Chapter 995

995.15(2) (2) No later than July 1, 2025, and annually thereafter, every manufacturer of electronic vaping devices that are sold in this state, either directly by the manufacturer or through a distributor, wholesaler, retailer, or similar intermediary, shall certify to the department, on a form and in the manner prescribed by the department, that the manufacturer shall comply with this section and that either of the following apply:

995.15(2)(a) (a) The manufacturer has received a marketing authorization or similar order for the electronic vaping device from the U.S. food and drug administration pursuant to 21 USC 387j.

995.15(2)(b) (b) The electronic vaping device was marketed in the United States as of August 8, 2016, the manufacturer submitted a pre-market tobacco product application for the electronic vaping device to the U.S. food and drug administration pursuant to 21 USC 387j on or before September 9, 2020, and either the application remains under review by the U.S. food and drug administration or a final decision on the application has not otherwise taken effect.

995.15(3) (3) At the time a manufacturer of electronic vaping devices submits the form under sub. (2), a manufacturer of electronic vaping devices shall submit, in the manner prescribed by the department, a form that separately lists each of the manufacturer’s electronic vaping devices that are available for sale in this state. The manufacturer shall submit with the form, and in each year thereafter, a payment equal to the number of devices listed on the form, multiplied by $500.

995.15(4) (4) The submissions to the department under subs. (2) and (3) shall include a copy of the marketing authorization or similar order for the electronic vaping device issued by the U.S. food and drug administration pursuant to 21 USC 387j, as provided under sub. (2) (a), or evidence that the pre-market tobacco product application for the electronic vaping device was submitted to the U.S. food and drug administration, as provided under sub. (2) (b), and a final decision on the application has not otherwise taken effect.

995.15(5) (5) A manufacturer that is required to submit a certification form under this section shall notify the department within 30 days of any material change to the information contained in the certification form, including the issuance or denial of a marketing authorization or similar order by the U.S. food and drug administration pursuant to 21 USC 387j, as provided under sub. (2) (a), or any other order or action by the U.S. food and drug administration that affects the ability of the electronic vaping device to be introduced or delivered into interstate commerce for commercial distribution in the United States.

995.15(6) (6) Beginning September 1, 2025, the department shall maintain and make publicly available on its website a directory that lists all electronic vaping device manufacturers and electronic vaping devices for which certification forms have been submitted and shall update the directory at least monthly to ensure accuracy.

995.15(7) (7) 

995.15(7)(a) (a) The department shall provide manufacturers notice and an opportunity to cure deficiencies in the directory maintained under sub. (6) before removing manufacturers or electronic vaping devices from the directory. The department may remove a manufacturer or the manufacturer’s devices from the directory no sooner than 15 business days after the date on which the department sends the manufacturer notice under this paragraph. The department shall send the notice under this paragraph by email or facsimile to the email address or facsimile number provided by the manufacturer in the manufacturer’s most recent certification submitted under this section.

995.15(7)(b) (b) A manufacturer that receives notice under par. (a) has no more than 15 business days to respond to the notice and provide sufficient information, as determined by the department, in order for the manufacturer or the manufacturer’s electronic vaping devices to remain in the directory maintained under sub. (6).

995.15(7)(c) (c) A determination by the department to not include or to remove from the directory maintained under sub. (6) a manufacturer or an electronic vaping device shall be subject to review by the filing of a civil action for prospective declaratory or injunctive relief.

995.15(8) (8) If an electronic vaping device is removed from the directory maintained under sub. (6), each retailer, distributor, and wholesaler that has such a device in its inventory shall remove the device from its inventory no later than 21 days after the date on which the device is removed from the directory and return the device to the manufacturer for disposal. After 21 days following removal from the directory, the electronic vaping devices of a manufacturer identified in the notice under sub. (7) (a) are subject to seizure, forfeiture, and destruction, and may not be purchased or sold in this state. The cost of such seizure, forfeiture, and destruction shall be borne by the person from whom the electronic vaping devices are confiscated.

995.15(9) (9) 

995.15(9)(a) (a) Beginning September 1, 2025, or on the date that the department first makes the directory maintained under sub. (6) available for public inspection on its website, whichever is later, the department shall impose on each retailer who sells or offers for sale an electronic vaping device in this state that is not included in the directory a forfeiture of $1,000 per day for each electronic vaping device offered for sale in violation of this section until each such device is no longer offered for sale in this state or until each such device is properly listed on the directory pursuant to this section.

995.15(9)(b) (b) Beginning September 1, 2025, or on the date that the department first makes the directory maintained under sub. (6) available for public inspection on its website, whichever is later, the department shall impose on each manufacturer of an electronic vaping device that is sold in this state, but not included in the directory a forfeiture of $1,000 per day for each electronic vaping device offered for sale in violation of this section until each such device is no longer offered for sale in this state or until each such device is properly listed on the directory pursuant to this section.

995.15(9)(c) (c) Any retailer, distributor, wholesaler, or manufacturer who violates this section engages in an unfair and deceptive trade practice in violation of s. 100.20.

995.15(10) (10) Section 139.82, as it applies to records and inspections under subch. III of ch. 139, applies to records and inspections under this section.

995.15(11) (11) 

995.15(11)(a) (a) Any electronic vaping device sold, offered for sale, or possessed for sale, in this state, in violation of this section shall be deemed contraband and such devices shall be subject to seizure in the manner provided under s. 139.40 for the seizure of cigarettes. All electronic vaping devices that are seized as provided under this paragraph shall be destroyed and not resold.

995.15(11)(b) (b) The duly authorized employees of the department have all necessary police powers to prevent violations of this section.

995.15(12) (12) 

995.15(12)(a) (a) Upon request by the secretary of revenue, the attorney general may represent this state or assist a district attorney in prosecuting any case arising under this section.

995.15(12)(b) (b) The state shall be entitled to recover the costs of investigation, expert witness fees, court costs, and reasonable attorney fees for any action brought by the state to enforce this section.

995.15(13) (13) Section 995.12 (3), as it applies to an agent for service of process under s. 995.12, applies to an agent for service of process under this section.

995.15(14) (14) The department may promulgate rules to administer this section.

995.15(15) (15) No later than July 1, 2026, and annually thereafter, the department shall provide a report to the legislature, as provided under s. 13.172 (2), regarding the status of the directory maintained under sub. (6), manufacturers and electronic vaping devices included in the directory, revenue and expenditures related to administration of this section, and enforcement activities undertaken pursuant to this section.

995.15 History History: 2023 a. 73, 146; s. 35.17 correction in (8).

995.20 995.20 Legal holidays. January 1, the 3rd Monday in January (which shall be the day of celebration for January 15), the 3rd Monday in February (which shall be the day of celebration for February 12 and 22), the last Monday in May (which shall be the day of celebration for May 30), June 19, which shall be the day of observation for Juneteenth Day, July 4, the 1st Monday in September which shall be known as Labor day, the 2nd Monday in October, November 11, the 4th Thursday in November (which shall be the day of celebration for Thanksgiving), December 25, the day of holding the partisan primary election, and the day of holding the general election in November are legal holidays. On Good Friday the period from 11 a.m. to 3 p.m. shall uniformly be observed for the purpose of worship. In every 1st class city the day of holding any municipal election is a legal holiday, and in every such city the afternoon of each day upon which a primary election is held for the nomination of candidates for city offices is a half holiday and in counties having a population of 750,000 or more the county board may by ordinance provide that all county employees shall have a half holiday on the day of such primary election and a holiday on the day of such municipal election, and that employees whose duties require that they work on such days be given equivalent time off on other days. Whenever any legal holiday falls on Sunday, the succeeding Monday shall be the legal holiday.

995.20 History History: 1971 c. 226; 1973 c. 140, 333; 1977 c. 187 s. 96; Stats. 1977 s. 757.17; 1983 a. 7; 1983 a. 192 s. 257; Stats. 1983 s. 895.20; 2005 a. 155 s. 33; Stats. 2005 s. 995.20; 2009 a. 91; 2011 a. 75; 2015 a. 198; 2017 a. 207 s. 5.

995.22 995.22 Wisconsin family month, week and Sunday. The month of November, in which the celebration of Thanksgiving occurs, is designated as Wisconsin Family Month, the first 7 days of that month are designated as Wisconsin Family Week and the first Sunday of that month is designated as Family Sunday. In conjunction therewith, appropriate observances, ceremonies, exercises and activities may be held under state auspices to focus attention on the principles of family responsibility to spouses, children and parents, as well as on the importance of the stability of marriage and the home for our future well-being; and the chief officials of local governments and the people of the state are invited either to join and participate therein or to conduct like observances in their respective localities.

995.22 History History: 1973 c. 333; 1977 c. 187 s. 96; Stats. 1977 s. 757.171; 1983 a. 192 s. 258; Stats. 1983 s. 895.22; 1987 a. 27; 2005 a. 155 s. 34; Stats. 2005 s. 995.22.

995.225 995.225 Fire Prevention Week.

995.225(1) (1) The week in October during which October 9 falls is designated Fire Prevention Week and the Saturday at the end of Fire Prevention Week is designated Wisconsin Firefighters Memorial Day. In conjunction with the week, appropriate observances, ceremonies, exercises, and activities may be held under state auspices to do all of the following:

995.225(1)(a) (a) Commemorate 2 of the most devastating fires in U.S. history, both of which started on October 8, 1871, the Peshtigo fire and the Chicago fire.

995.225(1)(b) (b) Study fire safety tips to help avoid home fires.

995.225(1)(c) (c) Recognize that well-trained, dedicated, and well-equipped fire departments are important to all of the residents of this state.

995.225(1)(d) (d) Recognize that thousands of state firefighters, both full-time and volunteer, dedicate themselves to protecting lives and property.

995.225(1)(e) (e) Express the gratitude of the residents of this state for the valuable contributions that firefighters have made to the other residents of this state.

995.225(1)(f) (f) Honor those contributions and memorialize the firefighters of this state who have died while performing their duties.

995.225(2) (2) The chief officials of local governments and the people of the state are invited either to join and participate in the observances, ceremonies, exercises, and activities under sub. (1) that may be held under state auspices or to conduct similar observances in their respective localities.

995.225 History History: 2003 a. 56, 320; 2005 a. 155 s. 35; Stats. 2005 s. 995.225; 2011 a. 185.

995.23 995.23 Indian Rights Day. July 4 is designated as “Indian Rights Day,” and in conjunction with the celebration of Independence Day, appropriate exercises or celebrations may be held in commemoration of the granting by congress of home rule and a bill of rights to the American Indians. When July 4 falls on Sunday, exercises or celebrations of Indian Rights Day may be held on either the third or the fifth.

995.23 History History: 1977 c. 187 s. 96; Stats. 1977 s. 757.175; 1983 a. 192 s. 259; Stats. 1983 s. 895.23; 2005 a. 155 s. 36; Stats. 2005 s. 995.23.

995.24 995.24 William D. Hoard Day. October 10 is designated as William D. Hoard Day. Appropriate exercises and celebrations may be held on that day, William D. Hoard’s birthday, to honor him and remember him as the 16th governor of Wisconsin and the leading promoter of the dairy industry through his weekly magazine, Hoard’s Dairyman.

995.24 History History: 2009 a. 327; 2011 a. 260 s. 81.

995.30 995.30 Ronald W. Reagan Day. February 6 is designated as Ronald W. Reagan Day. Appropriate exercises and celebrations may be held on that day, his birthday, to honor him and remember him as the 40th President of the United States and a promoter of freedom and democracy throughout the world.

995.30 History History: 2011 a. 32.

995.50 995.50 Right of privacy.

995.50(1) (1) The right of privacy is recognized in this state. One whose privacy is unreasonably invaded is entitled to the following relief:

995.50(1)(a) (a) Equitable relief to prevent and restrain such invasion, excluding prior restraint against constitutionally protected communication privately and through the public media;

995.50(1)(b) (b) Compensatory damages based either on plaintiff’s loss or defendant’s unjust enrichment; and

995.50(1)(c) (c) A reasonable amount for attorney fees.

995.50(2) (2) 

995.50(2)(am) (am) In this section, “invasion of privacy” means any of the following:

995.50(2)(am)1. 1. Intrusion upon the privacy of another of a nature highly offensive to a reasonable person, except as provided under par. (bm), in a place that a reasonable person would consider private, or in a manner that is actionable for trespass.

995.50(2)(am)2. 2. The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.

995.50(2)(am)3. 3. Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. It is not an invasion of privacy to communicate any information available to the public as a matter of public record.

995.50(2)(am)4. 4. Conduct that is prohibited under s. 942.09, regardless of whether there has been a criminal action related to the conduct, and regardless of the outcome of the criminal action, if there has been a criminal action related to the conduct.

995.50(2)(bm) (bm) “Invasion of privacy” does not include the use of a surveillance device under s. 995.60.

995.50(3) (3) The right of privacy recognized in this section shall be interpreted in accordance with the developing common law of privacy, including defenses of absolute and qualified privilege, with due regard for maintaining freedom of communication, privately and through the public media.

995.50(4) (4) Compensatory damages are not limited to damages for pecuniary loss, but shall not be presumed in the absence of proof.

995.50(6) (6) 

995.50(6)(a) (a) If judgment is entered in favor of the defendant in an action for invasion of privacy, the court shall determine if the action was frivolous. If the court determines that the action was frivolous, it shall award the defendant reasonable fees and costs relating to the defense of the action.

995.50(6)(b) (b) In order to find an action for invasion of privacy to be frivolous under par. (a), the court must find either of the following:

995.50(6)(b)1. 1. The action was commenced in bad faith or for harassment purposes.

995.50(6)(b)2. 2. The action was devoid of arguable basis in law or equity.

995.50(7) (7) No action for invasion of privacy may be maintained under this section if the claim is based on an act which is permissible under ss. 196.63 or 968.27 to 968.373.

995.50 History History: 1977 c. 176; 1987 a. 399; 1991 a. 294; 2001 a. 33; 2005 a. 155 s. 51; Stats. 2005 s. 995.50; 2013 a. 375; 2019 a. 72.

995.50 Annotation Commercial misappropriation of a person’s name is prohibited by Wisconsin common law. Hirsch v. S.C. Johnson & Son, Inc., 90 Wis. 2d 379, 280 N.W.2d 129 (1979).

995.50 Annotation Oral communication among numerous employees and jail inmates is sufficient to constitute publicity under sub. (2) (c) [now sub. (2) (am) 3.]. The plain meaning of “a place” in sub. (2) (a) [now sub. (2) (am) 1.] is geographical and does not include a file of medical records. Hillman v. Columbia County, 164 Wis. 2d 376, 474 N.W.2d 913 (Ct. App. 1991).

995.50 Annotation Disclosure of private information to one person or to a small group does not, as a matter of law in all cases, fail to satisfy the publicity element of an invasion of privacy claim. Whether a disclosure satisfies the publicity element of an invasion of privacy claim depends upon the particular facts of the case and the nature of the plaintiff’s relationship to the audience who received the information. Pachowitz v. LeDoux, 2003 WI App 120, 265 Wis. 2d 631, 666 N.W.2d 88, 02-2100.

995.50 Annotation An action for invasion of privacy requires: 1) a public disclosure of facts regarding the plaintiff; 2) the facts disclosed were private; 3) the private matter is one that would be highly offensive to a reasonable person of ordinary sensibilities; and 4) the party disclosing the facts acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter or with actual knowledge that none existed. In order to find public disclosure, the matter must be regarded as substantially certain to become one of public knowledge. Olson v. Red Cedar Clinic, 2004 WI App 102, 273 Wis. 2d 728, 681 N.W.2d 306, 03-2198.

995.50 Annotation The recording of sounds emanating from a neighbor’s home using a common recording device that was placed inside the defendant’s own window was not an intrusion of a nature highly offensive to a reasonable person in violation of sub. (2) (a) [now sub. (2) (am) 1.]. Poston v. Burns, 2010 WI App 73, 325 Wis. 2d 404, 784 N.W.2d 717, 09-0463.

995.50 Annotation Sub. (2) (a) [now sub. (2) (am) 1.] has a spatial basis—the invasion of privacy must occur in a place that a reasonable person would consider private or in a manner that is actionable for trespass. In this case, the only action that was allegedly taken by the defendant was the distribution of fliers containing information that was already available to the public. That the information may have inspired others to make phone calls, honk horns, or write letters does not mean that the defendant invaded the plaintiff’s private space. Keller v. Patterson, 2012 WI App 78, 343 Wis. 2d 569, 819 N.W.2d 841, 11-0334.

995.50 Annotation Sub. (2) (c) [now sub. (2) (am) 3.] addresses situations where an individual makes public statements about the private life of another person in a highly offensive way. In order to fall under sub. (2) (c) [now sub. (2) (am) 3.], the statements must make information public that was not previously available to the public. Keller v. Patterson, 2012 WI App 78, 343 Wis. 2d 569, 819 N.W.2d 841, 11-0334.

995.50 Annotation The more reasonable interpretation of “use” in sub. (2) (b) [now sub. (2) (am) 2.] is that it does not cover bidding on someone’s name as a keyword search term. The holding is limited to the particular “non-visible” type of use at issue in this case. Habush v. Cannon, 2013 WI App 34, 346 Wis. 2d 709, 828 N.W.2d 876, 11-1769.

995.50 Annotation The publicity of private facts cause of action under sub. (2) (am) 3. requires intentional conduct. An allegation of failing to prevent a data breach is not an allegation that a defendant intended the disclosure or publicity of private facts and, thus, is insufficient to state a claim for invasion of privacy by publicity of private facts. Reetz v. Advocate Aurora Health, Inc., 2022 WI App 59, 405 Wis. 2d 298, 983 N.W.2d 669, 21-0520.

995.50 Annotation The right to privacy law does not affect the duties of custodians of public records under s. 19.21. 68 Atty. Gen. 68.

995.50 Annotation Surveillance of a school district employee from public streets and highways by the employer school district’s agents to determine whether the employee was in violation of the district’s residency policy did not violate this section. Munson v. Milwaukee Board of School Directors, 969 F.2d 266 (1992).

995.50 Annotation While the Open Records Law and this section are related laws, they are only related in that a finding under the Open Records Law that a record should be made public would necessarily mean that “the information was available to the public as a matter of public record.” This is true because both statutes apply the same common-law balancing test when determining whether a record is public. When a trial court found only that the procedures delineated in the Open Records Law were not followed, those procedures had no impact on the question of whether a record is public under this section; the procedures are merely procedural, not substantive. Hutchins v. Clarke, 661 F.3d 947 (2011).

995.50 Annotation In drafting this section, the legislature used New York’s privacy statute as a model. The text of sub. (2) (b) [now sub. (2) (am) 2.] duplicates nearly verbatim New York law. Case law under the New York privacy statute may be particularly useful. Bogie v. Rosenberg, 705 F.3d 603 (2013).

995.50 Annotation A claim under sub. (2) (a) [now sub. (2) (am) 1.] must show that the alleged intrusion into privacy would be highly offensive to a reasonable person. The question of what kinds of conduct will be regarded as a highly offensive intrusion is largely a matter of social conventions and expectations. The offensiveness of the intrusion itself cannot be based on the content or substance captured by virtue of the alleged intrusion. The fact that the plaintiff was embarrassed to be filmed saying something the plaintiff regretted having said and later deemed offensive did not convert the filming itself into a highly offensive intrusion. Bogie v. Rosenberg, 705 F.3d 603 (2013).

995.50 Annotation When a matter of legitimate public interest is concerned, no cause of action for invasion of privacy will lie. This newsworthiness or public interest exception should be construed broadly, covering not only descriptions of actual events, but also articles concerning political happenings, social trends, or any subject of public interest. Wisconsin courts have also incorporated the common law exception for incidental use into the statute. Bogie v. Rosenberg, 705 F.3d 603 (2013).

995.50 Annotation Court documents are matters of public interest. It follows that, if court documents warrant the public interest exception, Internet search providers and indexes that lead the public to those documents or that capture key terms related to them are likewise entitled to that exception. To the extent that a search provider’s profit motives undermine the reliance on the public interest argument, the exception applies even when the entities sharing the information do so largely, and even primarily, to make a profit. Stayart v. Google Inc., 710 F.3d 719 (2013).

995.50 Annotation A person’s religious affiliation, standing alone, is not so private that publication would offend a reasonable person and constitute an invasion of privacy under sub. (2) (c) [now sub. (2) (am) 3.]. Briggs & Stratton Corp. v. National Catholic Reporter Publishing Co., 978 F. Supp. 1195 (1997).

995.50 Annotation The exclusivity provision of the Workers Compensation Act does not bar a claim for invasion of privacy under this section. Marino v. Arandell Corp., 1 F. Supp. 2d 947 (1998).

995.50 Annotation The Wisconsin court of appeals has held that unwanted phone calls do not constitute an invasion of privacy under this section. Baemmert v. Credit One Bank, N.A., 271 F. Supp. 3d 1043 (2017).

995.50 Annotation The first element of a claim under sub. (2) (c) [now sub. (2) (am) 3.] requires intentional disclosure by the defendant. A defendant is not liable under this section for information stolen by a third party. Fox v. Iowa Health System, 399 F. Supp. 3d 780 (2019).

995.50 Annotation The Absence of False Light from the Wisconsin Privacy Statute. Dee. 66 MLR 99 (1982).