Chapter 100

100.30(6)(d) (d) No retailer or wholesaler may claim the exemption under par. (a) 7. if that wholesaler or retailer holds a permit under subch. II of ch. 139.

100.30(7) (7) Notification requirements.

100.30(7)(a) (a) If a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner lowers in good faith the price of motor vehicle fuel below the applicable price specified under sub. (2) (am) 1m. to meet an existing price of a competitor, the person shall submit to the department notification of the lower price before the close of business on the day on which the price was lowered in the form and the manner required by the department.

100.30(7)(b) (b) Failure to comply with par. (a) creates a rebuttable presumption that the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner did not lower the price to meet the existing price of a competitor.

100.30(7)(c) (c) If a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner complies with par. (a), all of the following apply:

100.30(7)(c)1. 1. The department may not proceed under sub. (5) against the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner.

100.30(7)(c)2. 2. The retailer, wholesaler, wholesaler of motor vehicle fuel or refiner is immune from liability under sub. (5m).

100.30 History History: 1973 c. 310; 1979 c. 34 ss. 950o to 950y, 2102 (3) (a); 1979 c. 176, 221; 1981 c. 79 s. 17; 1983 a. 189 ss. 136 to 138, 329 (20); 1983 a. 466; 1985 a. 313, 332; 1987 a. 175; 1993 a. 16; 1997 a. 55; 2001 a. 16.

100.30 Cross-reference Cross-reference: See also s. ATCP 105.01, Wis. adm. code.

100.30 Annotation The state constitution protects the right to a trial by jury for a civil suit brought under this section. Village Food & Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177, 00-2493.

100.30 Annotation The only reasonable construction of “terminal closest to the retailer” under sub. (2) (am) 1m. c. is the terminal closest to the location where the retail sale occurs, not the corporate headquarters of the seller. Gross v. Woodman’s Food Market, Inc., 2002 WI App 295, 259 Wis. 2d 181, 655 N.W.2d 718, 01-1746.

100.30 Annotation Sub. (3) prohibits a sale at less than statutory cost if the seller had either an intent proscribed by the statute or the sale had an effect proscribed by the statute. Gross v. Woodman’s Food Market, Inc., 2002 WI App 295, 259 Wis. 2d 181, 655 N.W.2d 718, 01-1746.

100.30 Annotation This section is not so vague that it constitutes a denial of due process. That a seller may be penalized even if the seller lacks the intent to violate the section does not violate due process. Gross v. Woodman’s Food Market, Inc., 2002 WI App 295, 259 Wis. 2d 181, 655 N.W.2d 718, 01-1746.

100.30 Annotation There is no requirement in sub. (7) that a retailer must conduct a price survey within any particular time period. The Department of Agriculture, Trade and Consumer Protection by rule recommends that sellers maintain daily price surveys, but the department does not require or even recommend a survey every 24 hours. 22 Shawano, LLC v. Dr. R.C. Samanta Roy Institute of Science & Technology, Inc., 2006 WI App 14, 289 Wis. 2d 196, 709 N.W.2d 98, 05-0427.

100.30 Annotation “Competitor” in the phrase “existing price of a competitor” in sub. (2) (cj) is not limited to competitors located in Wisconsin. Go America L.L.C. v. Kwik Trip, Inc., 2006 WI App 94, 292 Wis. 2d 795, 715 N.W.2d 746, 05-1512.

100.30 Annotation Sub. (2) (Lm) [now sub. (2) (k)] qualifies the term “trade discount” in determining “cost to retailer” under sub. (2) (a) for sales of fermented malt beverages and intoxicating liquors. Sub. (2) (Lm) [now sub. (2) (k)] is not a catchall prohibition against all trade discounts and does not apply to bona fide quantity discounts. 63 Atty. Gen. 516.

100.30 Annotation This section does not violate federal antitrust laws or constitutional due process. 77 Atty. Gen. 163.

100.30 Annotation This section was not unconstitutional as applied to a cigarette wholesaler licensed under s. 139.30 (3). Eby -Brown Co. v. DATCP, 295 F.3d 749 (2002).

100.30 Annotation The minimum markup provisions are not preempted by the federal Sherman Antitrust Act and are enforceable. Flying J, Inc. v. Van Hollen, 621 F.3d 658 (2010).

100.30 Annotation Wisconsin’s Unfair Sales Act—Unfair to Whom? Waxman. 66 MLR 293 (1983).

100.305 100.305 Prohibited selling practices during periods of abnormal economic disruption.

100.305(1) (1) Definitions. In this section:

100.305(1)(a) (a) “Consumer goods or services” means goods or services that are used primarily for personal, family, or household purposes.

