Chapter 100

100.18 Annotation “As is” and exculpatory clauses in a contract did not relieve a property seller of liability under sub. (1) for its deceptive representation in the contract that induced agreement to those terms. The fact that the parties were in negotiations over terms when the misrepresentation was made did not take the potential purchaser out of the realm of “the public” and outside the coverage of sub. (1). A sub. (1) claim requires proof that the misrepresentation caused the plaintiff a pecuniary loss. The test to be applied is whether the plaintiff would have acted in its absence. Fricano v. Bank of America NA, 2016 WI App 11, 366 Wis. 2d 748, 875 N.W.2d 143, 15-0020.

100.18 Annotation The economic loss doctrine does not serve as a bar to claims made under this section. Hinrichs v. DOW Chemical Co., 2020 WI 2, 389 Wis. 2d 669, 937 N.W.2d 37, 17-2361.

100.18 Annotation The heightened pleading standard set forth by s. 802.03 (2) for claims of fraud does not apply to claims made under this section. Hinrichs v. DOW Chemical Co., 2020 WI 2, 389 Wis. 2d 669, 937 N.W.2d 37, 17-2361.

100.18 Annotation Sub. (1) does not require that an advertisement or representation must be made to a Wisconsin resident. State v. Talyansky, 2023 WI App 42, 409 Wis. 2d 57, 995 N.W.2d 277, 22-0788.

100.18 Annotation The state does not need to establish that someone suffered a pecuniary loss in order to prove a violation of subs. (1) and (10r). State v. Talyansky, 2023 WI App 42, 409 Wis. 2d 57, 995 N.W.2d 277, 22-0788.

100.18 Annotation The purpose of this section is to protect the residents of Wisconsin from any untrue, deceptive, or misleading representations made to promote the sale of a product. Nothing in this section supports an interpretation that would render liable any standards-setting organization so long as a manufacturer could show that it lost sales as a result of allegedly inaccurate technical data in the standard. When nothing in a standard published by the standards-setting organization suggested that consumers choose one product over another and when the standards-setting organization’s actions were not part of a commercial transaction, a claim for a violation of this section failed. Thermal Design, Inc. v. American Society of Heating, Refrigerating & Air-Conditioning Engineers, Inc., 755 F.3d 832 (2014).

100.18 Annotation While extrinsic evidence in the form of consumer surveys or market research is not always needed for a plaintiff to survive summary judgment or judgment as a matter of law on a deceptive advertising claim, such evidence is necessary where the advertising is not clearly misleading on its face and materiality is in doubt. If the representations at issue are not misleading on their face when taken in context, to survive summary judgment the plaintiff must offer evidence that a reasonable consumer would be materially misled. The plaintiff’s own testimony is not sufficient to create an issue of fact for the jury. Weaver v. Champion Petfoods USA Inc., 3 F.4th 927 (2021).

100.18 Annotation References to ingredients used do not imply that ingredient is used exclusively. In this case, representations that food was made with fresh regional ingredients were not clearly misleading—the food did, in fact, contain some ingredients that were fresh and sourced regionally. Weaver v. Champion Petfoods USA Inc., 3 F.4th 927 (2021).

100.18 Annotation This section is reasonably geared toward notice and workable precision and is not so imprecise as to be constitutionally vague. Carpets By The Carload, Inc. v. Warren, 368 F. Supp. 1075 (1973).

100.18 Annotation One person can constitute “the public” under sub. (1). Jersild v. Aker, 775 F. Supp. 1198 (1991).

100.18 Annotation Actual interest payments incurred as a result of misrepresentations may be recovered by the defrauded party. Jersild v. Aker, 775 F. Supp. 1198 (1991).

100.18 Annotation The protections under this section are not restricted to Wisconsin residents. A suit for damages under this section requires a showing of actual pecuniary loss, not a mere showing of a misleading or deceptive statement or representation. Demitropoulos v. Bank One Milwaukee, N.A., 915 F. Supp. 1399 (1996).

100.18 Annotation There is no indication that the application of this section is restricted to use by consumers. Stoughton Trailers, Inc. v. Henkel Corp., 965 F. Supp. 1227 (1997).

100.18 Annotation Sub. (11) (b) 3. is a statute of repose to which the discovery rule does not apply. Staudt v. Artifex Ltd., 16 F. Supp. 2d 1023 (1998).

