100.201(2)(h)1.1. Sell or offer to sell, directly or indirectly, any selected dairy product at less than cost with the purpose or intent of injuring, destroying or eliminating competition or a competitor or creating a monopoly, or where the effect may be any of the same. This paragraph shall apply to all sales, including those made to any instrumentality of state or local government and to all religious, charitable or educational organizations or institutions, but does not apply to sales made to the United States.
100.201(2)(h)2.
2. "Cost" of a selected dairy product to a wholesaler means that portion of all of the cost of raw product plus all costs of manufacturing, processing, packaging, handling, sale, delivery and overhead of such wholesaler which, under a system of accounting in accordance with sound accounting principles and reasonably adapted to the business of such wholesaler, is fairly allocable to such selected dairy product and the sale thereof to its customers or to a particular class thereof. Such cost shall include, but not be limited to, all expenses for labor, salaries, bonuses, fringe benefits, administration, rent, interest, depreciation, power, raw and processed ingredients, materials, packaging, supplies, maintenance of equipment, selling, advertising, transportation, delivery, credit losses, license and other fees, taxes, insurance, and other fixed and incidental operating expenses and costs of doing business.
100.201(2)(h)3.
3. The department may by rule after hearing adopt a uniform system of accounting to be used by the department in determining the cost of a selected dairy product and to require wholesalers to file reports of such cost based upon such adopted system of accounting.
100.201(2)(h)4.
4. Proof made at any proceeding under this paragraph of a sale or offer to sell, directly or indirectly, any selected dairy product at less than cost as determined by department rule, if adopted, shall be prima facie evidence that it was made with the purpose or intent of injuring, destroying or eliminating competition or a competitor or creating a monopoly and that the effect may be any of the same. The burden of rebutting such prima facie evidence shall be upon the person charged with a violation of this paragraph. Nothing in this paragraph shall prevent any person charged with a violation of this paragraph from rebutting such prima facie evidence by showing that the person's sale or offer to sell was made in good faith to meet competition.
100.201(2)(h)5.
5. This paragraph shall also apply to any retailer who owns, operates or otherwise contracts for, directly or indirectly, facilities for manufacturing or processing any selected dairy product, and to the cost of a selected dairy product, as defined in this paragraph, shall be added both the wholesale and retail markup as provided in
s. 100.30.
100.201(2)(i)1.1. Give, offer to give, furnish, finance or otherwise make available, directly or indirectly, to any retailer or to any other person doing business with a retailer anything of value which is connected with, or which aids or assists in, or which may induce or encourage, the purchase, handling, sale, offering for sale or promotion of the sale of the wholesaler's selected dairy products by a retailer or any other person doing business with a retailer, unless given, offered, furnished, financed or otherwise made available on proportionately equal terms to all other retailers or persons doing business with retailers. The term "anything of value" as used herein includes, but is not limited to:
100.201(2)(i)1.a.
a. Any payment, discount, rebate, allowance, gift, goods, merchandise, privilege, contest, service or facility, whether or not given, offered, furnished, financed or otherwise made available in combination with or contingent on a purchase, or as compensation for or in consideration of the furnishing of any service or facility by or through a retailer.
100.201(2)(i)1.b.
b. Any transaction involving the use of a coupon, token, slip, punch card, trading stamp or other device similar in nature, including any part of a container or package intended to be used as such device, and which transaction involves any participation by or purchase from a retailer.
100.201(2)(i)2.a.
a. The good faith meeting of competition by offering or making available services and facilities offered or made available by a competitor.
100.201(2)(i)3.
3. Nothing in this paragraph authorizes the sale of selected dairy products, or the furnishing of services or facilities in violation of
pars. (a) to
(h).
100.201(3)
(3) Operation of retail outlet by wholesaler. Nothing in this section shall be interpreted to prohibit the operation of a retail outlet by a wholesaler for retail sales or to prohibit the use by the wholesaler in such retail outlet of any equipment or advertising or miscellaneous matter owned by the wholesaler provided that such retail outlet is under direct control and management of the wholesaler.
