Chapter 100

100.18(9)(a) (a) It is deemed deceptive advertising, within the meaning of this section, for any person or any agent or employee thereof to make, publish, disseminate, circulate or place before the public in this state in a newspaper or other publication or in the form of book, notice, handbill, poster, bill, circular, pamphlet, letter, sign, placard, card, label or over any radio or television station or in any other way similar or dissimilar to the foregoing, an advertisement, announcement, statement or representation of any kind to the public relating to the purchase, sale, hire, use or lease of real estate, merchandise, securities, service or employment or to the terms or conditions thereof which advertisement, announcement, statement or representation is part of a plan or scheme the purpose or effect of which is not to sell, purchase, hire, use or lease the real estate, merchandise, securities, service or employment as advertised.

100.18(9)(b) (b) This section does not apply to the owner, publisher, printer, agent or employee of a newspaper or other publication, periodical or circular, or of a radio or television station, who in good faith and without knowledge of the falsity or deceptive character thereof, publishes, causes to be published or takes part in the publication of such advertisement.

100.18(9m) (9m) It is deemed deceptive advertising to misrepresent the nature of a local energy resource system under s. 101.175.

100.18(10) (10) 

100.18(10)(a) (a) It is deceptive to misrepresent the nature of any business by use of the words manufacturer, factory, mill, importer, wholesaler or words of similar meaning, in a corporate or trade name or otherwise.

100.18(10)(b) (b) It is deceptive to represent the price of any merchandise as a manufacturer’s or wholesaler’s price, or a price equal thereto, unless the price is not more than the price which retailers regularly pay for the merchandise. The effective date of this subsection shall be January 1, 1962.

100.18(10m) (10m) It is deceptive or misleading advertising for a person who sells new motor vehicles to compare new motor vehicle selling prices, including the offered prices or the actual sale prices, to the manufacturer’s suggested retail price for that vehicle unless it is clearly and conspicuously disclosed that the latter price is a manufacturer’s suggested retail price and may not represent actual sale prices.

100.18(10r) (10r) It is deceptive and misleading for a person who is conducting business in a community or region from a location outside that community or region to use the name of the community or region, or other description of the community or region, in the corporate or trade name of the business or in any other information that is published if the use of the name or description of the location creates the misrepresentation that the business is located in the community or region.

100.18(11) (11) 

100.18(11)(a) (a) The department of agriculture, trade and consumer protection shall enforce this section. Actions to enjoin violation of this section or any regulations thereunder may be commenced and prosecuted by the department in the name of the state in any court having equity jurisdiction. This remedy is not exclusive.

100.18(11)(b) (b)

100.18(11)(b)2. 2. Any person suffering pecuniary loss because of a violation of this section by any other person may sue in any court of competent jurisdiction and shall recover such pecuniary loss, together with costs, including reasonable attorney fees, except that no attorney fees may be recovered from a person licensed under ch. 452 while that person is engaged in real estate practice, as defined in s. 452.01 (6). Any person suffering pecuniary loss because of a violation by any other person of any injunction issued under this section may sue for damages therefor in any court of competent jurisdiction and shall recover twice the amount of such pecuniary loss, together with costs, including reasonable attorney fees, except that no attorney fees may be recovered from a person licensed under ch. 452 while that person is engaged in real estate practice, as defined in s. 452.01 (6).

100.18(11)(b)3. 3. No action may be commenced under this section more than 3 years after the occurrence of the unlawful act or practice which is the subject of the action. No injunction may be issued under this section which would conflict with general or special orders of the department or any statute, rule or regulation of the United States or of this state.

100.18(11)(c) (c)

100.18(11)(c)1. 1. Whenever the department has reason to believe that a person is in possession, custody or control of any information or documentary material relevant to the enforcement of this section it may require that person to submit a statement or report, under oath or otherwise, as to the facts and circumstances concerning any activity in the course of trade or commerce; examine under oath that person with respect to any activity in the course of trade or commerce; and execute in writing and cause to be served upon such person a civil investigative demand requiring the person to produce any relevant documentary material for inspection and copying.

