Chapter 100

100.22 100.22 Discrimination in purchase of milk prohibited.

100.22(1) (1) Prohibition. Except as provided in sub. (1m), no person engaged in the business of buying milk from producers for the purpose of manufacture, processing or resale may discriminate between producers in the price paid for milk or in services furnished in connection with the purchase of milk if the discrimination injures producers or injures, destroys or prevents competition between competing purchasers of milk.

100.22(1m) (1m) Milk pricing. A person engaged in the business of buying milk from producers for the purpose of manufacture, processing or resale may pay producers different prices for the purchase of milk based on differences in milk quality, if all of the following apply:

100.22(1m)(a) (a) Before making any payments to producers, the person engaged in the business of buying milk from producers establishes a payment method based on differences in milk quality determined by an actual measured difference in bacteria count, somatic cell count, enzyme level or drug residue findings in the milk.

100.22(1m)(b) (b) Before making any payments to producers, the person engaged in the business of buying milk from producers announces, and offers to make payments in accordance with, the payment method established under par. (a) to all producers from whom the person buys milk.

100.22(1m)(c) (c) The person engaged in the business of buying milk from producers makes payments to all milk producers from whom the person purchases milk in accordance with the payment method established under par. (a).

100.22(1m)(d) (d) The payment method established under par. (a) is not part of any other method used to discriminate between producers in the price paid for milk or in services furnished in connection with the purchase of milk.

100.22(2) (2) Contracts void. A contract in violation of this section or a special order issued under this section is void.

100.22(3) (3) Justification defense. It is a defense to a prosecution for violation of this section or a special order issued under this section to prove that the discrimination in price or services was done in good faith to meet competition or was commensurate with an actual difference in the quantity of or transportation charges or marketing expenses for the milk purchased.

100.22(4) (4) Enforcement.

100.22(4)(a) (a) The department may, after hearing, issue a special order enjoining violations of this section.

100.22(4)(b) (b) The department may, without alleging or proving that no other adequate remedy at law exists, bring an action to enjoin violations of this section or a special order issued under this section in the circuit court for the county where the alleged violation occurred.

100.22(5) (5) Penalties.

100.22(5)(a) (a) A person who violates this section shall forfeit not less than $100 nor more than $2,500.

100.22(5)(b) (b) A person who violates a special order issued under this section shall forfeit not less than $200 nor more than $5,000.

100.22 History History: 1981 c. 124; 1991 a. 269.

100.22 Annotation Application of volume premium rules to sales and delivery of milk from Wisconsin cows occurring at out-of-state processing plants would violate the commerce clause of the U.S. Constitution. Dean Foods Co. v. Brancel, 187 F.3d 609 (1999).

100.23 100.23 Contract to market agricultural products; interference prohibited.

100.23(1) (1) Definition. In this section:

100.23(1)(a) (a) “Agricultural product” includes, but is not limited to, any agricultural commodity, as defined in s. 94.67 (2).

100.23(1)(b) (b) “Association” means an association of persons engaged in the production of agricultural products under 7 USC 291.

100.23(1)(c) (c) “Contract” means an agreement between a producer and an association, which agreement provides that all or a specified part of the person’s production of one or more agricultural products by the person will be exclusively sold or marketed through or by the association or any facility furnished by it.

100.23(1)(d) (d) “Producer” means a person who produces agricultural products.

100.23(2) (2) Terms. No contract may have a term in excess of 5 years. A contract may be made self-renewing for periods not exceeding 5 years each, except that either party may terminate at the end of any term by giving written notice to the other party at least 30 days before the end of the term.

100.23(3) (3) Damages. A contract may require liquidated damages to be paid by the producer in the event of a breach of contract with the association. Liquidated damages may be either a percentage of the value of the products which are the subject of the breach, or a specified sum, but may not be more than 30 percent of the value of those products. If a specified sum is provided as liquidated damages, but such sum exceeds 30 percent of the value of the products which are the subject of the breach, the contract shall be construed to provide liquidated damages equal to 30 percent of the value of the products which are the subject of the breach.

100.23(4) (4) Breach of contract.

100.23(4)(a) (a) No person may breach, repudiate, interfere with, induce or attempt to induce or aid the breach of a contract.

100.23(4)(b) (b) If any person who has notice of the contract violates or threatens to violate par. (a), the association which is a party to the contract is entitled to all of the following remedies against that person, except as provided under sub. (5):

100.23(4)(b)1. 1. An injunction, including a temporary restraining order, to prevent or terminate any conduct which is prohibited under par. (a).

100.23(4)(b)2. 2. A decree of specific performance.

100.23(4)(b)3. 3. Damages.

100.23(4)(c) (c) If an association files a verified complaint showing a violation or threatened violation of par. (a), and a sufficient bond, the association is entitled to a temporary restraining order against any person violating par. (a).

100.23(4)(d) (d) The county in which an association has its registered agent or its principal office in this state is a proper venue for an action under this subsection by or against that association.

100.23(5) (5) Qualifications. No association is entitled to the remedies under sub. (4) (b) unless the association:

100.23(5)(a) (a) Is governed by the following procedures:

100.23(5)(a)1. 1. No person other than an association member may vote at any member meeting of the association.

