October 27, 1997 Suite C
Monday 1st Floor Conference Room
Commencing The Woods at Mayfair
at 9:30 am. 10930 W. Potter Road
Wauwatosa, WI
October 27, 1997 Board Room SR-106
Monday Prairie Oak State Office Bldg.
Commencing 2811 Agriculture Drive
at 2:00 pm. Madison, WI
October 30, 1997 1st Floor Conference Room
Thursday WDATCP State Office Bldg.
Commencing 3610 Oakwood Hills Parkway
at 9:30 am. Eau Claire, WI
October 31, 1997 Room 152
Friday Wis. District Office Bldg.
Commencing 200 N. Jefferson Street
at 9:30 am. Green Bay, WI
Analysis Prepared by the Dept. of Agriculture, Trade & Consumer Protection
Statutory authority: ss. 93.07 (1), 97.09 (1) and (4), 97.42 (4) (j), 98.07(3) and (4), 98.26 (1) (b) and 100.20 (2)
Statutes interpreted: ss. 98.06, 98.07 and 98.26 (1) (b)
This rule modifies the Department's current rules related to weighing and measuring devices, fair packaging and labeling, and selling commodities by weight, measure or count.
Weighing and Measuring Devices
Current Department rules under ch. ATCP 92, Wis. Adm. Code, regulate weighing and measuring devices. The rules are designed to ensure the accuracy of commercial weights and measures. This rule amends the Department's current rules under ch. ATCP 92.
Section 98.26 (1) (b), Stats., currently prohibits any person from causing a weight or measure to be incorrect. This rule also prohibits any person from causing a weight or measure to be incorrect. A person who manufactures or distributes a weighing or measuring device is deemed to violate this prohibition if all of the following apply:
❍ The person knows or reasonably should know that the weighing or measuring device has a defect that may cause an incorrect weight or measure.
❍ The person fails to take steps which that person is reasonably capable of taking, which would prevent the defect from causing incorrect weights or measures.
❍ The defective weighing or measuring device causes an incorrect weight or measure which is attributable, at least in part, to the defect.
Fair Packaging and Labeling
Overview
Current Department rules under ch. ATCP 90, Wis. Adm. Code, regulate the packaging and labeling of consumer commodities. Under the current rules, consumer commodities sold in package form must bear declarations of seller identity, product identity and net quantity. The current rules also spell out sampling methods used to determine whether packages contain the full amounts claimed on the package labels.
This rule modifies current rules as follows:
□ It establishes fair packaging and labeling standards for liquefied petroleum gas (LP gas) sold in portable refillable containers.
□ It modifies current sampling procedures used to determine whether packages contain the full amounts claimed on the package labels.
Liquefied Petroleum Gas
Current fair packaging and labeling rules do not apply to the sale of LP gas in portable refillable containers (cylinders). This rule establishes fair packaging and labeling rules for LP gas sold in portable refillable containers.
Under this rule:
4 The tare weight of each container must appear on the outside of the container.
4 The net quantity of LP gas in each container must be disclosed on the container label, or on a tag attached to the container.
4 A declaration of responsibility (identifying the responsible seller) must be attached to the container or posted at the point of sale.
Enforcement Samples
Current rules spell out statistical sampling procedures and compliance standards used to determine whether packages contain the full amounts claimed on the package labels. This rule modifies the current standards to conform to current standards specified by the National Institute of Standards and Technology (NIST) Handbook 133, “Checking the Net Contents of Packaged Goods."
Selling Commodities By Weight, Measure or Count
Overview
Under s. 98.06 (1), Stats., liquid commodities must ordinarily be sold by liquid measure and nonliquid commodities must ordinarily be sold by weight. Other methods of sale may be used if they are in general use and provide accurate information as to the quantity of commodity sold. For some commodities, however, a proliferation of alternative methods may result in deception, confusion and unfair competition.
Current Department rules under ch. ATCP 91, Wis. Adm. Code, spell out uniform methods of sale for certain commodities. This rule modifies current rules as follows:
▶ It incorporates the general requirements of s. 98.06, Stats.
▶ It clarifies current standards related to the sale of bulk commodities by weight.
▶ It gives retailers greater flexibility to sell “ready-to-eat" foods by weight, measure or count, at the retailer's option.
▶ It defines “weight" to exclude packaging materials and other extraneous materials.
▶ It modifies current standards related to fresh fruits and vegetables, meat and poultry, seafood, cheese and pizza.
