ATCP 105.009 Note Note: Under this subsection, if a merchant offers a price reduction with the redemption of a coupon, another merchant can meet this competition with a similar coupon promotion — simply dropping the price of the product, without any coupon redemption, would not be an offer under “the same terms and conditions.”

ATCP 105.009(2) (2) Holders of cigarette permits. A person who holds a cigarette permit under subch. II of ch. 139, Stats., and who also sells merchandise other than cigarettes may reduce the price of the other merchandise to meet a competitor’s existing price, in accordance with the exemption specified in s. 100.30 (6) (a) 7., Stats. Section 100.30 (6) (c) and (d), Stats., which prohibit persons holding these cigarette permits from claiming this exemption, apply only to the sale of cigarettes.

ATCP 105.009(3) (3) Surveys. A wholesaler or retailer who conducts a survey of competitor’s prices in the following manner may rely on the survey of competitor’s existing prices as proof of sale under s. 100.30 (6) (a) 7., Stats., if the department finds the survey to be accurate. Such a survey shall include:

ATCP 105.009(3)(a) (a) The name and address of the person conducting the survey.

ATCP 105.009(3)(b) (b) A description of the product being surveyed.

ATCP 105.009(3)(c) (c) The competitor’s name, address, and selling price.

ATCP 105.009(3)(d) (d) The date and time of the survey.

ATCP 105.009(3)(e) (e) The date and time the wholesaler or retailer met a competitor’s price.

ATCP 105.009(3)(f) (f) Any other elements the department requires.

ATCP 105.009 Note Note: Section 100.30 (6) (a) 7., Stats., also permits merchants to substantiate a competitor’s price by having in their possession an advertisement, proof of sale, or receipted purchase.

ATCP 105.009(4) (4) Pricing to meet competition. A seller may not claim to be meeting competition if the seller’s price is less than the competitor’s price.

ATCP 105.009(5) (5) Credit card promotions; meeting competition.

ATCP 105.009(5)(a) (a) Pursuant to s. 100.30 (6) (a) 7., Stats., a motor fuel retailer may in good faith offer a credit card promotion to meet, but not beat, a credit card promotion that any person offers on credit card purchases of motor fuel from a competing retailer. A retailer may not claim to be meeting competition if the retailer offers the credit card promotion for more than 180 days after the competing credit card promotion is discontinued.

ATCP 105.009(5)(b) (b) If a motor fuel retailer competes in this state with retailers who benefit from a statewide or regional credit card promotion, the retailer may offer a credit card promotion under par. (a) at any or all of its retail locations in that statewide or regional market, regardless of whether the competition occurs at every one of its retail locations in that market.

ATCP 105.009(5)(c) (c) A retailer offering a credit card promotion under par. (a) shall give the department written notice of that promotion, and of any material change in the general terms of that promotion. The retailer notice shall include all the following:

ATCP 105.009(5)(c)1. 1. The retailer’s name, and any trade name under which the retailer offers the credit card promotion.

ATCP 105.009(5)(c)2. 2. The general terms, conditions, and geographic scope of the credit card promotion.

ATCP 105.009(5)(c)3. 3. A description of the credit card promotion that the retailer is purporting to meet, including the person offering the promotion, the general terms of the promotion, and the identity and geographic distribution of competing motor fuel retailers who are benefiting from the promotion.

ATCP 105.009 History History: Cr. Register, August, 1990, No. 416, eff. 9-1-90; cr. (4), Register, May, 1999, No. 521, eff. 6-1-99; cr. (5), Register, March, 2000, No. 531, eff. 4-1-00; CR 16-012: am. (4) Register August 2016 No. 728, eff. 9-1-16.

subch. II of ch. ATCP 105 Subchapter II — Cigarette Pricing

ATCP 105.01 ATCP 105.01 Purpose. The purpose of this subchapter is to interpret the provisions of s. 100.30 (2) (c) 1., Stats. This statute requires cigarette or other tobacco product wholesalers to mark up the price of cigarettes or other tobacco products at least 3%. A wholesaler may sell at a lower markup if the wholesaler can prove a lesser cost of doing business. This subchapter creates a uniform accounting system for establishing that proof. The subchapter governs 2 types of cigarette or other tobacco product wholesalers licensed to do business in this state, jobbers, and distributors. Multiple retailers, whom the statute also includes in its definition of “wholesaler”, are not covered by this subchapter because multiple retailers must include both the wholesaler’s and the retailer’s markups in the prices of their cigarettes and other tobacco products.

ATCP 105.01 History History: Cr. Register, October, 1988, No. 394, eff. 11-1-88; am. Register, August, 1990, eff. 9-1-90.

ATCP 105.02 ATCP 105.02 Definitions. In this subchapter:

ATCP 105.02(1) (1) “Cigarette” has the meaning specified in s. 139.30 (1m), Stats.

ATCP 105.02(2) (2) “Distributor” has the meaning specified in s. 139.30 (3), Stats.

ATCP 105.02(3) (3) “Jobber” has the meaning specified in s. 139.30 (6), Stats.

ATCP 105.02(4) (4) “Multiple retailer” has the meaning specified in s. 139.30 (8), Stats.

ATCP 105.02(5) (5) “Tobacco products” has the meaning specified in s. 139.75 (12), Stats.

ATCP 105.02(6) (6) “Wholesaler” means any person engaged in the business of selling cigarettes or other tobacco products at wholesale in this state, including any person holding a permit as a distributor or jobber but excluding any person holding a permit as a multiple retailer.