Bears or contains any nonnutritive substance; but this paragraph shall not apply to a safe nonnutritive substance which is in or on confectionary by reason of its use for some practical functional purpose in the manufacture, packaging, or storing of the confectionary if the use of the substance does not promote deception of the consumer or otherwise result in adulteration or misbranding in violation of this chapter. The department may, for the purpose of avoiding or resolving uncertainty as to the application of this paragraph, promulgate rules allowing or prohibiting the use of particular nonnutritive substances.
See also ch. ATCP 55
, Wis. adm. code.
Standards; misbranding. 97.03(1)(a)
If its labeling is false or misleading in any particular.
If it is offered for sale under the name of another food.
If its container is so made, formed or filled as to be misleading.
If in package form, unless it bears a label containing all of the following:
The name and place of business of the manufacturer, packer or distributor.
An accurate statement of the quantity of the contents in terms of weight, measure or numerical count.
If any word, statement or other information required to appear on the label or labeling is not prominently placed thereon with such conspicuousness and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.
If it is represented as a food for which a definition and standard of identity has been prescribed under s. 97.09
unless it conforms to such definition and standard and its label, except when its label complies with the federal act, bears the name of the food specified in the definition and standard and the common names of ingredients present in such food.
A food for which a standard of quality has been prescribed under s. 97.09
and its quality falls below such standard unless its label bears, in the manner and form as such regulations specify, a statement that it falls below such standard.
A food for which a standard or standards of fill of container have been prescribed under s. 97.09
and it falls below the standard of fill of container applicable thereto, unless its label bears, in the manner and form as such regulations specify, a statement that it falls below such standard.
If it is a food for which no definition or standard of identity has been prescribed unless it bears a label clearly giving the common or usual name of the food if any, and in case it is fabricated from 2 or more ingredients, the common or usual name of each such ingredient; provided that to the extent that compliance with this subdivision is impractical or results in deception or unfair competition, exemptions shall be established by departmental rule.
If it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral and other dietary properties as the department determines to be, and prescribes as, necessary in order to fully inform purchasers as to its value for such uses.
If it bears or contains any artificial flavoring, artificial coloring or chemical preservative, unless it bears a label stating that fact.
If it is a product intended as an ingredient of another food and when used according to the directions of the purveyor will result in the final food product being adulterated or misbranded.
If it is a color additive unless its packaging and labeling are in conformity with such packaging and labeling requirements applicable to such color additive prescribed under the federal act.
Packages of fresh fruits and vegetables, the contents of which are plainly visible to the purchaser shall be exempt from a declaration of numerical count and identity under this section if the package contains 6 units or less, except that when the quantity of the food is customarily expressed in terms of weight or measure, as distinguished from numerical count, the food shall bear a label declaring the quantity.
A food is exempt from labeling requirements under this section if the food, having been received in bulk containers by a retailer, is packaged by the retailer and displayed to the purchaser with a counter card, sign or other appropriate device bearing prominently and conspicuously the label information required by this section.
Sausage enclosed in a casing is exempt from labeling requirements under this section if it is displayed to the purchaser with a counter card, sign or other appropriate device bearing prominently and conspicuously the label information required by this section; but if the sausage is weighed at the time of sale a statement of weight is not required. If encased sausage is placed in another package, labeling requirements of this section apply.
Bakery products enclosed in transparent containers or enclosed in containers which provide a transparent opening to afford a clear view of the product are exempt from labeling requirements under this section when such products are sold at retail by the bakery operator or the bakery operator's employee direct to the consumer at the baker's own retail bakery service counter operated by the baker who has produced these products, and when displayed to the purchaser with a counter card, sign or other appropriate device bearing conspicuously the label information required under this section.
A food shall be exempt from the labeling requirements under this chapter if the food, in accordance with the practice of the trade, is to be processed, labeled or repacked in substantial quantities by the buyer, on condition that such food is not adulterated or misbranded under this chapter upon completion of such processing, labeling or repacking by the buyer.
Except as provided in par. (b)
, no person may use the term "butter" in the name or in connection with the name, designation, advertising or description of any article of food prepared and offered for sale or served with any meal for which a charge is made unless all of the fat contained in such article of food is butterfat. This paragraph does not prohibit any representation that a food is flavored with butter if at least 12% of the fat in such food is butterfat or if the food contains the concentrated flavor elements derived from natural butterfat in sufficient quantities to impart a characteristic butter flavor.
A person may use the term "light butter" or "lite butter" in the name or in connection with the name, designation, advertising or description of an article of food prepared and offered for sale or served with any meal if the product is produced to resemble butter, contains 52% butterfat within tolerances that are acceptable to the department, has at least one-third fewer calories than butter, is made from pasteurized milk or cream or both and contains 15,000 international units of vitamin A per pound within tolerances of good manufacturing practices. The product may contain only the following additional ingredients:
Safe and suitable ingredients that improve texture, prevent syneresis or extend the shelf life of the product.