100.23(5)(a)2. 2. At any member meeting of the association, each association member entitled to vote shall have one vote, except that the articles or bylaws may permit either or both:

100.23(5)(a)2.a. a. A member association to cast additional votes not exceeding a number equal to its membership.

100.23(5)(a)2.b. b. An association whose member-patrons include other associations to base voting in whole or in part on a patronage basis.

100.23(5)(a)3. 3. Voting by proxy shall not be allowed in any association.

100.23(5)(a)4. 4. The bylaws of the association may provide for representation of members at any member meeting by delegates apportioned territorially or by other districts or units.

100.23(5)(a)5. 5. An annual member meeting shall be held by the association at the time and place fixed in or pursuant to the bylaws of the association. In the absence of a bylaw provision, such meeting shall be held within 6 months after the close of the association’s fiscal year at the call of the president or board.

100.23(5)(a)6. 6. Written notice, stating the place, day and hour of the association’s annual member meeting shall be given not less than 7 days nor more than 60 days before the annual meeting at the direction of the person calling the meeting. Notice need be given only to members entitled to vote. Notice shall be given to members having limited voting rights if they have or may have the right to vote at the meeting.

100.23(5)(a)7. 7. At any annual member meeting at which members are to be represented by delegates, notice to such members may be given by notifying such delegates and their alternates. Notice may consist of a notice to all members or may be in the form of an announcement at the meeting at which such delegates or alternates were elected.

100.23(5)(a)8. 8. The association shall keep correct and complete books and records of account, and shall also keep minutes of the proceedings of meetings of its members, board and executive committee. The association shall keep at its principal office records of the names and addresses of all members and stockholders with the amount of stock held by each, and of ownership of equity interests. At any reasonable time, any association member or stockholder, or his or her agent or attorney, upon written notice stating the purposes thereof, delivered or sent to the association at least one week in advance, may examine for a proper purpose any books or records pertinent to the purpose specified in the notice. The board may deny a request to examine books and records if the board determines that the purpose is not directly related to the business or affairs of the association and is contrary to the best interests of the association.

100.23(5)(b) (b) Has a current annual report on file with the department of financial institutions which satisfies all of the following requirements:

100.23(5)(b)1. 1. Is signed by a principal officer or the general manager of the association.

100.23(5)(b)2. 2. Is on a form furnished to the association by the department of financial institutions using information given as of the date of the execution of the report.

100.23(5)(b)3. 3. Sets forth:

100.23(5)(b)3.a. a. The association’s name and complete address.

100.23(5)(b)3.b. b. The names and addresses of the association’s directors and principal officers.

100.23(5)(b)3.c. c. A statement, by class and par value, of the amount of stock which the association has authority to issue, and the amount of stock issued.

100.23(5)(b)3.d. d. A statement as to the general type of business in which the association was engaged during the 12 months preceding the date of the report.

100.23(5)(b)4. 4. Is filed with the department of financial institutions in each year following the year in which the association first filed the annual report required under this paragraph, during the calendar year quarter in which the anniversary of the filing occurs.

100.23(6) (6) Department of financial institutions duties. The department of financial institutions shall:

100.23(6)(a) (a) Provide forms for the report required under sub. (5) (b) to an association upon the request of that association.

100.23(6)(b) (b) Send by 1st class mail a form for the report required under sub. (5) (b) to each association which filed that report in the previous year, no later than 60 days prior to the end of the calendar year quarter in which that association first filed its report.

100.23(6)(c) (c) Upon receipt of a report required under sub. (5) (b), determine if the report satisfies the requirements of sub. (5) (b). If the department of financial institutions determines that the report does not satisfy all of those requirements, the department of financial institutions shall return the report to the association which filed it, along with a notice of any correction required. If the association files a corrected report within 30 days after the association receives that notice, the report shall be deemed timely filed for purposes of sub. (5) (b) 4.

100.23 History History: 1987 a. 89; 1995 a. 27.

100.235 100.235 Unfair trade practices in procurement of vegetable crops.

100.235(1) (1) Definitions. In this section:

100.235(1)(a) (a) “Affiliate” means any of the following persons or business entities:

100.235(1)(a)1. 1. An officer, director, partner, member, manager, major stockholder, employee or agent of a contractor.

100.235(1)(a)2. 2. A corporation or business entity that is owned, controlled or operated by any of the persons under subd. 1.

100.235(1)(b) (b) “Contractor” has the meaning given for “vegetable contractor” under s. 126.55 (14).

100.235(1)(c) (c) “Contractor’s cost to grow” means the average cost, per unit weight of vegetable, incurred by the contractor and the contractor’s subsidiaries and affiliates to grow a species of vegetable in a growing region, either during 3 of the preceding 5 years excluding the highest and lowest years, or, if the contractor has grown a vegetable species less than 5 consecutive years, during the most recent years available.

100.235(1)(d) (d) “Growing region” means one or more geographic areas in which the department determines that the cost to grow a particular species of vegetable tends to be reasonably similar.

100.235(1)(dm) (dm) “License year” has the meaning given under s. 126.55 (10m).