100.18 Annotation Under Wisconsin law, the economic loss doctrine does not bar recovery under this section, and it does bar recovery under s. 895.80, at least under the facts of this case. Dow v. Poltzer, 364 F. Supp. 2d 931 (2005).

100.18 Annotation While the plaintiff, a seller of goods through its website, may have been subject to misrepresentations regarding the source of customers directed to its website from defendants’ websites through a “typosquatting scheme,” the misrepresentations could not be characterized as statements made to the public relating to the purchase of merchandise and were not subject to this section. Lands’ End, Inc. v. Remy, 447 F. Supp. 2d 941 (2006).

100.18 Annotation If the Wisconsin courts had intended to exclude from the law only contracting parties as members of the public, it could have stated the rule as whether the parties had a “contracting relationship,” not the more general “particular relationship.” There was a “particular relationship” when the plaintiff had an ongoing relationship with the defendant for 13 years, selling as much as $12 million of merchandise in a single year, and thus the plaintiff was not a member of the public. Uniek, Inc. v. Dollar General Corp., 474 F. Supp. 2d 1034 (2007).

100.18 Annotation This section does not explicitly require a misrepresentation to the plaintiff, only to “the public.” However, the question is whether the representation materially induced the plaintiff’s decision to act and whether the plaintiff would have acted in the absence of the representation. Grice Engineering, Inc. v. JG Innovations, Inc., 691 F. Supp. 2d 915 (2010).

100.18 Annotation This section does not provide a cause of action for misrepresentations made to non-parties; this section is not designed to protect product manufacturers from the deceptive acts of their competitors. Riddell, Inc. v. Schutt Sports, Inc., 724 F. Supp. 2d 963 (2010).

100.18 Annotation This section applies to only commercial transactions. Thermal Design, Inc. v. American Society of Heating, Refrigerating & Air-Conditioning Engineers, Inc., 775 F. Supp. 2d 1082 (2011).

100.18 Annotation A nondisclosure of facts, combined with an affirmative representation that is undermined by the non-disclosed facts, may result in liability under sub. (1). In such situations, the existence of the undisclosed facts may show that the affirmative representation is untrue, deceptive, or misleading. Price-related misrepresentations that the defendant purportedly made to consumers—namely, that its goods were “regularly” priced at certain values—were indeed related to corresponding omissions—namely, that the “regular” prices appearing on the defendant’s goods were not accurate. These affirmative representations were actionable representations of fact under this section. Murillo v. Kohl’s Corp., 197 F. Supp. 3d 1119 (2016).

100.18 Annotation Sub. (1) is disjunctive, prohibiting “untrue, deceptive, or misleading” representations. Nothing in sub. (1) states that a plaintiff must plead that a representation is untrue or that it is true but deceptive or misleading. In the same vein, Wisconsin case law does not suggest that a plaintiff must allege the representation was literally true but deceptive or misleading. Wisconsin courts group these three concepts together. Blitz v. Monsanto Co., 317 F. Supp. 3d 1042 (2018).

100.18 Annotation Substantively, sub. (1) does not appear to require anything different from or additional to a labeling or packaging requirement under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 USC 136 et seq. Under Bates, 544 U.S. 431 (2005), therefore, the two statutes’ requirements are “equivalent,” and the plaintiff’s cause of action under sub. (1) is not preempted by FIFRA. Although a verdict awarding damages in favor of the plaintiff might well motivate the defendant to change its label, such a verdict does not create the kind of legal “requirement” prohibited under FIFRA’s preemption statement. Blitz v. Monsanto Co., 317 F. Supp. 3d 1042 (2018).

100.18 Annotation Nothing in sub. (1) suggests that its purpose is to regulate advertisers who are physically located in Wisconsin but who advertise elsewhere. The phrase “in this state” must be understood as referring to the location of the advertising rather than the advertiser. The Wisconsin Deceptive Trade Practices Act does not apply unless a person makes a deceptive representation that is likely to reach and induce action by a purchaser in Wisconsin. T&M Farms v. CNH Industrial America, LLC, 488 F. Supp. 3d 756 (2020). But see State v. Talyansky, 2023 WI App 42, 409 Wis. 2d 57, 995 N.W.2d 277, 22-0788.

