Chapter 100

100.28(4) (4) Penalty; enforcement.

100.28(4)(a) (a) A person who violates this section shall forfeit not less than $25 nor more than $25,000 for each violation. Each day on which the person sells or offers to sell in violation of this section constitutes a separate violation. Each place at which the person sells or offers to sell in violation of this section constitutes a separate violation.

100.28(4)(am) (am) If a court imposes a forfeiture under par. (a) on the manufacturer of a chemical water conditioner or cleaning agent for a violation of sub. (2m), the court may order the manufacturer to accept the return of the chemical water conditioner or cleaning agent that is the subject of the violation and to refund the purchase price to the retailer who purchased that chemical water conditioner or cleaning agent.

100.28(4)(b) (b) In lieu of or in addition to forfeitures under par. (a), the department may seek an injunction restraining any person from violating this section.

100.28(4)(c) (c) The department, or any district attorney upon the request of the department, may commence an action in the name of the state under par. (a) or (b).

100.28(4)(d) (d) Any action on a violation of this section may be commenced in the circuit court for the county in which the violation occurred, or in the case of multiple violations by a single defendant, in the circuit court for the county in which any of the violations occurred.

100.28 History History: 1983 a. 73; 1991 a. 115; 1995 a. 27; 2009 a. 63.

100.285 100.285 Reduction of toxics in packaging.

100.285(1) (1) Definition. In this section, “packaging component” means any individual assembled part of a package, including any interior or exterior blocking, bracing, cushioning, weatherproofing, coating, closure, ink or label.

100.285(2) (2) Restriction. Except as provided in sub. (3), a manufacturer or distributor may not sell a package, packaging material or packaging component with a total concentration of lead, cadmium, mercury plus hexavalent chromium that exceeds:

100.285(2)(a) (a) Beginning on June 1, 1992, 600 parts per million.

100.285(2)(b) (b) Beginning on June 1, 1993, 250 parts per million.

100.285(2)(c) (c) Beginning on June 1, 1994, 100 parts per million.

100.285(3) (3) Exceptions.

100.285(3)(a) (a) Before June 1, 1996, sub. (2) does not apply with respect to a package, packaging material or packaging component made from recycled materials.

100.285(3)(b) (b) Subsection (2) does not apply with respect to a package, packaging material or packaging component if a higher total concentration of lead, cadmium, mercury plus hexavalent chromium is necessary to meet federal health or safety requirements.

100.285(3)(c) (c) Subsection (2) does not apply with respect to a package, packaging material or packaging component for which there is no feasible alternative that satisfies the limitations in sub. (2).

100.285(3)(d) (d) Subsection (2) does not apply with respect to lead foil purchased and used on or before December 31, 1992, to wrap the opening of a bottle that contains intoxicating liquor, as defined in s. 125.02 (8), or to any package that contains intoxicating liquor, as defined in s. 125.02 (8), if the package was filled and sealed on or before December 31, 1992.

100.285(5) (5) No penalty. A person who violates sub. (2) is not subject to a penalty.

100.285(6) (6) Report. The department shall review the effectiveness of subs. (1) to (5) and shall report the results of the review, including a recommendation of whether enforcement provisions and penalties should be instituted, on or before June 1, 1993, to the governor and to the chief clerk of each house of the legislature for distribution under s. 13.172 (2).

100.285 History History: 1989 a. 335; 1991 a. 36.

100.29 100.29 Sale of nonrecyclable materials.

100.29(1) (1) Definitions. In this section “new packaging” means packaging, including a container, made from a material or a combination of materials not used in any packaging, exclusive of any closure or label, that is in commerce in this state on or before May 11, 1990.

100.29(3) (3) New packaging.

100.29(3)(a) (a) If the department receives a complaint that there is not an adequate market to make recycling of a type of new packaging economically feasible, the department shall investigate the complaint. If the department determines that the product has been in commerce in this state for at least 3 years and that the complaint is well-founded, it shall inform the manufacturer or distributor of the new packaging and attempt to ensure an adequate market within a reasonable period through negotiations.

