Chapter 100

100.37(1m)(b)8. 8. Instability of the article.

100.37(1m)(b)9. 9. Any other aspect of the article’s design or manufacture including the capability of producing sounds at a level of 138 decibels or higher.

100.37(1m)(c) (c) An article may be determined to present a thermal hazard if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture presents an unreasonable risk of personal injury or illness because of heat as from heated parts, substances or surfaces.

100.37(2) (2) 

100.37(2)(a) (a) Whenever in the judgment of the department such action will promote the objectives of this section by avoiding or resolving uncertainty as to its application, the department may by rule declare to be a hazardous substance, for the purposes of this section, any substance or mixture of substances which it finds meets the requirements of sub. (1) (c) 1.

100.37(2)(b) (b) If the department finds that the requirements of this section are not adequate for the protection of the public health and safety in view of the special hazards presented by any particular hazardous substance, it may by rule establish such reasonable variations or additional requirements as it finds necessary for the protection of the public health and safety.

100.37(2)(c) (c) If the department finds that, because of the size of the package involved or because of the minor hazard presented by the substance contained therein, or for other good and sufficient reasons, full compliance with the labeling requirements otherwise applicable under this section is impracticable or is not necessary for the adequate protection of the public health and safety, it may exempt such substances from these requirements to the extent it determines to be consistent with adequate protection of the public health and safety.

100.37(2)(d) (d) The department may by rule prohibit the sale of a hazardous substance if it finds that notwithstanding cautionary labeling that is or may be required the degree or nature of the hazard involved in the presence or use of such substance is such that the public health and safety can only be protected by keeping such substance out of the channels of commerce in this state.

100.37(2)(e) (e)

100.37(2)(e)1. 1. The department may summarily ban the sale or distribution of any hazardous substance or article if it finds that the hazard to public health or safety is so great that such hazard should not be permitted to continue. The department shall follow the procedure specified in s. 93.18 (3).

100.37(2)(e)2. 2. In addition to subd. 1. and except as provided in subd. 3., all of the following are hazardous substances, possess such a degree of hazard that adequate cautionary labeling cannot be written and may not be sold or distributed:

100.37(2)(e)2.a. a. Propyl nitrite, isopropyl nitrite and mixtures containing propyl nitrite or isopropyl nitrite.

100.37(2)(e)2.b. b. The nitrous acid esters of all alcohols having the formula of 5 carbon atoms, 12 hydrogen atoms and one oxygen atom including 1-pentyl nitrite, 2-pentyl nitrite, 3-pentyl nitrite, 2-methyl-1-butyl nitrite, 3-methyl-1-butyl nitrite (also known as isoamyl nitrite or isopentyl nitrite), 2-methyl-2-butyl nitrite (also known as tertiary pentyl nitrite), 3-methyl-2-butyl nitrite, 2, 2-dimethylpropyl nitrite (also known as neopentyl nitrite) and mixtures containing more than 5 percent of 1-pentyl nitrite, 2-pentyl nitrite, 3-pentyl nitrite, 2-methyl-1-butyl nitrite, 3-methyl-1-butyl nitrite, 2-methyl-2-butyl nitrite, 3-methyl-2-butyl nitrite or 2, 2-dimethyl nitrite.

100.37(2)(e)2.c. c. Ethyl chloride and ethyl nitrite.

100.37(2)(e)2.d. d. Any toy containing elemental mercury.

100.37(2)(e)3. 3. Subdivisions 1. and 2. do not apply to the sale or distribution of isoamyl nitrite (3-methyl-1-butyl nitrite) or ethyl chloride as prescription drugs obtained from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of professional practice.

100.37(2)(f) (f) The department may by rule prescribe the methods of sale of hazardous substances, including but not limited to glues, cements and hobby kit fuels, and may regulate the manner of display and restrict access by the general public to hazardous substances.

100.37(2)(g) (g) The department may by rule prescribe package safety standards, including type of package material and safety closures for hazardous substances and pesticides, and may prohibit the sale of noncomplying or defective packages.

100.37(2)(h) (h) The department may by rule limit or ban the use of any ingredient or combination of ingredients in any hazardous substance if it finds such action necessary to adequately protect the public health and safety.