100.18(11)(c)2. 2. The department, in exercising powers under this subsection, may issue subpoenas, administer oaths and conduct hearings to aid in any investigation.

100.18(11)(c)3. 3. Service of any notice by the department requiring a person to file a statement or report, or service of a subpoena upon a person, or service of a civil investigative demand shall be made in compliance with the rules of civil procedure of this state.

100.18(11)(c)4. 4. If a person fails to file any statement or report, or fails to comply with any civil investigative demand, or fails to obey any subpoena issued by the department, such person may be coerced as provided in s. 885.12, except that no person shall be required to furnish any testimony or evidence under this subsection which might tend to incriminate the person.

100.18(11)(d) (d) The department or the department of justice, after consulting with the department, or any district attorney, upon informing the department, may commence an action in circuit court in the name of the state to restrain by temporary or permanent injunction any violation of this section. The court may in its discretion, prior to entry of final judgment, make such orders or judgments as may be necessary to restore to any person any pecuniary loss suffered because of the acts or practices involved in the action, provided proof thereof is submitted to the satisfaction of the court. The department and the department of justice may subpoena persons and require the production of books and other documents, and the department of justice may request the department to exercise its authority under par. (c) to aid in the investigation of alleged violations of this section.

100.18(11)(e) (e) In lieu of instituting or continuing an action pursuant to this section, the department or the department of justice may accept a written assurance of discontinuance of any act or practice alleged to be a violation of this section from the person who has engaged in such act or practice. The acceptance of such assurance by either the department or the department of justice shall be deemed acceptance by the other state officials enumerated in par. (d) if the terms of the assurance so provide. An assurance entered into pursuant to this section shall not be considered evidence of a violation of this section, provided that violation of such an assurance shall be treated as a violation of this section, and shall be subjected to all the penalties and remedies provided therefor.

100.18(12) (12) 

100.18(12)(a) (a) This section does not apply to the insurance business.

100.18(12)(b) (b) This section does not apply to a person licensed as a broker or salesperson under s. 452.09 while that person is engaged in real estate practice, as defined in s. 452.01 (6), unless that person has directly made, published, disseminated, circulated or placed before the public an assertion, representation or statement of fact with the knowledge that the assertion, representation or statement of fact is untrue, deceptive or misleading.

100.18 History History: 1977 c. 29 s. 1650m (4); 1979 c. 89, 327, 350; 1981 c. 351; 1983 a. 215; 1985 a. 284, 332; 1989 a. 31; 1991 a. 278; 1993 a. 158, 492; 1995 a. 27, 179; 1997 a. 111, 201; 2001 a. 102; 2003 a. 326; 2017 a. 22.

100.18 Cross-reference Cross-reference: See s. 136.001 (2) concerning future service plans.

100.18 Annotation Sub. (1) applies to oral representations made in private conversations to prospective purchasers. State v. Automatic Merchandisers of America, Inc., 64 Wis. 2d 659, 221 N.W.2d 683 (1974). See also Hinrichs v. DOW Chemical Co., 2020 WI 2, 389 Wis. 2d 669, 937 N.W.2d 37, 17-2361.

100.18 Annotation A complaint alleging deceptive advertising contrary to sub. (1) stated a cause of action not only against the corporate defendant but against its officer personally when the complaint’s use of the word “continue” indicated reference to both past and future conduct and when use of the word “defendants” referred to both the corporation and its officer. State v. Advance Marketing Consultants, Inc., 66 Wis. 2d 706, 225 N.W.2d 887 (1975).

100.18 Annotation Sub. (2) is constitutional. State v. Amoco Oil Co., 97 Wis. 2d 226, 293 N.W.2d 487 (1980).

100.18 Annotation The state may join as parties defendant assignees of contracts allegedly obtained by deceptive practices, even though the assignees did not engage in deception. State v. Excel Management Services, Inc., 111 Wis. 2d 479, 331 N.W.2d 312 (1983).

