Chapter 98

98.05(4) (4) Sealers or inspectors may seal or mark with appropriate devices such weights and measures as are found upon inspection and test to be in conformance with this chapter.

98.05(5) (5) The department shall:

98.05(5)(a) (a) Establish and maintain a measurement center laboratory for the testing and calibration of weights and measures; and

98.05(5)(b) (b) Fix and collect charges sufficient to cover the cost for the testing and calibration done in the measurement center laboratory.

98.05 History History: 1993 a. 16, 492.

98.06 98.06 Method of sale of commodities.

98.06(1) (1) Commodities in liquid form shall be sold by liquid measure and commodities not in liquid form shall be sold by weight but liquid commodities may be sold by weight and commodities not in liquid form may be sold by count or measure if such methods are in general use and give accurate information as to the quantity of commodity sold.

98.06(2) (2) 

98.06(2)(a) (a) Berries and small fruits may be sold by measure only if in containers having capacities of one-half dry pint, one dry pint or one dry quart.

98.06(2)(b) (b) If a commodity is packaged in an aerosol container, it shall be sold by weight including the propellant.

98.06(3) (3) This section shall not apply to commodities sold in compliance with a state or federal law which prescribes another method of sale, or to commodities sold for immediate consumption on the premises where sold.

98.06 History History: 1999 a. 83.

98.06 Cross-reference Cross-reference: See also ch. ATCP 91, Wis. adm. code.

98.07 98.07 Declaration of quantity.

98.07(1) (1) No commodity which is marked, tagged or labeled, or for which a sign is displayed, with a selling price, shall be sold unless the weight, measure or count of the commodity is conspicuously declared on the commodity or its tag, label or sign, but a declaration of count is not required if the selling price is for a single unit, or a set or combination of commodities customarily sold to and understood by consumers as a single unit, or if the commodity is packaged prior to sale and the package contains 6 units or less which can be easily counted without opening the package.

98.07(2) (2) No commodity shall be wrapped or its container made, formed or filled so as to mislead the purchaser; nor shall the qualifying term “when packed”, or the terms “jumbo”, “giant” or “full”, or words of similar import that tend to mislead the purchaser as to the amount of the commodity, be used in connection with a declaration of quantity.

98.07(3) (3) With respect to commodities packaged prior to sale, the department shall issue rules permitting reasonable variations from declared quantity which unavoidably occur in good packaging and distribution practices.

98.07(4) (4) In order to prevent consumer deception, the department shall prescribe, by rule, standards for determining and declaring weight, measure or count, including the conspicuousness of quantity declarations.

98.07 History History: 1975 c. 308.

98.07 Cross-reference Cross-reference: See also chs. ATCP 90, 91, and 92, Wis. adm. code.

98.08 98.08 Price refunds; price information.

98.08(1) (1) A person who uses an electronic scanner to record the price of a commodity or thing and who sells the commodity or thing at a price higher than the posted or advertised price of that commodity or thing at least shall refund to a person who purchases the commodity or thing the difference between the posted or advertised price of the commodity or thing and the price charged at the time of sale.

98.08(2) (2) A person who sells a commodity or thing and who uses an electronic scanner to record the price of that commodity or thing shall display, in a conspicuous manner, a sign stating the requirements of sub. (1).

98.08 History History: 1995 a. 319.

98.12 98.12 Sale of ice cream and similar frozen products. Ice cream, ice milk, water ices or other frozen desserts of a similar nature packaged prior to sale shall be sold by liquid measure. This section does not apply if the products are packaged at time of sale at retail or sold in quantities of less than one-half liquid pint.

98.12 History History: 1973 c. 178; 1983 a. 367; 1987 a. 78; 1999 a. 9.

98.13 98.13 Milk or cream tests; samples; patrons’ statement.

98.13(1) (1) The Babcock or ether extraction tests shall be used to determine the milk fat content of milk or cream purchased by or sold to dairy plants, but the department may issue rules permitting the use of other methods or devices for testing and determining such milk fat content.

98.13(2) (2) Each sample used for testing shall be representative of the milk or cream from which taken. Composite samples shall consist of representative samples taken during a period not exceeding 16 consecutive days. The unused portion of tested samples shall be retained not less than 5 days after testing to enable retesting by the department.