100.29(3)(b) (b) The department shall identify by rule a type of new packaging for food or beverages to which all of the following apply:

100.29(3)(b)1. 1. After at least 3 years in commerce in this state, there is not an adequate market to make recycling of the type of new packaging economically feasible.

100.29(3)(b)2. 2. The department received a complaint under par. (a) about the type of new packaging material.

100.29(3)(b)3. 3. Negotiations under par. (a) did not result in an adequate market.

100.29(3)(c) (c) The department shall promulgate rules for determining whether there is an adequate market to make recycling of new packaging economically feasible.

100.29 History History: 1989 a. 335.

100.295 100.295 Labeling of recycled, recyclable or degradable products.

100.295(1) (1) Labeling standards. The department shall establish standards that must be met by products in order for any person to represent that the products are recycled, recyclable or degradable. The department shall establish standards that are consistent, to the greatest extent practicable, with nationwide industry consensus standards. In developing standards, the department shall consult with the department of natural resources and the council on recycling and consider purchasing specifications under s. 16.72 (2) (e) and (f) and any existing federal standards. The department shall give priority to establishing standards for specific products commonly represented as being recycled, recyclable or degradable.

100.295(2) (2) False advertising prohibited. No person may represent any product as being recycled, recyclable or degradable unless the product meets standards established under sub. (1).

100.295(3) (3) Penalty. Any person who violates sub. (2) may be required to forfeit not less than $100 nor more than $10,000 for each violation.

100.295 History History: 1989 a. 335.

100.295 Cross-reference Cross-reference: See also s. ATCP 137.01, Wis. adm. code.

100.297 100.297 Plastic container recycled content.

100.297(1) (1) Definition. In this section, “plastic container” means a plastic container, as defined in s. 100.33 (1) (c), that is required to be labeled under s. 100.33 (2).

100.297(2) (2) Prohibition. Except as provided in sub. (3), no person may sell or offer for sale at retail any product in a plastic container unless the plastic container consists of at least 10 percent recycled or remanufactured material, by weight beginning on January 1, 1995.

100.297(3) (3) Exception. Subsection (2) applies to a person who sells or offers to sell a product that is a food, beverage, drug, cosmetic or medical device and that is regulated under the federal food, drug and cosmetic act, 21 USC 301 to 394, in a plastic container only if the federal food and drug administration has approved the use of the specified recycled or remanufactured content in that plastic container.

100.297 History History: 1989 a. 335; 1993 a. 245.

100.30 100.30 Unfair sales act.

100.30(1) (1) Policy. The practice of selling certain items of merchandise below cost in order to attract patronage is generally a form of deceptive advertising and an unfair method of competition in commerce. Such practice causes commercial dislocations, misleads the consumer, works back against the farmer, directly burdens and obstructs commerce, and diverts business from dealers who maintain a fair price policy. Bankruptcies among merchants who fail because of the competition of those who use such methods result in unemployment, disruption of leases, and nonpayment of taxes and loans, and contribute to an inevitable train of undesirable consequences, including economic depression.

100.30(2) (2) Definitions. When used in this section unless context otherwise requires:

100.30(2)(a) (a) “Average posted terminal price” means the average posted rack price, as published by a petroleum price reporting service, at which motor vehicle fuel is offered for sale at the close of business on the determination date by all refiners and wholesalers of motor vehicle fuel at a terminal plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale, any cost incurred for transportation and any other charges that are not otherwise included in the average posted rack price. In this paragraph, “average” means the arithmetic mean.

100.30(2)(am) (am)

100.30(2)(am)1. 1. With respect to the sale of cigarettes or other tobacco products, fermented malt beverages or intoxicating liquor or wine, “cost to retailer” means the invoice cost of the merchandise to the retailer within 30 days prior to the date of sale, or replacement cost of the merchandise to the retailer, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise taxes imposed on such merchandise or the sale thereof other than excise taxes collected by the retailer, and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the merchandise as herein set forth, to which shall be added a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be 6 percent of the cost to the retailer as herein set forth.