100.201(4)
(4) Unlawful acts of retailers. It is unlawful for any retailer or any officer, director, employee or agent thereof to solicit or receive, directly or indirectly, from or through a wholesaler, broker or another retailer, anything which is prohibited by
sub. (2), where the retailer, officer, director, employee or agent knows or, in the exercise of reasonable prudence, should know that the same is prohibited.
100.201(5)(a)(a) It is unlawful for a broker, or any officer or agent thereof, to participate, directly or indirectly, in any unfair trade practice described in
sub. (2).
100.201(5)(b)
(b) It is unlawful for a wholesaler to engage or offer to engage in any unfair trade practice described in
sub. (2), directly or indirectly, through a broker.
100.201(6)(a)1.1. Except as provided in
subd. 2., a manufacturer or processor of selected dairy products shall pay a fee under
par. (c) on its sales of those selected dairy products to which all of the following apply:
100.201(6)(a)2.
2. Subdivision 1. does not apply to the operator of a retail food establishment licensed under
s. 97.30 who manufactures or processes selected dairy products at that establishment solely for retail sale at that establishment.
100.201(6)(b)
(b) The first person in this state to receive selected dairy products that are manufactured or processed outside of this state and that are packaged for sale to consumers shall pay a fee under
par. (c) on sales of those selected dairy products to persons in this state.
100.201(6)(c)
(c) The fee under this subsection is 5.49 cents per hundred pounds of ice cream products and 0.44 cent per hundred pounds of other dairy products or such other amount as specified by the department by rule. The fee shall be paid to the department by the 25th day of each month for sales made during the preceding month.
100.201(6)(d)
(d) The failure to pay fees under this subsection within the time provided under
par. (c) is a violation of this section. The department may also commence an action to recover the amount of any overdue fees plus interest at the rate of 2% per month for each month that the fees are delinquent.
100.201(6)(e)
(e) The department shall keep confidential information obtained under this subsection concerning the amount of dairy products sold by specific manufacturers and processors.
100.201(7)
(7) Applicability. The provisions of
ss. 133.04 and
133.05 shall not apply to any conduct either permitted, required or prohibited under this section.
100.201(8)
(8) Enforcement. It is the duty of the department to investigate, ascertain and determine whether this section or lawful orders issued hereunder are being violated and for such purposes the department shall have all the powers conferred by
ch. 93.
100.201(8m)
(8m) Jurisdiction. This section shall apply to transactions, acts or omissions which take place in whole or in part outside this state. In any action or administrative proceeding the department has jurisdiction of the person served under
s. 801.11 when any act or omission outside this state by the defendant or respondent results in local injury or may have the effect of injuring competition or a competitor in this state or unfairly diverts trade or business from a competitor, if at the time:
100.201(8m)(a)
(a) Solicitation or service activities were carried on within this state by or on behalf of the defendant or respondent; or
100.201(8m)(b)
(b) Selected dairy products processed, serviced, distributed or manufactured by the defendant or respondent were received for resale in this state at retail or wholesale without regard to where sale or delivery takes place.
100.201(9)(a)(a) Any person violating this section shall forfeit not less than $100 nor more than $5,000 for each violation.
100.201(9)(b)
(b) The department, after public hearing held under
s. 93.18, may issue a special order against any person requiring such person to cease and desist from acts, practices or omissions determined by the department to violate this section. Such orders shall be subject to judicial review under
ch. 227. Any violation of a special order issued hereunder shall be punishable as a contempt under
ch. 785 in the manner provided for disobedience of a lawful order of a court, upon the filing of an affidavit by the department of the commission of such violation in any court of record in the county where the violation occurred.
100.201(9)(c)
(c) The department, in addition to or in lieu of any other remedies herein provided, may apply to a circuit court for a temporary or permanent injunction to prevent, restrain or enjoin any person from violating this section or any special order of the department issued hereunder, without being compelled to allege or prove that an adequate remedy at law does not exist.
100.201(9)(d)
(d) The provisions of
s. 93.06 (7) shall be applicable to violations of this section insofar as permits, certificates, registrations or licenses issued by the department for the manufacture, distribution, and sale of selected dairy products are concerned, provided that any suspension or revocation thereof pursuant to
s. 93.06 (7) can be ordered only for failure to comply with any special order issued pursuant to
par. (b) or with any permanent injunction issued pursuant to
par. (c), should such failure continue after such order or such injunction becomes final on the completion of any review proceedings. In such proceedings the department shall follow the hearing procedure set forth in
s. 93.18 for special orders. Judicial review shall be as provided in
ch. 227.