98.13(3) (3) All purchasers of milk or cream from the producer, when using such milk fat tests to determine the value of any milk or cream received or bought by such purchaser, shall, when paying for such milk or cream, include an itemized statement to each patron showing the daily number of pounds of milk delivered, the total amount of butterfat content or test, transportation costs, and other charges and deductions for the period of time for which payment is made; except that the daily weights need not be shown on such statement if weight slips are furnished daily to producers.

98.13(4) (4) Whenever milk is sold under an agreement, express or implied, that the value of the milk shall be determined by its proportion of butter fat, the price to be paid shall be based on a 3.5 percent butter fat standard.

98.13(5) (5) To insure the accuracy of the milk fat tests prescribed herein the department shall issue rules governing the collection and care of samples, the conduct of tests and the keeping of test records.

98.13 History History: 1997 a. 253.

98.14 98.14 Standardization of Babcock pipettes.

98.14(1) (1) All bottles and pipettes used in measuring milk or milk products to determine the percentage of fat in the milk or milk products shall have clearly blown or otherwise permanently marked in the side of the bottle or pipette the word “Sealed”, and in the side of the pipette or the side or bottom of the bottle the name, initials or trademark of the manufacturer and the manufacturer’s designating number, which designating number shall be different for each manufacturer and may be used in identifying bottles. The designating number shall be furnished by the department upon application by the manufacturer and upon the filing by the manufacturer of a bond in the sum of $1,000 with sureties to be approved by the attorney general, conditioned upon conformance with the requirements of this section. A record of the bonds furnished, the designating number, and to whom furnished, shall be kept in the office of the department.

98.14(2) (2) Any manufacturer who sells Babcock milk, cream or butter test bottles or milk pipettes, for use in this state, that do not comply with the provisions of this section shall be subject to a penalty of $500 to be recovered by the attorney general in an action brought in the name of the people of the state against the offender’s bondsmen. No dealer shall use, for the purpose of determining the percent of milk fat in milk or milk products, any bottles or pipettes that do not comply with the provisions of this section.

98.14(3) (3) The department shall prescribe specifications with which the glassware described in this section shall comply. The unit of graduation for all Babcock glassware shall be the true cubic centimeter or the weight of one gram of distilled water at 4 degrees centigrade.

98.14(4) (4) Sealers of weights and measures are not required to seal Babcock milk, cream or butter test bottles or milk pipettes marked as in this section provided, but they shall from time to time make tests of individual bottles used by the various firms in the territory over which they have jurisdiction in order to ascertain whether the above provisions are being complied with and they shall report immediately to the department violations found.

98.14 History History: 1993 a. 492; 1997 a. 253.

98.145 98.145 Licensing of milk and cream testers.

98.145(1) (1) To secure fair and accurate tests to producers and manufacturers for the determination of the basis of payment or for settlement for such milk or cream, or for the purpose of official inspection, or for the making of records of dairy production, persons making such milk fat tests shall be licensed by the department as herein provided.

98.145(2) (2) No person may engage as a tester of milk or cream to determine its value for payment or for the purpose of official inspection or for records of dairy production for the purposes described above unless the person holds a license issued by the department; but no such license is required of a licensed cheesemaker or buttermaker. The license shall expire biennially on October 31 of the 2nd year commencing after the date of issuance or renewal. Each application for milk tester license or renewal thereof shall be accompanied by a fee of $50, except that an individual who is eligible for the veterans fee waiver program under s. 45.44 is not required to pay the fee. Each application shall be made upon forms provided by the department. If the department conducts a reinspection of any milk or cream tested by a person licensed under this subsection due to any violation of any federal or state law which the department determines in a regularly scheduled inspection of milk or cream tested by that person, the department shall charge that person $25 for that reinspection.

98.145(3) (3) To qualify for a milk and cream tester’s license the applicant shall not have an arrest or conviction record, subject to ss. 111.321, 111.322 and 111.335, shall furnish 2 references who have known the applicant for at least one year and shall give proof of ability to perform the necessary duties to the satisfaction of the department by satisfactorily passing a written examination pertaining to milk and cream sampling and care of samples and use of the Babcock test or other test method approved by the department; and by actual demonstration in the laboratory of his or her ability to determine accurately the milk fat content of milk and cream including special emphasis on the handling and testing of composite samples of milk and cream.

