Chapter ATCP 102

Chapter ATCP 102

PRICE DISCRIMINATION AND RELATED PRACTICES

Subchapter I — Fermented Malt Beverages

ATCP 102.01   Definitions.

ATCP 102.02   Prohibited trade practices.

ATCP 102.03   Report requirements.

Subchapter II — Soda Water Beverages

ATCP 102.11   Definitions.

ATCP 102.12   Prohibited trade practices.

ATCP 102.13   Prohibited acts of retailers.

ATCP 102.14   Prohibited acts of brokers.

ATCP 102.15   Exceptions.

ATCP 102.16   Reporting requirements.

Subchapter III — Motor Fuel

ATCP 102.21   Definitions.

ATCP 102.22   Discrimination.

ATCP 102.23   Coercion.

Ch. ATCP 102 Note Note: This chapter is adopted under authority of s. 100.20 (2), Stats., and is administered by the Wisconsin department of agriculture, trade and consumer protection. Violations of this chapter may be prosecuted under s. 100.26 (3) or (6), Stats. A person who suffers a monetary loss because of a violation of this chapter may sue the violator directly under s. 100.20 (5), Stats., and may recover twice the amount of the loss together with costs and reasonable attorneys’ fees.

Ch. ATCP 102 Note See also s. 133.04, Stats. (price discrimination; intent to destroy competition); s. 100.201, Stats., and ch. ATCP 103 (dairy trade practices); s. 100.22, Stats. (price discrimination in milk procurement); and s. 100.31, Stats. (drug price discrimination).

subch. I of ch. ATCP 102 Subchapter I — Fermented Malt Beverages

ATCP 102.01 ATCP 102.01 Definitions. In this subchapter:

ATCP 102.01(1) (1) “Brewer” means a person, firm or corporation engaged in the sale of beer to wholesalers licensed to sell beer to retailers under the provisions of s. 125.28, Stats.

ATCP 102.01(2) (2) “Wholesaler” means a person, firm, or corporation engaged in the sale of fermented malt beverages for resale.

ATCP 102.01(3) (3) “Fermented malt beverages” means any liquor or liquid capable of being used for beverage purposes, made by the alcoholic fermentation of an infusion in potable water of barley malt and hops, with or without unmalted grains or decorticated and degerminated grains or sugar containing one-half of one percent or more of alcohol by volume.

ATCP 102.01 History History: Cr. Register, August, 1968, No. 152, eff. 9-1-68; am. (1), Register, July, 1969, No. 163, eff. 8-1-69; renum. from ATCP 106.01, Register, February, 1996, No. 482, eff. 3-1-96; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, May, 1999, No. 521.

ATCP 102.02 ATCP 102.02 Prohibited trade practices.

ATCP 102.02(1) (1) No brewer shall discriminate in price, allowance, rebate, refund, commission or discount between wholesalers purchasing fermented malt beverages of like kind or quality where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly, or to injure, destroy or prevent competition by a person who is or in good faith intends to become a competitor, in the wholesaling of fermented malt beverages, unless such discrimination is:

ATCP 102.02(1)(a) (a) Merely commensurate with a difference in the cost of manufacture, sale, or delivery resulting from differing methods or quantities of sale or delivery, or

ATCP 102.02(1)(b) (b) Made in good faith to meet or enable a wholesaler to meet the price or other terms of a competitor of either of them.

ATCP 102.02(2) (2) No brewer shall threaten any wholesaler with any discrimination prohibited under sub. (1) with the purpose or effect of changing or maintaining resale prices of the wholesaler.

ATCP 102.02(3) (3) Nothing in this chapter shall be deemed to prohibit brewers from selecting their own customers in bona fide transactions not in restraint of trade.