100.18 Annotation A consumer is protected from untrue, deceptive, or misleading representations made to promote the sale of a product. Advertising need not be involved. Bonn v. Haubrich, 123 Wis. 2d 168, 366 N.W.2d 503 (Ct. App. 1985).

100.18 Annotation Subs. (1) and (9) (a) require that a complaint do more than merely state that there were incentives to sell a more expensive product: it must allege instances of prohibited conduct to withstand a motion to dismiss. State v. American TV & Appliance of Madison, Inc., 146 Wis. 2d 292, 430 N.W.2d 709 (1988). See also Meyer v. Laser Vision Institute, LLC, 2006 WI App 70, 290 Wis. 2d 764, 714 N.W.2d 223, 05-1233.

100.18 Annotation A party prevailing on appeal is entitled to reasonable appellate attorney fees. Radford v. J.J.B. Enterprises, Ltd., 163 Wis. 2d 534, 472 N.W.2d 790 (Ct. App. 1991).

100.18 Annotation The statute of limitations under sub. (11) (b) 3. commences at the time of the act or transaction, not on the date of discovery. Skrupky v. Elbert, 189 Wis. 2d 31, 526 N.W.2d 264 (Ct. App. 1994).

100.18 Annotation When a claim of negligent representation was fully tried, it was not necessary that a claim under this section should have been pleaded in order for the plaintiff to assert a post-verdict claim for attorney fees under sub. (11) (b) 2. Gorton v. American Cyanamid Co., 194 Wis. 2d 203, 533 N.W.2d 746 (1995).

100.18 Annotation An award of reasonable attorney fees under this section belongs to the person suffering the pecuniary loss, not the attorney. However, the ultimate ownership of the award may be controlled by the parties’ fee agreement. Gorton v. Hostak, Henzl & Bichler, S.C., 217 Wis. 2d 493, 577 N.W.2d 617 (1998), 96-2776.

100.18 Annotation Sub. (11) (b) 3. is a statute of repose. A cause of action must be commenced within three years of the false representation regardless of when the resulting injury is discovered. Kain v. Bluemound East Industrial Park, Inc., 2001 WI App 230, 248 Wis. 2d 172, 635 N.W.2d 640, 00-2250.

100.18 Annotation This section provides a cause of action and remedies separate from common law claims of intentional misrepresentation, strict liability misrepresentation, and negligent misrepresentation. Kailin v. Armstrong, 2002 WI App 70, 252 Wis. 2d 676, 643 N.W.2d 132, 01-1152.

100.18 Annotation A statement made to one person may constitute a statement made to “the public” under this section. Once a contract is made, buyers are no longer “the public.” This section is aimed at untrue, deceptive, or misleading statements made to induce certain actions. Statements made by the seller after a person entered into a contract to purchase do not cause the person to make the purchase or enter into the contract. Kailin v. Armstrong, 2002 WI App 70, 252 Wis. 2d 676, 643 N.W.2d 132, 01-1152. See also Hinrichs v. DOW Chemical Co., 2020 WI 2, 389 Wis. 2d 669, 937 N.W.2d 37, 17-2361.

100.18 Annotation That the sellers themselves did not make any representations to the buyers with respect to the property sold and that the buyers cannot hold real estate agents liable under this section for misrepresentations the agents do not know are untrue does not require that the sellers cannot be held statutorily liable for the representations. Ricco v. Riva, 2003 WI App 182, 266 Wis. 2d 696, 669 N.W.2d 193, 02-2621.

100.18 Annotation Under the terms of subs. (1) and (11) (b) 2., a plaintiff asserting a claim under this section must allege 1) that the defendant has, with the specified intent, made an advertisement, announcement, statement, or representation to the public, 2) that contains an assertion, representation, or statement of fact that is untrue, deceptive, or misleading, and 3) that the plaintiff has sustained a pecuniary loss as a result of the assertion, representation, or statement of fact. Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, 270 Wis. 2d 146, 677 N.W.2d 233, 02-1034.