100.305(1)(b) (b) “Emergency” includes any of the following:

100.305(1)(b)1. 1. A tornado, flood, fire, storm, or other destructive act of nature.

100.305(1)(b)2. 2. A disruption of energy supplies to the degree that a serious risk is posed to the economic well-being, health, or welfare of the public.

100.305(1)(b)3. 3. Hostile action.

100.305(1)(b)4. 4. A strike or civil disorder.

100.305(1)(c) (c) “Hostile action” means an act of violence against a person or property in the United States by a foreign power or by a foreign or domestic terrorist.

100.305(1)(d) (d) “Period of abnormal economic disruption” means a period of time during which normal business transactions in the state or a part of the state are disrupted, or are threatened to be disrupted, due to an emergency.

100.305(1)(e) (e) “Seller” means a manufacturer, producer, supplier, wholesaler, distributor, or retailer.

100.305(2) (2) Prohibition. No seller may sell, or offer to sell, in this state at wholesale or at retail, consumer goods or services at unreasonably excessive prices if the governor, by executive order, has certified that the state or a part of the state is in a period of abnormal economic disruption.

100.305(3) (3) Rules. The department shall promulgate rules to establish formulas or other standards to be used in determining whether a wholesale or retail price is unreasonably excessive.

100.305(4m) (4m) Enforcement; penalty. If a seller violates sub. (2), the department or, after consulting with the department, the department of justice, may do any of the following:

100.305(4m)(a) (a) Issue to the seller a warning notice specifying the action that the seller is required to take in order not to be in violation of sub. (2).

100.305(4m)(b) (b) Commence an action against the seller in the name of the state to recover a civil forfeiture of not more $10,000 or to temporarily or permanently restrain or enjoin the seller from violating sub. (2), or both.

100.305 History History: 2005 a. 450.

100.305 Cross-reference Cross-reference: See also ch. ATCP 106, Wis. adm. code.

100.307 100.307 Returns during emergency; prohibition.

100.307(1) (1) Definitions. In this section:

100.307(1)(a) (a) “Food product” has the meaning given in s. 93.01 (6).

100.307(1)(b) (b) “Personal care product” has the meaning given in s. 299.50 (1) (b).

100.307(2) (2) Certain returns prohibited during emergency. Except as provided in sub. (3), no person who sells food products, personal care products, cleaning products, or paper products at retail may accept a return of a food product, personal care product, cleaning product, or paper product during the public health emergency declared on March 12, 2020, by executive order 72, or during the 30 days immediately after the public health emergency ends.

100.307(3) (3) Exceptions. A person who sells food products, personal care products, cleaning products, or paper products at retail may accept a return of a food product, personal care product, cleaning product, or paper product if any of the following applies:

100.307(3)(a) (a) The product is returned no more than 7 days after purchase.

100.307(3)(b) (b) The product is adulterated within the meaning of s. 97.02 or defective as a result of a production error or defect.

100.307(4) (4) Other returns allowed. A retailer may accept a return of a product that is not prohibited by sub. (2).

100.307 History History: 2019 a. 185.

100.31 100.31 Unfair discrimination in drug pricing.

100.31(1) (1) Definitions. In this section:

100.31(1)(a) (a) “Drug” means any substance subject to 21 USC 353 (b).

100.31(1)(b) (b) “Purchaser” means any person who engages primarily in selling drugs directly to consumers.

100.31(1)(c) (c) “Seller” means any person who trades in drugs for resale to purchasers in this state.

100.31(2) (2) Price discrimination prohibited. Every seller shall offer drugs from the list of therapeutically equivalent drugs published by the federal food and drug administration to every purchaser in this state, with all rights and privileges offered or accorded by the seller to the most favored purchaser, including purchase prices for similar volume purchases, rebates, free merchandise, samples and similar trade concessions. Nothing in this subsection prohibits the giving of a discount for volume purchases.

100.31(3) (3) Treble damages. Any purchaser damaged by violation of this section may bring an action against the seller to recover treble damages sustained by reason of such violation.

100.31(4) (4) Penalties. For any violation of this section, the department or a district attorney may commence an action on behalf of the state to recover a forfeiture of not less than $100 nor more than $10,000 for each offense. Each delivery of a drug sold to a purchaser at a price in violation of this section and each separate day in violation of an injunction issued under this section is a separate offense.

100.31(5) (5) Special remedies. The department or a district attorney may bring an action to enjoin a violation of this section without being compelled to allege or prove that an adequate remedy at law does not exist. An action under this subsection may be commenced and prosecuted by the department or a district attorney, in the name of the state, in a circuit court in the county where the offense occurred or in Dane County, notwithstanding s. 801.50.

