Chapter ATCP 90

ATCP 90.04   Declaration of net quantity.

ATCP 90.05   Weight or measure; how expressed in inch-pound units.

ATCP 90.06   Weight or measure; how declared in metric units.

ATCP 90.07   Location and prominence of net quantity declaration.

ATCP 90.08   Special packages and commodities; labeling requirements.

ATCP 90.09   Variations from declared net quantity.

ATCP 90.10   Nutritional labeling of food.

Ch. ATCP 90 Note Note: This chapter is adopted under authority of ss. 93.07 (1), 97.09 (1) and (4), 97.42 (4) (j), 98.07 (3) and (4), and 100.20 (2), Stats. Violations of this chapter are subject to the penalties and remedies provided under ss. 97.72, 97.73, 98.26, 100.20 (5) and (6), and 100.26 (3) and (6), Stats. Commodities sold or distributed in violation of this chapter may be subject to holding orders or rejection orders issued under s. 97.12 (2), 97.42 (9) (b) or 98.05 (2), Stats. Rules contained in ch. ATCP 90 apply to commodities packaged after April 1, 1994.

Ch. ATCP 90 Note Note: Chapter Ag 53 as it existed on May 31, 1973 was repealed and a new chapter Ag 53 was created, Register, May, 1973, No. 209, eff. 6-1-73. Chapter Ag 53 was renumbered chapter ATCP 90 under s. 13.93 (2m) (b) 1., Stats., Register, April, 1993, No. 448. Chapter ATCP 90 as it existed on March 31, 1994 was repealed and a new chapter ATCP 90 was created effective April 1, 1994.

ATCP 90.01 ATCP 90.01 Definitions. As used in this chapter:

ATCP 90.01(1) (1) “Alcohol beverage” has the meaning given under s. 125.02 (1), Stats.

ATCP 90.01(2) (2) “Bottled water” means all water packaged in bottles or other containers and sold or distributed for drinking purposes. “Bottled water” includes distilled water, artesian water, spring water, and mineral water, whether carbonated or uncarbonated.

ATCP 90.01(3) (3) “Common fraction” means a numerical fraction, consisting of a numerator and denominator, which is reduced to its lowest terms and expressed in one of the following forms:

ATCP 90.01(3)(a) (a) In halves, quarters, eighths, sixteenths, or thirty- seconds.

ATCP 90.01(3)(b) (b) In thirds, if the fraction pertains to a linear measure expressed in yards or feet.

ATCP 90.01(3)(c) (c) In another form, if that form is firmly established in general consumer usage and trade custom.

ATCP 90.01(4) (4) “Commodity” means any product or commodity that is sold, offered for sale, or held or distributed for sale in this state. “Commodity” includes a consumer commodity.

ATCP 90.01(5) (5) “Consumer commodity” means any of the following:

ATCP 90.01(5)(a) (a) Food as defined under s. 97.01 (6), Stats., except alcohol beverages.

ATCP 90.01(5)(b) (b) A drug as defined under 21 USC 321 (g) (1), except biological animal products, antibiotics, drugs dispensed by prescription, and drugs containing insulin.

ATCP 90.01(5)(c) (c) A device as defined under 21 USC 321 (h).

ATCP 90.01(5)(d) (d) A cosmetic as defined under 21 USC 321 (i).

ATCP 90.01(5)(e) (e) An article, product, or commodity that is all of the following:

ATCP 90.01(5)(e)1. 1. Customarily produced and distributed for retail sale to consumers.

ATCP 90.01(5)(e)2. 2. Used by consumers for purposes of consumption, personal care, or the performance of household tasks.

ATCP 90.01(5)(e)3. 3. In the process of use by consumers, is normally fully consumed or expended.

ATCP 90.01 Note Note: A illustrative list of commodities included or excluded under par. (e) is available from the department. The list is based on interpretations made by the federal trade commission under 16 CFR 503.2 and 503.5 pursuant to the federal fair packaging and labeling act, 15 USC 1451 to 1461.

ATCP 90.01(6) (6) “Consumer commodity in package form” means a consumer commodity that is enclosed in a package prior to retail sale. “Consumer commodity in package form” does not include any of the following:

ATCP 90.01(6)(a) (a) Bulk commodities that a consumer views and individually selects before the commodities are placed in a retail sale package.

