100.18(2)(a)2.
2. Sell the property or services at more than the regular price or fail to state any other condition to the receipt of the property or services included in the sale, if the advertisement or representation refers to the price of the property or services as the "regular price".
100.18(2)(a)3.
3. Mark up the regular price of the property or services which must be purchased.
100.18(2)(a)4.
4. Substitute property or services of inferior value or quality for the property or services which must be purchased.
100.18(2)(b)
(b) This subsection does not apply to advertisements or representations concerning custom-made property.
100.18(2)(c)
(c) In this subsection, "regular price" means the lowest price for the same quantity and quality of product or the same services, at which the seller or advertiser of the product or services openly and actively sold the product or services in the geographic trade area of the advertisement or representation during the seller's or advertiser's most recent and regular 30-day course of business.
100.18(3)
(3) It shall be deemed deceptive advertising, within the meaning of this section, for any person, firm or corporation, engaged in the business of buying or selling new or secondhand furs, wearing apparel, jewelry, furniture, pianos, phonographs, or other musical instruments, motor vehicles, stocks, or generally any form of property, real, personal or mixed, or in the business of furnishing any kind of service or investment, to advertise such articles, property or service for sale or purchase, in any manner indicating that the sale or purchase is being made by a private party or householder not engaged in such business. And every such firm, corporation or association, engaged in any such business, in advertising goods, property or service for sale or purchase, shall affirmatively and unmistakably indicate and state that the seller or purchaser is a business concern and not a private party.
100.18(3m)
(3m) It is deceptive advertising 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 seasonal merchandise or any merchandise having a designated model year if the person conducting the sale is continuing in business.
100.18(5)
(5) Any person, firm, corporation or association engaged in any business mentioned in
sub. (3), or in any other kind of business, whether conducting such business in a store, business block, residence or other building, shall at all times keep a conspicuous sign posted on the outside of his or her establishment and another conspicuous sign in the salesroom, which sign shall clearly state the name of the association, corporation or individual who actually owns said merchandise, property or service which is being offered to the public and not the name of any other person; provided, however, that the exterior sign shall not be required where the seller has no control over the exterior of the premises where such business is conducted.
100.18(6)
(6) All advertising which shows or in any manner relates to the price at which motor fuel is offered for sale at retail, except multiple gallon computers attached to or forming a part of any dispensing equipment shall show only (a) the single gallon unit price including all applicable taxes in one amount or (b) the single gallon product price, the taxes applicable thereto, and the total single gallon unit price including all applicable taxes. In any such advertising, all numerals which represent either price or taxes shall be of the same type and size except that fractions of a cent shall be shown in figures one-half the height, width and prominence of the whole numbers.
100.18(8)
(8) Every wholesaler and every other person selling or distributing motor fuel in this state shall keep posted in a conspicuous place, most accessible to the public at his or her place of business, and on every pump from which delivery is made directly into the fuel tank attached to a motor vehicle, a placard showing the net selling price per gallon of all grades of motor fuel and the amount of all taxes per gallon thereon. On pumps or other dispensing equipment from which motor fuel is sold and delivered directly into fuel supply tanks attached to motor vehicles, such posting shall be in figures not less than one inch high, except that no such placard shall be required on a computer pump whereon the total net selling price per gallon including all taxes is legibly shown on its face. Except for sales to drivers of motor vehicles used by physically disabled persons under
s. 100.51 (5), all sales shall be made at the posted price. Delivery slips shall also show the net selling price per gallon of all grades of motor fuel and the amount of all taxes per gallon thereon. If the wholesaler or person has more than one place of business in this state, the wholesaler or person shall post that placard at all of his or her places of business. All prices posted shall remain in effect for at least 24 hours after they are posted. It shall be considered deceptive advertising to advertise or represent in any manner the price of motor fuel offered for sale at retail to be less than the price so posted on each pump.
100.18(9)(a)(a) It is deemed deceptive advertising, within the meaning of this section, for any person or any agent or employee thereof to make, publish, disseminate, circulate or place before the public in this state in a newspaper or other publication or in the form of book, notice, handbill, poster, bill, circular, pamphlet, letter, sign, placard, card, label or over any radio or television station or in any other way similar or dissimilar to the foregoing, an advertisement, announcement, statement or representation of any kind to the public relating to the purchase, sale, hire, use or lease of real estate, merchandise, securities, service or employment or to the terms or conditions thereof which advertisement, announcement, statement or representation is part of a plan or scheme the purpose or effect of which is not to sell, purchase, hire, use or lease the real estate, merchandise, securities, service or employment as advertised.
