100.30(2)(m)2.
2. A person who acquires motor vehicle fuel from a refiner or as a sale at wholesale and stores it in a bulk storage facility other than a retail station for further sale and distribution.
100.30(2)(m)3.
3. A person engaged in the business of making sales at wholesale of motor vehicle fuel within this state.
100.30(2)(m)4.
4. A person engaged in the business of selling diesel fuel if that person's sales of diesel fuel accounted for at least 60% of that person's total sales of motor vehicle fuel in the previous year or, if that person did not engage in the business of selling diesel fuel in the previous year, if that person reasonably anticipates that sales of diesel fuel will account for at least 60% of that person's total sales of motor vehicle fuel in the current year.
100.30(2m)(a)(a) When one or more items of merchandise are furnished or sold in combination with or on condition of the purchase of one or more other items, or are so advertised, all items shall be included in determining cost under
sub. (2) (am) or
(c); and if any of the items included therein are separately priced, such separate price shall be subject to the requirements of this section.
100.30(2m)(b)
(b) With respect to the sale of merchandise other than motor vehicle fuel, any retailer who also sells to other retailers shall use the invoice cost to other retailers in computing the selling price at retail under
sub. (2) (am); and if that retailer is a manufacturer or producer, both
sub. (2) (am) and
(c) shall be used in computing the selling price at retail. In the absence of sales to other retailers, the manufacturer's or producer's invoice cost to wholesalers shall be used in computing the manufacturer's or producer's selling price at retail as provided in
sub. (2) (am) and
(c).
100.30(2m)(c)
(c) When 2 or more terminals are included in the same geographic area by a petroleum price reporting service, they shall be considered one terminal for purposes of
sub. (2) (am) 1m. a.,
b. and
c.
100.30(3)
(3) Illegality of loss leaders. Any sale of any item of merchandise either by a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner, at less than cost as defined in this section with the intent or effect of inducing the purchase of other merchandise or of unfairly diverting trade from a competitor, impairs and prevents fair competition, injures public welfare and is unfair competition and contrary to public policy and the policy of this section. Such sales are prohibited. Evidence of any sale of any item of merchandise by any retailer, wholesaler, wholesaler of motor vehicle fuel or refiner at less than cost as defined in this section shall be prima facie evidence of intent or effect to induce the purchase of other merchandise, or to unfairly divert trade from a competitor, or to otherwise injure a competitor.
100.30(4)
(4) Penalties. For any violation of
sub. (3), the department or a district attorney may commence an action on behalf of the state to recover a forfeiture of not less than $50 nor more than $500 for the first violation and not less than $200 nor more than $2,500 for each subsequent violation.
100.30(5)
(5) Special remedies. In addition to the penalties under
sub. (4), both of the following remedies apply for a violation of
sub. (3):
100.30(5)(a)
(a) The department may issue a special order as provided in
s. 93.18 against a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner requiring the person to cease and desist from violating this section in the sale of cigarettes or other tobacco products, fermented malt beverages, intoxicating liquor or wine or motor vehicle fuel. The department or a district attorney may commence an action on behalf of the state against a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner who violates a special order issued under this paragraph to recover a forfeiture of not less than $200 nor more than $5,000 for each violation.
100.30(5)(b)
(b) The department or a district attorney may bring an action to enjoin a violation of this section without being compelled to allege or prove that an adequate remedy at law does not exist. An action under this paragraph may be commenced and prosecuted by the department or a district attorney, in the name of the state, in a circuit court in the county where the offense occurred or in Dane County, notwithstanding
s. 801.50.
100.30(5m)
(5m) Private cause of action. Any person who is injured or threatened with injury as a result of a sale or purchase of motor vehicle fuel in violation of
sub. (3) may bring an action against the person who violated
sub. (3) for temporary or permanent injunctive relief or an action against the person for 3 times the amount of any monetary loss sustained or an amount equal to $2,000, whichever is greater, multiplied by each day of continued violation, together with costs, including accounting fees and reasonable attorney fees, notwithstanding
s. 814.04 (1). An action under this subsection may not be brought after 180 days after the date of a violation of
sub. (3).
