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,
254 Wis. 2d 478,
647 N.W.2d 100,
00-2493.
100.30 Annotation
The only reasonable construction of "terminal closest to the retailer" under sub. (2) (am) 1m. c. is the terminal closest to the location where the retail sale occurs, not the corporate headquarters of the seller. Gross v. Woodman's Food Market, Inc. 2002 WI App 295,
259 Wis. 2d 181,
655 N.W.2d 718,
01-1746.
100.30 Annotation
Sub. (3) prohibits a sale at less than statutory cost if the seller had either an intent proscribed by the statute or the sale had an effect proscribed by the statute. Gross v. Woodman's Food Market, Inc. 2002 WI App 295,
259 Wis. 2d 181,
655 N.W.2d 718,
01-1746.
100.30 Annotation
This section is not so vague that it constitutes a denial of due process. That a seller may be penalized even if the seller lacks the intent to violate the section does not violate due process. Gross v. Woodman's Food Market, Inc. 2002 WI App 295,
259 Wis. 2d 181,
655 N.W.2d 718,
01-1746.
100.30 Annotation
There is no requirement in sub. (7) that a retailer must conduct a price survey within any particular time period. DATCP by rule recommends that sellers maintain daily price surveys, but the department does not require or even recommend a survey every 24 hours. 22 Shawano, LLC v. R. C. Samanta Roy Institute of Science and Technology, Inc. 2006 WI App 14,
289 Wis. 2d 196,
709 N.W.2d 98,
05-0427.
100.30 Annotation
"Competitor" in the phrase "existing price of a competitor" in sub. (2) (cj) is not limited to competitors located in Wisconsin. Go America L.L.C. v. Kwik Trip, Inc. 2006 WI App 94,
292 Wis. 2d 795,
715 N.W.2d 746,
05-1512.
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
This section was not unconstitutional as applied to a cigarette wholesaler licensed under s. 139.30 (3). Eby-Brown v. DOR,
295 F.3d 749 (2002).
100.30 Annotation
The minimum markup provision on motor fuel sales within this section restrains trade in contravention of the Sherman Act, 15 U.S.C. § 1, and fails to qualify for state action immunity from the Sherman Act. Thus, this section, at least as it applies to motor vehicle fuel, is unenforceable under the Supremacy Clause. Lotus Business Group LLC v. Flying J Inc.
532 F. Supp. 2d 1011 (2007)
100.30 Annotation
Wisconsin's unfair sales act — Unfair to whom? Waxman, 66 MLR 293 (1983).
100.305
100.305
Prohibited selling practices during periods of abnormal economic disruption. 100.305(1)(a)
(a) "Consumer goods or services" means goods or services that are used primarily for personal, family, or household purposes.
100.305(1)(b)1.
1. A tornado, flood, fire, storm, or other destructive act of nature.
100.305(1)(b)2.
2. A disruption of energy supplies to the degree that a serious risk is posed to the economic well-being, health, or welfare of the public.
100.305(1)(c)
(c) "Hostile action" means an act of violence against a person or property in the United States by a foreign power or by a foreign or domestic terrorist.
100.305(1)(d)
(d) "Period of abnormal economic disruption" means a period of time during which normal business transactions in the state or a part of the state are disrupted, or are threatened to be disrupted, due to an emergency.
100.305(1)(e)
(e) "Seller" means a manufacturer, producer, supplier, wholesaler, distributor, or retailer.
100.305(2)
(2) Prohibition. No seller may sell, or offer to sell, in this state at wholesale or at retail, consumer goods or services at unreasonably excessive prices if the governor, by executive order, has certified that the state or a part of the state is in a period of abnormal economic disruption.
100.305(3)
(3) Rules. The department shall promulgate rules to establish formulas or other standards to be used in determining whether a wholesale or retail price is unreasonably excessive.
100.305(4m)
(4m) Enforcement; penalty. If a seller violates
sub. (2), the department or, after consulting with the department, the department of justice, may do any of the following:
100.305(4m)(a)
(a) Issue to the seller a warning notice specifying the action that the seller is required to take in order not to be in violation of
sub. (2).
100.305(4m)(b)
(b) Commence an action against the seller in the name of the state to recover a civil forfeiture of not more $10,000 or to temporarily or permanently restrain or enjoin the seller from violating
sub. (2), or both.
100.305 History
History: 2005 a. 450.
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.
