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 of America, Inc.
64 Wis. 2d 659,
221 N.W.2d 683 (1974).
100.18 Annotation
A complaint alleging deceptive advertising contrary to sub. (1) stated a cause of action not only against the corporate defendant but against its officer personally when the complaint's use of the word "continue" indicated reference to both past and future conduct and when use of the word "defendants" referred to both the corporation and its officer. State v. Advance Marketing Consultants, Inc.
66 Wis. 2d 706,
225 N.W.2d 887 (1975).
100.18 Annotation
The state may join as parties defendant assignees of contracts allegedly obtained by deceptive practices, even though the assignees did not engage in deception. State v. Excel Management Services,
111 Wis. 2d 479,
331 N.W.2d 312 (1983).
100.18 Annotation
A consumer is protected from untrue, deceptive, or misleading representations made to promote the sale of a product. Advertising need not be involved. Bonn v. Haubrich,
123 Wis. 2d 168,
366 N.W.2d 503 (Ct. App. 1985).
100.18 Annotation
Subs. (1) and (9) (a) require that a complaint do more than merely state that there were incentives to sell a more expensive product: it must allege instances of prohibited conduct to withstand a motion to dismiss. State v. American TV,
146 Wis. 2d 292,
430 N.W.2d 709 (1988).
100.18 Annotation
A party prevailing on appeal is entitled to reasonable appellate attorney fees. Radford v. J.J.B. Enterprises, Ltd.
163 Wis. 2d 534,
472 N.W.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 on the date of discovery. Skrupky v. Elbert,
189 Wis. 2d 31,
526 N.W.2d 264 (Ct. App. 1994).
100.18 Annotation
When a 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 Wis. 2d 203,
533 N.W.2d 746 (1995).
100.18 Annotation
An award of reasonable attorney fees under this section belongs to the person suffering the pecuniary loss, not the attorney. However, the ultimate ownership of the award may be controlled by the parties' fee agreement. Gorton v. Hostak, Henzl & Bichler, S.C.
217 Wis. 2d 493,
577 N.W.2d 617 (1998).
100.18 Annotation
Sub. (11) (b) 3. is a statute of repose. A cause of action must be commenced within 3 years of the false representation regardless of when the resulting injury is discovered. Kain v. Bluemound East Industrial Park, Inc. 2001 WI App 230,
248 Wis. 2d 172,
635 N.W.2d 640.
100.18 Annotation
This section provides a cause of action and remedies separate from common law claims of intentional misrepresentation, strict liability misrepresentation, and negligent misrepresentation. Kailin v. Armstrong, 2002 WI App 70,
252 Wis. 2d 676,
643 N.W.2d 132.
100.18 Annotation
A statement made to one person may constitute a statement made to "the public" under this section. Once a contract was made, buyers are no longer "the public." The section is aimed at untrue, deceptive, or misleading statements made to induce certain actions. Statements made by the seller after a person entered into a contract to purchase do not cause the person to make the purchase or enter into the contract. Kailin v. Armstrong, 2002 WI App 70,
252 Wis. 2d 676,
643 N.W.2d 132.
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 sub. (1). Jersild v. Aker,
775 F. Supp. 1198 (1991).
100.18 Annotation
Actual interest payments incurred as a result of misrepresentations may be recovered by the defrauded party. 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
There is no indication that the application of this section is restricted to use by consumers. Stoughton Trailers, Inc. v. Henkmel Corp.
965 F. Supp. 1227 (1997).
100.18 Annotation
Sub. (11) (b) 3. is a statute of repose to which the discovery rule does not apply. Staudt v. Artifex,
16 F. Supp. 2d 1023 (1998).
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, trustee, personal representative, 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)(a)(a) 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(2)(b)
(b) Notwithstanding
par. (a), the department may not issue any order or promulgate any rule that regulates the provision of water or sewer service by a manufactured home park operator, as defined in
s. 101.91 (8), or manufactured home park contractor, as defined in
s. 101.91 (6m), or enforce any rule to the extent that the rule regulates the provision of such water or sewer service.
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 Cross-reference
Cross Reference: See also
ATCP, Wis. adm. code.
