100.18(11)(b)3.
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 or any statute, rule or regulation of the United States or of this state.
100.18(11)(c)1.1. Whenever the department 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.
100.18(11)(c)2.
2. The department, in exercising powers under this subsection, may issue subpoenas, administer oaths and conduct hearings to aid in any investigation.
100.18(11)(c)3.
3. Service of any notice by the department 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.
100.18(11)(c)4.
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, 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.
100.18(11)(d)
(d) The department or the department of justice, after consulting with the department, or any district attorney, upon informing the department, 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.
100.18(11)(e)
(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) 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 the penalties and remedies provided therefor.
100.18(12)(a)(a) This section does not apply to the insurance business.
100.18(12)(b)
(b) This section does not apply to a person licensed as a broker or salesperson under
s. 452.09 while that person is engaged in real estate practice, as defined in
s. 452.01 (6), unless that person has directly made, published, disseminated, circulated or placed before the public an assertion, representation or statement of fact with the knowledge that the assertion, representation or statement of fact is untrue, deceptive or misleading.
100.18 Cross-reference
Cross-reference: See s.
136.001 (2) concerning future service plans.
100.18 Annotation
Sub. (1) applies to oral representations made in private conversations to prospective purchasers. State v. Automatic Merchandisers, 64 W (2d) 659, 221 NW (2d) 683.
100.18 Annotation
The complaint, alleging deceptive advertising contrary to (1) states a cause of action not only against the corporate defendant but against its officer personally where the complaint's use of the word "continue" indicates reference to both past and future conduct and where use of the word "defendants" refers to both the corporation and its officer. State v. Advance Marketing Consultants, Inc. 66 W (2d) 706, 225 NW (2d) 887.
100.18 Annotation
Sub. (2) is constitutional. State v. Amoco Oil Co. 97 W (2d) 226, 293 NW (2d) 487 (1980).
100.18 Annotation
State may join as party defendant assignee of contracts allegedly obtained by deceptive practices even though assignee did not engage in deception. State v. Excel Management Services, 111 W (2d) 479, 331 NW (2d) 312 (1983).
100.18 Annotation
Consumer is protected from untrue, deceptive or misleading representations made to promote sale of product; advertising need not be involved. Bonn v. Haubrich, 123 W (2d) 168, 366 NW (2d) 503 (Ct. App. 1985).
100.18 Annotation
Subs. (1) and (9) (a) require that complaint do more than merely state incentive to sell more expensive product, it must state instances of prohibited conduct to withstand motion to dismiss. State v. American TV, 146 W (2d) 292, 430 NW (2d) 709 (1988).
100.18 Annotation
Party prevailing on appeal is entitled to reasonable appellate attorney's fees. Radford v. J.J.B. Enterprises, Ltd. 163 W (2d) 534, 472 NW (2d) 790 (Ct. App. 1991).
100.18 Annotation
The statute of limitations under sub. (11) (b) 3. commences at the time of the act or transaction, not at the date of discovery. Skrupky v. Elbert, 189 W (2d) 31, 526 NW (2d) 264 (Ct. App. 1994).
100.18 Annotation
Where plaintiff's claim of negligent representation was fully tried, it was not necessary that a claim under this section should have been pleaded in order for the plaintiff to assert a post-verdict claim for attorney fees under sub (11) (b) 2. Gorton v. American Cyanamid Co. 194 W (2d) 203, 533 NW (2d) 746 (1995).
100.18 Annotation
This section is reasonably geared toward notice and workable precision and is not so imprecise as to be constitutionally vague. Carpets By The Carload, Inc. v. Warren, 368 F Supp. 1075.
100.18 Annotation
One person can constitute "the public" under (1). Jersild v. Aker, 775 F Supp. 1198 (1991).
100.18 Annotation
The protections under this section are not restricted to Wisconsin residents. A cause of action under this section requires actual pecuniary loss and not a mere showing of deception. Demotropoulous v. Bank One Milwaukee, 915 F Supp. 1379 (1996).
100.18 Annotation
Actual interest payments incurred as result of misrepresentations may be recovered by defrauded party. Jersild v. Aker, 775 F Supp. 1198 (1991).
100.18 Annotation
Protection for consumers against unfair and deceptive business. Jeffries, 57 MLR 559.
100.18 Annotation
Private enforcement of consumer laws in Wisconsin. Waxman. WBB May 1983.
100.182
100.182
Fraudulent drug advertising. 100.182(2)
(2) No person may advertise the availability of any drug or publish or circulate such an advertisement with the intent of selling, increasing the consumption of or generating interest in the drug if the advertisement contains any untrue, deceptive or misleading representations material to the effects of the drug.
