100.29(3)(b)1.
1. After at least 3 years in commerce in this state, there is not an adequate market to make recycling of the type of new packaging economically feasible.
100.29(3)(b)2.
2. The department received a complaint under
par. (a) about the type of new packaging material.
100.29(3)(c)
(c) The department shall promulgate rules for determining whether there is an adequate market to make recycling of new packaging economically feasible.
100.29 History
History: 1989 a. 335.
100.295
100.295
Labeling of recycled, recyclable or degradable products. 100.295(1)(1)
Labeling standards. The department shall establish standards that must be met by products in order for any person to represent that the products are recycled, recyclable or degradable. The department shall establish standards that are consistent, to the greatest extent practicable, with nationwide industry consensus standards. In developing standards, the department shall consult with the department of natural resources and the council on recycling and consider purchasing specifications under
s. 16.72 (2) (e) and
(f) and any existing federal standards. The department shall give priority to establishing standards for specific products commonly represented as being recycled, recyclable or degradable.
100.295(2)
(2) False advertising prohibited. No person may represent any product as being recycled, recyclable or degradable unless the product meets standards established under
sub. (1).
100.295(3)
(3) Penalty. Any person who violates
sub. (2) may be required to forfeit not less than $100 nor more than $10,000 for each violation.
100.295 History
History: 1989 a. 335.
100.297
100.297
Plastic container recycled content. 100.297(1)
(1)
Definition. In this section, "plastic container" means a plastic container, as defined in
s. 100.33 (1) (c), that is required to be labeled under
s. 100.33 (2).
100.297(2)
(2) Prohibition. Except as provided in
sub. (3), no person may sell or offer for sale at retail any product in a plastic container unless the plastic container consists of at least 10% recycled or remanufactured material, by weight beginning on January 1, 1995.
100.297(3)
(3) Exception. Subsection (2) applies to a person who sells or offers to sell a product that is a food, beverage, drug, cosmetic or medical device and that is regulated under the federal food, drug and cosmetic act,
21 USC 301 to
394, in a plastic container only if the federal food and drug administration has approved the use of the specified recycled or remanufactured content in that plastic container.
100.297 History
History: 1989 a. 335;
1993 a. 245.
100.30
100.30
Unfair sales act. 100.30(1)(1)
Policy. The practice of selling certain items of merchandise below cost in order to attract patronage is generally a form of deceptive advertising and an unfair method of competition in commerce. Such practice causes commercial dislocations, misleads the consumer, works back against the farmer, directly burdens and obstructs commerce, and diverts business from dealers who maintain a fair price policy. Bankruptcies among merchants who fail because of the competition of those who use such methods result in unemployment, disruption of leases, and nonpayment of taxes and loans, and contribute to an inevitable train of undesirable consequences, including economic depression.
100.30(2)
(2) Definitions. When used in this section unless context otherwise requires:
100.30(2)(a)1.1. With respect to the sale of cigarettes or other tobacco products, fermented malt beverages, intoxicating liquor or wine, or motor vehicle fuel, "cost to retailer" means the invoice cost of the merchandise to the retailer within 30 days prior to the date of sale, or replacement cost of the merchandise to the retailer, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise taxes imposed on such merchandise or the sale thereof other than excise taxes collected by the retailer, and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the merchandise as herein set forth, to which shall be added a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be 6% of the cost to the retailer as herein set forth.
100.30(2)(a)2.
2. With respect to the sale of merchandise other than cigarettes or other tobacco products, fermented malt beverages, intoxicating liquor or wine, or motor vehicle fuel, "cost to retailer" means the invoice cost of the merchandise to the retailer, or replacement cost of the merchandise to the retailer, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise taxes imposed on such merchandise or the sale thereof other than excise taxes collected by the retailer, and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the merchandise as herein set forth.
100.30(2)(b)
(b) "Cost to retailer" and "cost to wholesaler" as defined in
pars. (a) and
(c) mean bona fide costs; and purchases made by retailers and wholesalers at prices which cannot be justified by prevailing market conditions within this state shall not be used in determining cost to the retailer and cost to the wholesaler. Prices at which purchases of merchandise are made by retailers or wholesalers cannot be justified by prevailing market conditions in this state when they are below the lowest prices at which the manufacturer or producer of such merchandise sells to other retailers or wholesalers in this state.