100.31 History History: 1975 c. 168, 421, 422; 1983 a. 188, 189; 1993 a. 352.

100.31 Annotation State and local units of government are not “purchasers” under sub. (1), and sellers of drugs are not prohibited from offering or according to them pricing arrangements that are not made available to other purchasers. 65 Atty. Gen. 59.

100.31 Annotation “Most favored purchaser” under sub. (2) does not refer to purchasers outside Wisconsin. The constitutionality of this statute is upheld. K-S Pharmacies, Inc. v. American Home Products Corp., 962 F.2d 728 (1992).

100.313 100.313 Solicitation of a fee for providing a public record.

100.313(1) (1) In this section:

100.313(1)(a) (a) “Local unit of government” means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, or a combination or subunit of any of the foregoing.

100.313(1)(b) (b) “Record” means any material on which written, drawn, printed, spoken, visual, or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by a local unit of government or a state agency.

100.313(1)(c) (c) “Solicit” means to directly advertise or market through writing or graphics and via mail, telefax, or electronic mail to an individually identified person, residence, or business location. “Solicit” does not include any of the following:

100.313(1)(c)1. 1. Communicating through a mass advertisement, including a catalog, a radio or television broadcast, or a website.

100.313(1)(c)2. 2. Communicating via telephone, mail, or electronic communication, if initiated by the consumer.

100.313(1)(c)3. 3. Advertising and marketing to those with whom the solicitor has a preexisting business relationship.

100.313(1)(d) (d) “State agency” means any office, department, or independent agency in the executive branch of Wisconsin state government, the legislature, and the courts.

100.313(2) (2) A business or individual soliciting a fee for providing a copy of a record shall state on the top of the document used for the solicitation, in at least 24-point type, all of the following:

100.313(2)(a) (a) That the solicitation is not from a state agency or local unit of government.

100.313(2)(b) (b) That no action is legally required by the person being solicited.

100.313(2)(c) (c) The fee for, or the cost of, obtaining a copy of the record from the state agency or local unit of government that has custody of the record.

100.313(2)(d) (d) The information necessary to contact the state agency or local unit of government that has custody of the record.

100.313(2)(e) (e) The name and physical address of the business or individual soliciting the fee.

100.313(4) (4) The document used for a solicitation under this section may not be in a form or use deadline dates or other language that makes the document appear to be a document issued by a state agency or local unit of government or that appears to impose a legal duty on the person being solicited. The department may promulgate rules specifying the contents and form of the solicitation document.

100.313(5) (5) A business or individual soliciting a fee for providing a copy of a record may not charge a fee of more than 4 times the amount charged by the state agency or local unit of government that has custody of the record for a copy of the same record.

100.313(6) (6) A business or individual soliciting a fee from property owners for providing a copy of a deed shall furnish the office of the register of deeds of each county where the solicitations are to be distributed with a copy of the document that will be used for those solicitations not less than 15 days before distributing the solicitations.

100.313(7) (7) The department may investigate violations of this section. The department may bring an action or request that the department of justice or a district attorney bring an action against any person who violates this section. The court may order the person who violates this section to refund all of the moneys paid to the violator and to forfeit, for a first violation, not more than $100 for each solicitation document distributed in violation of this section, and not more than $200 for each solicitation document distributed in violation of this section subsequent to the first violation.

100.313(8) (8) This section does not apply to a title insurance company authorized to do business in this state or its authorized agent.

100.313 History History: 2013 a. 247.

100.315 100.315 Solicitation of contract using check or money order.

100.315(1) (1) In this section, “check” means any check, draft, money order, traveler’s check, personal money order, or other instrument for the transmission or payment of money.

100.315(2) (2) 

100.315(2)(a) (a) Except as provided in par. (b), no person may solicit the purchase of goods or services by delivering to a recipient in this state a document that is or appears to be a check payable to the recipient, if the endorsement of the document purports to bind the recipient to purchasing goods or services and the recipient did not request the delivery of the document.

100.315(2)(b) (b) A person may offer an extension of credit by delivering to a recipient in this state a document described in par. (a) only if all of the following apply:

100.315(2)(b)1. 1. The document contains, on its face, both of the following:

100.315(2)(b)1.a. a. In at least 24-point type, a statement in substantially the following form: “THIS IS A SOLICITATION FOR A LOAN. READ THE ATTACHED DISCLOSURES BEFORE SIGNING THIS AGREEMENT.”

100.315(2)(b)1.b. b. In at least 10-point type, a statement in substantially the following form: “By endorsing the back of this check, you accept our offer and agree to the terms of your loan agreement contained in the disclosure statement attached to this check.”