ATCP 102.02(4) (4) The provisions of sub. (1) shall not be deemed to prohibit a brewer from extending to its wholesalers different terms of credit in the ordinary course of business taking into consideration the financial condition of the individual wholesaler and other factors normally considered in establishing credit, or from offering or furnishing to its wholesalers different advertising, promotional or merchandising services, provided that such services shall not be intended or used to effect a discrimination in price, allowance, rebate, refund, commission or discount prohibited by said sub. (1).

ATCP 102.02 History History: Cr. Register, August, 1968, No. 152, eff. 9-1-68; am. (1), cr. (4), Register, July, 1969, No. 163, eff. 8-1-69; renum. from ATCP 106.02, Register, February, 1996, No. 482, eff. 3-1-96.

ATCP 102.03 ATCP 102.03 Report requirements. In any investigation under this chapter a brewer or wholesaler upon request of the department shall furnish to it price lists and such other information as directed concerning the terms of any agreement, transaction, or offer which may be the subject of any prohibition under this chapter.

ATCP 102.03 History History: Cr. Register, August, 1968, No. 152, eff. 9-1-68; renum. from ATCP 106.03, Register, February, 1996, No. 482, eff. 3-1-96.

subch. II of ch. ATCP 102 Subchapter II — Soda Water Beverages

ATCP 102.11 ATCP 102.11 Definitions. In this subchapter:

ATCP 102.11(1) (1) “Soda water beverage” means all beverages commonly known as soft drinks, including soda water, carbonated or uncarbonated or sweetened or flavored, and bases, fountain syrups, concentrates and powders intended to be reconstituted by wholesalers or retailers to produce soft drinks. It does not include strong spiritous, vinous, malt, ardent or intoxicating liquors.

ATCP 102.11(2) (2) 

ATCP 102.11(2)(a) (a) “Retailer” means every person making sales of soda water beverages for consumption or use other than resale or further processing or manufacturing. In the case of a person making both sales at wholesale and retail, such term shall apply to only the retail portion of such sales. “Retailer” does not include the United States, the state, any municipality as defined in s. 345.05 (1) (c), Stats., or any agency thereof, or any religious, charitable or educational organization or institution, but does include any other person engaged in the business of making retail sales wholly or in part for profit at an institution or facility operated by such an exempt party.

ATCP 102.11(2)(b) (b) Any subsidiary or affiliate corporation, cooperative, partnership or association, and any officer, director or partner of a corporation, cooperative, partnership, association or any other business unit which owns, controls or franchises any retailer or which has any retailer as an affiliate, member or subsidiary, is deemed to be a retailer of soda water beverages.

ATCP 102.11(3) (3) 

ATCP 102.11(3)(a) (a) “Wholesaler” means every person making sales of soda water beverages for purposes of resale or further processing or manufacturing. In the case of a person making both sales at retail and wholesale, such term shall apply only to the wholesale portion of such business.

ATCP 102.11(3)(b) (b) Any subsidiary or affiliate corporation, cooperative, partnership or association, and any officer, director or partner of a corporation, cooperative, partnership or association which is a wholesaler of soda water beverages is deemed to be a wholesaler of soda water beverages.

ATCP 102.11(4) (4) “Broker” means any person engaged in negotiating sales or purchases of soda water beverages for or on behalf of a retailer or wholesaler or both.

ATCP 102.11 History History: Cr. Register, February, 1977, No. 254, eff. 3-1-77; renum. from ATCP 107.01, Register, February, 1996, No. 482, eff. 3-1-96; correction in (2) (a) made under s. 13.92 (4) (b) 7., Stats., Register June 2011 No. 666.

ATCP 102.12 ATCP 102.12 Prohibited trade practices. No wholesaler of soda water beverages shall, in the sale or distribution of soda water beverages, engage in the following unfair methods of competition or unfair trade practices:

ATCP 102.12(1) (1) Discriminate, directly or indirectly, in the price at which soda water beverages are sold to customers by selling or offering to sell such beverages at a special price or discount, or with special allowances, rebates, or commissions, or under other price or credit terms or conditions not offered or made available to all customers, where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly, or otherwise injure, destroy or prevent competition between wholesalers of soda water beverages or any of their customers.

