Chapter 97

97.12(2)(d)2. 2. The maximum fine under this paragraph equals $10,000 plus the retail value of the product moved, sold or disposed of in violation of the order issued under this section.

97.12(3) (3) 

97.12(3)(a) (a) The department may issue a special order as provided under s. 93.18 to any person engaged in the production, processing, sale or distribution of food if the department finds a violation of this chapter or the rules promulgated under this chapter. An order shall state the violations found and shall specify a fixed period of time for correction. If the department finds that a piece of equipment, a facility or a practice used is a danger to public health, it may order that the situation be abated or eliminated immediately and that the equipment, facility or practice not be used until the violation is corrected and the correction is confirmed by the department. The department may, instead of issuing an order, accept written agreements of voluntary compliance which have the effect of an order.

97.12(3)(b) (b) The department may, by summary order and without prior notice or hearing, suspend a license or permit issued under this chapter if the department finds that there has been a substantial failure to comply with the applicable requirements of this chapter and the rules promulgated under this chapter and that the continuation of the violations constitutes a serious danger to public health. The order shall be in writing, have the force and effect of an order issued under s. 93.18, and is subject to right of hearing before the department, if requested within 10 days after date of service. Hearings, if requested, shall be conducted within 10 days after receipt of a request for a hearing. Enforcement of the order shall not be stayed pending action on the hearing.

97.12(4) (4) Any person who does either of the following may be fined not more than $5,000 or imprisoned not more than one year in the county jail or both:

97.12(4)(a) (a) Assaults, restrains, threatens, intimidates, impedes, interferes with, or otherwise obstructs a department inspector, employee or agent in the performance of his or her duties.

97.12(4)(b) (b) Gives false information to a department inspector, employee or agent with the intent to mislead the inspector, employee or agent in the performance of his or her duties.

97.12(5) (5) Any person who fails to comply with an order issued under this chapter may be required to forfeit $50 for each day of noncompliance.

97.12 History History: 1971 c. 156; 1983 a. 261; 2015 a. 55.

97.12 Cross-reference Cross-reference: See also ch. ATCP 55, Wis. adm. code.

97.12 Annotation A warrantless inspection of a dairy farm under authority of ss. 93.08, 93.15 (2), and 97.12 (1) and related administrative rules made without prior notice and without the owner being present was not unconstitutional. Because the administrative rules govern operations, equipment, and processes not typically conducted in residential areas, the rules and statutes sufficiently preclude making warrantless searches of residences. Lundeen v. DATCP, 189 Wis. 2d 255, 525 N.W.2d 758 (Ct. App. 1994).

97.13 97.13 Sale of fish flour regulated. No person shall sell any food product for human consumption within this state containing whole fish flour, except fish flour made from the normally edible portions of fish or fish protein concentrate. No package containing fish flour or fish protein concentrate shall be sold by any person unless it bears a statement declaring that the contents thereof are made only from the edible portions of fish.

97.17 97.17 Buttermaker and cheesemaker license.

97.17(1) (1) In this section the terms “buttermaker” and “cheesemaker” mean a person employed or who may be employed in a butter or a cheese factory who has charge of and supervision over the actual process of manufacturing butter or cheese, and shall not include a person employed in a butter or cheese factory for the purpose of assisting in the manufacture of such product. This section shall not affect a person making up a product produced on the person’s farm, nor shall it be unlawful for a licensed cheesemaker employed in a licensed cheese factory to make butter or whey cream butter for the use or consumption only of the patrons thereof.

97.17(2) (2) No person shall engage as a buttermaker or cheesemaker unless the person has a license from the department. The license shall be issued by the department under regulations that the department shall prescribe relating to the qualifications of applicants for licenses. The qualifications shall include the applicant’s record in operating and keeping in sanitary condition the butter or cheese factory in which the applicant has been employed.

97.17(3) (3) Application for a buttermaker’s or cheesemaker’s license shall be made upon a form furnished by the department. Upon receipt of the application the department shall issue a permit to the applicant to carry on the work of a buttermaker or cheesemaker. The permit shall have the force and effect of a license to a buttermaker or cheesemaker until a license shall have been issued to the applicant or until the applicant shall have been notified of the denial of the application. At the time that the permit is issued, the department shall furnish the applicant with the regulations incident to securing a license and also suggestions relating to the proper method of operating butter or cheese factories.