100.18 Annotation A general statement that one’s products are best is not actionable as a misrepresentation of fact and cannot support a claim under this section. “Premium quality” equates to “the best,” and is squarely within the definition of puffery. The term “masterpiece” is arguably more precise than “the best,” insofar as it connotes a specific engineering achievement, but this does not move the term out of the domain of puffery. Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, 270 Wis. 2d 146, 677 N.W.2d 233, 02-1034.

100.18 Annotation When the statutory background of this section and s. 100.183 is considered, it becomes clear that the legislature does not intend “merchandise” in this section to include articles of food. The only sanction for violating s. 100.183 is the criminal penalty specified in s. 100.26 (1) while sub. (1) is amenable to only civil remedies and cannot be enforced via a criminal prosecution. Gallego v. Wal-Mart Stores, Inc., 2005 WI App 244, 288 Wis. 2d 229, 707 N.W.2d 539, 04-2533.

100.18 Annotation A plaintiff remains a member of “the public” under this section unless a particular relationship exists between the plaintiff and the defendant, the existence of which will depend upon its own peculiar facts and circumstances and must be tested by the statute in the light of those facts and circumstances. In this case, whether the plaintiff was a member of the public presented a question of fact. K&S Tool & Die Corp. v. Perfection Machinery Sales, Inc., 2007 WI 70, 301 Wis. 2d 109, 732 N.W.2d 792, 05-2148.

100.18 Annotation Although the reasonableness of a plaintiff’s reliance may be relevant in considering whether the representation materially induced the plaintiff’s pecuniary loss, the plaintiff does not have the burden of proving reasonable reliance. K&S Tool & Die Corp. v. Perfection Machinery Sales, Inc., 2007 WI 70, 301 Wis. 2d 109, 732 N.W.2d 792, 05-2148.

100.18 Annotation A plaintiff is not required to prove reasonable reliance as an element of a misrepresentation claim under this section, but the reasonableness of a plaintiff’s reliance may be relevant in considering whether the representation materially induced (caused) the plaintiff to sustain a loss. The reasonableness of a person’s actions in relying on representations is a defense and may be considered by a jury in determining cause. A court may determine that the representation did not materially induce the plaintiff’s decision to act and that the plaintiff would have acted in the absence of the representation. Novell v. Migliaccio, 2008 WI 44, 309 Wis. 2d 132, 749 N.W.2d 544, 05-2852.

100.18 Annotation A nondisclosure is not an assertion, representation, or statement of fact under sub. (1), and silence is insufficient to support a claim under sub. (1). Goudy v. Yamaha Motor Corp., USA, 2010 WI App 55, 324 Wis. 2d 441, 782 N.W.2d 114, 09-0617.

100.18 Annotation A reasonable jury could find that painting over evidence of a leaky basement is a representation that a basement does not leak. Any conduct capable of being turned into a statement of fact is a representation. There is no distinction between misrepresentations effected by words and misrepresentations effected by other acts. Novell v. Migliaccio, 2010 WI App 67, 325 Wis. 2d 230, 783 N.W.2d 897, 09-1576.

100.18 Annotation The state had a constitutional right to a jury trial on its claim under sub. (1). State v. Abbott Laboratories, 2012 WI 62, 341 Wis. 2d 510, 816 N.W.2d 145, 10-0232.

100.18 Annotation The plain language of the statute shows that statements or representations may be actionable even when contained in bills or other documents not traditionally considered “advertisements.” The statute includes “bill” as an example of a document that may contain a deceptive or misleading representation and includes documents “similar or dissimilar” to the enumerated items, so long as that document contains misrepresentations. MBS-Certified Public Accountants, LLC v. Wisconsin Bell Inc., 2013 WI App 14, 346 Wis. 2d 173, 828 N.W.2d 575, 08-1830.