100.182(3)
(3) No person may expressly or impliedly represent that a substance may be used to obtain physical or psychological effects associated with the use of a drug in order to promote the sale of the substance unless it is lawfully marketed for human consumption under the United States food, drug and cosmetic act under
21 USC 301 to
392. A representation that the substance is not intended for human consumption is not a defense to prosecution for violating this subsection.
100.182(4)
(4) No person may advertise a drug that the person knows is intentionally manufactured substantially to resemble a controlled substance or that the person represents to be of a nature, appearance or effect that will allow the recipient to display, sell, deliver, distribute or use the drug as a controlled substance, unless the drug is controlled under
ch. 961.
100.182(5)(a)(a) Any district attorney, after informing the department, or the department 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 may subpoena any person or require the production of any document to aid in investigating alleged violations of this section.
100.182(5)(b)
(b) In lieu of instituting or continuing an action under this subsection, the department 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 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.
100.182 History
History: 1981 c. 90;
1985 a. 146 s.
8;
1995 a. 27,
448.
100.183
100.183
Fraud, advertising foods. 100.183(1)
(1) No person, firm, corporation or association shall, with intent to sell, or increase the consumption thereof, or create an interest therein, make, publish, disseminate, circulate, or place before the public in this state, or cause, directly or indirectly to be made, published, disseminated, or placed before the public in this state, in a newspaper or other publication, or in the form of a book notice, handbill, poster, bill, circular or pamphlet, or in any other manner, an advertisement of any sort regarding articles of food, which advertisement contains any assertion, representation or statement which is untrue, deceptive or misleading.
100.183(2)
(2) It shall be unlawful to advertise any dairy or other food product which is of a grade or quality inferior to or less valuable than the usual and ordinary grade established by common understanding or law for such product, or from which a more valuable portion has been removed, without plainly and conspicuously stating that the article advertised is below and inferior to the usual and ordinary grade.
100.183(3)
(3) No person, for himself or herself or as an agent, shall advertise at a stated price the sale of turkeys, which have been graded by the U.S. department of agriculture, unless the federal grade is set forth in such advertisement in not less than 10-point type.
100.183 History
History: 1993 a. 492.
100.184
100.184
Advertising foods for sale. No person shall, himself or herself, or by a servant or agent, or as the servant or agent of any other person, advertise for sale any article of food in package form when the retail price is mentioned in such advertisement unless the actual weight or volume of the contents of such package as stated on the label shall be plainly and conspicuously set forth in such advertisement in not less than 5-point type.
100.184 History
History: 1993 a. 492.
100.186
100.186
Linseed oil, white lead, zinc oxide, turpentine; standards; sale. 100.186(1)(1) No person shall sell as and for "raw flaxseed oil" or "raw linseed oil" any oil unless it is obtained from the seeds of the flax plant and unless it fulfills all the requirements for linseed oil laid down in the U.S. Pharmacopoeia; or as and for "boiled linseed oil" or "boiled flaxseed oil" any oil unless it has been prepared by heating pure raw linseed oil with or without the addition of not to exceed 4% of drier to a temperature not less than 225 degrees Fahrenheit. It is a violation of this section if said boiled linseed oil does not conform to the following requirements: First, its specific gravity at 60 degrees Fahrenheit must be not less than 935 thousandths and not greater than 945 thousandths; 2nd, its saponification value (koettstorfer figure) must not be less than 186; 3rd, its iodine number must not be less than 160; 4th, its acid value must not exceed 10; 5th, the volatile matter expelled at 212 degrees Fahrenheit must not exceed one-half of one per cent; 6th, no mineral or other foreign oil or free rosin shall be present, and the amount of unsaponifiable matter as determined by standard methods shall not exceed 2.5%; 7th, the film left after flowing the oil over glass and allowing it to drain in a vertical position must dry free from tackiness in not to exceed 20 hours, at a temperature of about 70 degrees Fahrenheit.
100.186(2)
(2) Nor shall any person sell any raw or boiled linseed oil except under its true name, and unless each tank car, tank, barrel, keg, can or vessel of such oil has distinctly and durably marked thereon in ordinary bold-faced capital letters, not smaller than 60-point type, the words "Pure Linseed Oil—Raw" or "Linseed Oil—Boiled," and the name and address of the manufacturer.
100.186(3)
(3) Linseed oil compounds designed to take the place of raw or boiled linseed oil, whether sold under invented proprietary names or titles, or otherwise, shall bear conspicuously upon the containing receptacle in which the same is sold, in ordinary bold-faced capital letters not smaller than 60-point type, the word "Compound," followed immediately with the true distinctive names of the actual ingredients in the order of their greater preponderance, in the English language, in plain legible type of the same style, not smaller than 36-point type, in continuous list with no intervening matter of any kind and shall also bear the name and address of the manufacturer.
