Analysis by the Legislative Reference Bureau
state government
Other state government
Under current law, DATCP administers most consumer protection and trade practice laws. The authority to bring a court action to enforce these laws rests with either DATCP or the district attorney. Where DATCP has the authority to bring a court action, current law specifies whether DATCP has exclusive authority, or whether it has joint authority with DOJ or the district attorney.
This bill transfers all of the administrative authority for certain of these laws, including laws relating to ticket refunds, dating service contracts, mail-order sales, fraudulent representations, methods of competition and trade practices, telecommunications services, cable television subscriber rights, hazardous substances, product safety, products containing or made with ozone-depleting substances, future services plans, landlord and tenant, and time-share ownership, to DOJ. The authority to bring a court action to enforce these laws is transferred either exclusively to DOJ or to DOJ jointly with the district attorney. For certain other of these laws, including unfair trade practices in the dairy industry, discrimination in the purchase of milk, and unfair trade practices in the procurement of vegetable crops, the bill does not affect DATCP's authority under current law to administer these laws but specifies that the authority to bring a court action rests either exclusively with DOJ or jointly with the district attorney. The bill does not affect DATCP's authority to both administer and enforce certain other trade practice laws, such as those relating to music royalty collection, the substantiation of energy savings or safety claims, and motor fuel dealerships.
Under current law, if a court imposes a fine or forfeiture for a violation of certain consumer protection laws or the laws regulating weights and measures, the court is required to impose an additional consumer protection surcharge. The surcharges, up to a certain limit, are credited to an appropriation account for expenditure by DATCP for consumer protection and consumer information and education. Under the bill, these consumer protection surcharges, other than those imposed for a violation of the laws regulating weights and measures, are credited to an appropriation account for expenditure by DOJ, rather than DATCP. This bill also requires the imposition of the consumer protection surcharge for fines or forfeitures resulting from the violation of statutes prohibiting the creation of monopolies and the unfair and discriminatory business practices that hamper competition.
Under current law, DATCP is under the supervision and direction the Board of Agriculture, Trade and Consumer Protection. The board currently consists of nine members, seven of whom have an agricultural background and two of whom are consumer representatives. This bill changes the composition of the board so that all nine members have agricultural backgrounds.
The bill also changes the name of DATCP to the Department of Agriculture, Trade, and Rural Resources and changes the name of the Board of Agriculture, Trade and Consumer Protection to the Board of Agriculture, Trade, and Rural Resources.
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:
SECTION 1. 15.13 of the statutes is amended to read:
15.13 Department of agriculture, trade, and consumer protection rural resources; creation. There is created a department of agriculture, trade, and consumer protection rural resources under the direction and supervision of the board of agriculture, trade, and consumer protection rural resources. The board shall consist of 7 9 members with an agricultural background and 2 members who are consumer representatives, appointed for staggered 6-year terms. Appointments to the board shall be made without regard to party affiliation, residence or interest in any special organized group.
SECTION 2. 15.137 (1) (a) (intro.) of the statutes is amended to read:
15.137 (1) (a) (intro.) There is created in the department of agriculture, trade, and consumer protection rural resources an agricultural producer security council consisting of the following members appointed by the secretary of agriculture, trade, and rural resources for 3-year terms:
SECTION 3. 20.115 (1) (hm) of the statutes is amended to read:
20.115 (1) (hm) Ozone-depleting refrigerants and products regulation. The amounts in the schedule for administration of the mobile air conditioner servicing and refrigerant recycling programs and for responsibilities under ss. s. 100.45 and 100.50 relating to sales and labeling of products containing or made with ozone-depleting substances. All moneys received from fees under s. 100.45 (5) (a) 3. and (5m) shall be credited to this appropriation.
SECTION 4. 20.115 (8) (jm) of the statutes is repealed.
****NOTE: This SECTION involves a change in an appropriation that must be reflected in the revised schedule in s. 20.005, stats.
SECTION 5. 20.455 (1) (title) of the statutes is amended to read:
20.455 (1) (title) LEGAL AND REGULATORY SERVICES.
****NOTE: This SECTION involves a change in an appropriation that must be reflected in the revised schedule in s. 20.005, stats.