100.18(9)(b)
(b) This section does not apply to the owner, publisher, printer, agent or employee of a newspaper or other publication, periodical or circular, or of a radio or television station, who in good faith and without knowledge of the falsity or deceptive character thereof, publishes, causes to be published or takes part in the publication of such advertisement.
100.18(9m)
(9m) It is deemed deceptive advertising to misrepresent the nature of a local energy resource system under
s. 101.175.
100.18(10)(a)(a) It is deceptive to misrepresent the nature of any business by use of the words manufacturer, factory, mill, importer, wholesaler or words of similar meaning, in a corporate or trade name or otherwise.
100.18(10)(b)
(b) It is deceptive to represent the price of any merchandise as a manufacturer's or wholesaler's price, or a price equal thereto, unless the price is not more than the price which retailers regularly pay for the merchandise. The effective date of this subsection shall be January 1, 1962.
100.18(10m)
(10m) It is deceptive or misleading advertising 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.
100.18(10r)
(10r) It is deceptive and misleading for a person who is conducting business in a community or region from a location outside that community or region to use the name of the community or region, or other description of the community or region, in the corporate or trade name of the business or in any other information that is published if the use of the name or description of the location creates the misrepresentation that the business is located in the community or region.
100.18(11)(a)(a) The department of agriculture, trade and consumer protection shall enforce this section. Actions to enjoin violation of this section or any regulations thereunder may be commenced and prosecuted by the department in the name of the state in any court having equity jurisdiction. This remedy is not exclusive.
100.18(11)(b)2.2. Any person suffering pecuniary loss because of a violation of this section by any other person may sue in any court of competent jurisdiction and shall recover such pecuniary loss, together with costs, including reasonable attorney fees, except that no attorney fees may be recovered from a person licensed under
ch. 452 while that person is engaged in real estate practice, as defined in
s. 452.01 (6). Any person suffering pecuniary loss because of a violation by any other person of any injunction 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 reasonable attorney fees, except that no attorney fees may be recovered from a person licensed under
ch. 452 while that person is engaged in real estate practice, as defined in
s. 452.01 (6).
100.18(11)(b)3.
3. No action may be commenced under this section more than 3 years after the occurrence of the unlawful act or practice which is the subject of the action. No injunction may be issued under this section which would conflict with general or special orders of the department or any statute, rule or regulation of the United States or of this state.
100.18(11)(c)1.1. Whenever the department has reason to believe that a person is in possession, custody or control of any information or documentary material relevant to the enforcement of this section it may require that person to submit a statement or report, under oath or otherwise, as to the facts and circumstances concerning any activity in the course of trade or commerce; examine under oath that person with respect to any activity in the course of trade or commerce; and execute in writing and cause to be served upon such person a civil investigative demand requiring the person to produce any relevant documentary material for inspection and copying.
100.18(11)(c)2.
2. The department, in exercising powers under this subsection, may issue subpoenas, administer oaths and conduct hearings to aid in any investigation.
100.18(11)(c)3.
3. Service of any notice by the department requiring a person to file a statement or report, or service of a subpoena upon a person, or service of a civil investigative demand shall be made in compliance with the rules of civil procedure of this state.
100.18(11)(c)4.
4. If a person fails to file any statement or report, or fails to comply with any civil investigative demand, or fails to obey any subpoena issued by the department, such person may be coerced as provided in
s. 885.12, except that no person shall be required to furnish any testimony or evidence under this subsection which might tend to incriminate the person.
100.18(11)(d)
(d) The department or the department of justice, after consulting with the department, or any district attorney, upon 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 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 and the department of justice may subpoena persons and require the production of books and other documents, and the department of justice may request the department to exercise its authority under
par. (c) to aid in the investigation of alleged violations of this section.
100.18(11)(e)
(e) In lieu of instituting or continuing an action pursuant to this section, the department or the department of justice may accept a written assurance of discontinuance of any act or practice alleged to be a violation of this section from the person who has engaged in such act or practice. The acceptance of such assurance by either the department or the department of justice shall be deemed acceptance by the other state officials enumerated in
par. (d) if the terms of the assurance so provide. An assurance entered into pursuant to this section shall not be considered evidence of a violation of this section, provided that violation of such an assurance shall be treated as a violation of this section, and shall be subjected to all the penalties and remedies provided therefor.