ATCP 102.12(2) (2) Furnish, sell, give, lend or rent any equipment, after the effective date of this chapter, for the refrigerated or heated storage or display, or mechanical dispensing of soda water beverages to a retailer, but this shall not prevent:

ATCP 102.12(2)(a) (a) The sale or rental of such equipment to a retailer under a written agreement describing the equipment sold or rented, and specifying the price and other terms and conditions under which it is to be sold or rented. Copies of agreements shall be kept on file by the wholesaler for at least 3 years after final payment has been received. No agreement for the sale or rental of equipment other than agreements for the rental of coin-operated vending machines shall contain any provision that prohibits the use of the equipment for the storage, display, or dispensing of the products of competing wholesalers or reserves any part of the available capacity of the equipment for the products of the wholesaler selling or renting the equipment.

ATCP 102.12(2)(a)1. 1. Terms for the sale of equipment shall provide that the wholesaler shall recover at least the wholesaler’s cost for the equipment, including all costs for transportation and installation of the equipment, either by advance payment in full or by equal monthly installment payments over a period not to exceed 5 years.

ATCP 102.12(2)(a)2. 2. Terms for the rental of equipment, other than coin-operated vending machines, shall provide that minimum monthly rental charges shall be no less than one-sixtieth (1/60) of the total cost to the wholesaler, including all costs for transportation and installation of the equipment. Rentals may be charged in equal periodic installments or on a volume basis, and shall be collected at least once each year in an amount sufficient to recover all such costs within a period of 60 months.

ATCP 102.12(2)(a)3. 3. Terms for the rental of coin-operated vending machines shall provide that the minimum monthly rental charge shall be no less than one ninety-sixth (1/96) of the total cost to the wholesaler, including all costs for transportation and installation. Rentals may be charged in equal periodic installments or on a volume basis, and shall be collected at least once each year in an amount sufficient to recover all such costs within a period of 96 months.

ATCP 102.12(2)(a)4. 4. Cost of equipment which has been returned or repossessed or on which rental contracts are renewed shall be based on fair market value of the equipment, whether or not cost was recovered in whole or in part under a previous sale or rental agreement.

ATCP 102.12(2)(b) (b) The furnishing of equipment to a retailer, for the storage, transportation or display of soda water beverages for not more than a total of 20 days in a calendar year for use at fairs, exhibitions, expositions or other events for agricultural, industrial, charitable, educational, religious or recreational purposes.

ATCP 102.12(3) (3) Discriminate, directly or indirectly, between customers in furnishing of advertising, promotional or other services or facilities to them, or in compensating customers for services or facilities to be rendered or furnished by or through them in connection with the sale or distribution of soda water beverages, under terms or conditions not available to all customers on proportionally equal terms, where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly, or otherwise injure, destroy or prevent competition between wholesalers of soda water beverages or any of their customers. This does not apply to the furnishing of equipment under sub. (2) (b).

ATCP 102.12 History History: Cr. Register, February, 1977, No. 254, eff. 3-1-77; am. (2) (a) and (3), r. (2) (c), Register, August, 1979, No. 284, eff. 9-1-79; renum. from ATCP 107.02, Register, February, 1996, No. 482, eff. 3-1-96.

ATCP 102.13 ATCP 102.13 Prohibited acts of retailers. No retailer or any officer, director, employee or agent thereof shall solicit or receive, directly or indirectly, from or through a wholesaler, broker, or another retailer, anything which is prohibited by s. ATCP 102.12, where it is known, or in the exercise of reasonable prudence should be known that it is prohibited.

ATCP 102.13 History History: Cr. Register, February, 1977, No. 254, eff. 3-1-77; renum. from ATCP 107.03 and am,. Register, February, 1996, No. 482, eff. 3-1-96.