97.17(4) (4) Each application for a license shall be accompanied by a fee that is $50 unless otherwise established by department rule, except that an individual who is eligible for the veterans fee waiver program under s. 45.44 is not required to pay a fee.

97.17(6) (6) The license shall expire on the first day of January of the 2nd year commencing after the date of issuance or renewal. Renewal applications shall be submitted on department forms and be accompanied by the biennial license fee under sub. (4).

97.17 History History: 1977 c. 216; 1979 c. 342; 1987 a. 27; 1989 a. 174; 1991 a. 39; 1993 a. 492; 1995 a. 225; 2011 a. 209.

97.17 Cross-reference Cross-reference: See also ch. ATCP 69, Wis. adm. code.

97.175 97.175 Butter and cheese grader license requirements.

97.175(1) (1) In this section and ss. 97.176 and 97.177, “butter grader” or “cheese grader” means a person who grades butter or cheese.

97.175(2) (2) No person may act as a butter grader or a cheese grader without a license granted by the department. A person desiring a license shall apply on a form furnished by the department and shall pay to the department a fee that is $50 unless otherwise established by department rule, except that an individual who is eligible for the veterans fee waiver program under s. 45.44 is not required to pay a fee. Before issuing a license, the department shall require the applicant to demonstrate his or her competence to act as a butter grader or a cheese grader in a manner determined by the department. A license expires on September 30 of the 2nd year commencing after the date of issuance.

97.175(3) (3) Butter graders and cheese graders must act in accordance with the standards and requirements established under ss. 93.07, 97.176 and 97.177.

97.175(4) (4) The department may deny, suspend or revoke a license under this section by an order if the department finds that the applicant or licensee is not qualified to act as a butter grader or cheese grader or that the applicant or licensee has applied inaccurate grades or has obtained the license by fraud, perjury or through error. The department shall notify the applicant or licensee of the order and shall follow the procedures for issuing a special order under s. 93.18.

97.175 History History: 1983 a. 131; 1987 a. 27; 1991 a. 39; 2011 a. 209.

97.176 97.176 Butter; grading; label.

97.176(1) (1) It is unlawful to sell, offer or expose for sale, or have in possession with intent to sell, any butter at retail unless it has been graded. Butter shall be graded as follows:

97.176(1)(a) (a) Grade, Wisconsin, AA — 93 score;

97.176(1)(b) (b) Grade, Wisconsin, A — 92 score;

97.176(1)(c) (c) Grade, Wisconsin, B — 91-90 score;

97.176(1)(d) (d) Grade, Wisconsin, undergrade — all butter below Wisconsin B.

97.176(2) (2) United States AA, A, and B grades shall be accepted in lieu of the corresponding Wisconsin AA, A, and B grades, but all United States grades below B shall, for the purpose of this section, correspond to Wisconsin undergrade.

97.176(3) (3) As used in this section, score or grade means the grading of butter by its examination for flavor and aroma, body and texture, color, salt, package and by the use of other tests or procedures approved by the department for ascertaining the quality of butter in whole or in part.

97.176(4) (4) Details for methods and procedures to be used for ascertaining quality, for labeling, and for arbitrating disputes with respect to grades, shall be developed by the department as a result of public hearings to be held at a convenient location in the state.

97.176(5) (5) Butter from outside of the state sold within the state shall be provided with a label which indicates that it complies with the state grade standards as provided in this section and which indicates the grade in a manner equivalent to the requirements for butter manufactured and sold within the state.

97.176(6) (6) Butter that carries the state grade labels shall be graded by butter graders licensed under s. 97.175.

97.176(7) (7) No person, for himself or herself, or as an agent, shall advertise the sale of any butter at a stated price, unless the grade of the butter is set forth in such advertisement in not less than 10-point type.