See also ch. ATCP 55
, Wis. adm. code.
If an article is alleged to be misbranded because the labeling is misleading, then in determining whether the labeling is misleading, there shall be taken into account not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the labeling fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the article to which the labeling relates under the conditions of use prescribed in the labeling or under such conditions of use as are customary or usual.
Definitions and standards of identity, composition, quality and fill of container for foods, and amendments thereto, now or hereafter adopted under the federal act or this chapter are definitions and standards of identity, composition, quality and fill of container under s. 97.03
. However, when such action will promote honesty and fair dealing in the interest of consumers, the department may amend, stay or reject such federal regulations or make rules establishing definitions and standards of identity, composition, quality and fill of container for foods where no federal regulations exist, or which differ from federal regulations.
Sub. (1) is shown as affected by 1983 Wis. Act 536
, which adds "or this chapter". The effective date of Act 536, is shown in Section 4 as follows:
Effective date text
Section 4. Effective date. This act takes effect on the first day of the 3rd month commencing after the governor certifies, by executive order directed to the secretary of agriculture, trade and consumer protection and published in the official state newspaper, that all states contiguous to the borders of this state have in effect milk content requirements identical to those requirements created by this act.
Temporary permits granted under the federal act for interstate shipment of experimental packs of food varying from the requirements of federal definitions and standards of identity are automatically effective in this state under conditions set forth in such permits.
The department may also issue temporary marketing permits upon a convincing showing of need to continue a market study where the interests of consumers are safeguarded. Such permits are subject to terms and conditions prescribed by departmental rules but may not be issued for a period exceeding 6 months plus one renewal period of 6 months after departmental review.
The department may, by rule, establish and enforce standards governing the production, processing, packaging, labeling, transportation, storage, handling, display, sale, including retail sale, and distribution of foods that are needed to protect the public from the sale of adulterated or misbranded foods.
The department shall promulgate rules establishing standards and procedures for the labeling of organic food. The rules may establish a process whereby organizations, businesses and firms certify that foods represented as organic foods comply with established standards. In this subsection, "organic food" means any food that is marketed using "organic" or any derivative of "organic" in its labeling or advertising.
See also ch. ATCP 55
, Wis. adm. code.
Prohibited acts. 97.10(1)(1)
The sale of any food that is adulterated or misbranded is prohibited.
It is unlawful to manufacture, prepare for sale, store, or sell food unless the food is protected from filth, flies, dust or other contamination or unclean, unhealthful or insanitary conditions.
No person shall be subject to the penalties of s. 97.72
for having violated sub. (1)
, if he or she establishes a guaranty or undertaking signed by, and containing the name and address of the person residing in this state from whom the article was received in good faith, to the effect that such article is not adulterated or misbranded within the meaning of ss. 97.02
History: 1971 c. 156
; 1983 a. 261
See also ch. ATCP 55
, Wis. adm. code.
For the purpose of enforcing this chapter, the department and its agents may, at reasonable hours, enter and inspect any farm, factory, warehouse, building, room, establishment or place at or in which foods are manufactured, processed, packed, packaged, stored or held for sale, and may enter any vehicle used to transport or hold foods in commerce. The department and its agents may also secure samples or specimens of food and any product or substance that may affect food, examine and copy relevant documents and records and obtain photographic and other evidence needed to enforce this chapter. The department shall examine any samples secured and shall conduct other inspections and examinations needed to determine whether there is a violation of this chapter. The department shall pay or offer to pay the market value of samples taken.
Whenever any duly authorized inspector of the department has reasonable cause to believe that any food examined by him or her is adulterated or misbranded and is dangerous to health or misleading to the injury or damage of the purchaser or consumer, the inspector shall issue and deliver to the owner or custodian of the food a holding order prohibiting the sale or movement of the food for any purpose until the analysis or examination of the sample obtained has been completed. A holding order may be effective for a period of not longer than 14 days from the time of its delivery, but it may be reissued for one additional 14-day period if necessary to complete the analysis or examination of the food.
No food described in any such holding order so issued and delivered shall be sold or moved for any purpose without the approval of the department until such analysis or examination has been completed within the time specified in par. (a)
. If the department upon completed analysis or examination determines that the food described in such holding order is not adulterated or misbranded, then the owner or custodian thereof shall be promptly so notified in writing, and such holding order shall terminate upon such notification.