100.18 Annotation Protection for Consumers Against Unfair and Deceptive Business. Jeffries. 57 MLR 559 (1974).

100.18 Annotation The Resurgence of Caveat Emptor: Puffery Undermines the Pro-Consumer Trend in Wisconsin’s Misrepresentation Doctrine. Goretzke. 2003 WLR 171.

100.18 Annotation Private enforcement of consumer laws in Wisconsin. Waxman. WBB May 1983.

100.18 Annotation Protecting Consumers in the Modern Age: Wisconsin’s Deceptive Trade Practices Act. Hinkston. Wis. Law. Oct. 2008.

100.18 Annotation Navigating Wisconsin’s Consumer Protection System. Greene. Wis. Law. Sept. 2017.

100.182 100.182 Fraudulent drug advertising.

100.182(1) (1) In this section, “drug” has the meaning specified in s. 450.01 (10).

100.182(2) (2) No person may advertise the availability of any drug or publish or circulate such an advertisement with the intent of selling, increasing the consumption of or generating interest in the drug if the advertisement contains any untrue, deceptive or misleading representations material to the effects of the drug.

100.182(3) (3) No person may expressly or impliedly represent that a substance may be used to obtain physical or psychological effects associated with the use of a drug in order to promote the sale of the substance unless it is lawfully marketed for human consumption under the United States food, drug and cosmetic act under 21 USC 301 to 392. A representation that the substance is not intended for human consumption is not a defense to prosecution for violating this subsection.

100.182(4) (4) No person may advertise a drug that the person knows is intentionally manufactured substantially to resemble a controlled substance or that the person represents to be of a nature, appearance or effect that will allow the recipient to display, sell, deliver, distribute or use the drug as a controlled substance, unless the drug is controlled under ch. 961.

100.182(5) (5) 

100.182(5)(a) (a) Any district attorney, after informing the department, or the department may seek a temporary or permanent injunction in circuit court to restrain any violation of this section. Prior to entering a final judgment the court may award damages to any person suffering monetary loss because of a violation. The department may subpoena any person or require the production of any document to aid in investigating alleged violations of this section.

100.182(5)(b) (b) In lieu of instituting or continuing an action under this subsection, the department may accept a written assurance from a violator of this section that the violation has ceased. If the terms of the assurance so provide, its acceptance by the department prevents all district attorneys from prosecuting the violation. An assurance is not evidence of a violation of this section but violation of an assurance is subject to the penalties and remedies of violating this section.

100.182 History History: 1981 c. 90; 1985 a. 146 s. 8; 1995 a. 27, 448.

100.183 100.183 Fraud, advertising foods.

100.183(1) (1) No person, firm, corporation or association shall, with intent to sell, or increase the consumption thereof, or create an interest therein, make, publish, disseminate, circulate, or place before the public in this state, or cause, directly or indirectly to be made, published, disseminated, or placed before the public in this state, in a newspaper or other publication, or in the form of a book notice, handbill, poster, bill, circular or pamphlet, or in any other manner, an advertisement of any sort regarding articles of food, which advertisement contains any assertion, representation or statement which is untrue, deceptive or misleading.

100.183(2) (2) It shall be unlawful to advertise any dairy or other food product which is of a grade or quality inferior to or less valuable than the usual and ordinary grade established by common understanding or law for such product, or from which a more valuable portion has been removed, without plainly and conspicuously stating that the article advertised is below and inferior to the usual and ordinary grade.

100.183(3) (3) No person, for himself or herself or as an agent, shall advertise at a stated price the sale of turkeys, which have been graded by the U.S. department of agriculture, unless the federal grade is set forth in such advertisement in not less than 10-point type.

100.183 History History: 1993 a. 492.

100.183 Annotation When the statutory background of this section and s. 100.18 is considered, it becomes clear that the legislature does not intend “merchandise” in s. 100.18 to include articles of food. The only sanction for violating this section is the criminal penalty specified in s. 100.26 (1) while s. 100.18 (1) is amenable to only civil remedies and cannot be enforced via a criminal prosecution. Gallego v. Wal-Mart Stores, Inc., 2005 WI App 244, 288 Wis. 2d 229, 707 N.W.2d 539, 04-2533.