100.18(12)(a)(a) This section does not apply to the insurance business.
100.18(12)(b)
(b) This section does not apply to a person licensed as a broker or salesperson under
s. 452.09 while that person is engaged in real estate practice, as defined in
s. 452.01 (6), unless that person has directly made, published, disseminated, circulated or placed before the public an assertion, representation or statement of fact with the knowledge that the assertion, representation or statement of fact is untrue, deceptive or misleading.
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). See also Meyer v. The Laser Vision Institute, LLC,
2006 WI App 70,
290 Wis. 2d 764,
714 N.W.2d 223,
05-1233.
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),
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 plaintiff remains a member of "the public" under this section unless a particular relationship exists between him or her and the defendant, the existence of which will depend upon its own peculiar facts and circumstances and must be tested by the statute in the light of those facts and circumstances. In this case, whether the plaintiff was a member of the public presented a question of fact. K&S Tool & Die Corp. v. Perfection Machinery Sales, Inc.
2007 WI 70,
301 Wis. 2d 109,
732 N.W.2d 792,
05-2148.
100.18 Annotation
Although the reasonableness of a plaintiff's reliance may be relevant in considering whether the representation materially induced the plaintiff's pecuniary loss, the plaintiff does not have the burden of proving reasonable reliance. K&S Tool & Die Corp. v. Perfection Machinery Sales, Inc.
2007 WI 70,
301 Wis. 2d 109,
732 N.W.2d 792,
05-2148.
100.18 Annotation
A plaintiff is not required to prove reasonable reliance as an element of a misrepresentation claim under this section, but the reasonableness of a plaintiff's reliance may be relevant in considering whether the representation materially induced (caused) the plaintiff to sustain a loss. The reasonableness of a person's actions in relying on representations is a defense and may be considered by a jury in determining cause. A court may determine that the representation did not materially induce the plaintiff's decision to act and that the plaintiff would have acted in the absence of the representation. Novell v. Migliaccio,
2008 WI 44,
309 Wis. 2d 132,
749 N.W.2d 544,
05-2852.
100.18 Annotation
A nondisclosure is not an assertion, representation, or statement of fact under sub. (1), and silence is insufficient to support a claim under sub. (1). Goudy v. Yamaha Motor Corporation, USA,
2010 WI App 55,
324 Wis. 2d 441,
782 N.W.2d 114,
09-0617.
100.18 Annotation
A reasonable jury could find that painting over evidence of a leaky basement was a representation that a basement did not leak. Any conduct capable of being turned into a statement of fact is a representation. There is no distinction between misrepresentations effected by words and misrepresentations effected by other acts. Novell v. Migliaccio,
2010 WI App 67,
325 Wis. 2d 230,
783 N.W.2d 897,
09-1576.
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
While plaintiff, a seller of goods through its Web site, may have been subject to misrepresentations regarding the source of customers directed to its web site from defendants' Web sites through a "typosquatting scheme," the misrepresentations could not be characterized as statements made to the public relating to the purchase of merchandise and were not subject to this section. Land's End, Inc. v. Remy,
447 F. Supp. 2d 941 (2006).
100.18 Annotation
If the Wisconsin courts had intended to exclude from the law only contracting parties as members of the public, it could have stated the rule as whether the parties had a "contracting relationship," not the more general "particular relationship." There was a "particular relationship" when the plaintiff had an ongoing relationship with defendant for 13 years, selling as much as $12 million of merchandise in a single year, and thus plaintiff was not a member fo the public. Uniek, Inc. v. Dollar General Corporation,
474 F. Supp. 2d 1034 (2007).
100.18 Annotation
This section does not explicitly require a misrepresentation to the plaintiff, only to "the public." However, the question is whether the representation materially induced the plaintiff's decision to act and whether the plaintiff would have acted in the absence of the representation. Grice Engineering, Inc. v. JG Innovations, Inc.
691 F. Supp. 2d 915 (2010).
100.18 Annotation
This section does not provide a cause of action for misrepresentations made to non-parties; the Act is not designed to protect product manufacturers from the deceptive acts of their competitors. Riddell, Inc. v. Schutt Sports, Inc.
724 F. Supp. 2d 963, (2010).
100.18 Annotation
This section applies to only commercial transactions. Thermal Design, Inc. v. American Society of Heating,
775 F. Supp. 2d 1082 (2011).
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.
100.18 Annotation
Wisconsin's Deceptive Trade Practices Act. Hinkston. Wis. Law. Oct. 2008.
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.