ATCP 90.01(6)(b) (b) Unprocessed fruits or vegetables enclosed in transparent wrappings or containers, so that the fruit or vegetable contents are fully visible to the retail customer.

ATCP 90.01(6)(c) (c) Ready-to-eat restaurant foods or carryout foods served from bulk containers by the retailer.

ATCP 90.01(7) (7) “Declaration of net quantity” means the declaration required to appear on the principal display panel of a package as provided under s. ATCP 90.04 (1).

ATCP 90.01(8) (8) “Distribute” means to distribute for sale, whether at wholesale or retail.

ATCP 90.01(9) (9) “Enforcement sample” means a sample of packages collected from an inspection lot according to s. ATCP 90.09 (2) (a).

ATCP 90.01(10) (10) “Good packaging and distribution practices” means packaging and distribution practices that ensure, notwithstanding imperfections in the manufacture or processing of a commodity, that the actual net quantity of that commodity in a package will, to a reasonable degree of scientific and statistical certainty, conform to the declared net quantity at the point of retail sale.

ATCP 90.01(11) (11) “Header label” or “header strip” means a label that is attached across the top of a bag or other container that bears no printed or graphic matter.

ATCP 90.01(12) (12) “Inch-pound units” means the customary units of weight or measure identified under s. ATCP 90.05.

ATCP 90.01(13) (13) “Inspection lot” has the meaning given under s. ATCP 90.09 (2) (b).

ATCP 90.01(14) (14) “Metric units” means the international system of units established in 1960 by the general conference on weights and measures and interpreted or modified for the United States by the United States secretary of commerce. “Metric units” includes the units of weight or measure identified under s. ATCP 90.06.

ATCP 90.01(15) (15) “Multi-unit package” means a package containing 2 or more component packages of the same commodity, where each component package contains the same quantity of the commodity.

ATCP 90.01 Note Note: For example, a multi-unit package might contain 6 individually packaged and labeled bars of soap.

ATCP 90.01(15g) (15g) “NIST Handbook 44” means NIST Handbook 44 (2018 edition) published by the National Institute of Standards and Technology, United States department of commerce.

ATCP 90.01 Note Note: Copies of NIST Handbook 44, Specifications, Tolerances and Other Technical Requirements for Weighing and Measuring Devices (2018 edition) are on file with the department and the legislative reference bureau. Copies may be obtained from the U.S. Government Printing Office, Stop SSOP, Washington, D.C. 20102-0001, website: www.nist.gov.

ATCP 90.01(15r) (15r) “NIST Handbook 133” means NIST Handbook 133 (2018 edition) published by the National Institute of Standards and Technology, United States department of commerce.

ATCP 90.01 Note Note: Copies of NIST Handbook 133, Checking the Net Contents of Packaged Goods (2018 edition) are on file with the department and the legislative reference bureau. Copies may be obtained from the U.S. Government Printing Office, Stop SSOP, Washington, D.C. 20102-0001, website: www.nist.gov.

ATCP 90.01(16) (16) “Package” means any container or wrapping in which a consumer commodity is enclosed for purposes of retail sale. “Package” does not include:

ATCP 90.01(16)(a) (a) An inner wrapping or container that is enclosed within an outer package, unless the inner wrapping or container is designed, labeled, or used as a package for the retail sale of a consumer commodity.

ATCP 90.01 Note Note: For example, where a box (package) of chocolates contains individually wrapped chocolate confections, the inner wrappings do not constitute separate“packages” for labeling purposes under this chapter. However, individually packaged and labeled candy bars do constitute separate “packages” even when sold in multiples as part of a larger “multi-unit” package.

ATCP 90.01(16)(b) (b) A shipping container or wrapping used solely to transport consumer commodities to a manufacturer, packer, processor, wholesale distributor, or retailer, provided that the shipping container or wrapping is not designed or used for the retail sale of any consumer commodity.

ATCP 90.01(16)(c) (c) A container used to display consumer commodities or packages at retail, provided that the container is not sold at retail with the consumer commodities or packages.