100.37(3) (3) The following acts and the causing thereof are prohibited:

100.37(3)(a) (a) The sale, or offering or exposing for sale of any misbranded package of a hazardous substance.

100.37(3)(b) (b) The alteration, mutilation, destruction, obliteration or removal of the whole or any part of the label of, or the doing of any other act with respect to, a hazardous substance, if such act is done while the substance is held for sale, and results in the hazardous substance being in a misbranded package.

100.37(3)(c) (c) The sale, or offering or exposing for sale of a hazardous substance in a reused food, drug or cosmetic container or in a container which, though not a reused container, is identifiable as a food, drug or cosmetic container by its labeling or by other identification. The reuse of a food, drug or cosmetic container as a container for a hazardous substance shall be deemed to be an act which results in the hazardous substance being in a misbranded package.

100.37(3)(d) (d) The sale or offering for sale of any hazardous substance contrary to this section or to any rule or order of the department issued under this section.

100.37(3)(e) (e) The sale or offering for sale, in violation of this section, of any article or substance which is a hazardous substance within the meaning of this section or the federal hazardous substances act (15 USC 1261 et seq).

100.37(4) (4) The department may apply to any court of competent jurisdiction for a temporary or permanent injunction restraining any person from violating sub. (3); irrespective of whether or not there exists an adequate remedy at law.

100.37(5) (5) If the department has reasonable cause to believe that any substance is in violation of this section or poses an imminent hazard to public health or safety, it may deliver to the owner or custodian thereof an order prohibiting the sale or movement of such substance until an analysis or examination has been completed. Such holding order is not effective for more than 14 days from the time of delivery thereof. The substance described in any such holding order may not be sold or moved for any purpose without the approval of the department. If the department, after analysis or examination, determines that the substance described in such order is not in violation of this section, it shall promptly notify the owner or custodian thereof and such notice shall terminate the holding order. If the analysis or examination shows that the substance is in violation of this section, the owner or custodian thereof shall be so notified in writing within the effective time of the holding order. Upon receipt of such notice the owner or custodian may dispose of the substance only as authorized by the department. The owner or custodian of the substance or article may within 10 days of receipt of such notice petition for a hearing as provided in s. 93.18.

100.37(6) (6) Nothing in this section shall affect the application of any law of this state specifically regulating any substance regulated by this section.

100.37(7) (7) Any manufacturer, distributor or retailer of a misbranded or banned package containing a hazardous substance shall, on demand of any person purchasing such products from it, if the package is misbranded at the time of sale or banned, repurchase such product and refund the full purchase price thereof to the purchaser making the demand for refund. If the purchaser is required to return the product to the manufacturer, distributor or retailer as a condition to the repurchase and refund, the purchaser shall be reimbursed for any reasonable and necessary charges incurred in its return.

100.37(8) (8) Whoever violates this section may be fined not more than $5,000 or imprisoned not more than one year in the county jail or both.

100.37 History History: 1975 c. 94 s. 91 (10); 1975 c. 117; 1983 a. 189 ss. 140, 141, 329 (20); 1991 a. 39; 1993 a. 34; 1995 a. 225, 448.

100.37 Cross-reference Cross-reference: See also ch. ATCP 139, Wis. adm. code.

100.37 Annotation Federal Preemption—The Consumer Product Safety Act of 1976 and Its Effect on Wisconsin Law. Gross. 1977 WLR 813.

100.38 100.38 Antifreeze.

100.38(1) (1) Definition. “Antifreeze” includes all substances intended for use as the cooling medium, or to be added to the cooling liquid, in the cooling system of internal combustion engines in order to prevent freezing of the cooling liquid, or to lower its freezing point.

100.38(2) (2) Adulteration. An antifreeze is adulterated if:

100.38(2)(a) (a) It consists in whole or in part of any substance which will render it injurious to the cooling system of an internal combustion engine; or

100.38(2)(b) (b) It will make the operation of an engine dangerous to the user; or

100.38(2)(c) (c) Its strength, quality or purity falls below the standards represented.

