Chapter ATCP 90

Register July 2011 No. 667

Chapter ATCP 90

FAIR PACKAGING AND LABELING

ATCP 90.01   Definitions.

ATCP 90.02   Declaration of product identity.

ATCP 90.03   Declaration of responsibility.

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 ATCP 90 Note Note: Chapter Ag 53 as it existed on May 31, 1973 was repealed and a new chapter Ag 53 was created, Register, May, 1973, No. 209, eff. 6-1-73.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 Chapter ATCP 90 as it existed on March 31, 1994 was repealed and a new chapter ATCP 90 was created effective April 1, 1994.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.