ATCP 90.01(16)(d) (d) A container or wrapping in which consumer commodities or packages are placed after a retail customer has viewed and individually selected those commodities or packages for purchase.

ATCP 90.01(16)(e) (e) An auxiliary container or wrapping enclosing one or more packages, provided that the auxiliary container or wrapping does not obscure any package disclosure required under this chapter.

ATCP 90.01(16)(f) (f) A shipping container or outer wrapping used by a retailer to ship or deliver a consumer commodity to a retail customer, provided that the shipping container or outer wrapping does not bear any printed matter related to any consumer commodity.

ATCP 90.01(17) (17) “Person” means an individual, corporation, partnership, association, or other business organization or entity.

ATCP 90.01(18) (18) “Pesticide” has the meaning given under s. 94.67 (25), Stats.

ATCP 90.01(19) (19) “Principal display panel” means that part of a package which is most likely to be displayed to, or examined by, a consumer under normal conditions of retail sale. If a package includes more than one principal display panel, “principal display panel” includes each of those panels. If a package is cylindrical in shape, “principal display panel” means that 40% of the cylinder circumference that is most likely to be displayed or presented to a consumer under normal conditions of sale.

ATCP 90.01(20) (20) “Random package” means either of the following:

ATCP 90.01(20)(a) (a) A package that is one of a lot, shipment, or delivery of packages of the same consumer commodity, where the packages have no fixed pattern of weights.

ATCP 90.01(20)(b) (b) Retail packages of cheese which the retailer has cut, weighed, packaged, and labeled for sale at retail.

ATCP 90.01(21) (21) “Retail sale” means the retail sale of a commodity. “Retail sale” includes the retail display, offering, or delivery of a commodity for sale to consumers.

ATCP 90.01(22) (22) “Sell” means to sell at wholesale or retail.“Sell” includes holding for sale, displaying for sale, offering for sale, or selling.

ATCP 90.01(23) (23) “Soft drink” means all beverages commonly known as soft drinks or soda water, whether carbonated, uncarbonated, sweetened, or flavored.

ATCP 90.01(24) (24) “Spot label” means a label, clearly defined by means of a border, indentation, or other demarcation, that covers only a portion of a principal display panel that contains no other printed or graphic matter of any kind.

ATCP 90.01(25) (25) “Weight” means mass expressed in inch-pound units of weight or metric units of mass, or both, as provided in this chapter.

ATCP 90.01(26) (26) “Unreasonable shortage” means a shortage that exceeds the maximum allowable variation specified for a commodity in the NIST Handbook 133.

ATCP 90.01 Note Note: A copy of the national institute of standards and technology handbook 133, “Checking the Net Contents of Packaged Goods,” is on file with the department, the secretary of state and the legislative reference bureau.

ATCP 90.01 History History: Cr. Register, March, 1994, No. 459, eff. 4-1-94; CR 02-141: am. (4) Register August 2003 No. 572, eff. 9-1-03; CR 13-043: am. (26) Register February 2014 No. 698, eff. 5-1-14; CR 14-047: cr. (15g), (15r), am. (26) Register May 2015 No. 713, eff. 6-1-15; CR 16-012: am. (15g), (15r) Register August 2016 No. 728, eff. 9-1-16; CR 18-019: am. (15g), (15r) Register January 2020 No. 769, eff. 2-1-20.

ATCP 90.02 ATCP 90.02 Declaration of product identity.

ATCP 90.02(1) (1) Declaration required. No person may sell or distribute a consumer commodity in package form unless each package clearly and conspicuously identifies the commodity contained in that package. The declaration shall identify the commodity by its common or usual name, by its legally required name, if any, or by a generic name or other appropriate description that is readily understood by consumers.

ATCP 90.02(2) (2) Location and prominence. The declaration of identity under sub. (1) shall appear on the principal display panel of each package, and shall be a principal feature of that display panel. The declaration shall be clearly printed in the English language, in a conspicuous type size and style, and in a color that contrasts to the color of the background. The declaration shall be generally parallel to the base on which the package is designed to rest when displayed, and shall be positioned so that it can be readily seen and understood by consumers. Hand lettered information, if any, shall be at least as conspicuous and legible as printed information.

