Prohibited acts; penalty; injunction.
Ch. 98 Cross-reference
See definitions in s. 93.01
As used in this chapter, unless the context requires otherwise:
“Incorrect" as applied to weights and measures and commodities includes any failure to comply with the requirements of this chapter or rules issued thereunder.
“Inspector" means a state inspector of weights and measures.
“Municipality" means a city or village.
“Sealer" and “deputy sealer" means a sealer of weights and measures and deputy sealer of weights and measures of a municipality, respectively.
“Sell", “sale" and “sold" include barter or exchange, and any offering or exposing for sale or possession with intent to sell.
“Weight" means net weight when used in reference to a commodity.
“Weights and measures" means weights and measures of every kind, instruments and devices for weighing and measuring, and any appliances and accessories used with any or all such instruments and devices, except meters for the measurement of electricity, gas (natural and manufactured) or water when the same are operated in a public utility system.
History: 1983 a. 189
Systems of weights and measures; special units. 98.02(1)(1)
The system of weights and measures in customary use in the United States or the metric system of weights and measures shall be the only systems used for commercial purposes in this state. The definitions of basic units of weight and measure, the tables of weight and measure, and weights and measures equivalents, published by the national institute of standards and technology, shall govern weighing and measuring equipment and transactions in this state.
“Barrel," when used in connection with fermented malt beverages, means a unit of 31 gallons. “Ton" means a unit of 2,000 pounds avoirdupois weight. “Cord," when used in connection with wood intended for fuel purposes, means the amount of wood that is contained in a space of 128 cubic feet when the wood is ranked and well stowed.
State standards; specifications and tolerances. 98.03(1)(1)
Weights and measures obtained by the state as standards and certified for use as such by the national institute of standards and technology shall be the state standards of weight and measure. They shall be in the custody of the department and shall be used only for verification of other standards.
The department may issue rules governing the construction, installation, and use of commercial weights and measures and prescribing tolerances therefor. The specifications, tolerances, and regulations for commercial weighing and measuring devices issued by the national institute of standards and technology shall apply in this state except as modified by such rules or by statute.
History: 1989 a. 165
; 2017 a. 22
See also ch. ATCP 92
, Wis. adm. code.
Except as provided in sub. (2)
, a municipality having a population of more than 5,000, according to the most recent population estimate made by the department of administration under s. 16.96
, shall enforce the provisions of this chapter within its jurisdiction. For this purpose, a municipality shall establish a municipal department of weights and measures. Each municipal department of weights and measures shall have such number of qualified sealers or inspectors as will ensure compliance with this chapter. Municipal sealers or inspectors shall have the same authority as sealers or inspectors of the department of agriculture, trade and consumer protection. The selection of municipal sealers or inspectors shall be from a list of applicants whose qualifications have been certified by the state or local civil service agency under the rules of the agency. The municipality shall procure and keep at all times a complete set of standards of weight and measure conforming to the state standards and shall submit the standards for certification at regular intervals as required by the department of agriculture, trade and consumer protection. The municipality shall keep a complete record of its work and annually shall file a report thereof with the department of agriculture, trade and consumer protection. The municipality may enact ordinances that regulate weights and measures and that are not in conflict with this chapter or the rules of the department of agriculture, trade and consumer protection. The municipality may assess fees that do not exceed the actual cost of its weights and measures program.
A municipality that is required to establish a department of weights and measures under sub. (1)
may contract with the department of agriculture, trade, and consumer protection to enforce the provisions of this chapter within the municipality's jurisdiction instead of establishing its own department if the department of agriculture, trade and consumer protection agrees to enter into such a contract. The department of agriculture, trade and consumer protection may charge the municipality fees sufficient to cover the department's costs under the contract. A municipality may recover an amount not to exceed the cost of these fees by assessing fees on the persons who receive services under the weights and measures program.
Enforcement authority; measurement center laboratory. 98.05(1)(1)
There is hereby conferred upon sealers and inspectors of weights and measures, police power; such sealers and inspectors shall be provided with suitable badges or insignia of authority and in the exercise of their functions shall exhibit the same, upon demand, to any person questioning their powers, and they are hereby empowered and authorized to make arrests, with or without formal warrant, of any persons violating any statute relating to weights and measures.
Sealers or inspectors may enter and go into or upon any structure or premises, and may stop any person or vehicle for the purpose of enforcing this chapter. They shall inspect and test any weights and measures or commodities which are sold or used commercially as often as necessary to secure compliance with this chapter, and may seize as evidence, or reject and mark or tag as “rejected" those which are incorrect. A representative sample may be used as the basis to determine whether any lot is incorrect.
Weights and measures and commodities that have been rejected may be confiscated and destroyed by a sealer or inspector if not corrected within 30 days or such longer period as the sealer or inspector may authorize, or if used or disposed of without the sealer's or inspector's written authorization.
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.
Establish and maintain a measurement center laboratory for the testing and calibration of weights and measures; and
Fix and collect charges sufficient to cover the cost for the testing and calibration done in the measurement center laboratory.
History: 1993 a. 16
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.
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.
If a commodity is packaged in an aerosol container, it shall be sold by weight including the propellant.
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.
History: 1999 a. 83
See also ch. ATCP 91
, Wis. adm. code.
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.
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.
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.
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.
History: 1975 c. 308
See also chs. ATCP 90
, and 92
, Wis. adm. code.
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.
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)
History: 1995 a. 319
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.
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.
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.
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.
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.
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.
History: 1997 a. 253
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.
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.
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.
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.
History: 1993 a. 492
; 1997 a. 253
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.
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.
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
, 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.
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.
This section shall not be construed to require the licensing of city or village sanitary or dairy inspectors.
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.
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
, 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.
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.
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.
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)
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.
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
History: 1979 c. 264
; 1987 a. 398
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