100.30(2)(c)1.a.a. With respect to the sale of cigarettes or other tobacco products, fermented malt beverages, intoxicating liquor or wine, or motor vehicle fuel, "cost to wholesaler" means, except as provided in
subd. 1. b., the invoice cost of the merchandise to the wholesaler within 30 days prior to the date of sale, or the replacement cost of the merchandise to the wholesaler, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise taxes imposed on the sale thereof prior to the sale at retail, and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the merchandise as herein set forth, to which shall be added, except for sales at wholesale between wholesalers, a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be 3% of the cost to the wholesaler as herein set forth.
100.30(2)(c)1.b.
b. For every person holding a permit as a distributor as defined in
s. 139.30 (3) or as a multiple retailer as defined in
s. 139.30 (8), with respect to that portion of the person's business which involves the purchase and sale of cigarettes "cost to wholesaler" means the cost charged by the cigarette manufacturer, disregarding any manufacturer's discount or any discount under
s. 139.32 (5), plus the amount of tax imposed under
s. 139.31. Except for a sale at wholesale between wholesalers, a markup to cover a proportionate part of the cost of doing business shall be added to the cost to wholesaler. In the absence of proof of a lesser cost, this markup shall be 3% of the cost to wholesaler as set forth in this
subd. 1. b.
100.30(2)(c)2.
2. With respect to the sale of merchandise other than cigarettes or other tobacco products, fermented malt beverages, intoxicating liquor or wine, or motor vehicle fuel, "cost to wholesaler" means the invoice cost of the merchandise to the wholesaler, or the replacement cost of the merchandise to the wholesaler, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise taxes imposed on the sale thereof prior to the sale at retail, and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the merchandise as herein set forth.
100.30(2)(d)
(d) "Replacement cost" means the cost computed as specified in
par. (a) or
(c) at which the merchandise sold could have been bought by the retailer or wholesaler at any time if bought in the same quantity as the retailer's or wholesaler's last purchase of the said merchandise.
100.30(2)(e)
(e) "Retailer" includes every person engaged in the business of making sales at retail within this state, but, in the case of a person engaged in the business of selling both at retail and at wholesale, such term shall be applied only to the retail portion of such business.
100.30(2)(f)
(f) "Retailer" and "wholesaler" shall both be applied to any merchant who buys merchandise for resale at retail from the manufacturer or producer thereof and to any wholesaler under
par. (L) 2. and, as to that merchandise or that wholesaler, the terms "cost to retailer" and "cost to wholesaler" as defined in
pars. (a) and
(c) shall both be applied, including the markup requirements.
100.30(2)(g)
(g) "Sell", "sale" or "sold" includes any advertising or offer to sell or any transfer of merchandise where title is retained by the retailer or wholesaler as security for the payment of the purchase price. In determining the selling price of merchandise by wholesalers and retailers under this section, all fractions of a cent shall be carried to the next full cent.
100.30(2)(h)
(h) "Sell at retail", "sales at retail" and "retail sale" mean any transfer for a valuable consideration, made in the ordinary course of trade or in the usual prosecution of the retailer's business, of title to tangible personal property to the purchaser for consumption or use other than resale or further processing or manufacturing.
100.30(2)(i)
(i) "Sell at wholesale", "sales at wholesale" and "wholesale sales" include any transfer for a valuable consideration made in ordinary course of trade or the usual conduct of the wholesaler's business, of title to tangible personal property to the purchaser for purposes of resale or further processing or manufacturing.
100.30(2)(k)
(k) In the case of retail sales of alcohol beverages, "trade discount" shall not include discounts in the form of cash or merchandise.
100.30(2)(L)
(L) "Wholesaler" includes every person holding a permit as a multiple retailer under
s. 139.30 (8) and every person engaged in the business of making sales at wholesale within this state except as follows:
100.30(2)(L)1.
1. In the case of a person engaged in the business of selling both at wholesale and at retail, "wholesaler" applies only to the wholesale portion of that business.
100.30(2)(L)2.
2. In the case of a person holding a permit as a multiple retailer as defined in
s. 139.30 (8), "wholesaler" applies to that portion of the person's business involving the purchase and sale of cigarettes and to any wholesale portion of that person's business.