100.38(3) (3) Misbranding. An antifreeze shall be deemed to be misbranded if:

100.38(3)(a) (a) Its labeling is false or misleading in any particular; or

100.38(3)(b) (b) When in package form it does not bear a label containing the name and place of business of the manufacturer, packer, seller or distributor, together with an accurate statement of the quantity of the content in terms of weight and measure on the outside of the package; or

100.38(3)(c) (c) It does not bear a statement warning of any hazard of substantial injury to human beings which may result from the intended use or reasonably foreseeable misuse of the antifreeze, and which complies with the requirements of s. 100.37.

100.38(5) (5) Inspection. The department shall enforce this section by inspection, chemical analyses or any other appropriate method and the department may promulgate such rules as are necessary to effectively enforce this section.

100.38(6) (6) Enforcement. It is unlawful to sell any antifreeze which is adulterated or misbranded. In addition to the penalties provided under sub. (7), the department may bring an action to enjoin violations of this section.

100.38(7) (7) Penalty. Any person violating this section may be fined not less than $50 or not more than $500 for each offense.

100.38 History History: 1971 c. 40 s. 93; 1979 c. 89, 342.

100.38 Cross-reference Cross-reference: See also ch. ATCP 139, Wis. adm. code.

100.383 100.383 Antifreeze; bittering required.

100.383(1) (1) Any engine coolant or antifreeze that is sold within this state and that contains more than 10 percent ethylene glycol, shall contain, as a bittering agent, denatonium benzoate in a concentration of not less than 30 parts per million nor more than 50 parts per million.

100.383(2) (2) A manufacturer of an engine coolant or antifreeze described in sub. (1) shall maintain a record of the trade name, scientific name, and active ingredients of any bittering agent used in the engine coolant or antifreeze, and shall make the record available to the public upon request.

100.383(3) (3) Notwithstanding s. 100.38, a manufacturer, processor, distributor, recycler, or seller of an engine coolant or antifreeze that is described in sub. (1) is not liable to any person for any personal injury, death, property damage, environmental damage, including damage to natural resources, or economic loss caused by the inclusion of denatonium benzoate in the engine coolant or antifreeze, if the denatonium benzoate is present in a concentration required in sub. (1).

100.383(4) (4) This section does not apply to the sale of a motor vehicle that contains engine coolant or antifreeze or to antifreeze sold in containers with a capacity of 55 gallons or more.

100.383(5) (5) A person who violates this section may be imprisoned in the county jail for not more than 90 days or fined not more than $1,500 or both.

100.383 History History: 2009 a. 381.

100.41 100.41 Flammable fabrics.

100.41(1) (1) Definitions. In this section:

100.41(1)(a) (a) “Article of wearing apparel” means any costume or article of clothing worn or designed to be worn by individuals.

100.41(1)(b) (b) “Clear and present hazard” means a hazard found by the department to constitute a demonstrable danger to human safety, life or property.

100.41(1)(c) (c) “Fabric” means any material woven, knitted, felted or otherwise produced from or in combination with any natural or synthetic fiber, film or substitute therefor which is manufactured or designed for use and may reasonably be expected to be used in any product or to cover any product.

100.41(1)(d) (d) “Federal act” means the federal flammable fabrics act, 15 USC 1191 et seq.

100.41(1)(e) (e) “Furnishing” means any type of furnishing made in whole or in part of fabric or related material and which is manufactured or designed for use and may reasonably be expected to be used in or around homes, offices or other places of assembly or accommodation.

100.41(1)(f) (f) “Product” means any article of wearing apparel, fabric or furnishing, including tents, awnings and knapsacks.

100.41(1)(g) (g) “Related material” means paper, plastic, rubber, synthetic film or synthetic foam which is manufactured or designed for use or which may reasonably be expected to be used in or on any product.

100.41(2) (2) Standards of flammability. The department may by rule prescribe standards of flammability that have been promulgated pursuant to the federal act.

100.41(3) (3) Prohibited acts. No person may manufacture for sale, sell or offer for sale in this state any furnishing, product, fabric or related material in violation of this section or of any standards or rules adopted by the department under this section, or which fails to conform with applicable standards under the federal act.

100.41(4) (4) Rules. In addition to standards of flammability, the department may by rule prescribe labeling requirements that have been established by rules promulgated pursuant to the federal act, and may ban the sale of any product or material if it finds that its flammability is such as to constitute a clear and present hazard to personal safety or property.

100.41(5) (5) Removal from sale. The department may summarily ban the sale or distribution of any furnishing, fabric, product or related material if it finds that the hazard of flammability is so great that such hazard should not be permitted to continue prior to the time a hearing can be held. The department shall follow the procedure specified in s. 93.18 (3).

100.41 History History: 1975 c. 117.

100.42 100.42 Product safety.

100.42(1) (1) Definitions. In this section:

100.42(1)(a) (a) “Aircraft” has the meaning given under s. 114.002 (3).

100.42(1)(b) (b) “Boat” has the meaning given under s. 30.50 (2).

100.42(1)(c) (c) “Consumer product” means any article, or component part thereof, produced or distributed for sale, or sold to consumers for personal use, consumption or enjoyment in or around the home, or for recreational or other purposes; but does not include bullets or other ammunition, or gun powder for reloading ammunition, motor vehicles or motor vehicle equipment, aircraft or aircraft equipment, boats or marine equipment, pesticides, hazardous substances, food and drugs, including animal feeds and drugs, or other products to the extent that they are regulated under other state or federal laws, or the state is specifically preempted from further regulation under federal law.

100.42(1)(d) (d) “Drug” has the meaning given under s. 450.01 (10).

100.42(1)(e) (e) “Federal act” means the federal consumer product safety act, 15 USC 2051 et seq.

100.42(1)(f) (f) “Food” has the meaning given under s. 97.01 (6).

100.42(1)(g) (g) “Labeling” means all labels and other written, printed or graphic matter on or attached to or accompanying any consumer product.

100.42(1)(h) (h) “Motor vehicle” has the meaning given under s. 340.01 (35).

100.42(1)(i) (i) “Pesticide” has the meaning given under s. 94.67 (25).

100.42(2) (2) Safety standards. The department may by rule adopt consumer product safety standards that have been promulgated pursuant to the federal act.

100.42(3) (3) Removal from sale: repair or replacement.

100.42(3)(a) (a) The department may summarily ban the sale of any consumer product manufactured, sold or distributed in violation of this section or any rule adopted under this section, or which presents an unreasonable risk of injury or imminent hazard to the public health, welfare and safety. Any such product may be summarily banned notwithstanding the existence of applicable safety standards or action taken toward the development or adoption of a standard. The department shall follow the procedure specified in s. 93.18 (3).

100.42(3)(b) (b) If the department determines that a product presents a substantial hazard or risk of injury, the department may, after notice and opportunity for hearing under s. 93.18, order the manufacturer, distributor or retailer of such product:

100.42(3)(b)1. 1. To bring such product into compliance with requirements of applicable consumer product safety standards, to recall such product or to repair any defects in products which have been sold;

100.42(3)(b)2. 2. To replace such product with a like or equivalent product which complies with applicable consumer product safety standards or which does not contain the defect; or

100.42(3)(b)3. 3. To refund the purchase price of the product.

100.42(4) (4) Prohibited acts; enforcement. No person may manufacture, sell or distribute for sale any consumer product which is not in compliance with applicable consumer product safety standards under the federal act or rules of the department, or which has been banned as a hazardous product or ordered from sale by the department. No person may fail or refuse to comply with an order under sub. (3) (b) or any other rule or order under this section. In addition to other penalties and enforcement procedures, the department may apply to any court of competent jurisdiction for a temporary or permanent injunction restraining any person from violating this section or rules adopted under this section.

100.42(5) (5) Exemptions. Except with respect to a consumer product which is the subject of a temporary or permanent injunction or an order of the department banning its manufacture, sale or distribution, sub. (4) does not apply to any person who holds a certificate issued in accordance with section 14 (a) of the federal act to the effect that such consumer product conforms to all applicable consumer product safety standards under such act, unless such person knows that such consumer product does not conform; or to any person who relies in good faith on the representation of the manufacturer or distributor of such product that the product is not subject to an applicable safety standard under the federal act.