Where the analysis or examination shows that the food is adulterated or misbranded and is dangerous to health or misleading to the injury or damage of the purchaser or consumer, the owner or custodian of the food shall be so notified in writing within the effective time of the holding order. Such notice has the effect of a special order issued under s. 93.18
. Upon receipt of a notice the food subject to the holding order may not be sold, moved, disposed of or brought into compliance with applicable standards without the approval of the department. If such food is not brought into compliance, sold, moved or disposed of within 30 days, or other agreed upon period of time, from the date the owner or custodian received notice that the food was adulterated or misbranded, the department may issue an order directing the disposition of the food. Such an order has the effect of a special order issued under s. 93.18
Any person violating an order issued under this section may be fined not more than the maximum amount under subd. 2.
or imprisoned not more than one year in the county jail or both.
The maximum fine under this paragraph equals $10,000 plus the retail value of the product moved, sold or disposed of in violation of the order issued under this section.
The department may issue a special order as provided under s. 93.18
to any person engaged in the production, processing, sale or distribution of food if the department finds a violation of this chapter or the rules promulgated under this chapter. An order shall state the violations found and shall specify a fixed period of time for correction. If the department finds that a piece of equipment, a facility or a practice used is a danger to public health, it may order that the situation be abated or eliminated immediately and that the equipment, facility or practice not be used until the violation is corrected and the correction is confirmed by the department. The department may, instead of issuing an order, accept written agreements of voluntary compliance which have the effect of an order.
The department may, by summary order and without prior notice or hearing, suspend a license or permit issued under this chapter if the department finds that there has been a substantial failure to comply with the applicable requirements of this chapter and the rules promulgated under this chapter and that the continuation of the violations constitutes a serious danger to public health. The order shall be in writing, have the force and effect of an order issued under s. 93.18
, and is subject to right of hearing before the department, if requested within 10 days after date of service. Hearings, if requested, shall be conducted within 10 days after receipt of a request for a hearing. Enforcement of the order shall not be stayed pending action on the hearing.
Any person who does either of the following may be fined not more than $5,000 or imprisoned not more than one year in the county jail or both:
Assaults, restrains, threatens, intimidates, impedes, interferes with, or otherwise obstructs a department inspector, employee or agent in the performance of his or her duties.
Gives false information to a department inspector, employee or agent with the intent to mislead the inspector, employee or agent in the performance of his or her duties.
History: 1971 c. 156
; 1983 a. 261
See also ch. ATCP 55
, Wis. adm. code.
A warrantless inspection of a dairy farm under authority of ss. 93.08, 93.15 (2), 97.12 (1), and related administrative rules made without prior notice and without the owner being present was not unconstitutional. Because the administrative rules govern operations, equipment, and processes not typically conducted in residential areas, the rules and statutes sufficiently preclude making warrantless searches of residences. Lundeen v. Dept. of Agriculture, 189 Wis. 2d 255
, 525 N.W.2d 758
(Ct. App. 1994).
Sale of fish flour regulated.
No person shall sell any food product for human consumption within this state containing whole fish flour, except fish flour made from the normally edible portions of fish or fish protein concentrate. No package containing fish flour or fish protein concentrate shall be sold by any person unless it bears a statement declaring that the contents thereof are made only from the edible portions of fish.
Buttermaker and cheesemaker license. 97.17(1)
In this section the terms "buttermaker" and "cheesemaker" mean a person employed or who may be employed in a butter or a cheese factory who has charge of and supervision over the actual process of manufacturing butter or cheese, and shall not include a person employed in a butter or cheese factory for the purpose of assisting in the manufacture of such product. This section shall not affect a person making up a product produced on the person's farm, nor shall it be unlawful for a licensed cheesemaker employed in a licensed cheese factory to make butter or whey cream butter for the use or consumption only of the patrons thereof.
No person shall engage as a buttermaker or cheesemaker unless the person has a license from the department. The license shall be issued by the department under regulations that the department shall prescribe relating to the qualifications of applicants for licenses. The qualifications shall include the applicant's record in operating and keeping in sanitary condition the butter or cheese factory in which the applicant has been employed.
Application for a buttermaker's or cheesemaker's license shall be made upon a form furnished by the department. Upon receipt of the application the department shall issue a permit to the applicant to carry on the work of a buttermaker or cheesemaker. The permit shall have the force and effect of a license to a buttermaker or cheesemaker until a license shall have been issued to the applicant or until the applicant shall have been notified of the denial of the application. At the time that the permit is issued, the department shall furnish the applicant with the regulations incident to securing a license and also suggestions relating to the proper method of operating butter or cheese factories.
Each application for a license shall be accompanied by a fee that is $50 unless otherwise established by department rule, except that an individual who is eligible for the veterans fee waiver program under s. 45.44
is not required to pay a fee.
The license shall expire on the first day of January of the 2nd year commencing after the date of issuance or renewal. Renewal applications shall be submitted on department forms and be accompanied by the biennial license fee under sub. (4)
See also ch. ATCP 69
, Wis. adm. code.
Butter and cheese grader license requirements. 97.175(1)(1)
In this section and ss. 97.176
, "butter grader" or "cheese grader" means a person who grades butter or cheese.