100.30(2m)(a)(a) When one or more items of merchandise are furnished or sold in combination with or on condition of the purchase of one or more other items, or are so advertised, all items shall be included in determining cost under
sub. (2) (a) or
(c); and if any of the items included therein are separately priced, such separate price shall be subject to the requirements of this section.
100.30(2m)(b)
(b) Any retailer who also sells to other retailers shall use the invoice cost to other retailers in computing the selling price at retail under
sub. (2) (a); and if that retailer is a manufacturer or producer, both
sub. (2) (a) and
(c) shall be used in computing the selling price at retail. In the absence of sales to other retailers, the manufacturer's or producer's invoice cost to wholesalers shall be used in computing the manufacturer's or producer's selling price at retail as provided in
sub. (2) (a) and
(c).
100.30(3)
(3) Illegality of loss leaders. Any sale of any item of merchandise either by a retailer or wholesaler, at less than cost as defined in this section with the intent or effect of inducing the purchase of other merchandise or of unfairly diverting trade from a competitor, impairs and prevents fair competition, injures public welfare and is unfair competition and contrary to public policy and the policy of this section. Such sales are prohibited. Evidence of any sale of any item of merchandise by any retailer or wholesaler at less than cost as defined in this section shall be prima facie evidence of intent or effect to induce the purchase of other merchandise, or to unfairly divert trade from a competitor, or to otherwise injure a competitor.
100.30(4)
(4) Penalties. For any violation of
sub. (3), the department or a district attorney may commence an action on behalf of the state to recover a forfeiture of not less than $50 nor more than $500 for the first violation and not less than $200 nor more than $2,500 for each subsequent violation.
100.30(5)
(5) Special remedies. In addition to the penalties under
sub. (4), both of the following remedies apply for a violation of
sub. (3):
100.30(5)(a)
(a) The department may issue a special order as provided in
s. 93.18 against a retailer or wholesaler requiring the retailer or wholesaler to cease and desist from violating this section in the sale of cigarettes or other tobacco products, fermented malt beverages, intoxicating liquor or wine or motor vehicle fuel. The department or a district attorney may commence an action on behalf of the state against a retailer or wholesaler who violates a special order issued under this paragraph to recover a forfeiture of not less than $200 nor more than $5,000 for each violation.
100.30(5)(b)
(b) The department or a district attorney may bring an action to enjoin a violation of this section without being compelled to allege or prove that an adequate remedy at law does not exist. An action under this paragraph may be commenced and prosecuted by the department or a district attorney, in the name of the state, in a circuit court in the county where the offense occurred or in Dane county, notwithstanding
s. 801.50.
100.30(6)(a)(a) The provisions of this section shall not apply to sales at retail or sales at wholesale where:
100.30(6)(a)2.
2. Perishable merchandise must be sold promptly in order to forestall loss.
100.30(6)(a)3.
3. Merchandise is imperfect or damaged or is being discontinued.
100.30(6)(a)4.
4. Merchandise is sold upon the final liquidation of any business.
100.30(6)(a)5.
5. Merchandise is sold for charitable purposes or to relief agencies.
100.30(6)(a)6.
6. Merchandise is sold on contract to departments of the government or governmental institutions.
100.30(6)(a)7.
7. The price of merchandise is made in good faith to meet an existing price of a competitor and is based on evidence in the possession of the retailer or wholesaler in the form of an advertisement, proof of sale or receipted purchase.
100.30(6)(a)8.
8. Merchandise is sold by any officer acting under the order or direction of any court.
100.30(6)(b)
(b) No retailer or wholesaler may claim the exemptions under
par. (a) 1. to
4. if he or she limits or otherwise restricts the quantity of such merchandise which can be purchased by any buyer or if he or she fails to conspicuously disclose the reason for such sale in all advertisements relating thereto and on a label or tag on such merchandise or on a placard where the merchandise is displayed for sale.
100.30(6)(d)
(d) No retailer or wholesaler may claim the exemption under
par. (a) 7. if that wholesaler or retailer holds a permit under
subch. II of ch. 139.
100.30 Annotation
Sub. (2) (Lm) [(2) (k), 1983 Stats.] qualifies the term "trade discount" in determining "cost to retailer" under (2) (a) for sales of fermented malt beverages and intoxicating liquors. Sub. (2) (Lm) [(2) (k), 1983 Stats.] is not a catchall prohibition against all trade discounts and does not apply to bona fide quantity discounts. 63 Atty. Gen. 516.