100.30(2)(am)1m. 1m. With respect to the sale of motor vehicle fuel, “cost to retailer” means the following:

100.30(2)(am)1m.a. a. In the case of the retail sale of motor vehicle fuel by a refiner at a retail station owned or operated either directly or indirectly by the refiner, the refiner’s lowest selling price to other retailers or to wholesalers of motor vehicle fuel on the date of the refiner’s retail sale, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale and any cost incurred for transportation and any other charges not otherwise included in the invoice cost of the motor vehicle fuel, plus a markup of 9.18 percent of that amount to cover a proportionate part of the cost of doing business; or the average posted terminal price at the terminal located closest to the retail station plus a markup of 9.18 percent of the average posted terminal price to cover a proportionate part of the cost of doing business; whichever is greater.

100.30(2)(am)1m.b. b. In the case of the retail sale of motor vehicle fuel by a wholesaler of motor vehicle fuel, who is not a refiner, at a retail station owned or operated either directly or indirectly by the wholesaler of motor vehicle fuel, the invoice cost of the motor vehicle fuel to the wholesaler of motor vehicle fuel within 10 days prior to the date of sale, or the replacement cost of the motor vehicle fuel, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale, and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or replacement cost of the motor vehicle fuel, plus a markup of 9.18 percent of that amount to cover a proportionate part of the cost of doing business; or the average posted terminal price at the terminal located closest to the retail station plus a markup of 9.18 percent of the average posted terminal price to cover a proportionate part of the cost of doing business; whichever is greater.

100.30(2)(am)1m.c. c. In the case of the retail sale of motor vehicle fuel by a person other than a refiner or a wholesaler of motor vehicle fuel at a retail station, the invoice cost of the motor vehicle fuel to the retailer within 10 days prior to the date of sale, or the replacement cost of the motor vehicle fuel, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the motor vehicle fuel, plus a markup of 6 percent of that amount to cover a proportionate part of the cost of doing business; or the average posted terminal price at the terminal located closest to the retailer plus a markup of 9.18 percent of the average posted terminal price to cover a proportionate part of the cost of doing business; whichever is greater.

100.30(2)(am)1m.d. d. In the case of a retail sale of motor vehicle fuel by a refiner at a place other than a retail station, the refiner’s lowest selling price to other retailers or to wholesalers of motor vehicle fuel on the date of the refiner’s retail sale, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale and any cost incurred for transportation and any other charges not otherwise included in the invoice cost of the motor vehicle fuel to which shall be added a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be 3 percent of the cost to the retailer as set forth in this subd. 1m. d.

100.30(2)(am)1m.e. e. In the case of a retail sale of motor vehicle fuel by a person other than a refiner at a place other than a retail station, the invoice cost of the motor vehicle fuel to the retailer within 10 days prior to the date of the sale, or the replacement cost of the motor vehicle fuel, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the motor vehicle fuel to which shall be added a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be 3 percent of the cost to the retailer as set forth in this subd. 1m. e.

100.30(2)(am)2. 2. With respect to the sale of merchandise other than cigarettes or other tobacco products, fermented malt beverages, intoxicating liquor or wine, or motor vehicle fuel, “cost to retailer” means the invoice cost of the merchandise to the retailer, or replacement cost of the merchandise to the retailer, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise taxes imposed on such merchandise or the sale thereof other than excise taxes collected by the retailer, and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the merchandise as herein set forth.

100.30(2)(b) (b) “Cost to retailer” and “cost to wholesaler” as defined in pars. (am) and (c) mean bona fide costs; and purchases made by retailers, wholesalers, wholesalers of motor vehicle fuel and refiners at prices which cannot be justified by prevailing market conditions within this state shall not be used in determining cost to the retailer and cost to the wholesaler. Prices at which purchases of merchandise other than motor vehicle fuel are made by retailers or wholesalers cannot be justified by prevailing market conditions in this state when they are below the lowest prices at which the manufacturer or producer of such merchandise sells to other retailers or wholesalers in this state. Prices at which sales of motor vehicle fuel are made by retailers, wholesalers, wholesalers of motor vehicle fuel and refiners cannot be justified by prevailing market conditions in this state when they are below the applicable cost to retailers and cost to wholesalers specified under pars. (am) and (c).

