Contact Person
Donna Sorenson
Telephone (608) 266-2887
Dept. of Administration
101 E. Wilson St., 10th Floor
Madison, WI 53702
Notice of Hearings
Agriculture, Trade & Consumer Protection
Notice is hereby given that pursuant to ss. 100.20(2) and 227.16, Stats., the state of Wisconsin Department of Agriculture, Trade and Consumer Protection will hold public hearings at the times and places indicated below. At these hearings the department will consider revisions to ch. ATCP 124, Wis. Adm. Code, relating to price comparison advertising. Public comment is being sought on the department's rule proposal. Following the public hearings, the hearing record will remain open until April 1, 1997 for additional written comments. An interpreter for the hearing impaired will be available on request for these hearings. Please make reservations for a hearing interpreter by March 5, 1997 either by writing to Kevin LeRoy, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708, (608/224-4934) or by TDD at 608/224-5058.
Hearing Information
March 12, 1997 Milwaukee Regional Division of
Wednesday Trade & Consumer Protection Office
commencing at 1:00 p.m. 10930 W. Potter Road, Suite C
Wauwatosa, WI 43187
Handicapped accessible
March 13, 1997 Dept. of Agriculture, Trade &
Thursday Consumer Protection
commencing at 1:00 p.m. Conference Room 411
2811 Agriculture Drive
Madison, WI
Handicapped accessible
March 14, 1997 Green Bay Regional Division of the
Friday Trade & Consumer Protection Office
commencing at 1:30 p.m. Room 152B
200 N. Jefferson
Green Bay, WI 54301
Handicapped accessible
Written comments will be accepted until April 1, 1997.
Analysis prepared by the Wisconsin Department of Agriculture, Trade and Consumer Protection
Statutory authority: s. 100.20 (2)
Statute interpreted: s. 100.20
This rule amends the department's price comparison advertising rules under ch. ATCP 124, Wis. Adm. Code. This rule creates new definitions, and gives advertisers greater flexibility to compare their current selling prices to competitors' prices that are more than 90 days old.
Current Rules
The Department of Agriculture, Trade and Consumer Protection is responsible for regulating unfair and deceptive advertising practices under s. 100.18, Stats. (Deceptive Advertising Law) and s. 100.20, Stats. (“Little FTC Act”). The department is also responsible, under s. 120.20, Stats., for regulating unfair methods of competition in business and trade practices in business. Under s. 100.20, Stats., the department has adopted rules to regulate price comparison advertising.
The department adopted the ch. ATCP 124 price comparison advertising rules in 1974 and amended the rules in 1978. Chapter ATCP 124 regulates advertisements in which sellers make specific saving claims for consumer property or services which the sellers are offering for sale: e.g., “50% off,” “$40 value for only $10,” “Was $50, now only $25,” “introductory offer 50% off,” or “$35, compare elsewhere at $75”.
Under the current ch. ATCP 124 rules, a price comparison claim must be based on one of the following:
•A price at which the seller sold or offered the property or services in the past.
•A price at which a competitor sold or offered the property or services in the past.
•A price at which the seller will offer the property or services for sale in the future.
Currently, ch. ATCP 124 prohibits a seller from making a price comparison claim based on a competitor's price that is more than 90 days old. For example, under the current rule, a business that distributes a yearly catalogue which compares its prices with those of a competitor cannot distribute its catalogues in Wisconsin without violating ch. ATCP 124.
Proposed Rule Amendments
By limiting competitor price comparisons to 90 days before the advertisement, the current rules effectively prevent some businesses who, as a regular method of competition, provide competitor price comparisons beyond the 90-day limit. The proposed rule allows these businesses to offer their goods to consumers in Wisconsin without eliminating standards that assure truthful and fair practices.
The proposed rule would permit a seller to make a price comparison claim based on a competitor's price that is up to two years old while maintaining some safeguards against false or deceptive price comparisons. Under the proposed rule, sellers who wish to compare their price to a competitor's price that is older than ninety days must disclose the method or basis of the comparison in a way that allows the consumer to comprehend to true meaning of the comparison.
The proposed rule provides a definition of “trade area”. In the current rules, this phrase is not defined, although it is referred to as the “trade area in which the price comparison is made.” This wording has caused confusion as to whether, for example, a business can compare its prices with the prices offered in another state if the advertisement is also circulated in that state. The department believes that the original intent of the drafters was to define “trade area” broadly so as to allow comparisons with prices offered in other states in which the advertisement is circulated. The proposed rule makes it clear that a “trade area” includes areas outside of Wisconsin where the advertisement is also circulated, and that a business can compare a price offered in Wisconsin with prices offered in another state if the advertisement is also circulated in that state.
The proposed rules also provide definitions of “disclose”. By providing a definition of “disclose” the proposed rule clarifies what an advertiser must do to meet the notice requirements contained in the rule.
Initial Regulatory Flexibility Analysis
The Department expects the new rule's effect on small business to be minimal. The new rule is less restrictive than the current rule. Very few businesses use competitors' prices from a period beyond 90 days old in their ads. Those that do will need to disclose the method or basis for the comparison in their advertisement.
This new rule could potentially have some effect on the competitive retail environment. This rule will allow retailers to make certain price comparison claims which are not currently allowed. This could harm some business but help others. The effect on the retail environment is difficult to accurately predict, although it is likely that some small business will find it difficult to compete with businesses who were previously unable to market their products in Wisconsin because of their price comparison methods.
Fiscal Estimate
It is anticipated that this rule will have no significant fiscal impact on the department.
Copies
A copy of the rule to be considered, the Initial Regulatory Flexibility Analysis and the Fiscal Estimate may be obtained, free of charge, from the State of Wisconsin Department of Agriculture, Trade and Consumer Protection, Trade and Consumer Protection Division, 2811 Agriculture Drive, P. O. Box 8911, Madison, WI 53708, or by calling (608)224-4934.
Notice of Hearing
State Public Defender
Notice is hereby given that pursuant to s. 977.02 (3), Stats., and interpreting s. 977.07, Stats., the Office of the State Public Defender will hold a public hearing at the time and place indicated below, to consider the amendment of a rule relating to the cost of retained counsel.
Hearing Information
February 28, 1997 2nd Floor
Friday 315 North Henry St.
9:00 a.m. to MADISON, WI
11:00 a.m.
Reasonable accommodations will be made at the hearing for people with disabilities.
Analysis by Agency
Statutory authority: s. 977.02 (3)
Statute interpreted: s. 977.07
The proposed amendment to s. PD 3.02 (1) is technical in nature, and is necessary to make the rule consistent with current agency practice. Presently, the category related to Class A and B felonies in the “cost of retained counsel” table makes reference to “armed” Class A and B felonies. Current agency practice requires deletion of the term “armed”. The category should correctly state “other Class A & Class B felony”.
Initial Regulatory Flexibility Analysis
This rule would not have a regulatory effect on small businesses.
Fiscal Estimate
Because the amendment to s. PD 3.02 (1) is technical in nature, and is necessary to make the rule consistent with current agency practice, the proposed rule will not have any fiscal impact.
Copies of Proposed Rule and Contact Person
For copies of the proposed rule, or if you have questions, please contact:
Gina Pruski, Deputy Legal Counsel
Telephone (608) 266-6782
315 North Henry St.
Madison, WI 53703-3018