100.201(9)(e)
(e) Any person suffering pecuniary loss because of any violation of this section may sue for damages therefor in any court of competent jurisdiction and shall recover treble the amount of such pecuniary loss, together with costs, including a reasonable attorney's fee.
100.201(9)(f)
(f) Any retailer or wholesaler may file a written verified complaint with the department alleging facts which, if proved, would support a charge that a person named therein is engaging in unfair trade practices as defined in this section. Whenever such a complaint is filed it is the duty of the department to proceed to hearing and adjudication as provided in
par. (b).
100.201(9)(g)
(g) A final judgment, decree or order hereafter rendered in any civil or criminal action or special proceeding, or in any special order proceeding under
par. (b), brought by or on behalf of the state under this section to the effect that a defendant or respondent has violated said law shall be prima facie evidence against such defendant or respondent in any action or special proceeding brought by any other party against such defendant or respondent under said law, as to all matters respecting which said judgment, decree or order would be an estoppel as between the parties thereto but this subsection shall not apply to judgments, decrees or special orders entered by consent.
100.201(10)
(10) Removal or sale of equipment. Any equipment furnished by wholesalers to retailers prior to August 17, 1963, shall be removed from the retailers' premises or sold pursuant to
sub. (2) (d) or
(e) by January 1, 1964. The minimum selling price of such equipment, if fully depreciated in accordance with
sub. (2) (e), shall not be less than $10 per unit.
100.201(11)
(11) Rule making. The department may promulgate rules which are necessary for the efficient administration of this section. The department may also promulgate rules which set standards for the nondiscriminatory sale and furnishing of services or facilities in connection with the sale or distribution of selected dairy products and for the good faith meeting of competition.
100.201 Cross-reference
Cross Reference: See also ch.
ATCP 103, Wis. adm. code.
100.202
100.202
Contracts in violation void. All contracts and agreements made in violation of
s. 100.201 are void.
100.205
100.205
Motor vehicle rustproofing warranties. 100.205(1)(a)
(a) "Advertisement" means any oral, written, printed or graphic statement, claim or representation concerning rustproofing which is made in connection with the solicitation or sale of rustproofing.
100.205(1)(b)
(b) "Retail customer" means the person for whom rustproofing is ultimately intended.
100.205(1)(c)
(c) "Rustproofing" means the application of materials and processes intended or represented to prevent or control rusting or corrosion of a motor vehicle as defined in
s. 340.01 (35).
100.205(1)(d)
(d) "Seller" means any person who sells rustproofing to a retail customer, including a person who sells a motor vehicle which has rustproofing listed as an element of the total selling price, whether or not ordered by the retail customer.
100.205(1)(e)
(e) "Warranted party" means the retail customer or another person to whom warranty rights have been assigned or transferred under the warranty.
100.205(1)(f)
(f) "Warrantor" means any person who gives or offers to give a warranty.
100.205(1)(g)
(g) "Warranty" means any written representation, made to a retail customer, which asserts that the rustproofing will meet a specified level of performance or duration or establishes conditions under which the warrantor will compensate the retail customer or rectify any failure to meet the specified level of performance or duration.
100.205(2)
(2) All rustproofing warranties shall be in writing and contain the following provisions:
100.205(2)(b)
(b) Clear identification of all warrantors and their addresses, the name and address of the person to whom warranty claims are to be made and the place where inspection of the warranted motor vehicle is to be made.
100.205(2)(c)
(c) Each condition limiting the warranted party's rights under the warranty.
100.205(2)(d)
(d) The name and address of the insurer of the warranty in the event of the warrantor's insolvency or bankruptcy.
100.205(3)
(3) No rustproofing warranty may contain:
100.205(3)(a)
(a) A limit on the number of claims which can be made under the warranty.
100.205(3)(b)
(b) A warrantor's option of returning the purchase price in lieu of other remedies under the warranty.