100.30(2)(c) (c)

100.30(2)(c)1. 1.

100.30(2)(c)1.a. a. With respect to the sale of cigarettes or other tobacco products, fermented malt beverages or intoxicating liquor or wine, “cost to wholesaler” means, except as provided in subd. 1. b., the invoice cost of the merchandise to the wholesaler within 30 days prior to the date of sale, or the replacement cost of the merchandise to the wholesaler, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise taxes imposed on the sale thereof prior to the sale at retail, and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the merchandise as herein set forth, to which shall be added, except for sales at wholesale between wholesalers, a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be 3 percent of the cost to the wholesaler as herein set forth.

100.30(2)(c)1.b. b. For every person holding a permit as a distributor as defined in s. 139.30 (3) or as a multiple retailer as defined in s. 139.30 (8), with respect to that portion of the person’s business which involves the purchase and sale of cigarettes “cost to wholesaler” means the cost charged by the cigarette manufacturer, disregarding any manufacturer’s discount or any discount under s. 139.32 (5), plus the amount of tax imposed under s. 139.31. Except for a sale at wholesale between wholesalers, a markup to cover a proportionate part of the cost of doing business shall be added to the cost to wholesaler. In the absence of proof of a lesser cost, this markup shall be 3 percent of the cost to wholesaler as set forth in this subd. 1. b.

100.30(2)(c)1g. 1g. With respect to the wholesale sale of motor vehicle fuel by a refiner, “cost to wholesaler” means the refiner’s lowest selling price to other retailers or to wholesalers of motor vehicle fuel on the date of the refiner’s wholesale sale, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale and any cost incurred for transportation and any other charges not otherwise included in the invoice cost of the motor vehicle fuel, to which shall be added a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be 3 percent of the cost to the wholesaler as set forth in this subdivision.

100.30(2)(c)1r. 1r. With respect to the wholesale sale of motor vehicle fuel by a person other than a refiner, “cost to wholesaler” means the invoice cost of the motor vehicle fuel to the wholesaler of motor vehicle fuel within 10 days prior to the date of the sale or the replacement cost of the motor vehicle fuel, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the motor vehicle fuel to which shall be added a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be 3 percent of the cost to the wholesaler as set forth in this subdivision.

100.30(2)(c)2. 2. With respect to the sale of merchandise other than cigarettes or other tobacco products, fermented malt beverages, intoxicating liquor or wine, or motor vehicle fuel, “cost to wholesaler” means the invoice cost of the merchandise to the wholesaler, or the replacement cost of the merchandise to the wholesaler, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise taxes imposed on the sale thereof prior to the sale at retail, and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the merchandise as herein set forth.

100.30(2)(cg) (cg)

100.30(2)(cg)1. 1. Except as provided in subd. 2., “determination date” is the day preceding the day of the sale at retail of motor vehicle fuel.

100.30(2)(cg)2. 2. If a retailer sells motor vehicle fuel on a day other than the day on which the retailer last purchased any motor vehicle fuel and the sale of the motor vehicle fuel by the retailer occurs no later than 10 days after its last purchase by the retailer, “determination date” means any of the following dates selected by the retailer:

100.30(2)(cg)2.a. a. The day preceding the day of the sale of motor vehicle fuel by the retailer.

100.30(2)(cg)2.b. b. The day on which motor vehicle fuel was last purchased by the retailer.

100.30(2)(cj) (cj) “Existing price of a competitor” means a price being simultaneously offered to a buyer for merchandise of like quality and quantity by a person who is a direct competitor of the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner and from whom the buyer can practicably purchase the merchandise.

100.30(2)(cL) (cL) “Petroleum price reporting service” means a wholesale petroleum product price reporting service that is recognized nationwide.

100.30(2)(cm) (cm) “Refiner” means a manufacturer, producer or refiner of motor vehicle fuel.

100.30(2)(d) (d) “Replacement cost” means the cost computed as specified in par. (am) or (c) at which the merchandise sold could have been bought by the retailer, wholesaler or wholesaler of motor vehicle fuel at any time if bought in the same quantity as the retailer’s, wholesaler’s or wholesaler of motor vehicle fuel’s last purchase of the said merchandise.

