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LRB-3199/1
MCP:kjf
2017 - 2018 LEGISLATURE
June 1, 2017 - Introduced by Representatives Ott, Murphy, Bernier, Brandtjen,
R. Brooks, Duchow, Gannon, Hutton, Jacque, Katsma, Kleefisch,
Kooyenga, Kremer, Skowronski and Thiesfeldt, cosponsored by Senators
Vukmir, Craig, Carpenter, Cowles, Darling, Kapenga and Stroebel.
Referred to Committee on Small Business Development.
AB359,1,3 1An Act to amend 100.30 (2) (am) 2., 100.30 (2) (c) 2., 100.30 (3) and 134.04 (1);
2and to create 100.30 (2) (ck) and 100.30 (6) (a) 10. of the statutes; relating to:
3regulating the sale of prescription drugs and other merchandise below cost.
Analysis by the Legislative Reference Bureau
This bill eliminates the prohibition on selling prescription drugs and certain
types of merchandise at below cost under the Unfair Sales Act.
This state's Unfair Sales Act, also known as the “minimum markup” law,
prohibits retailers and wholesalers from selling merchandise for less than the cost
of the merchandise to the seller, if the below-cost sale is intended to induce the
purchase of other merchandise or divert trade unfairly from a competitor. In
addition, current law requires a retailer or wholesaler of motor vehicle fuel, tobacco
products, fermented malt beverages, liquor, or wine to sell those items for a specified
amount more than the cost of the merchandise to the retailer or wholesaler to cover
a portion of the cost of doing business. Current law does not require such a minimum
markup for sales of prescription drugs. The prohibition on below-cost sales and the
minimum markup requirements do not apply to merchandise that is sold in
clearance sales, damaged merchandise, merchandise at risk of spoiling, and
merchandise that is priced in good faith to meet the existing price of a competitor.
This bill eliminates the prohibition on retailers and wholesalers selling
prescription drugs for less than the cost of those items to the seller. The bill also
eliminates the prohibition on retailers and wholesalers selling merchandise, other
than motor vehicle fuel, tobacco products, fermented malt beverages, liquor, or wine,

or groceries, for less than the cost of the merchandise to the seller. The bill does not
affect the prohibition on below-cost sales of motor vehicle fuel, tobacco products,
fermented malt beverages, liquor, or wine, or groceries. The bill also does not affect
the minimum markup requirements for sales of motor vehicle fuel, tobacco products,
fermented malt beverages, liquor, or wine.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB359,1 1Section 1. 100.30 (2) (am) 2. of the statutes is amended to read:
AB359,2,102 100.30 (2) (am) 2. With respect to the sale of merchandise other than cigarettes
3or other tobacco products, fermented malt beverages, intoxicating liquor or wine, or
4motor vehicle fuel
groceries, “cost to retailer" means the invoice cost of the
5merchandise to the retailer, or replacement cost of the merchandise to the retailer,
6whichever is lower, less all trade discounts except customary discounts for cash, plus
7any excise taxes imposed on such merchandise or the sale thereof other than excise
8taxes collected by the retailer, and any cost incurred for transportation and any other
9charges not otherwise included in the invoice cost or the replacement cost of the
10merchandise as herein set forth.
AB359,2 11Section 2. 100.30 (2) (c) 2. of the statutes is amended to read:
AB359,3,212 100.30 (2) (c) 2. With respect to the sale of merchandise other than cigarettes
13or other tobacco products, fermented malt beverages, intoxicating liquor or wine, or
14motor vehicle fuel
groceries, “cost to wholesaler" means the invoice cost of the
15merchandise to the wholesaler, or the replacement cost of the merchandise to the
16wholesaler, whichever is lower, less all trade discounts except customary discounts
17for cash, plus any excise taxes imposed on the sale thereof prior to the sale at retail,
18and any cost incurred for transportation and any other charges not otherwise

1included in the invoice cost or the replacement cost of the merchandise as herein set
2forth.
AB359,3 3Section 3. 100.30 (2) (ck) of the statutes is created to read:
AB359,3,54 100.30 (2) (ck) “Groceries” means food or beverage items, other than fermented
5malt beverages or intoxicating liquor or wine.
AB359,4 6Section 4. 100.30 (3) of the statutes is amended to read:
AB359,3,197 100.30 (3) Illegality of loss leaders. Any sale of any item of merchandise
8either
cigarettes or other tobacco products, fermented malt beverages, intoxicating
9liquor or wine, motor vehicle fuel, or groceries
by a retailer, wholesaler, wholesaler
10of motor vehicle fuel or refiner, at less than cost as defined in this section with the
11intent or effect of inducing the purchase of other merchandise or of unfairly diverting
12trade from a competitor, impairs and prevents fair competition, injures public
13welfare and is unfair competition and contrary to public policy and the policy of this
14section. Such sales are prohibited. Evidence of any sale of any item of merchandise
15cigarettes or other tobacco products, fermented malt beverages, intoxicating liquor
16or wine, motor vehicle fuel, or groceries
by any retailer, wholesaler, wholesaler of
17motor vehicle fuel or refiner at less than cost as defined in this section shall be prima
18facie evidence of intent or effect to induce the purchase of other merchandise, or to
19unfairly divert trade from a competitor, or to otherwise injure a competitor.
AB359,5 20Section 5. 100.30 (6) (a) 10. of the statutes is created to read:
AB359,3,2221 100.30 (6) (a) 10. The merchandise sold is a prescription drug, as defined in s.
22450.01 (20).
AB359,6 23Section 6. 134.04 (1) of the statutes is amended to read:
AB359,4,1624 134.04 (1) No person, firm or corporation engaged in any enterprise in this
25state shall by any method or procedure directly or indirectly by itself or through a

1subsidiary agency owned or controlled in whole or in part by such person, firm or
2corporation, sell or procure for sale or have in its possession or under its control for
3sale to its employees or any person any article, material, product or merchandise of
4whatsoever nature not of the person's, firm's or corporation's production or not
5handled in the person's, firm's or corporation's regular course of trade, excepting
6meals, candy bars, cigarettes and tobacco for the exclusive use and consumption of
7such employees of the employer, and excepting tools used by employees in said
8enterprise and such specialized appliances and paraphernalia as may be required in
9said enterprise for the employees' safety or health and articles used by employees or
10other persons which insure better sanitary conditions and quality in the
11manufacture of food or food products. The provisions of this subsection shall not
12apply to lumber producers, loggers and dealers nor to any cooperative association
13organized under ch. 185 or 193. This section shall not be construed as authorizing
14the sale of any merchandise cigarettes or other tobacco products, fermented malt
15beverages, intoxicating liquor or wine, motor vehicle fuel, or groceries
at less than
16cost as defined in s. 100.30.
AB359,4,1717 (End)
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