effective date of this subsection.
AB283,13,66 (End)
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