98.145(4) (4) Unless provision is made for the testing of milk or cream by a duly licensed tester as provided herein, no dairy plant shall receive any milk or cream unless at least one employee is a milk and cream tester licensee who shall be responsible for the care of samples and the testing of milk and cream and who shall be regularly assigned to the duty of making such tests.

98.145(5) (5) This section shall not be construed to require the licensing of city or village sanitary or dairy inspectors.

98.145 History History: 1977 c. 216; 1981 c. 380; 1981 c. 391 s. 211; 1987 a. 27; 2011 a. 209.

98.146 98.146 Licensing milk weighers and samplers.

98.146(1) (1) All persons except licensed cheesemakers and buttermakers taking weights and samples of milk in bulk tanks or measuring milk in bulk tanks to determine weight, on the farm premises where such milk is produced, shall be licensed by the department under this section or by an equivalent regulatory agency in another state, and no person who is not so licensed shall engage in such activities.

98.146(2) (2) 

98.146(2)(a) (a) Each application for a license under this section or license renewal shall be made on forms provided by the department and shall be accompanied by the license fee required under sub. (4), except that an individual who is eligible for the veterans fee waiver program under s. 45.44 is not required to pay the fee. The license shall expire biennially on September 30 of the 2nd year commencing after the date of issuance or renewal. The applicant shall not have an arrest or conviction record, subject to ss. 111.321, 111.322 and 111.335, and shall give proof of ability to engage in such weighing and sampling to the satisfaction of the department by satisfactorily passing a written examination pertaining to such activities.

98.146(2)(b) (b) If the department conducts a reinspection of any measurement by a person authorized to take weights and samples or to measure under sub. (1) due to any violation of any federal or state law which the department determines in a regularly scheduled inspection of that measurement, the department shall charge the person the reinspection fee required under sub. (4) for that reinspection.

98.146(3) (3) No dairy plant shall receive any milk required to be weighed and sampled by a person authorized to take weights and samples under sub. (1) unless it has been so weighed and sampled.

98.146(4) (4) The department may establish by rule the amount of license or reinspection fees required under sub. (2). Unless otherwise established by department rule, a license fee under sub. (2) is $40 and a reinspection fee under sub. (2) is $40.

98.146 History History: 1977 c. 216; 1981 c. 380; 1981 c. 391 s. 211; 1987 a. 27; 1991 a. 39; 2011 a. 209; 2019 a. 152.

98.15 98.15 False testing.

98.15(1) (1) No person shall manipulate, underread or overread or make any false determination by the Babcock test or any other test used for determining the value of milk or cream. No person shall make any false record or report of the results of any such test.

98.15(2) (2) A district attorney to whom any violation of this section is reported shall cause appropriate actions or proceedings to be instituted for the collection of a forfeiture or fine or for the enforcement of other remedies. In any enforcement action the court may, in addition to any other penalty provided, order restitution to any party injured by violation of this section. If the violator is convicted of a crime, restitution shall be in accordance with s. 973.20.

98.15 History History: 1979 c. 264; 1987 a. 398.

98.15 Annotation Sub. (1) did not preclude prosecution for felony fraud under s. 943.20 (1) (d) when the state alleged that the defendant misrepresented the quality of milk sold. State v. Ploeckelman, 2007 WI App 31, 299 Wis. 2d 251, 729 N.W.2d 784, 06-1180.

98.16 98.16 Vehicle scale operators; scale installation and testing.

98.16(1) (1) Definitions. In this section “vehicle scale” means a commercial scale that is designed to weigh loaded or unloaded highway, farm or industrial vehicles, except that it does not include a scale that is operated exclusively by this state.

98.16(2) (2) License for operator.

98.16(2)(am) (am) Except as provided in par. (dm), no person may operate a vehicle scale without an annual license from the department. A separate license is required for each scale. A license is not transferable between persons or scales. A license expires on March 31 annually.

98.16(2)(bm) (bm) The department shall provide a license application form for persons applying for a license. The form shall require all of the following:

98.16(2)(bm)1. 1. The applicant’s correct legal name and business address and any trade name under which the applicant proposes to operate the vehicle scale.

98.16(2)(bm)2. 2. A description of the nature and location of the vehicle scale.

98.16(2)(bm)3. 3. Other information reasonably required by the department for licensing purposes.

98.16(2)(cm) (cm) A license application shall be accompanied by all of the following fees and surcharges:

98.16(2)(cm)1. 1. A license fee in the amount specified by the department by rule promulgated under sub. (4).

98.16(2)(cm)2. 2. A license fee surcharge, if the department determines that within one year prior to submitting the license application the applicant operated a vehicle scale without a license as required by par. (am). The license fee surcharge is $200, except that the department may establish a different surcharge by rule promulgated under sub. (4). The department may not issue a license under this subsection to an operator if the operator has failed to pay a license fee surcharge assessed against the operator. Payment of the license fee surcharge does not relieve the applicant of any other civil or criminal liability for the operation of a vehicle scale without a license but shall not constitute evidence of violation of a law.

98.16(2)(dm) (dm) Paragraph (am) does not apply to a person who operates a vehicle scale only as an employee of a person who is required to hold a license to operate the scale under this subsection.

98.16(2m) (2m) Permit for scale installation or construction; variance.

98.16(2m)(a) (a) No person may install or relocate a vehicle scale without a permit from the department. The department shall provide a permit application form for a person applying for a permit under this paragraph. An application for a permit under this paragraph shall be accompanied by a nonrefundable permit application fee in an amount established by the department by rule promulgated under sub. (4).

98.16(2m)(b) (b) A person who installs or relocates a vehicle scale shall comply with construction, operation, and maintenance standards and procedures established by the department by rule under sub. (4), except that the department may grant a variance from a construction standard if the department determines that the variance is justified by special circumstances. The department may impose conditions on the variance, including alternative construction standards, if the department determines the conditions are necessary. The department shall provide a variance application form for a person applying for a variance under this paragraph. An application for a variance under this paragraph shall be accompanied by a nonrefundable variance application fee in an amount established by the department by rule promulgated under sub. (4).

98.16(3m) (3m) Annual testing.

98.16(3m)(a) (a) The owner or operator of a scale with a weighing capacity of 5,000 pounds or more used for the commercial weighing of commodities shall cause the scales to be tested and inspected at least annually for accuracy by a person licensed under s. 98.18 (1).

98.16(3m)(b) (b) A person conducting a test under par. (a) shall do all of the following:

98.16(3m)(b)1. 1. Conduct the test and prepare a test report, according to rules promulgated by the department under sub. (4).

98.16(3m)(b)2. 2. Provide a copy of the test report to the operator of the vehicle scale and, if required by rules promulgated by the department under sub. (4), to other persons.

98.16(3m)(c) (c) An operator of a vehicle scale shall file with the department a copy of each test report prepared regarding the vehicle scale not more than 15 days after the operator receives the test report. If an operator fails to file a report as required in this paragraph, the department may assess a testing surcharge against the operator. The department may not issue a license under sub. (2) to an operator if the operator has failed to pay a testing surcharge assessed against the operator. If an operator fails to pay a testing surcharge assessed against the operator within 120 days after the department assessed the surcharge, the department may revoke the operator’s license to operate the vehicle scale for which the operator has been assessed the surcharge.

98.16(3m)(d) (d) If a test under this subsection shows that a vehicle scale is inaccurate, the scale may not be used until the inaccuracy is corrected and the scale is determined to be accurate by a subsequent test under this subsection.

98.16(3m)(e) (e) No person may falsify a test, test result, or test report under this subsection.

98.16(3m)(f) (f) This section does not apply to a railway scale used exclusively for the weighing of commodities on railroad track vehicles.

98.16(4) (4) Rules. The department shall promulgate rules to regulate the construction, operation, testing, and maintenance of vehicle scales, including a rule specifying the amount of the fee under sub. (2) (cm) 1. The department may promulgate rules to adjust fees and surcharges under subs. (2) (cm) 2. and (2m) (a) and (b) and to impose a testing surcharge upon a vehicle scale operator if the operator fails to file a vehicle scale test report as required by a rule promulgated by the department under this subsection.

98.16 History History: 1993 a. 16; 1997 a. 27; 1999 a. 9; 2009 a. 28 ss. 2038 to 2054, 2063 to 2067; 2011 a. 263.

98.16 Cross-reference Cross-reference: See also ch. ATCP 92, Wis. adm. code.

98.18 98.18 Installing and servicing weights and measures.

98.18(1) (1) License required.

98.18(1)(a) (a) Except as provided in par. (bm), no person may engage in the business of installing, servicing, testing or calibrating weights and measures without a license from the department. A license expires on December 31 annually.