100.205(3)(c)
(c) A limit on the liability of the warrantor for any reason relating to misapplication of the rustproofing product.
100.205(3)(d)
(d) An invalidation of the warranty on failure of the retail customer or the seller to register the warranty with the warrantor, if the retail customer or the seller has documentary proof that the rustproofing was paid for.
100.205(3)(e)
(e) An exclusion of warranty coverage for manufacturer defects unless the part of the motor vehicle excluded and the basis for exclusion is specified in the warranty.
100.205(3)(f)
(f) A limit on the transferability of a warranty during the specified term of the warranty.
100.205(4)
(4) Nothing in this section prevents a warrantor from designating a representative to perform duties under the warranty or relieves a warrantor of his or her responsibilities to a warranted party. A representative designated to perform duties under a warranty is not a warrantor unless he or she gives or offers to give a warranty.
100.205(5)(a)(a) No person may make any warranty advertisement which is untrue, deceptive or misleading as provided in
s. 100.18.
100.205(5)(b)
(b) The specified term of a warranty shall be limited to that period preceding an inspection by the warrantor which is required to maintain the validity or original coverage of the warranty.
100.205(5)(c)
(c) Use of "lifetime" or similar terms may not be used in an advertisement or warranty unless the term refers to the motor vehicle receiving the rustproofing and is not limited by the transfer of ownership of the motor vehicle.
100.205(5)(d)
(d) No warrantor may fail to have a motor vehicle inspected within 30 days after receiving a claim under the warranty, if the warranted party makes the motor vehicle available for inspection to the warrantor or the warrantor's designee within that period. The inspection shall be within 30 miles of the place of business of the seller of the rustproofing, unless waived by the warranted party.
100.205(5)(e)
(e) No warrantor may fail to notify a warranted party in writing within 30 business days after inspecting the motor vehicle whether the warranty claim will be allowed or denied. If a claim is denied in whole or in part, the reason for that denial shall be stated in writing. Notification is effective on mailing the warrantor's determination to the last address supplied to the warrantor by the warranted party or on personal delivery to the warranted party.
100.205(5)(f)
(f) No warrantor may fail to comply with the terms of its warranty.
100.205(5)(g)
(g) No warrantor or seller may impose a charge or require the purchase of any additional service by the warranted party in order to have an inspection completed if the continued validity of the warranty requires the inspection.
100.205(6)
(6) Every warrantor shall purchase a policy of insurance covering the financial integrity of its warranties. The policy of insurance shall be on a form approved by the commissioner of insurance under
s. 631.20 and shall have the following minimum provisions:
100.205(6)(a)
(a) The insurer shall be licensed to do business in this state or shall be an unauthorized foreign insurer, as defined in
s. 600.03 (27), accepted by the office of the commissioner of insurance for surplus lines insurance in this state.
100.205(6)(b)
(b) Each warranty issued in this state shall be covered by a policy of insurance.
100.205(6)(c)
(c) In case of insolvency or bankruptcy of the warrantor, a warranted party may file a claim directly with the insurer.
100.205(6)(d)
(d) In case of insolvency or bankruptcy of the warrantor, the insurer, upon receipt of a claim, shall cause a warranted party's vehicle to be inspected at the insurer's expense.
100.205(6)(e)
(e) The termination provision shall state that the insurance provided shall continue with respect to all warranties issued before the date of termination.
100.205(7)
(7) The department, or any district attorney on 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, before entry of final judgment and after satisfactory proof, make orders or judgments necessary to restore to any person any pecuniary loss suffered because of a violation of this section. The department may conduct hearings, administer oaths, issue subpoenas and take testimony to aid in its investigation of violations of this section.
100.205(8)
(8) The department or any district attorney may commence an action in the name of the state to recover a forfeiture to the state of not more than $10,000 for each violation of this section.
100.205(9)(a)(a) In addition to other remedies, any person injured by a violation of this section may bring a civil action for damages under
s. 100.20 (5).
100.205(9)(b)
(b) Any person injured by a breach of a contract for rustproofing may bring an action against the warrantor or its insurer or both to recover damages, costs and disbursements, including reasonable attorney fees, and other relief determined by the court.