97.176 History History: 1977 c. 29 s. 1650m (4); 1983 a. 131 s. 2; Stats. 1983 s. 97.176; 1991 a. 39; 1993 a. 492.

97.176 Cross-reference Cross-reference: See also ch. ATCP 85, Wis. adm. code.

97.176 Annotation Wisconsin’s butter-grading law does not violate the due process clause, the equal protection clause, or the dormant commerce clause. This section is rationally related to the state’s legitimate interest in consumer protection and does not discriminate against out-of-state businesses. Minerva Dairy, Inc. v. Harsdorf, 905 F.3d 1047 (2018).

97.177 97.177 Cheese; grading; labeling.

97.177(1) (1) The department shall by rule adopt standards for grades of cheese manufactured in Wisconsin.

97.177(2) (2) Cheese which carries a state grade must be graded by a cheese grader licensed under s. 97.175 and must conform to the standards for the grade. Graded cheese must be plainly labeled to indicate the grade of the cheese and the license number of the cheese grader.

97.177(3) (3) Cheese manufactured in Wisconsin must be labeled on either the cheese itself or the container at the factory where it is manufactured. The label must remain on the cheese until the cheese is used in a different food manufacturing process or relabeled by the buyer for later sale. The label must contain all of the following:

97.177(3)(a) (a) The type or variety of cheese.

97.177(3)(b) (b) The word Wisconsin or the code number 55.

97.177(3)(c) (c) The factory number designated by the department.

97.177(3)(d) (d) The date of manufacture.

97.177(3)(e) (e) The number of the vat in which the cheese was manufactured if more than one vat of cheese was manufactured in the factory on the same day.

97.177(4) (4) The department may adopt rules for the administration of this section.

97.177 History History: 1983 a. 131.

97.177 Cross-reference Cross-reference: See also ch. ATCP 81, Wis. adm. code.

97.18 97.18 Oleomargarine regulations.

97.18(1) (1) 

97.18(1)(a) (a) For the purposes of this section “oleomargarine” or “margarine” includes oleomargarine, margarine, butterine and other similar substances, fats and fat compounds sufficiently adaptable to the ordinary uses of butter, to lead readily to use as an alternative to butter, but this section shall not apply to lard, cream cheese, cheese food compounds, nor to any other dairy product made exclusively of cow’s milk or milk solids with or without added vitamins, if such product is sold or distributed in such manner and form as will clearly distinguish it from butter. Nor shall this section apply to shortenings not churned or emulsified in milk or cream or having a melting point of 112 degrees Fahrenheit or more as determined by the capillary tube method unless there is sold or given away with such shortening any compound which, when mixed with such shortening, makes oleomargarine, butterine or similar substances.

97.18(1)(b) (b) “Colored oleomargarine” or “colored margarine” is oleomargarine or margarine having a tint or shade containing more than 1 6/10 degrees of yellow or of yellow and red collectively but with an excess of yellow over red, as measured in terms of Lovibond tintometer scales or its equivalent.

97.18(3) (3) No person shall sell, offer or expose for sale at retail any oleomargarine or margarine unless:

97.18(3)(a) (a) Such oleomargarine or margarine is packaged;

97.18(3)(b) (b) The net weight of the contents of any package sold in a retail establishment is one pound;

97.18(3)(c) (c) There appears on the label of the package the word “oleomargarine” or “margarine” in type or lettering at least as large as any other type or lettering on the label in a color of print which clearly contrasts with its background, and a full accurate statement of the ingredients contained in the oleomargarine or margarine; and

97.18(3)(d) (d) Each part of the contents of the package is contained in a wrapper or separate container which bears the word “oleomargarine” or “margarine” in type or lettering not smaller than 20-point type.

97.18(4) (4) The serving of colored oleomargarine or margarine at a public eating place as a substitute for table butter is prohibited unless it is ordered by the customer.

97.18(5) (5) The serving of oleomargarine or margarine to students, patients or inmates of any state institutions as a substitute for table butter is prohibited, except that such substitution may be ordered by the institution superintendent when necessary for the health of a specific patient or inmate, if directed by the physician in charge of the patient or inmate.

