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) (am) 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) With respect to the sale of merchandise other than motor vehicle fuel, 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) (am); and if that retailer is a manufacturer or producer, both
sub. (2) (am) 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) (am) and
(c).
100.30(2m)(c)
(c) When 2 or more terminals are included in the same geographic area by a petroleum price reporting service, they shall be considered one terminal for purposes of
sub. (2) (am) 1m. a.,
b. and
c.
100.30(3)
(3) Illegality of loss leaders. Any sale of any item of merchandise either by a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner, 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, wholesaler, wholesaler of motor vehicle fuel or refiner 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, wholesaler, wholesaler of motor vehicle fuel or refiner requiring the person 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, wholesaler, wholesaler of motor vehicle fuel or refiner 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(5m)
(5m) Private cause of action. Any person who is injured or threatened with injury as a result of a sale or purchase of motor vehicle fuel in violation of
sub. (3) may bring an action against the person who violated
sub. (3) for temporary or permanent injunctive relief or an action against the person for 3 times the amount of any monetary loss sustained or an amount equal to $2,000, whichever is greater, multiplied by each day of continued violation, together with costs, including accounting fees and reasonable attorney fees, notwithstanding
s. 814.04 (1). An action under this subsection may not be brought after 180 days after the date of a violation of
sub. (3).
100.30(5r)
(5r) Private cause of action; sale of tobacco products. Any person who is injured or threatened with injury as a result of a sale or purchase of cigarettes or other tobacco products in violation of this section may bring an action against the person who violated this section for temporary or permanent injunctive relief or an action against the person for 3 times the amount of any monetary loss sustained or an amount equal to $2,000, whichever is greater, multiplied by each day of continued violation, together with costs, including accounting fees and reasonable attorney fees, notwithstanding
s. 814.04 (1).
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, wholesaler, wholesaler of motor vehicle fuel or refiner in the form of an advertisement, proof of sale or receipted purchase, price survey or other business record maintained by the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner in the ordinary course of trade or the usual conduct of business.
100.30(6)(a)8.
8. Merchandise is sold by any officer acting under the order or direction of any court.
100.30(6)(a)9.
9. Motor vehicle fuel is sold by a person to a wholesaler of motor vehicle fuel, who may sell the motor vehicle fuel at either retail or wholesale.
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(7)(a)(a) If a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner lowers in good faith the price of motor vehicle fuel below the applicable price specified under
sub. (2) (am) 1m. to meet an existing price of a competitor, the person shall submit to the department notification of the lower price before the close of business on the day on which the price was lowered in the form and the manner required by the department.
100.30(7)(b)
(b) Failure to comply with
par. (a) creates a rebuttable presumption that the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner did not lower the price to meet the existing price of a competitor.
100.30(7)(c)
(c) If a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner complies with
par. (a), all of the following apply:
100.30(7)(c)1.
1. The department may not proceed under
sub. (5) against the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner.
100.30(7)(c)2.
2. The retailer, wholesaler, wholesaler of motor vehicle fuel or refiner is immune from liability under
sub. (5m).
100.30 Cross-reference
Cross Reference: See also s.
ATCP 105.01, Wis. adm. code.
100.30 Annotation
The state constitution protects the right to a trial by jury for a civil suit brought under this section. Village Food & Liquor Mart v. H & S Petroleum, Inc. 2002 WI 92, ___ Wis. 2d ___,
647 N.W.2d 100.
100.30 Annotation
Sub. (2) (Lm) [now (2) (k)] qualifies the term "trade discount" in determining "cost to retailer" under sub. (2) (a) for sales of fermented malt beverages and intoxicating liquors. Sub. (2) (Lm) [now (2) (k)] is not a catchall prohibition against all trade discounts and does not apply to bona fide quantity discounts. 63 Atty. Gen. 516.
100.30 Annotation
This section does not 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 sub. (1), and sellers of drugs are not prohibited from offering or according to them pricing arrangements that are not made available to other purchasers. 65 Atty. Gen. 59.
100.31 Annotation
"Most favored purchaser" under sub. (2) does not refer to purchasers outside Wisconsin. The constitutionality of this statute is 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.
100.33(3)(a)(a)
Sale of plastic beverage bottles. On and after January 1, 1991, no person may sell or offer for sale at wholesale in this state a plastic beverage bottle with a capacity of 8 fluid ounces or more, or a beverage in such a plastic bottle, unless the bottle complies with the labeling requirements under
sub. (2). On and after January 1, 1992, no person may sell or offer for sale at retail in this state a plastic beverage bottle with a capacity of 8 fluid ounces or more, or a beverage in such a plastic bottle, unless the bottle complies with the labeling requirements under
sub. (2).
100.33(3)(b)1.1. On and after January 1, 1991, no person may sell or offer for sale at wholesale in this state any plastic bottle with a capacity of 16 fluid ounces or more, or a product in such a plastic bottle, unless the bottle complies with the labeling requirements under
sub. (2). On and after January 1, 1992, no person may sell or offer for sale at retail in this state any plastic bottle with a capacity of 16 fluid ounces or more, or a product in such a plastic bottle, unless the bottle complies with the labeling requirements under
sub. (2).