100.186(4)(a)
(a) As and for dry white lead any substance other than basic carbonate of lead or basic sulfate of lead;
100.186(4)(b)
(b) As and for white lead in oil, any product other than basic carbonate of lead ground in pure linseed oil or basic sulfate of lead ground in pure linseed oil;
100.186(4)(c)
(c) Any basic carbonate of lead ground in linseed oil, unless each receptacle containing it has distinctly and durably marked thereon the words, "white lead, basic carbonate, in oil," and the name and address of the manufacturer or jobber;
100.186(4)(d)
(d) Any basic sulfate of lead ground in linseed oil, unless each receptacle containing it has distinctly and durably marked thereon the words "white lead, basic sulfate, in oil," and the name and address of the manufacturer or jobber;
100.186(4)(e)
(e) As and for dry oxide of zinc, or zinc oxide, or zinc white, any substance other than commercially pure oxide of zinc;
100.186(4)(f)
(f) As and for oxide of zinc in oil, or zinc oxide in oil, or zinc white in oil, any product other than commercially pure oxide of zinc ground in pure linseed oil;
100.186(4)(g)
(g) Any oxide of zinc ground in linseed oil, unless each receptacle containing the same has distinctly and durably marked thereon the words "oxide of zinc in oil" or "zinc oxide in oil" or "zinc white in oil" and the name and address of the manufacturer or jobber.
100.186(5)(a)
(a) As and for turpentine, spirits of turpentine or oil of turpentine, any article except pure oil of turpentine distilled from the natural gum, dip or scrape of pine trees and unmixed with kerosene or other mineral oil or other foreign substance;
100.186(5)(b)
(b) As and for wood turpentine or wood spirits of turpentine any article except the distillates and spirits prepared directly from or by the distillation of the wood of pine trees, and unmixed with kerosene or other mineral oil or other foreign substance;
100.186(5)(c)
(c) Any oil of turpentine or wood spirits of turpentine except under its true name, and unless each tank car, tank, barrel, keg, can or vessel of such oil has distinctly and durably marked thereon in ordinary bold-faced capital letters, not smaller than 60-point type, the words "Oil of Turpentine" or "Wood Spirits of Turpentine" and the name and address of the manufacturer or jobber.
100.19
100.19
Distribution methods and practices. 100.19(1)
(1) The methods of distribution and practices in the distribution of food products and fuel shall be free from needless waste and needless duplication which tend to increase the cost of such products to the consuming public. Methods of distribution and practices in the distribution of food products and fuel, wherever such waste or duplication tends to increase the costs of such products to the consuming public, are hereby prohibited.
100.19(2)
(2) The department, after public hearing, may issue general orders forbidding methods of distribution or practices in distribution which are found by the department to cause waste or duplication as defined herein. The department, after public hearing, may issue general orders prescribing methods of distribution or practices in distribution which are found by the department to avoid waste or duplication as defined herein.
100.19(3)
(3) The department, after public hearing, may issue a special order against any person, enjoining such person from employing any method of distribution or practice in distribution which is found by the department to cause waste or duplication as defined herein. The department, after public hearing, may issue a special order against any person, requiring such person to employ the method of distribution or practice in distribution which is found by the department to avoid waste or duplication as defined herein.
100.20
100.20
Methods of competition and trade practices. 100.20(1)(1) Methods of competition in business and trade practices in business shall be fair. Unfair methods of competition in business and unfair trade practices in business are hereby prohibited.
100.20(1m)
(1m) It is an unfair trade method of competition in business to represent the retailing of merchandise to be a selling-out or closing-out sale if the merchandise is not of a bankrupt, insolvent, assignee, liquidator, adjuster, administrator, trustee, executor, receiver, wholesaler, jobber, manufacturer, or of any business that is in liquidation, that is closing out, closing or disposing of its stock, that has lost its lease or has been or is being forced out of business or that is disposing of stock on hand because of damage by fire, water or smoke. This subsection does not apply to any "closing-out sale" of seasonable merchandise or any merchandise having a designated model year if the person conducting the sale is continuing in business.
100.20(1r)
(1r) It is an unfair method of competition in business or an unfair trade practice for a person who sells new motor vehicles to compare new motor vehicle selling prices, including the offered prices or the actual sale prices, to the manufacturer's suggested retail price for that vehicle unless it is clearly and conspicuously disclosed that the latter price is a manufacturer's suggested retail price and may not represent actual sale prices.