SECTION 6. 20.455 (1) (g) of the statutes is created to read:
20.455 (1) (g) Consumer protection, information, and education. The amounts in the schedule for consumer protection and consumer information and education. All moneys received under s. 100.261 (3) (d) shall be credited to this appropriation account, subject to the limit under s. 100.261 (3) (e).
****NOTE: This SECTION involves a change in an appropriation that must be reflected in the revised schedule in s. 20.005, stats.
SECTION 7. 20.455 (1) (j) of the statutes is created to read:
20.455 (1) (j) Telephone solicitation regulation. All moneys received from telephone solicitor registration and registration renewal fees paid under the rules promulgated under s. 100.52 (3) (a) for establishing and maintaining the nonsolicitation directory under s. 100.52 (2).
****NOTE: This SECTION involves a change in an appropriation that must be reflected in the revised schedule in s. 20.005, stats.
SECTION 8. 93.07 (1) of the statutes is amended to read:
93.07 (1) REGULATIONS. To make and enforce such regulations, not inconsistent with law, as it may deem necessary for the exercise and discharge of all of the powers and duties of the department, and to adopt such measures and make such regulations as are necessary and proper for the enforcement by the state of department to carry out its powers and duties under chs. 93 to 100, which regulations shall have the force of law.
SECTION 9. 93.07 (23) of the statutes is created to read:
93.07 (23) CONSUMER PROTECTION ADMINISTRATION. To administer ss. 100.01 to 100.14, 100.183 to 100.19, 100.201, 100.202, 100.206, 100.21 to 100.24, 100.265, 100.27, 100.285 to 100.30, 100.33 to 100.36, 100.45, 100.47, 100.48, and 100.51.
SECTION 10. 93.07 (24) of the statutes is amended to read:
93.07 (24) ENFORCEMENT OF LAWS. To enforce or assist in the enforcement of chs. 88 and 93 to 99, those laws under ch. 100 administered by the department, and all other laws entrusted to its administration, and especially:
(a) To enforce the laws administered by the department regarding the production, manufacture and sale, offering or exposing for sale or having in possession with intent to sell, of any dairy, food or drug product.
(b) To enforce the laws administered by the department regarding the adulteration or misbranding of any articles of food, drink, condiment or drug.
(c) To inspect any milk, butter, cheese, lard, syrup, coffee, tea or other article of food, drink, condiment or drug made or offered for sale within this state which it may suspect or have reason to believe, under the laws administered by the department, to be impure, unhealthful, misbranded, adulterated or counterfeit, or in any way unlawful.
(d) To prosecute or cause to be prosecuted, under the laws administered by the department, any person engaged in the manufacture or sale, offering or exposing for sale or having in possession with intent to sell, of any adulterated dairy product or of any adulterated, misbranded, counterfeit, or otherwise unlawful article or articles of food, drink, condiment or drug.
SECTION 11. 93.18 (3) of the statutes is amended to read:
93.18 (3) The department of justice, after acting pursuant to s. 100.37 or 100.41 to 100.43 to order the sale or distribution of any substance, article, furnishing, fabric, product or related material ceased, shall give written notice of its finding to the manufacturer, seller or other person responsible for placing the item in the channels of trade in this state. After such notice no person may sell, remove or otherwise dispose of such item except as directed by the department of justice. Any person affected by such notice may demand a prompt hearing to determine the validity of the department's findings of the department of justice. The hearing, if requested, shall be held as expeditiously as possible but not later than 30 days after notice. A request for hearing does not operate to stay enforcement of the order during the pendency of the hearing. The person petitioning for a hearing shall be entitled to the same rights specified under sub. (2).
SECTION 12. 93.18 (7) of the statutes is created to read:
93.18 (7) The department of justice shall follow the procedures under subs. (1), (2), (4), (5), and (6) in enforcing the provisions of ch. 100 that are administered by the department of justice.
SECTION 13. 93.20 (1) of the statutes is amended to read:
93.20 (1) DEFINITION. In this section, "action" means an action that is commenced in court by, or on behalf of, the department of agriculture, trade, and consumer protection rural resources to enforce chs. 88, 91 to 100 or 126 or an action that is commenced in court by the department of justice to enforce ch. 100.