97.18(6) (6) Any person who violates any provision of this section may be fined not less than $100 nor more than $500 or imprisoned not more than 3 months or both; and for each subsequent offense may be fined not less than $500 nor more than $1,000 or imprisoned in the county jail not less than 6 months nor more than one year.

97.18 History History: 1971 c. 125; 1973 c. 90; 1975 c. 41; 1977 c. 289 ss. 3m, 11; Stats. 1977 s. 97.18; 1995 a. 27 s. 9126 (19); 1995 a. 225; 1997 a. 35; 2007 a. 20 s. 9121 (6) (a); 2013 a. 374; 2015 a. 55, 242.

97.20 97.20 Dairy plants.

97.20(1) (1) Definitions. In this section:

97.20(1)(a) (a) “Dairy plant” means a processing plant, receiving station, or transfer station.

97.20(1)(b) (b) “Dairy product” means any of the following:

97.20(1)(b)1. 1. Milk or any product or by-product derived solely from milk.

97.20(1)(b)2. 2. Hooved or camelid mammals’ milk or any product or by-product derived solely from hooved or camelid mammals’ milk.

97.20(1)(b)3. 3. An item that meets a definition or standard of identity under 21 CFR 131, 133, 135.3 to 135.140, or 184.1979 or under 21 USC 321a or 321c.

97.20(1)(b)4. 4. An item that fails to meet a definition or standard of identity specified in subd. 3. solely because the item contains hooved or camelid mammals’ milk or milk from goats or sheep instead of or in addition to milk from cows.

97.20(1)(b)5. 5. A product that is ready to eat, sell, distribute, or market and that is made solely of 2 or more of the items under subds. 1. to 4.

97.20(1)(c) (c) “Fluid milk product” has the meaning given under s. 97.24 (1) (ar).

97.20(1)(d) (d) “Grade A dairy plant” means a dairy plant required to hold a permit under sub. (3).

97.20(1)(e) (e) “Grade A milk” has the meaning given under s. 97.24 (1) (b).

97.20(1)(f) (f) “Grade A milk product” has the meaning given under s. 97.24 (1) (c).

97.20(1)(fg) (fg) “Hooved or camelid mammal” includes water buffalo, yaks, and other bovine species; camels, llamas, alpacas, and other camelid species; and horses, donkeys, and other equine species.

97.20(1)(fm) (fm) “Hooved or camelid mammals’ milk” means the lacteal secretion, practically free of colostrum, obtained by the complete milking of one or more healthy hooved or camelid mammals.

97.20(1)(gm) (gm) “Milk producer” has the meaning given in s. 97.22 (1) (f).

97.20(1)(h) (h) “Processing plant” means a facility engaged in pasteurizing or manufacturing dairy products, or processing dairy products into other dairy products, for sale or distribution.

97.20(1)(i) (i) “Receiving station” means a facility which is designed for the receipt and bulk storage of milk, and which is used to receive or store milk in bulk. “Receiving station” does not include a processing plant or a facility used to distribute pasteurized milk in bottled or packaged form to consumers.

97.20(1)(j) (j) “Transfer station” means a facility which is designed and used solely to transfer milk from one bulk transport vehicle to another without intervening storage.

97.20(2) (2) Dairy plant license.

97.20(2)(a) (a) License requirement. Except as provided in par. (e), no person, including this state, may operate a dairy plant without a valid license issued by the department for that dairy plant. A dairy plant license expires on April 30 annually, except that a license issued for a new dairy plant on or after January 30 but before May 1 expires on April 30 of the following year. A dairy plant license is not transferable between persons or locations.

97.20(2)(b) (b) License application. An application for a dairy plant license shall be made on a form provided by the department and shall be accompanied by each applicable fee required under subs. (2c) and (2n) to (2w). The application shall include all information reasonably required by the department for purposes of licensing. The application shall state whether the dairy plant is a processing plant, receiving station or transfer station, and shall describe the nature of any processing operations conducted at the dairy plant.

97.20(2)(d) (d) Issuance or renewal of license. The department may not issue or renew a dairy plant license unless all of the following conditions are met prior to licensing: