The retailer, wholesaler, wholesaler of motor vehicle fuel or refiner is immune from liability under sub. (5m)
See also s. ATCP 105.01
, Wis. adm. code.
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
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
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
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
There is no requirement in sub. (7) that a retailer must conduct a price survey within any particular time period. The Department of Agriculture, Trade and Consumer Protection 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
Sub. (2) (Lm) [now sub. (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 sub. (2) (k)] is not a catchall prohibition against all trade discounts and does not apply to bona fide quantity discounts. 63 Atty. Gen. 516.
This section does not violate federal antitrust laws or constitutional due process. 77 Atty. Gen. 163
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
Flying J, Inc.
, 597 F. Supp. 2d 848
, is reversed. The minimum markup provisions are not preempted by the Sherman Antitrust Act and are enforceable. Flying J, Inc. v. Van Hollen, 621 F.3d 658
Wisconsin's unfair sales act — Unfair to whom? Waxman. 66 MLR 293 (1983).
Prohibited selling practices during periods of abnormal economic disruption. 100.305(1)(a)
“Consumer goods or services" means goods or services that are used primarily for personal, family, or household purposes.
A tornado, flood, fire, storm, or other destructive act of nature.
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.
“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.
“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.
“Seller" means a manufacturer, producer, supplier, wholesaler, distributor, or retailer.
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.
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.
(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:
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)
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.
History: 2005 a. 450
See also ch. ATCP 106
, Wis. adm. code.
Returns during emergency; prohibition. 100.307(2)
(2) Certain returns prohibited during emergency.
Except as provided in sub. (3)
, no person who sells food products, personal care products, cleaning products, or paper products at retail may accept a return of a food product, personal care product, cleaning product, or paper product during the public health emergency declared on March 12, 2020, by executive order 72, or during the 30 days immediately after the public health emergency ends.
A person who sells food products, personal care products, cleaning products, or paper products at retail may accept a return of a food product, personal care product, cleaning product, or paper product if any of the following applies:
The product is returned no more than 7 days after purchase.
The product is adulterated within the meaning of s. 97.02
or defective as a result of a production error or defect.
(4) Other returns allowed.
A retailer may accept a return of a product that is not prohibited by sub. (2)
History: 2019 a. 185
Unfair discrimination in drug pricing. 100.31(1)(b)
“Purchaser" means any person who engages primarily in selling drugs directly to consumers.
“Seller" means any person who trades in drugs for resale to purchasers in this state.
(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.
(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.
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.
(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
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.
“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
Solicitation of a fee for providing a public record. 100.313(1)(a)
“Local unit of government" means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, or a combination or subunit of any of the foregoing.
“Record" means any material on which written, drawn, printed, spoken, visual, or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by a local unit of government or a state agency.
“Solicit" means to directly advertise or market through writing or graphics and via mail, telefax, or electronic mail to an individually identified person, residence, or business location. “Solicit" does not include any of the following:
Communicating through a mass advertisement, including a catalog, a radio or television broadcast, or a website.
Communicating via telephone, mail, or electronic communication, if initiated by the consumer.
Advertising and marketing to those with whom the solicitor has a preexisting business relationship.
“State agency" means any office, department, or independent agency in the executive branch of Wisconsin state government, the legislature, and the courts.
A business or individual soliciting a fee for providing a copy of a record shall state on the top of the document used for the solicitation, in at least 24-point type, all of the following:
That the solicitation is not from a state agency or local unit of government.
That no action is legally required by the person being solicited.
The fee for, or the cost of, obtaining a copy of the record from the state agency or local unit of government that has custody of the record.
The information necessary to contact the state agency or local unit of government that has custody of the record.
The name and physical address of the business or individual soliciting the fee.
The document used for a solicitation under this section may not be in a form or use deadline dates or other language that makes the document appear to be a document issued by a state agency or local unit of government or that appears to impose a legal duty on the person being solicited. The department may promulgate rules specifying the contents and form of the solicitation document.
A business or individual soliciting a fee for providing a copy of a record may not charge a fee of more than 4 times the amount charged by the state agency or local unit of government that has custody of the record for a copy of the same record.
A business or individual soliciting a fee from property owners for providing a copy of a deed shall furnish the office of the register of deeds of each county where the solicitations are to be distributed with a copy of the document that will be used for those solicitations not less than 15 days before distributing the solicitations.
The department may investigate violations of this section. The department may bring an action or request that the department of justice or a district attorney bring an action against any person who violates this section. The court may order the person who violates this section to refund all of the moneys paid to the violator and to forfeit, for a first violation, not more than $100 for each solicitation document distributed in violation of this section, and not more than $200 for each solicitation document distributed in violation of this section subsequent to the first violation.
This section does not apply to a title insurance company authorized to do business in this state or its authorized agent.
History: 2013 a. 247
Solicitation of contract using check or money order. 100.315(2)(a)(a)
Except as provided in par. (b)
, no person may solicit the purchase of goods or services by delivering to a recipient in this state a document that is or appears to be a check payable to the recipient, if the endorsement of the document purports to bind the recipient to purchasing goods or services and the recipient did not request the delivery of the document.
A person may offer an extension of credit by delivering to a recipient in this state a document described in par. (a)
only if all of the following apply:
The document contains, on its face, both of the following:
In at least 24-point type, a statement in substantially the following form: “THIS IS A SOLICITATION FOR A LOAN. READ THE ATTACHED DISCLOSURES BEFORE SIGNING THIS AGREEMENT."
In at least 10-point type, a statement in substantially the following form: “By endorsing the back of this check, you accept our offer and agree to the terms of your loan agreement contained in the disclosure statement attached to this check."
Notification of the loan agreement being activated by endorsement is conspicuously printed in at least 10-point type on the back of the check in substantially the following form: “By endorsing this check, you agree to repay this loan according to the terms of the attached loan agreement."
The check is attached to a disclosure statement that is detachable and that contains in at least 14-point boldface type a statement that is conspicuously placed and is in substantially the following form: “This is a loan solicitation. If you cash this check, you are agreeing to borrow the sum of $ .... at the ....% rate of interest for a period of .... months. Your monthly payments will be $ .... for .... months. If you are late with a payment, you will be charged the following fees in addition to your monthly payment: (list fees). All other terms of this loan are clearly identified as loan terms and appear on the back of the check or on this attachment. Read these terms carefully before you cash this check. Cashing this check constitutes a loan transaction. You may cancel this loan by returning the amount of the check to the lender within 10 days of the date on which this check is cashed. You may prepay this loan agreement at anytime without penalty. READ THE AGREEMENT BEFORE SIGNING."
Within 3 business days after the date on which the check is processed by the lender's financial institution following negotiation of the check by the recipient, the lender who issued the check verbally discloses to the recipient the terms and conditions of the extension of credit and permits the recipient to return to the lender the amount borrowed. If the recipient returns the amount borrowed within 5 business days after the check is processed by the lender's financial institution following negotiation of the check by the recipient, the lender may not assess the recipient any penalty, finance charge, interest, or fee, and the lender may not take any action on the basis of the return that would affect the recipient's credit score.
In the event a check described under sub. (2) (b)
is obtained by a person other than the intended payee, and the check is cashed fraudulently or without authorization from the payee, the lender who issued the check shall do all of the following:
Upon receipt of notification that intended payee did not negotiate the check, promptly provide the intended payee with a statement or affidavit to be signed by the intended payee confirming that the intended payee did not deposit or cash the check or receive the proceeds of the check. The lender shall provide the intended payee with the name and telephone number of a contact person designated by the lender to provide assistance to intended payees who have been victimized by the fraudulent negotiation of unsolicited checks and cease all collection activity against the intended payee until the lender completes an investigation into the transaction.
Direct the intended payee to complete and return the confirmation statement to the lender or an affiliate of the lender.