SECTION 14. 93.22 (1) of the statutes is amended to read:
93.22 (1) In cases arising under chs. 88 and 93 to 100 99 and ss. 100.206, 100.21, 100.30, and 100.51, the department may be represented by its attorney.
SECTION 15. 93.22 (2) of the statutes is amended to read:
93.22 (2) The department may, with the approval of the governor, appoint special counsel to prosecute or assist in the prosecution of any case arising under chs. 88 and 93 to 100 99 and ss. 100.206, 100.21, 100.30, and 100.51. The cost of such special counsel shall be charged to the appropriation for the department.
SECTION 16. 100.07 (6) of the statutes is amended to read:
100.07 (6) Action Upon request of the department of agriculture, trade, and rural resources, an action to enjoin violation of this section may be commenced and prosecuted by the department of justice in the name of the state in any court having equity jurisdiction.
SECTION 17. 100.171 (7) (b) of the statutes is amended to read:
100.171 (7) (b) Whoever intentionally violates this section is guilty of a Class I felony. A person intentionally violates this section if the violation occurs after the department of justice or a district attorney has notified the person by certified mail that the person is in violation of this section.
SECTION 18. 100.171 (8) (intro.) of the statutes is amended to read:
100.171 (8) ENFORCEMENT. (intro.) The department of justice shall investigate violations of this section. The department of justice or any district attorney may on behalf of the state:
SECTION 19. 100.173 (4) (intro.) of the statutes is amended to read:
100.173 (4) (intro.) The department of justice shall investigate violations of this section. The department of justice, or any district attorney upon informing the department of justice, may, on behalf of the state, do any of the following:
SECTION 20. 100.173 (4) (a) of the statutes is amended to read:
100.173 (4) (a) Bring an action for temporary or permanent injunctive relief in any court of competent jurisdiction for any violation of this section. The relief sought by the department of justice or district attorney may include the payment by a promoter into an escrow account of an amount estimated to be sufficient to pay for ticket refunds. The court may, upon entry of final judgment, award restitution when appropriate to any person suffering loss because of violations of this section if proof of such loss is submitted to the satisfaction of the court.
SECTION 21. 100.174 (5) (intro.) of the statutes is amended to read:
100.174 (5) (intro.) The department of justice or any district attorney may on behalf of the state:
SECTION 22. 100.174 (6) of the statutes is amended to read:
100.174 (6) The department of justice shall investigate violations of and enforce this section.
SECTION 23. 100.175 (5) (a) (intro.) of the statutes is amended to read:
100.175 (5) (a) (intro.) No person may collect or by contract require a buyer to pay more than $100 for dating services before the buyer receives or has the opportunity to receive those services unless the person selling dating services establishes proof of financial responsibility by maintaining any of the following commitments approved by the department of justice in an amount not less than $25,000:
SECTION 24. 100.175 (5) (b) of the statutes is amended to read:
100.175 (5) (b) The commitment described in par. (a) shall be established in favor of or made payable to the state, for the benefit of any buyer who does not receive a refund under the contractual provision described in sub. (3). The person selling dating services shall file with the department of justice any agreement, instrument or other document necessary to enforce the commitment against the person selling dating services or any relevant 3rd party, or both.
SECTION 25. 100.175 (7) (a) (intro.) of the statutes is amended to read:
100.175 (7) (a) (intro.) The department of justice or any district attorney may on behalf of the state:
SECTION 26. 100.175 (7) (b) of the statutes is amended to read:
100.175 (7) (b) The department of justice may bring an action in circuit court to recover on a financial commitment maintained under sub. (5) against a person selling dating services or relevant 3rd party, or both, on behalf of any buyer who does not receive a refund due under the contractual provision described in sub. (3).
SECTION 27. 100.177 (1) (bm) of the statutes is created to read:
100.177 (1) (bm) Notwithstanding s. 93.01 (3), "department" means the department of justice.
SECTION 28. 100.178 (1) (b) of the statutes is amended to read:
100.178 (1) (b) Notwithstanding s. 93.01 (3), "department" means the department of health and family services justice.