ATCP 90.02(3) (3) Deceptive declarations prohibited. The declaration of identity under sub. (1) may not be false, deceptive, or misleading. Ingredients or components that are not present in the commodity in substantial or significantly effective amounts may not be featured in the declaration of identity.

ATCP 90.02 History History: Cr. Register, March, 1994, No. 459, eff. 4-1-94.

ATCP 90.03 ATCP 90.03 Declaration of responsibility.

ATCP 90.03(1) (1) Declaration Required. No person may sell a consumer commodity in package form at any place other than the premises where the commodity was packaged unless each package of the commodity is clearly and conspicuously labeled with all of the following:

ATCP 90.03(1)(a) (a) Name of responsible person. The name of the manufacturer, packer, or distributor who is responsible for introducing the consumer commodity into commerce in package form. If the responsible person is a corporation, the label shall specify the actual corporate name of that corporation. If the responsible person is not a corporation, the label shall specify the correct name under which that person does business.

ATCP 90.03(1)(b) (b) Business address. The business address of the responsible person under par. (a). The business address shall include street address, city, state, and ZIP code, except that the street address may be omitted if it is listed in any readily accessible, well-known, widely published, and publicly available resource, such as a printed directory, electronic database or website. If a person manufactures, packs, or distributes a consumer commodity at a place of business other than the person’s principal place of business, the label may disclose the address of that principal place of business rather than the actual place of manufacture, packing, or distribution, provided that the substitute disclosure is not deceptive or misleading.

ATCP 90.03(1)(c) (c) Connection to commodity. If the responsible person under par. (a) is not the person who manufactured or produced the consumer commodity, the responsible person’s name shall be qualified by a phrase, such as “Manufactured for and packed by __________________________________” or “Distributed by __________________________________,” that indicates the responsible person’s connection to the consumer commodity.

ATCP 90.03(2) (2) Location and prominence. The declaration of responsibility under sub. (1) shall be clearly set forth on the package label. The declaration shall be clearly printed in the English language, in a conspicuous type size and style, and in a color that contrasts to the color of the background. The declaration shall be generally parallel to the base on which the package is designed to rest when displayed, and shall be positioned so that it can be readily seen and understood by consumers. Hand lettered information, if any, shall be at least as conspicuous and legible as printed information.

ATCP 90.03 History History: Cr. Register, March, 1994, No. 459, eff. 4-1-94; CR 18-019: am. (1) (b) Register January 2020 No. 769, eff. 2-1-20.

ATCP 90.04 ATCP 90.04 Declaration of net quantity.

ATCP 90.04(1) (1) Declaration required.

ATCP 90.04(1)(a) (a) General. Except as provided under par. (b), no person may sell or distribute any consumer commodity in package form unless each package of that commodity bears a declaration of net quantity. The declaration of net quantity shall clearly and conspicuously disclose the net quantity of the consumer commodity contained in that package, exclusive of wrappers and other material packaged with the commodity. Except where different net quantity declarations are provided for specific packages or commodities under s. ATCP 90.08, the declaration of net quantity shall comply with this section.

ATCP 90.04(1)(b) (b) Exemptions. Paragraph (a) does not apply to any of the following:

ATCP 90.04(1)(b)1. 1. A commodity sold by count if the package contains only one unit of that commodity, or a small combination of items that are customarily sold together as a single unit and understood by consumers as constituting a single unit.

ATCP 90.04(1)(b)2. 2. A commodity sold by count if the package contains 6 or fewer units and the number of units can be easily counted by consumers without opening the package.

ATCP 90.04(1)(b)3. 3. Random packages of a commodity sold at wholesale, for weighing and labeling at the point of retail sale, provided that the random packages are contained in a wholesale container that is labeled to show the combined net weight of the contents of those random packages. This exemption does not apply to a random package when sold at retail.

ATCP 90.04(1)(b)4. 4. A commodity that is exempt from quantity disclosure, pursuant to an exemption under ch. ATCP 91.

ATCP 90.04(2) (2) Location and prominence. A declaration of net quantity shall appear on the principal display panel of each package, and shall comply with s. ATCP 90.07. The declaration shall be separate from other information contained on the principal display panel, and shall be printed in conspicuous, easily legible, and contrasting type.