100.30 AnnotationThis section doesn't violate federal antitrust laws or constitutional due process.
77 Atty. Gen. 163.
100.30 Annotation
Wisconsin's unfair sales act — Unfair to whom? Waxman, 66 MLR 293 (1983).
100.31
100.31
Unfair discrimination in drug pricing. 100.31(1)(b)
(b) "Purchaser" means any person who engages primarily in selling drugs directly to consumers.
100.31(1)(c)
(c) "Seller" means any person who trades in drugs for resale to purchasers in this state.
100.31(2)
(2) Price discrimination prohibited. Every seller shall offer drugs from the list of therapeutically equivalent drugs published by the federal food and drug administration to every purchaser in this state, with all rights and privileges offered or accorded by the seller to the most favored purchaser, including purchase prices for similar volume purchases, rebates, free merchandise, samples and similar trade concessions. Nothing in this subsection prohibits the giving of a discount for volume purchases.
100.31(3)
(3) Treble damages. Any purchaser damaged by violation of this section may bring an action against the seller to recover treble damages sustained by reason of such violation.
100.31(4)
(4) Penalties. For any violation of this section, the department or a district attorney may commence an action on behalf of the state to recover a forfeiture of not less than $100 nor more than $10,000 for each offense. Each delivery of a drug sold to a purchaser at a price in violation of this section and each separate day in violation of an injunction issued under this section is a separate offense.
100.31(5)
(5) Special remedies. The department or a district attorney may bring an action to enjoin a violation of this section without being compelled to allege or prove that an adequate remedy at law does not exist. An action under this subsection may be commenced and prosecuted by the department or a district attorney, in the name of the state, in a circuit court in the county where the offense occurred or in Dane county, notwithstanding
s. 801.50.
100.31 Annotation
State and local units of government are not "purchasers" under (1) (c) and sellers of drugs are not prohibited from offering or according to them pricing arrangements which are not made available to other purchasers. 65 Atty. Gen. 59.
100.31 Annotation
"Most favored purchaser" under (2) does not refer to purchasers outside Wisconsin. Constitutionality of statute upheld. K-S Pharmacies v. American Home Products, 962 F (2d) 728 (1992).
100.33
100.33
Plastic container labeling. 100.33(1)(a)
(a) "Beverage" means any alcohol beverage, as defined in
s. 125.02 (1), malt beverage, tea, bottled drinking water, as defined under
s. 97.34 (1) (a), soda water beverage, as defined under
s. 97.34 (1) (b), or fruit or vegetable juice or drink which is intended for human consumption.
100.33(1)(ad)
(ad) "Blister pack" means a container in which an item has a covering of plastic film or preformed semirigid plastic and the covering is affixed to a rigid backing.
100.33(1)(ag)
(ag) "Bottle" means a plastic container the neck of which is smaller than its body, with a screw-on or press-on lid.
100.33(1)(ar)
(ar) "Labeling" means attaching information to or embossing or printing information on a plastic container.
100.33(1)(b)
(b) "Material recovery" means the reuse, recycling, reclamation, composting or other recovery of useful materials from solid waste, with or without treatment.
100.33(1)(c)
(c) "Plastic container" means an individual, separate, rigid plastic bottle, can, jar or carton, except for a blister pack, that is originally used to contain a product that is the subject of a retail sale, as defined under
s. 100.30 (2) (h).
100.33(1)(d)
(d) "Reclamation" means the treatment of solid waste and its return to productive use in a form or for a use that is different from its original form or use.
100.33(1)(e)
(e) "Recycling" means the treatment of solid waste and its return to productive use in a form and for a use that is the same as or similar to the original form and use.
100.33(1)(f)
(f) "Reuse" means the return of solid waste to productive use without treatment and without changing its form or use.
100.33(2)
(2) Labeling rules required. The department shall promulgate rules establishing labeling requirements for plastic containers. The requirements shall be designed to provide information needed by operators of material recovery programs to facilitate the recycling, reclamation or reuse of plastic containers. The rules promulgated under this subsection shall permit a manufacturer of plastic containers and a person who places products in plastic containers to choose an appropriate method of labeling plastic containers. The department shall make an effort to develop rules which are consistent, to the greatest extent practicable, with national industry-wide plastic container coding systems. The rules shall exempt from the labeling requirements plastic containers that are readily identifiable because of their appearance.