SECTION 29. 100.18 (11) (a) of the statutes is amended to read:
100.18 (11) (a) The department of agriculture, trade and consumer protection justice shall enforce this section. Actions to enjoin violation of this section or any regulations thereunder may be commenced and prosecuted by the department of justice in the name of the state in any court having equity jurisdiction. This remedy is not exclusive.
SECTION 30. 100.18 (11) (b) 3. of the statutes is amended to read:
100.18 (11) (b) 3. No action may be commenced under this section more than 3 years after the occurrence of the unlawful act or practice which is the subject of the action. No injunction may be issued under this section which would conflict with general or special orders of the department of justice or any statute, rule or regulation of the United States or of this state.
SECTION 31. 100.18 (11) (c) 1. of the statutes is amended to read:
100.18 (11) (c) 1. Whenever the department of justice has reason to believe that a person is in possession, custody, or control of any information or documentary material relevant to the enforcement of this section it may require that person to submit a statement or report, under oath or otherwise, as to the facts and circumstances concerning any activity in the course of trade or commerce; examine under oath that person with respect to any activity in the course of trade or commerce; and execute in writing and cause to be served upon such person a civil investigative demand requiring the person to produce any relevant documentary material for inspection and copying.
SECTION 32. 100.18 (11) (c) 2. of the statutes is amended to read:
100.18 (11) (c) 2. The department of justice, in exercising powers under this subsection, may issue subpoenas, administer oaths, and conduct hearings to aid in any investigation.
SECTION 33. 100.18 (11) (c) 3. of the statutes is amended to read:
100.18 (11) (c) 3. Service of any notice by the department of justice requiring a person to file a statement or report, or service of a subpoena upon a person, or service of a civil investigative demand shall be made in compliance with the rules of civil procedure of this state.
SECTION 34. 100.18 (11) (c) 4. of the statutes is amended to read:
100.18 (11) (c) 4. If a person fails to file any statement or report, or fails to comply with any civil investigative demand, or fails to obey any subpoena issued by the department of justice, such person may be coerced as provided in s. 885.12, except that no person shall be required to furnish any testimony or evidence under this subsection which might tend to incriminate the person.
SECTION 35. 100.18 (11) (d) of the statutes is amended to read:
100.18 (11) (d) The department or the department of justice, after consulting with the department, or any district attorney, upon informing the department of justice, may commence an action in circuit court in the name of the state to restrain by temporary or permanent injunction any violation of this section. The court may in its discretion, prior to entry of final judgment, make such orders or judgments as may be necessary to restore to any person any pecuniary loss suffered because of the acts or practices involved in the action, provided proof thereof is submitted to the satisfaction of the court. The department and the department of justice may subpoena persons and require the production of books and other documents, and the department of justice may request the department to exercise its authority under par. (c) to aid in the investigation of alleged violations of this section.
SECTION 36. 100.18 (11) (e) of the statutes is amended to read:
100.18 (11) (e) In lieu of instituting or continuing an action pursuant to this section, the department or the department of justice may accept a written assurance of discontinuance of any act or practice alleged to be a violation of this section from the person who has engaged in such act or practice. The acceptance of such assurance by either the department or the department of justice shall be deemed acceptance by the other state officials enumerated in par. (d) any district attorney if the terms of the assurance so provide. An assurance entered into pursuant to this section shall not be considered evidence of a violation of this section, provided that violation of such an assurance shall be treated as a violation of this section, and shall be subjected to all of the penalties and remedies provided therefor under this section.
SECTION 37. 100.182 (5) (a) of the statutes is amended to read:
100.182 (5) (a) Any district attorney, after informing the department of justice, or the department of justice may seek a temporary or permanent injunction in circuit court to restrain any violation of this section. Prior to entering a final judgment the court may award damages to any person suffering monetary loss because of a violation. The department of justice may subpoena any person or require the production of any document to aid in investigating alleged violations of this section.
SECTION 38. 100.182 (5) (b) of the statutes is amended to read:
100.182 (5) (b) In lieu of instituting or continuing an action under this subsection, the department of justice may accept a written assurance from a violator of this section that the violation has ceased. If the terms of the assurance so provide, its acceptance by the department of justice prevents all district attorneys from prosecuting the violation. An assurance is not evidence of a violation of this section but violation of an assurance is subject to the penalties and remedies of violating this section.