100.30(5r)
(5r) Private cause of action; sale of tobacco products. Any person who is injured or threatened with injury as a result of a sale or purchase of cigarettes or other tobacco products in violation of this section may bring an action against the person who violated this section for temporary or permanent injunctive relief or an action against the person for 3 times the amount of any monetary loss sustained or an amount equal to $2,000, whichever is greater, multiplied by each day of continued violation, together with costs, including accounting fees and reasonable attorney fees, notwithstanding
s. 814.04 (1).
100.30(6)(a)(a) The provisions of this section shall not apply to sales at retail or sales at wholesale where:
100.30(6)(a)2.
2. Perishable merchandise must be sold promptly in order to forestall loss.
100.30(6)(a)3.
3. Merchandise is imperfect or damaged or is being discontinued.
100.30(6)(a)4.
4. Merchandise is sold upon the final liquidation of any business.
100.30(6)(a)5.
5. Merchandise is sold for charitable purposes or to relief agencies.
100.30(6)(a)6.
6. Merchandise is sold on contract to departments of the government or governmental institutions.
100.30(6)(a)7.
7. The price of merchandise is made in good faith to meet an existing price of a competitor and is based on evidence in the possession of the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner in the form of an advertisement, proof of sale or receipted purchase, price survey or other business record maintained by the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner in the ordinary course of trade or the usual conduct of business.
100.30(6)(a)8.
8. Merchandise is sold by any officer acting under the order or direction of any court.
100.30(6)(a)9.
9. Motor vehicle fuel is sold by a person to a wholesaler of motor vehicle fuel, who may sell the motor vehicle fuel at either retail or wholesale.
100.30(6)(b)
(b) No retailer or wholesaler may claim the exemptions under
par. (a) 1. to
4. if he or she limits or otherwise restricts the quantity of such merchandise which can be purchased by any buyer or if he or she fails to conspicuously disclose the reason for such sale in all advertisements relating thereto and on a label or tag on such merchandise or on a placard where the merchandise is displayed for sale.
100.30(6)(d)
(d) No retailer or wholesaler may claim the exemption under
par. (a) 7. if that wholesaler or retailer holds a permit under
subch. II of ch. 139.
100.30(7)(a)(a) If a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner lowers in good faith the price of motor vehicle fuel below the applicable price specified under
sub. (2) (am) 1m. to meet an existing price of a competitor, the person shall submit to the department notification of the lower price before the close of business on the day on which the price was lowered in the form and the manner required by the department.
100.30(7)(b)
(b) Failure to comply with
par. (a) creates a rebuttable presumption that the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner did not lower the price to meet the existing price of a competitor.
100.30(7)(c)
(c) If a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner complies with
par. (a), all of the following apply:
100.30(7)(c)1.
1. The department may not proceed under
sub. (5) against the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner.
100.30(7)(c)2.
2. The retailer, wholesaler, wholesaler of motor vehicle fuel or refiner is immune from liability under
sub. (5m).
100.30 Cross-reference
Cross-reference: See also s.
ATCP 105.01, Wis. adm. code.
100.30 Annotation
The only reasonable construction of "terminal closest to the retailer" under sub. (2) (am) 1m. c. is the terminal closest to the location where the retail sale occurs, not the corporate headquarters of the seller. Gross v. Woodman's Food Market, Inc.
2002 WI App 295,
259 Wis. 2d 181,
655 N.W.2d 718,
01-1746.
100.30 Annotation
Sub. (3) prohibits a sale at less than statutory cost if the seller had either an intent proscribed by the statute or the sale had an effect proscribed by the statute. Gross v. Woodman's Food Market, Inc.
2002 WI App 295,
259 Wis. 2d 181,
655 N.W.2d 718,
01-1746.
100.30 Annotation
This section is not so vague that it constitutes a denial of due process. That a seller may be penalized even if the seller lacks the intent to violate the section does not violate due process. Gross v. Woodman's Food Market, Inc.
2002 WI App 295,
259 Wis. 2d 181,
655 N.W.2d 718,
01-1746.
100.30 Annotation
There is no requirement in sub. (7) that a retailer must conduct a price survey within any particular time period. DATCP by rule recommends that sellers maintain daily price surveys, but the department does not require or even recommend a survey every 24 hours. 22 Shawano, LLC v. R. C. Samanta Roy Institute of Science and Technology, Inc.