100.20 Annotation
Department of agriculture rules prohibiting a chain distributor scheme are valid. Unfair practices that may be prohibited are not limited to those affecting competitors. HM Distributors of Milwaukee, Inc. v. Department of Agriculture,
55 Wis. 2d 261,
198 N.W.2d 598 (1972).
100.20 Annotation
The elements of misappropriation are: 1) the expenditure of time, labor, or money creating the misappropriated thing; 2) competition; and 3) commercial damage to the plaintiff. Mercury Record Productions, Inc. v. Economic Consultants, Inc.
64 Wis. 2d 163,
218 N.W.2d 705 (1975).
100.20 Annotation
The trial court properly relied upon an administrative rule promulgated under sub. (2) in instructing the jury. State v. Clausen,
105 Wis. 2d 231,
313 N.W.2d 819 (1982).
100.20 Annotation
The state may join as parties defendant assignees of contracts allegedly obtained by deceptive practices even though the assignees did not engage in deception. State v. ExcelManagement Services,
111 Wis. 2d 479,
331 N.W.2d 312 (1983).
100.20 Annotation
Attorney fees for successful appellate work are recoverable under sub. (5). Fees are recoverable even when the person is represented at no charge by a legal services organization. Shands v. Castrovinci,
115 Wis. 2d 352,
340 N.W.2d 506 (1983).
100.20 Annotation
Sub. (6) does not require a threat of future harm in order to obtain an injunction. State v. Fonk's Mobile Home Park & Sales, Inc.
117 Wis. 2d 94,
343 N.W.2d 820 (Ct. App. 1983).
100.20 Annotation
A plaintiff-tenant who prevails in an action for the violation of an order under this section is entitled to attorney fees irrespective of the amount of damages the landlord may recover in a counterclaim. Paulik v. Coombs,
120 Wis. 2d 431,
355 N.W.2d 357 (Ct. App. 1984).
100.20 Annotation
In cases when a landlord complies with the 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 when the the landlord fails to provide the accounting. Pierce v. Norwick,
202 Wis. 2d 588,
550 N.W.2d 451 (Ct. App. 1996).
100.20 Annotation
Illegal chain distribution schemes are discussed. State v. Fortune in Motion, Inc.
214 Wis. 2d 148,
570 N.W.2d 875 (Ct. App. 1997).
100.20 Annotation
The lender liability limits under s. 422.208 (4) do not limit the liability of lenders subject to the Home Improvement Trade Practices Code promulgated under this section. A homeowner may proceed under sub. (5) when there is a violation of the Code. If a home improvement was financed by an interlocking consumer loan, full payment before discovering the violations of the Code does not eliminate the consumer's cause of action against an assignee of the loan for the total amount that the consumer was obligated for at the time of entering into the contract. Jackson v. DeWitt,
224 Wis. 2d 877,
592 N.W.2d 262 (Ct. App. 1999).
100.20 Annotation
The ordinary civil burden of proof applies to actions for damages occasioned by a violation of an administrative rule adopted under sub. (2). Benkoski v. Flood, 2001 WI App 84,
242 Wis. 2d 652,
626 N.W.2d 851.
100.20 Annotation
When the plaintiff lost a sale of property as the result of a violation of an administrative rule adopted under sub. (2), it was proper to double the lost sale price of property prior to deducting the market price of the property in setting damages under sub. (5). Benkoski v. Flood, 2001 WI App 84,
242 Wis. 2d 652,
626 N.W.2d 851.
100.20 Annotation
A contract in violation of an administrative rule adopted under this section does not result in per se unenforceability of the contract. A lease provision requiring a tenant to pay all landlord attorney fees, in violation of a rule, was unenforceable because severing the clause from the remainder of the lease would undermine the goals of eliminating such clauses and preventing the intimidation of tenants that the clauses may cause. Baierl v. McTaggert, 2001 WI 107,
245 Wis. 2d 632,
629 N.W.2d 277.
100.20 Annotation
Allegations that a department rule prohibiting chain distributor schemes as an unfair trade practice abridged the 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 (1974).
100.20 Annotation
Federal law did not preclude the enforcement of this section. Time Warner Cable v. Doyle,
847 F. Supp 635 (1994).