100.235(1)(e) (e) “Producer” means any person who produces and sells vegetables, or who grows vegetables under contract.

100.235(1)(f) (f) “Subsidiary” means a corporation or business entity that is owned, controlled or operated by a contractor.

100.235(1)(g) (g) “Vegetable” means a vegetable grown or sold for use in food processing, whether or not it is actually processed as food. “Vegetable” includes sweet corn but does not include grain.

100.235(1)(h) (h) “Vegetable procurement contract” means an agreement between a contractor and a producer, under which the contractor buys vegetables grown in this state from the producer or contracts with the producer to grow vegetables in this state.

100.235(2) (2) Contractor may not pay producer less than contractor’s cost to grow. If a contractor and the contractor’s affiliates and subsidiaries collectively grow more than 10 percent of the acreage of any vegetable species grown and procured by the contractor in any license year, the contractor shall pay a producer, for vegetables of that species tendered or delivered under a vegetable procurement contract, a price not less than the contractor’s cost to grow that vegetable species in the same growing region. For vegetables contracted on a tonnage basis and for open-market tonnage purchased, acreage under this subsection shall be determined using the state average yield per acre during the preceding license year.

100.235(4) (4) Cost to grow; report to department upon request. If the department determines that a contractor and the contractor’s affiliates and subsidiaries will collectively grow more than 10 percent of the acreage of any vegetable species grown and procured by the contractor during a license year, the department may require the contractor to file a statement of the contractor’s cost to grow that vegetable species. The contractor shall file the report with the department within 30 days after the department makes its request, unless the department grants an extension of time. The department may permit the contractor to report different costs to grow for different growing regions if the contractor can define the growing regions to the department’s satisfaction, and can show to the department’s satisfaction that the contractor’s costs to grow are substantially different between the growing regions.

100.235(5) (5) Department investigations; response to producer complaints. The department may, on its own initiative, investigate to determine whether any contractor has violated this section. If a producer or producer association files a written complaint with the department alleging a violation of sub. (2), the department shall investigate the complaint. The department is not required to investigate any complaint filed more than 180 days after the producer tendered or delivered the vegetables to the contractor.

100.235(6) (6) Additional reports; inspection and audit. For purposes of an investigation under sub. (5), the department may require a contractor to submit reports of acreage, tonnages, costs to grow, and amounts paid to producers. The department may require that the reports be certified by a certified public accountant, or the department may inspect and audit the contractor’s records to verify that the reports are accurate.

100.235(7) (7) Reports are confidential. Reports submitted to the department under subs. (4) and (6) are confidential and not open to public inspection.

100.235(8) (8) Department findings and order. If the department completes an investigation in response to a complaint under sub. (5), the department shall issue written findings to the contractor and complainant, indicating whether the department has found a violation of sub. (2) by the contractor. If the department finds that the contractor has violated sub. (2), the department shall specify what it finds to be the contractor’s cost to grow. Either the contractor or the complainant may demand a public hearing on the department’s finding, under ch. 227.

100.235(9) (9) Uniform system of cost accounting; department rules. The department may promulgate rules prescribing a uniform system of cost accounting to be used by contractors in determining and reporting a contractor’s cost to grow. The accounting system shall take into account cost differences attributable to factors affecting prices for vegetable species under vegetable procurement contracts.

100.235(10) (10) Private remedy. A producer who sustains a monetary loss as a result of a violation of this section by a contractor may recover the amount of the loss, together with costs, including all reasonable attorney fees, notwithstanding s. 814.04 (1).

100.235(11) (11) Penalties.

100.235(11)(a) (a) Forfeiture. Any person who violates this section or any rule promulgated or order issued under this section may be required to forfeit not less than $100 nor more than $10,000. Notwithstanding s. 165.25 (1), the department may commence an action to recover a forfeiture under this paragraph.

100.235(11)(b) (b) Fine or imprisonment. Any person who intentionally violates this section shall be fined not less than $100 nor more than $10,000 or imprisoned for not more than one year in the county jail or both for each violation.

100.235 History History: 1975 c. 67, 199; 1989 a. 31, 359; 1993 a. 112; 2001 a. 16.

100.24 100.24 Revocation of corporate authority. Any corporation, or limited liability company, foreign or domestic, which violates any order issued under s. 100.20 may be enjoined from doing business in this state and its certificate of authority, incorporation or organization may be canceled or revoked. The attorney general may bring an action for this purpose in the name of the state. In any such action judgment for injunction, cancellation or revocation may be rendered by the court, upon such terms as it deems just and in the public interest, but only upon proof of a substantial and willful violation.

100.24 History History: 1981 c. 124; 1993 a. 112.

100.25 100.25 Cumulative remedies. Nothing in ss. 100.22 to 100.24 shall be construed as repealing any other law of this state, but the remedies herein provided shall be cumulative to all other remedies provided by law in and for such cases.

100.26 100.26 Penalties.

100.26(1) (1) Any person who violates any provision of this chapter, except s. 100.18, 100.20, 100.206 or 100.51, for which no specific penalty is prescribed shall be fined not to exceed $200, or imprisoned in the county jail not more than 6 months or both.