100.30(2)(e) (e) “Retailer” includes every person engaged in the business of making sales at retail within this state, but, in the case of a person engaged in the business of selling both at retail and at wholesale, such term shall be applied only to the retail portion of such business.

100.30(2)(f) (f) With respect to the sale of merchandise other than motor vehicle fuel, “retailer” and “wholesaler” shall both be applied to any merchant who buys merchandise for resale at retail from the manufacturer or producer thereof and to any wholesaler under par. (L) 2. and, as to that merchandise or that wholesaler, the terms “cost to retailer” and “cost to wholesaler” as defined in pars. (am) and (c) shall both be applied, including the markup requirements.

100.30(2)(g) (g) “Sell”, “sale” or “sold” includes any advertising or offer to sell or any transfer of merchandise where title is retained by the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner as security for the payment of the purchase price. In determining the selling price of merchandise by wholesalers, wholesalers of motor vehicle fuel, retailers and refiners under this section, all fractions of a cent shall be carried to the next full cent.

100.30(2)(h) (h) “Sell at retail”, “sales at retail” and “retail sale” mean any transfer for a valuable consideration, made in the ordinary course of trade or in the usual prosecution of the retailer’s business, of title to tangible personal property to the purchaser for consumption or use other than resale or further processing or manufacturing.

100.30(2)(i) (i) “Sell at wholesale”, “sales at wholesale” and “wholesale sales” include any transfer for a valuable consideration made in ordinary course of trade or the usual conduct of the wholesaler’s business, of title to tangible personal property to the purchaser for purposes of resale or further processing or manufacturing.

100.30(2)(j) (j) “Terminal” means a motor vehicle fuel storage and distribution facility that is supplied by a pipeline or marine vessel, from which facility motor vehicle fuel may be removed at a rack and from which facility at least 3 refiners or wholesalers of motor vehicle fuel sell motor vehicle fuel.

100.30(2)(k) (k) In the case of retail sales of alcohol beverages, “trade discount” shall not include discounts in the form of cash or merchandise.

100.30(2)(L) (L) “Wholesaler” includes every person holding a permit as a multiple retailer under s. 139.30 (8) and every person engaged in the business of making sales at wholesale, other than sales of motor vehicle fuel at wholesale, within this state except as follows:

100.30(2)(L)1. 1. In the case of a person engaged in the business of selling both at wholesale and at retail, “wholesaler” applies only to the wholesale portion of that business.

100.30(2)(L)2. 2. In the case of a person holding a permit as a multiple retailer as defined in s. 139.30 (8), “wholesaler” applies to that portion of the person’s business involving the purchase and sale of cigarettes and to any wholesale portion of that person’s business.

100.30(2)(m) (m) “Wholesaler of motor vehicle fuel” includes any of the following:

100.30(2)(m)1. 1. A person who stores motor vehicle fuel and sells it through 5 or more retail outlets that the person owns or operates.

100.30(2)(m)2. 2. A person who acquires motor vehicle fuel from a refiner or as a sale at wholesale and stores it in a bulk storage facility other than a retail station for further sale and distribution.

100.30(2)(m)3. 3. A person engaged in the business of making sales at wholesale of motor vehicle fuel within this state.

100.30(2)(m)4. 4. A person engaged in the business of selling diesel fuel if that person’s sales of diesel fuel accounted for at least 60 percent of that person’s total sales of motor vehicle fuel in the previous year or, if that person did not engage in the business of selling diesel fuel in the previous year, if that person reasonably anticipates that sales of diesel fuel will account for at least 60 percent of that person’s total sales of motor vehicle fuel in the current year.

100.30(2m) (2m) Definitions; construction.

100.30(2m)(a) (a) When one or more items of merchandise are furnished or sold in combination with or on condition of the purchase of one or more other items, or are so advertised, all items shall be included in determining cost under sub. (2) (am) or (c); and if any of the items included therein are separately priced, such separate price shall be subject to the requirements of this section.