100.184 100.184 Advertising foods for sale. No person shall, himself or herself, or by a servant or agent, or as the servant or agent of any other person, advertise for sale any article of food in package form when the retail price is mentioned in such advertisement unless the actual weight or volume of the contents of such package as stated on the label shall be plainly and conspicuously set forth in such advertisement in not less than 5-point type.

100.184 History History: 1993 a. 492.

100.185 100.185 Fraud, advertising musical performances.

100.185(1) (1) Definitions. In this section:

100.185(1)(a) (a) “Performing group” means a vocal or instrumental group that intends to advertise or perform under the name of a recording group.

100.185(1)(b) (b) “Recording group” means a vocal or instrumental group to whom all of the following apply:

100.185(1)(b)1. 1. At least one member of the group has released a commercial sound recording under the name of a group.

100.185(1)(b)2. 2. The member identified in subd. 1. has a right by virtue of use or operation to perform under the name of the group that released the commercial sound recording, and the member has not abandoned the recording group’s name or the member’s affiliation with the group that released the commercial sound recording.

100.185(1)(c) (c) “Sound recording” means a work that results from the fixation of a series of musical, spoken, or other sounds on a material object, including a disc, tape, or other phonorecord.

100.185(2) (2) Production. No person may advertise or conduct a live musical performance or production in this state through the use of a false, deceptive, or misleading affiliation, connection, or association between a performing group and a recording group. For purposes of this subsection, an advertisement, production, or performance is not false, deceptive, or misleading if any of the following applies:

100.185(2)(a) (a) The performing group is the authorized registrant and owner of a service mark for that group registered in the U.S. patent and trademark office.

100.185(2)(b) (b) At least one member of the performing group was a member of the recording group.

100.185(2)(c) (c) The live musical performance or production is identified in all advertising and promotion as a salute or tribute and the name of the performing group is not so closely related or similar to the name of the recording group as to be misleading or confusing to a reasonable person.

100.185(2)(d) (d) The performance or production is expressly authorized by the recording group.

100.185(3) (3) Enforcement.

100.185(3)(a) (a) If the attorney general or a district attorney has reason to believe that a person is advertising or conducting or intends to advertise or conduct a live musical performance or production in violation of sub. (2), the attorney general or district attorney may bring an action in the name of the state against the person to restrain the violation by temporary or permanent injunction. If a court issues a permanent injunction against a violation of this section by a defendant, the court may also order the defendant to pay to a person injured by the violation any amounts or property the defendant obtained as a result of the violation.

100.185(3)(b) (b) A court may require a person who violates sub. (2) to forfeit an amount not less than $5,000 nor more than $15,000 per violation. Each performance or production in violation of sub. (2) constitutes a separate violation.

100.185 History History: 2007 a. 15.

100.186 100.186 Linseed oil, white lead, zinc oxide, turpentine; standards; sale.

100.186(1) (1) No person shall sell as and for “raw flaxseed oil” or “raw linseed oil” any oil unless it is obtained from the seeds of the flax plant and unless it fulfills all the requirements for linseed oil laid down in the U.S. Pharmacopoeia; or as and for “boiled linseed oil” or “boiled flaxseed oil” any oil unless it has been prepared by heating pure raw linseed oil with or without the addition of not to exceed 4 percent of drier to a temperature not less than 225 degrees Fahrenheit. It is a violation of this section if said boiled linseed oil does not conform to the following requirements: First, its specific gravity at 60 degrees Fahrenheit must be not less than 935 thousandths and not greater than 945 thousandths; 2nd, its saponification value (koettstorfer figure) must not be less than 186; 3rd, its iodine number must not be less than 160; 4th, its acid value must not exceed 10; 5th, the volatile matter expelled at 212 degrees Fahrenheit must not exceed one-half of one percent; 6th, no mineral or other foreign oil or free rosin shall be present, and the amount of unsaponifiable matter as determined by standard methods shall not exceed 2.5 percent; 7th, the film left after flowing the oil over glass and allowing it to drain in a vertical position must dry free from tackiness in not to exceed 20 hours, at a temperature of about 70 degrees Fahrenheit.

100.186(2) (2) Nor shall any person sell any raw or boiled linseed oil except under its true name, and unless each tank car, tank, barrel, keg, can or vessel of such oil has distinctly and durably marked thereon in ordinary bold-faced capital letters, not smaller than 60-point type, the words “Pure Linseed Oil — Raw” or “Linseed Oil — Boiled,” and the name and address of the manufacturer.

