100.30(7) (7) Notification requirements.

100.30(7)(a) (a) If a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner lowers in good faith the price of motor vehicle fuel below the applicable price specified under sub. (2) (am) 1m. to meet an existing price of a competitor, the person shall submit to the department notification of the lower price before the close of business on the day on which the price was lowered in the form and the manner required by the department.

100.30(7)(b) (b) Failure to comply with par. (a) creates a rebuttable presumption that the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner did not lower the price to meet the existing price of a competitor.

100.30(7)(c) (c) If a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner complies with par. (a), all of the following apply:

100.30(7)(c)1. 1. The department may not proceed under sub. (5) against the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner.

100.30(7)(c)2. 2. The retailer, wholesaler, wholesaler of motor vehicle fuel or refiner is immune from liability under sub. (5m).

100.30 History History: 1973 c. 310; 1979 c. 34 ss. 950o to 950y, 2102 (3) (a); 1979 c. 176, 221; 1981 c. 79 s. 17; 1983 a. 189 ss. 136 to 138, 329 (20); 1983 a. 466; 1985 a. 313, 332; 1987 a. 175; 1993 a. 16; 1997 a. 55; 2001 a. 16.

100.30 Cross-reference Cross-reference: See also s. ATCP 105.01, Wis. adm. code.

100.30 Annotation The state constitution protects the right to a trial by jury for a civil suit brought under this section. Village Food & Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177, 00-2493.

100.30 Annotation The only reasonable construction of “terminal closest to the retailer” under sub. (2) (am) 1m. c. is the terminal closest to the location where the retail sale occurs, not the corporate headquarters of the seller. Gross v. Woodman’s Food Market, Inc., 2002 WI App 295, 259 Wis. 2d 181, 655 N.W.2d 718, 01-1746.

100.30 Annotation Sub. (3) prohibits a sale at less than statutory cost if the seller had either an intent proscribed by the statute or the sale had an effect proscribed by the statute. Gross v. Woodman’s Food Market, Inc., 2002 WI App 295, 259 Wis. 2d 181, 655 N.W.2d 718, 01-1746.

100.30 Annotation This section is not so vague that it constitutes a denial of due process. That a seller may be penalized even if the seller lacks the intent to violate the section does not violate due process. Gross v. Woodman’s Food Market, Inc., 2002 WI App 295, 259 Wis. 2d 181, 655 N.W.2d 718, 01-1746.

100.30 Annotation There is no requirement in sub. (7) that a retailer must conduct a price survey within any particular time period. The Department of Agriculture, Trade and Consumer Protection by rule recommends that sellers maintain daily price surveys, but the department does not require or even recommend a survey every 24 hours. 22 Shawano, LLC v. Dr. R.C. Samanta Roy Institute of Science & Technology, Inc., 2006 WI App 14, 289 Wis. 2d 196, 709 N.W.2d 98, 05-0427.

100.30 Annotation “Competitor” in the phrase “existing price of a competitor” in sub. (2) (cj) is not limited to competitors located in Wisconsin. Go America L.L.C. v. Kwik Trip, Inc., 2006 WI App 94, 292 Wis. 2d 795, 715 N.W.2d 746, 05-1512.

100.30 Annotation Sub. (2) (Lm) [now sub. (2) (k)] qualifies the term “trade discount” in determining “cost to retailer” under sub. (2) (a) for sales of fermented malt beverages and intoxicating liquors. Sub. (2) (Lm) [now sub. (2) (k)] is not a catchall prohibition against all trade discounts and does not apply to bona fide quantity discounts. 63 Atty. Gen. 516.

100.30 Annotation This section does not violate federal antitrust laws or constitutional due process. 77 Atty. Gen. 163.

100.30 Annotation This section was not unconstitutional as applied to a cigarette wholesaler licensed under s. 139.30 (3). Eby -Brown Co. v. DATCP, 295 F.3d 749 (2002).

100.30 Annotation The minimum markup provisions are not preempted by the federal Sherman Antitrust Act and are enforceable. Flying J, Inc. v. Van Hollen, 621 F.3d 658 (2010).

100.30 Annotation Because violators of this section are subject to substantial fines and forfeitures, this section is penal in nature and must be strictly construed. The rule of strict construction of penal statutes does not apply, however, unless a statute is ambiguous, and the rule cannot be used to circumvent the purpose of the statute. Pit Row Inc. v. Costco Wholesale Corp., 666 F. Supp. 3d 835 (2023).

100.30 Annotation A “direct competitor” as used in sub. (2) (cj) is not limited to a competitor located within a certain distance of the retailer. Pit Row Inc. v. Costco Wholesale Corp., 666 F. Supp. 3d 835 (2023).

100.30 Annotation The plain language of subs. (2) (cj) and (6) (a) 7. reveals that there is no restriction that limits a retailer to matching the posted or advertised price of a competitor. In this case, the defendant did not violate this section when it matched the five-cent discounted price being offered by a competitor under its rewards program. Pit Row Inc. v. Costco Wholesale Corp., 666 F. Supp. 3d 835 (2023).

100.30 Annotation Wisconsin’s Unfair Sales Act—Unfair to Whom? Waxman. 66 MLR 293 (1983).

100.305 100.305 Prohibited selling practices during periods of abnormal economic disruption.

100.305(1) (1) Definitions. In this section:

100.305(1)(a) (a) “Consumer goods or services” means goods or services that are used primarily for personal, family, or household purposes.

100.305(1)(b) (b) “Emergency” includes any of the following:

100.305(1)(b)1. 1. A tornado, flood, fire, storm, or other destructive act of nature.

100.305(1)(b)2. 2. A disruption of energy supplies to the degree that a serious risk is posed to the economic well-being, health, or welfare of the public.

100.305(1)(b)3. 3. Hostile action.