2006 WI App 14,
289 Wis. 2d 196,
709 N.W.2d 98,
05-0427.
100.30 Annotation
Sub. (2) (Lm) [now (2) (k)] qualifies the term "trade discount" in determining "cost to retailer" under sub. (2) (a) for sales of fermented malt beverages and intoxicating liquors. Sub. (2) (Lm) [now (2) (k)] is not a catchall prohibition against all trade discounts and does not apply to bona fide quantity discounts. 63 Atty. Gen. 516.
100.30 Annotation
This section does not violate federal antitrust laws or constitutional due process.
77 Atty. Gen. 163.
100.30 Annotation
Flying J, Inc. v. Van Hollen,
597 F. Supp. 2d 848, is reversed. The minimum markup provisions are not preempted by the Sherman Antitrust Act and are enforceable. Flying J, Inc. v. Van Hollen,
621 F.3d 658 (2010).
100.30 Annotation
Wisconsin's unfair sales act — Unfair to whom? Waxman, 66 MLR 293 (1983).
100.305
100.305
Prohibited selling practices during periods of abnormal economic disruption. 100.305(1)(a)
(a) "Consumer goods or services" means goods or services that are used primarily for personal, family, or household purposes.
100.305(1)(b)1.
1. A tornado, flood, fire, storm, or other destructive act of nature.
100.305(1)(b)2.
2. A disruption of energy supplies to the degree that a serious risk is posed to the economic well-being, health, or welfare of the public.
100.305(1)(c)
(c) "Hostile action" means an act of violence against a person or property in the United States by a foreign power or by a foreign or domestic terrorist.
100.305(1)(d)
(d) "Period of abnormal economic disruption" means a period of time during which normal business transactions in the state or a part of the state are disrupted, or are threatened to be disrupted, due to an emergency.
100.305(1)(e)
(e) "Seller" means a manufacturer, producer, supplier, wholesaler, distributor, or retailer.
100.305(2)
(2) Prohibition. No seller may sell, or offer to sell, in this state at wholesale or at retail, consumer goods or services at unreasonably excessive prices if the governor, by executive order, has certified that the state or a part of the state is in a period of abnormal economic disruption.
100.305(3)
(3) Rules. The department shall promulgate rules to establish formulas or other standards to be used in determining whether a wholesale or retail price is unreasonably excessive.
100.305(4m)
(4m) Enforcement; penalty. If a seller violates
sub. (2), the department or, after consulting with the department, the department of justice, may do any of the following:
100.305(4m)(a)
(a) Issue to the seller a warning notice specifying the action that the seller is required to take in order not to be in violation of
sub. (2).
100.305(4m)(b)
(b) Commence an action against the seller in the name of the state to recover a civil forfeiture of not more $10,000 or to temporarily or permanently restrain or enjoin the seller from violating
sub. (2), or both.
100.305 History
History: 2005 a. 450.
100.305 Cross-reference
Cross-reference: See also ch.
ATCP 106, Wis. adm. code.
100.31
100.31
Unfair discrimination in drug pricing. 100.31(1)(b)
(b) "Purchaser" means any person who engages primarily in selling drugs directly to consumers.
100.31(1)(c)
(c) "Seller" means any person who trades in drugs for resale to purchasers in this state.
100.31(2)
(2) Price discrimination prohibited. Every seller shall offer drugs from the list of therapeutically equivalent drugs published by the federal food and drug administration to every purchaser in this state, with all rights and privileges offered or accorded by the seller to the most favored purchaser, including purchase prices for similar volume purchases, rebates, free merchandise, samples and similar trade concessions. Nothing in this subsection prohibits the giving of a discount for volume purchases.
100.31(3)
(3) Treble damages. Any purchaser damaged by violation of this section may bring an action against the seller to recover treble damages sustained by reason of such violation.
100.31(4)
(4) Penalties. For any violation of this section, the department or a district attorney may commence an action on behalf of the state to recover a forfeiture of not less than $100 nor more than $10,000 for each offense. Each delivery of a drug sold to a purchaser at a price in violation of this section and each separate day in violation of an injunction issued under this section is a separate offense.