100.20(1t)
(1t) It is an unfair trade practice for a person to provide any service which the person has the ability to withhold that facilitates or promotes an unfair method of competition in business, an unfair trade practice in business, or any other activity which is a violation of this chapter.
100.20(2)
(2) The department, after public hearing, may issue general orders forbidding methods of competition in business or trade practices in business which are determined by the department to be unfair. The department, after public hearing, may issue general orders prescribing methods of competition in business or trade practices in business which are determined by the department to be fair.
100.20(3)
(3) The department, after public hearing, may issue a special order against any person, enjoining such person from employing any method of competition in business or trade practice in business which is determined by the department to be unfair or from providing service in violation of
sub. (1t). The department, after public hearing, may issue a special order against any person, requiring such person to employ the method of competition in business or trade practice in business which is determined by the department to be fair.
100.20(4)
(4) The department of justice may file a written complaint with the department alleging that the person named is employing unfair methods of competition in business or unfair trade practices in business or both. Whenever such a complaint is filed it shall be the duty of the department to proceed, after proper notice and in accordance with its rules, to the hearing and adjudication of the matters alleged, and a representative of the department of justice designated by the attorney general may appear before the department in such proceedings. The department of justice shall be entitled to judicial review of the decisions and orders of the department under
ch. 227.
100.20(5)
(5) Any person suffering pecuniary loss because of a violation by any other person of any order issued under this section may sue for damages therefor in any court of competent jurisdiction and shall recover twice the amount of such pecuniary loss, together with costs, including a reasonable attorney's fee.
100.20(6)
(6) The department may commence an action in circuit court in the name of the state to restrain by temporary or permanent injunction the violation of any order issued under 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 may use its authority in
ss. 93.14 and
93.15 to investigate violations of any order issued under this section.
100.20 Cross-reference
Cross-reference: See s.
136.001 (2) concerning future service plans.
100.20 Annotation
Rules of the department of agriculture prohibiting a chain distributor scheme are valid. Unfair practices which may be prohibited are not limited to those affecting competitors. HM Distributors of Milwaukee v. Dept. of Agriculture, 55 W (2d) 261, 198 NW (2d) 598.
100.20 Annotation
The standard applied in the International News Service case is consistent with the public policy of the state as stated in (1). Mercury Record v. Economic Consultants, 64 W (2d) 163, 218 NW (2d) 705.
100.20 Annotation
Trial court properly relied upon administrative rule promulgated under (2) in instructing jury. State v. Clausen, 105 W (2d) 231, 313 NW (2d) 819 (1982).
100.20 Annotation
See note to 100.18, citing State v. Excel Management Services, 111 W (2d) 479, 331 NW (2d) 312 (1983).
100.20 Annotation
Attorney fees for successful appellate work are recoverable under (5). Fees are recoverable even when person is represented at no charge by legal services organization. Shands v. Castrovinci, 115 W (2d) 352, 340 NW (2d) 506 (1983).
100.20 Annotation
Sub. (6) does not require threat of future harm in order to obtain injunction. State v. Fonk's Mobile Home Park & Sales, Inc. 117 W (2d) 94, 343 NW (2d) 820 (Ct. App. 1983).
100.20 Annotation
Plaintiff-tenant who prevails in action for violation of order under this section is entitled to attorney fees irrespective of amount of damages landlord may recover in counterclaim. Paulik v. Coombs, 120 W (2d) 431, 355 NW (2d) 357 (Ct. App. 1984).
100.20 Annotation
In cases where a landlord complies with notification requirements and provides an accounting of amounts withheld from a security deposit, an award of double damages under sub. (5) is subject to offset for actual damages to the landlord. A damage award in the amount of double the security deposit, regardless of the landlord's damages, applies where the the landlord fails to provide the accounting. Pierce v. Norwick, 202 W (2d) 588, 550 NW (2d) 451 (Ct. App. 1996).
100.20 Annotation
Allegations that the department's regulation prohibiting chain distributor schemes as an unfair trade practice abridged 1st amendment protection of commercial speech were not so obviously without merit so as to be insubstantial for purposes of the statute requiring hearing and determination by 3-judge court. Holiday Magic, Inc. v. Warren, 497 F (2d) 687.
100.20 Annotation
Order of department declaring chain distributor schemes to be unfair trade practice was not void for vagueness. Holiday Magic, Inc. v. Warren, 357 F Supp. 20.
100.20 Annotation
Federal law did not preclude the enforcement of this section. Time Warner Cable v. Doyle, 847 F Supp 635 (1994).
100.20 Annotation
Protection for consumers against unfair and deceptive business. Jeffries, 57 MLR 559.
100.201
100.201
Unfair trade practices in the dairy industry.