100.186(3) (3) Linseed oil compounds designed to take the place of raw or boiled linseed oil, whether sold under invented proprietary names or titles, or otherwise, shall bear conspicuously upon the containing receptacle in which the same is sold, in ordinary bold-faced capital letters not smaller than 60-point type, the word “Compound,” followed immediately with the true distinctive names of the actual ingredients in the order of their greater preponderance, in the English language, in plain legible type of the same style, not smaller than 36-point type, in continuous list with no intervening matter of any kind and shall also bear the name and address of the manufacturer.

100.186(4) (4) No person shall sell:

100.186(4)(a) (a) As and for dry white lead any substance other than basic carbonate of lead or basic sulfate of lead;

100.186(4)(b) (b) As and for white lead in oil, any product other than basic carbonate of lead ground in pure linseed oil or basic sulfate of lead ground in pure linseed oil;

100.186(4)(c) (c) Any basic carbonate of lead ground in linseed oil, unless each receptacle containing it has distinctly and durably marked thereon the words, “white lead, basic carbonate, in oil,” and the name and address of the manufacturer or jobber;

100.186(4)(d) (d) Any basic sulfate of lead ground in linseed oil, unless each receptacle containing it has distinctly and durably marked thereon the words “white lead, basic sulfate, in oil,” and the name and address of the manufacturer or jobber;

100.186(4)(e) (e) As and for dry oxide of zinc, or zinc oxide, or zinc white, any substance other than commercially pure oxide of zinc;

100.186(4)(f) (f) As and for oxide of zinc in oil, or zinc oxide in oil, or zinc white in oil, any product other than commercially pure oxide of zinc ground in pure linseed oil;

100.186(4)(g) (g) Any oxide of zinc ground in linseed oil, unless each receptacle containing the same has distinctly and durably marked thereon the words “oxide of zinc in oil” or “zinc oxide in oil” or “zinc white in oil” and the name and address of the manufacturer or jobber.

100.186(5) (5) No person shall sell:

100.186(5)(a) (a) As and for turpentine, spirits of turpentine or oil of turpentine, any article except pure oil of turpentine distilled from the natural gum, dip or scrape of pine trees and unmixed with kerosene or other mineral oil or other foreign substance;

100.186(5)(b) (b) As and for wood turpentine or wood spirits of turpentine any article except the distillates and spirits prepared directly from or by the distillation of the wood of pine trees, and unmixed with kerosene or other mineral oil or other foreign substance;

100.186(5)(c) (c) Any oil of turpentine or wood spirits of turpentine except under its true name, and unless each tank car, tank, barrel, keg, can or vessel of such oil has distinctly and durably marked thereon in ordinary bold-faced capital letters, not smaller than 60-point type, the words “Oil of Turpentine” or “Wood Spirits of Turpentine” and the name and address of the manufacturer or jobber.

100.186 History History: 2009 a. 177.

100.187 100.187 Sale of honey and Wisconsin certified honey; rules, prohibitions.

100.187(1) (1) The department shall promulgate rules that do all the following:

100.187(1)(a) (a) Establish standards for products sold as honey that are consistent with the standard for honey under the Codex Alimentarius of the Food and Agriculture Organization of the United Nations and the World Health Organization, number 12-1981, as revised in 2001.

100.187(1)(b) (b) Establish standards for testing by private laboratories of samples submitted by persons who intend to sell honey produced in this state as Wisconsin certified honey to determine whether the samples meet the standards established under par. (a).

100.187(2) (2) 

100.187(2)(a) (a) No person may label a product as Wisconsin certified honey or imply that a product is Wisconsin certified honey unless all of the following apply:

100.187(2)(a)1. 1. The product has been determined to meet the standards established under sub. (1) (a) by a laboratory whose testing procedures meet standards established under sub. (1) (b).

100.187(2)(a)2. 2. A summary of the results of the testing performed under subd. 1. has been submitted to the department and approved by the department.

100.187(2)(a)3. 3. The product was produced in this state.

100.187(2)(b) (b) The department shall investigate violations of this subsection and may bring an action for permanent or temporary injunctive or other relief in any circuit court against a person who violates this subsection.