100.33(3)(b)2.
2. On and after January 1, 1993, no person may sell or offer for sale at wholesale in this state any plastic bottle with a capacity of at least 8 fluid ounces but less than 16 fluid ounces, or a product in such a plastic bottle, unless the bottle complies with the labeling requirements under
sub. (2). On and after January 1, 1994, no person may sell or offer for sale at retail in this state any plastic bottle with a capacity of at least 8 fluid ounces but less than 16 fluid ounces, or a product in such a plastic bottle, unless the bottle complies with the labeling requirements under
sub. (2).
100.33(3)(b)3.
3. Subdivisions 1. and
2. do not apply to the sale or offer to sell of plastic beverage bottles or beverages in plastic bottles.
100.33(3)(c)1.1. On and after January 1, 1991, no person may sell or offer for sale at wholesale in this state any plastic container with a capacity of 16 fluid ounces or more, or a product in such a plastic container, unless the container complies with the labeling requirements under
sub. (2). On and after January 1, 1992, no person may sell or offer for sale at retail in this state any plastic container with a capacity of 16 fluid ounces or more, or a product in such a plastic container, unless the container complies with the labeling requirements under
sub. (2).
100.33(3)(c)2.
2. On and after January 1, 1992, no person may sell or offer for sale at wholesale in this state any plastic container with a capacity of at least 8 fluid ounces but less than 16 fluid ounces, or a product in such a plastic container, unless the container complies with the labeling requirements under
sub. (2). On and after January 1, 1993, no person may sell or offer for sale at retail in this state any plastic container with a capacity of at least 8 fluid ounces but less than 16 fluid ounces, or a product in such a plastic container, unless the container complies with the labeling requirements under
sub. (2).
100.33(3)(c)3.
3. Subdivisions 1. and
2. do not apply to the sale or offer to sell of any plastic bottles or any products in plastic bottles.
100.33(3m)
(3m) Variances. Upon request, the department may grant a variance to a prohibition in
sub. (3) for up to one year for a type of plastic container. The department may renew a variance. The department may only grant a variance if it is not technologically possible to label the plastic container.
100.33(4)
(4) Penalty. Any person who violates
sub. (3) shall forfeit not more than $500 for each violation. Each day of violation constitutes a separate offense.
100.33 History
History: 1987 a. 293,
403;
1989 a. 31,
335.
100.33 Cross-reference
Cross Reference: See also s.
ATCP 137.11, Wis. adm. code.
100.35
100.35
Furs to be labeled. 100.35(1)(1) No person shall sell or offer or display for sale any coat, jacket or other garment made wholly or partially of fur without having attached thereto and conspicuously displayed a tag or label bearing in plain print in English the species of fur or pelt used therein. This section shall not apply to such garments as are displayed or offered for sale or sold at a price of less than $50.
100.36
100.36
Frauds; substitute for butter; advertisement. No person may use the word "butter" in any way in connection or association with the sale or exposure for sale or advertisement of any substance designed to be used as a substitute for butter. No person may use terms such as "cream", "creamery" or "dairy", or the name or representation of any breed of dairy cattle, or any combination of such words and representation, or any other words or symbols or combinations thereof commonly used in the sale of butter unless at least 40% of the substitute is butterfat. If the term "butter" is used in connection with the name of any such product, it shall be qualified so as to distinguish it from butter as defined in
s. 97.01 (1). Nothing in this section prohibits a person from using the term "light butter" or "lite butter" in the manner provided in
s. 97.03 (3) (b).
100.36 History
History: 1983 a. 189 s.
329 (20);
1991 a. 111.
100.37
100.37
Hazardous substances act. 100.37(1)(a)
(a) "Corrosive" means any substance which in contact with living tissue will cause destruction of tissue by chemical action, but does not refer to action on inanimate surfaces.
100.37(1)(b)
(b) "Extremely flammable" applies to any substance which has a flash point at or below 20 degrees Fahrenheit as determined by the Tagliabue open cup tester, and "flammable" applies to any substance which has a flash point of above 20 degrees to 80 degrees Fahrenheit, as determined by the Tagliabue open cup tester; "combustible" applies to any substance which has a flash point above 80 degrees Fahrenheit to 150 degrees as determined by the Tagliabue open cup tester, except that flammability or combustibility of solids and of the contents of self-pressurized containers shall be determined by methods as prescribed under the federal hazardous substances act (
15 USC 1261 et seq) or found by the department to be generally applicable to such materials or containers, and established by rules adopted by the department, which shall also define "flammable", "combustible" and "extremely flammable" in accordance with such methods.
100.37(1)(c)1.
1. Any substance or mixture of substances, including a toy or other article intended for use by children, which is toxic, is corrosive, is an irritant, is a strong sensitizer, is flammable or combustible, or generates pressure through decomposition, heat or other means, if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children.
100.37(1)(c)2.
2. Any substances which the department by rule finds, pursuant to
sub. (2) (a), meet the requirements of
subd. 1.