▶ It incorporates, without change, current statutory standards related to sales of petroleum products and motor fuel.
▶ It makes organizational and drafting changes to streamline and clarify the current rule.
Bulk Commodities Sold by Weight
This rule clarifies current rules related to the sale of bulk commodities by weight.
Under this rule:
◯ Whenever a bulk or unpackaged commodity is offered for sale by weight, the price for that commodity must be declared per single whole unit of weight. The price may not be declared per fractional or multiple unit of weight.
◯ If a retailer displays more than one type of bulk or unpackaged commodity for sale by weight in the same retail display, the retailer must declare all of the prices of the displayed commodities per the same whole unit of weight.
◯ No person may sell a bulk or unpackaged commodity by weight at retail unless one of the following applies:
○ The commodity is weighed at the time of sale.
○ The weights of individual commodity units are accurately premarked on those units.
○ A placard stating the guaranteed minimum individual weight of the individual commodity units displayed for sale is conspicuously posted at the display location.
◯ The weight of a bulk or unpackaged commodity sold by weight may not include the weight of the containers or wrappers, if any, in which those commodities are sold.
◯ Whenever a bulk commodity sold by weight is delivered by vehicle to an individual purchaser, the bulk delivery must comply with s. 98.22, Stats. Under s. 98.22, the seller must provide the purchaser with a delivery ticket that shows the seller's name and address, the name and address of the purchaser, the net weight of the delivery in pounds, and the gross and tare weights of the delivery if gross and tare weights are used in determining the net weight.
Fresh Fruits and Vegetables
Under current rules, fresh fruits and vegetables must be sold by weight unless exemptions authorize other methods of sale. The current rules exempt 29 fruits or vegetables that may be sold by weight or count, 15 that may be sold by weight or “bunch," 11 that may be sold by weight or specified dry measure (e.g., berries sold by 1/2 pint, pint or quart), and 2 that may be sold by weight, count or specified dry measure.
This rule modifies the current exemptions, adding or deleting certain fruits or vegetables in each exemption category. Under this rule, 36 fruits or vegetables may be sold by weight or count, 18 may be sold by weight or “bunch," 9 may be sold by weight or specified dry measure, and 4 may be sold by weight, count or specified dry measure.
Meat, Poultry and Cheese
Under current rules, meat, poultry, cheese, and foods made from meat, poultry or cheese must ordinarily be sold by weight. This rule maintains the current requirement, but creates an exemption for certain “ready to eat" foods. This rule also provides that the declared weight of cheese coated with wax may not include the weight of the wax.
Seafood
Under current rules, seafood and seafood products must ordinarily be sold by weight, except that current rules authorize different methods of sale for mollusks, live fish and live shellfish. This rule maintains the current requirements, with minor modifications. This rule also creates an exemption for certain “ready to eat" foods.
Pizza
This rule clarifies that pizza must be sold by weight, except that “made to order" pizzas may be sold by weight or count.
Ready-to-Eat Foods
Supermarkets and convenience stores are currently offering more restaurant-style or “ready-to-eat" foods for consumption on or off the premises. Current rules unnecessarily restrict the methods by which many of these foods may be sold (e.g., by requiring weight declarations on restaurant-style foods which the consumer does not expect to purchase by weight).
In recognition of current market trends, this rule gives retailers greater flexibility to sell certain “ready-to-eat" foods by weight, measure or count. Under this rule, for example, a grocery store could sell individual “ready to eat" sandwiches or salads without having to weigh them. The grocery store could sell these items by count -- e.g., $2.00 per sandwich, or $1.50 per individual salad. This treatment of “ready-to-eat" foods is consistent with allowed methods of sale in restaurants.
Under this rule, “ready-to-eat" food means food which is sold for immediate consumption without further washing, heating, thawing or other preparation. “Ready-to-eat food" does not include any of the following:
u Raw fruits or vegetables, except when sold as part of a ready-to-eat meal.
u Sliced meat or poultry, or other sliced luncheon products, except when sold as part of a ready-to-eat meal.
u Cheese, except when sold as part of a ready-to-eat meal.
u Candy or snack foods, except when sold as part of a ready-to-eat meal.
u Beverages in hermetically sealed containers.
Under this rule, the following foods may be sold by weight, measure or count (at the seller's option):
Ô Foods sold for immediate consumption on the premises where sold.
Ô Ready-to-eat foods sold from bulk.
