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),
96-2776.
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,
00-2250.
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,
01-1152.
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,
01-1152.
100.18 Annotation
The elements of a viable claim under this section are: 1) the defendant advertised the product; 2) the advertising was misleading; 3) the plaintiff suffered pecuniary loss as a result of the misleading advertising. Tietsworth v. Harley-Davidson, Inc. 2003 WI App 75,
261 Wis. 2d 755,
661 N.W.2d 450,
02-1034.
100.18 Annotation
That the sellers themselves did not make any representations to the buyers with respect to the property sold and that the buyers cannot hold real estate agents liable under this section for misrepresentations the agents do not know are untrue does not require that the sellers cannot be held statutorily liable for the representations. Ricco v. Riva, 2003 WI App 182,
266 Wis. 2d 696,
669 N.W.2d 193,
02-2621.
100.18 Annotation
A general statement that one's products are best is not actionable as a misrepresentation of fact and cannot support a claim under this section. Tietsworth v. Harley-Davidson, Inc. 2004 WI 32,
270 Wis. 2d 146,
677 N.W.2d 233,
02-1034.
100.18 Annotation
When the statutory background of ss. 100.18 and 100.183 is considered, it becomes clear that the legislature does not intend "merchandise" in s. 100.18 to include articles of food. The only sanction for violating s. 100.183 is the criminal penalty specified in s. 100.26 (1) while s. 100.18 (1) is amenable to only civil remedies and cannot be enforced via a criminal prosecution. Gallego v. Wal-Mart Stores, Inc. 2005 WI App 244,
288 Wis. 2d 229,
707 N.W.2d 539,
04-2533.
100.18 Annotation
A purchaser of a particular product does not lose the protection to "the public" under this section solely because the purchaser had previously made inquiries about products and purchased products from the seller. A buyer who initiated the contact with the seller is not precluded from being part of "the public." K&S Tool & Die Corp. v. Perfection Machinery Sales, Inc. 2006 WI App 148,
05-2148.
100.18 Annotation
This section does not require reasonable reliance on the misrepresentation. It requires actual reliance. K&S Tool & Die Corp. v. Perfection Machinery Sales, Inc. 2006 WI App 148,
05-2148.
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, not a mere showing of deception. Demitropoulous v. Bank One Milwaukee,
915 F. Supp. 1399 (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
Under Wisconsin law the economic loss doctrine does not bar recovery under s. 100.18, and it does bar recovery under s. 895.80, at least under the facts of this case. Dow v. Poltzer,
364 F. Supp. 2d 931 (2005).
100.18 Annotation
The Resurgence of Caveat Emptor: Puffery Undermines the Pro-Consumer Trend in Wisconsin's Misrepresentation Doctrine. Goretzke. 2003 WLR 171.
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.
100.183 Annotation
When the statutory background of ss. 100.18 and 100.183 is considered, it becomes clear that the legislature does not intend "merchandise" in s. 100.18 to include articles of food. The only sanction for violating s. 100.183 is the criminal penalty specified in s. 100.26 (1) while s. 100.18 (1) is amenable to only civil remedies and cannot be enforced via a criminal prosecution. Gallego v. Wal-Mart Stores, Inc. 2005 WI App 244,
288 Wis. 2d 229,
707 N.W.2d 539,
04-2533.
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.
100.195
100.195
Unfair billing for consumer goods or services. 100.195(1)(a)
(a) "Bill" means to represent to any consumer, directly or by implication, that the consumer is obligated to pay a stated amount for consumer goods or services. "Bill" includes to refer a payment to a collection agency or to make a statement representing that a payment obligation has been or may be referred to a collection agency or credit reporting agency.
100.195(1)(b)
(b) "Consumer" means an individual to whom a seller sells or leases, or offers to sell or lease, consumer goods or services at retail.
100.195(1)(c)
(c) "Consumer goods or services" means goods or services that are used or intended for use for personal, family, or household purposes. "Consumer goods or services" does not include any of the following:
100.195(1)(c)2.
2. Telecommunications services or cable television services.
100.195(1)(c)3.
3. Goods or services whose delivery is required by law even though the consumer has not agreed to purchase or lease those goods or services.
100.195(1)(c)5.
5. Services provided pursuant to an attorney-client relationship.
100.195(1)(d)
(d) "Delivery" means transferring to a consumer's custody or making available for use by a consumer.
100.195(1)(e)
(e) "Disclosure" means a clear and conspicuous statement that is designed to be readily noticed and understood by the consumer.
100.195(1)(f)
(f) "Seller" means a seller or lessor of consumer goods or services, and includes any employee, agent, or representative acting on behalf of the seller.
100.195(1)(h)
(h) "Television service" means all of the following:
100.195(1)(h)2.
2. Services billed to consumers by a multichannel video programming distributor as defined under
47 USC 522 (13).
100.195(2)(a)
(a) Bill a consumer for consumer goods or services that the consumer has not agreed to purchase or lease.
100.195(2)(b)
(b) Bill a consumer for consumer goods or services at a price that is higher than a price previously agreed upon between the seller and consumer unless the consumer agrees to the higher price before the seller bills the consumer. This paragraph does not prohibit a seller from increasing the price of goods or services under a sale or lease agreement of indefinite duration if the seller gives the consumer reasonable disclosure of the proposed increase and the opportunity to cancel the agreement without penalty at or before the time of a delivery at the increased price. If a seller proposes an increased price at the time of a delivery of goods or services and the consumer elects to cancel the agreement, the seller shall pay the costs of returning the goods or services.
100.195(2)(c)
(c) Bill a consumer for a delivery of consumer goods or services that the seller initiates under an agreement that is no longer in effect when the seller initiates the delivery.
100.195(2)(d)
(d) Offer a consumer a prize or prize opportunity or free or reduced-price goods or services, the acceptance of which commits the consumer to receive or pay for other consumer goods or services, unless the seller makes a disclosure of that commitment at or before the time the consumer agrees to purchase the goods or services.
100.195(2)(e)
(e) Misrepresent to a consumer, directly or by implication, that the consumer's failure to reject or return a delivery of consumer goods or services that was not authorized by the consumer constitutes an acceptance that obligates the consumer to pay for those goods or services.
100.195(3)(a)(a) Subsection (2) does not apply to the conduct of an agent or representative of a seller when providing billing services if the agent or representative did not know or have reason to know that its conduct violates
sub. (2).
100.195(3)(b)2.
2. A contractual plan or arrangement under which a seller, on a periodic basis, ships a similar type of goods to a consumer who has consented in advance to receive the goods on a periodic basis, if the plan or arrangement does not impose a binding commitment period or require a minimum purchase amount.
100.195(4)
(4) Acceptance of free goods or services. For purposes of
sub. (2), the acceptance of free goods or services does not, of itself, constitute an agreement to purchase or lease the goods or services.
100.195(5m)(a)(a) The department may exercise its authority under
ss. 93.14 and
93.15 to investigate violations of this section.
100.195(5m)(b)
(b) Any person suffering pecuniary loss because of a violation of this section may commence an action to recover the pecuniary loss. If the person prevails, the person shall recover twice the amount of the pecuniary loss, or $200 for each violation, whichever is greater, together with costs, including reasonable attorney fees.