100.31(5)
(5) Special remedies. The department or a district attorney may bring an action to enjoin a violation of this section without being compelled to allege or prove that an adequate remedy at law does not exist. An action under this subsection may be commenced and prosecuted by the department or a district attorney, in the name of the state, in a circuit court in the county where the offense occurred or in Dane County, notwithstanding
s. 801.50.
100.31 Annotation
State and local units of government are not "purchasers" under sub. (1), and sellers of drugs are not prohibited from offering or according to them pricing arrangements that are not made available to other purchasers. 65 Atty. Gen. 59.
100.31 Annotation
"Most favored purchaser" under sub. (2) does not refer to purchasers outside Wisconsin. The constitutionality of this statute is upheld. K-S Pharmacies v. American Home Products,
962 F.2d 728 (1992).
100.315
100.315
Solicitation of contract using check or money order. 100.315(2)(a)(a) Except as provided in
par. (b), no person may solicit the purchase of goods or services by delivering to a recipient in this state a document that is or appears to be a check payable to the recipient, if the endorsement of the document purports to bind the recipient to purchasing goods or services and the recipient did not request the delivery of the document.
100.315(2)(b)
(b) A person may offer an extension of credit by delivering to a recipient in this state a document described in
par. (a) only if all of the following apply:
100.315(2)(b)1.
1. The document contains, on its face, both of the following:
100.315(2)(b)1.a.
a. In at least 24-point type, a statement in substantially the following form: "THIS IS A SOLICITATION FOR A LOAN. READ THE ATTACHED DISCLOSURES BEFORE SIGNING THIS AGREEMENT."
100.315(2)(b)1.b.
b. In at least 10-point type, a statement in substantially the following form: "By endorsing the back of this check, you accept our offer and agree to the terms of your loan agreement contained in the disclosure statement attached to this check."
100.315(2)(b)2.
2. Notification of the loan agreement being activated by endorsement is conspicuously printed in at least 10-point type on the back of the check in substantially the following form: "By endorsing this check, you agree to repay this loan according to the terms of the attached loan agreement."
100.315(2)(b)3.
3. The check is attached to a disclosure statement that is detachable and that contains in at least 14-point boldface type a statement that is conspicuously placed and is in substantially the following form: "This is a loan solicitation. If you cash this check, you are agreeing to borrow the sum of $ .... at the .... % rate of interest for a period of .... months. Your monthly payments will be $ .... for .... months. If you are late with a payment, you will be charged the following fees in addition to your monthly payment: (list fees). All other terms of this loan are clearly identified as loan terms and appear on the back of the check or on this attachment. Read these terms carefully before you cash this check. Cashing this check constitutes a loan transaction. You may cancel this loan by returning the amount of the check to the lender within 10 days of the date on which this check is cashed. You may prepay this loan agreement at anytime without penalty. READ THE AGREEMENT BEFORE SIGNING."
100.315(2)(b)4.
4. Within 3 business days after the date on which the check is processed by the lender's financial institution following negotiation of the check by the recipient, the lender who issued the check verbally discloses to the recipient the terms and conditions of the extension of credit and permits the recipient to return to the lender the amount borrowed. If the recipient returns the amount borrowed within 5 business days after the check is processed by the lender's financial institution following negotiation of the check by the recipient, the lender may not assess the recipient any penalty, finance charge, interest, or fee, and the lender may not take any action on the basis of the return that would affect the recipient's credit score.
100.315(2g)
(2g) In the event a check described under
sub. (2) (b) is obtained by a person other than the intended payee, and the check is cashed fraudulently or without authorization from the payee, the lender who issued the check shall do all of the following:
100.315(2g)(a)
(a) Upon receipt of notification that intended payee did not negotiate the check, promptly provide the intended payee with a statement or affidavit to be signed by the intended payee confirming that the intended payee did not deposit or cash the check or receive the proceeds of the check. The lender shall provide the intended payee with the name and telephone number of a contact person designated by the lender to provide assistance to intended payees who have been victimized by the fraudulent negotiation of unsolicited checks and cease all collection activity against the intended payee until the lender completes an investigation into the transaction.