100.18 Annotation If a party violating this section could defend its actions using the voluntary payment rule, then the broad, remedial purpose of this section would be undermined. MBS-Certified Public Accountants, LLC v. Wisconsin Bell Inc., 2013 WI App 14, 346 Wis. 2d 173, 828 N.W.2d 575, 08-1830.

100.18 Annotation This section does not provide that a plaintiff may recover fees and costs only to the extent that the plaintiff has incurred fees and costs or is contractually obligated to pay fees and costs to its counsel. To the contrary, both sub. (11) (b) and Gorton, 217 Wis. 2d 493 (1998), support the idea that the award of attorney fees based on private counsel’s work was appropriate in this case. State v. Abbott Laboratories, 2013 WI App 31, 346 Wis. 2d 565, 829 N.W.2d 753, 10-0232.

100.18 Annotation A salesperson engages in puffery when the salesperson gives voice to exaggerations reasonably to be expected of a seller as to the degree of quality of a product, the truth or falsity of which cannot be precisely determined. Exaggerations of this sort do not subject the speaker to liability under this section because they convey only the seller’s opinion and are not capable of being substantiated or refuted. When a salesperson represented to a client that a specific problem had been fixed, the salesperson was making a specific, factual statement. That the salesperson may not have been familiar with the problems prior to the conversation, or had any idea whether they had been addressed, does not transform the factual statement into puffery. United Concrete & Construction, Inc. v. Red-D-Mix Concrete, Inc., 2013 WI 72, 349 Wis. 2d 587, 836 N.W.2d 807, 11-1566.

100.18 Annotation Sub. (11) (b) 2. grants the right to recover attorney’s fees to the plaintiff. Concluding that the client’s right to recover statutory attorney’s fees is equitably subrogated to the attorney once counsel is retained, despite a fee agreement that does not clearly assign that right, would undermine the legislature’s explicit directive to the contrary. Betz v. Diamond Jim’s Auto Sales, 2014 WI 66, 355 Wis. 2d 301, 849 N.W.2d 292, 12-0183.

100.18 Annotation Based upon this section’s plain language and the deterrent purpose of the statute as recognized in case law, a “pecuniary loss” can include monetary remedies like the cost of repair or diminution in value and may also include the possibility of a full refund of the purchase price. A “pecuniary loss” does not, however, include rescission as a non-monetary remedy. Mueller v. Harry Kaufmann Motorcars, Inc., 2015 WI App 8, 359 Wis. 2d 597, 859 N.W.2d 451, 14-0351.

100.18 Annotation “As is” and exculpatory clauses in a contract did not relieve a property seller of liability under sub. (1) for its deceptive representation in the contract that induced agreement to those terms. The fact that the parties were in negotiations over terms when the misrepresentation was made did not take the potential purchaser out of the realm of “the public” and outside the coverage of sub. (1). A sub. (1) claim requires proof that the misrepresentation caused the plaintiff a pecuniary loss. The test to be applied is whether the plaintiff would have acted in its absence. Fricano v. Bank of America NA, 2016 WI App 11, 366 Wis. 2d 748, 875 N.W.2d 143, 15-0020.

100.18 Annotation The economic loss doctrine does not serve as a bar to claims made under this section. Hinrichs v. DOW Chemical Co., 2020 WI 2, 389 Wis. 2d 669, 937 N.W.2d 37, 17-2361.

100.18 Annotation The heightened pleading standard set forth by s. 802.03 (2) for claims of fraud does not apply to claims made under this section. Hinrichs v. DOW Chemical Co., 2020 WI 2, 389 Wis. 2d 669, 937 N.W.2d 37, 17-2361.

100.18 Annotation Sub. (1) does not require that an advertisement or representation must be made to a Wisconsin resident. State v. Talyansky, 2023 WI App 42, 409 Wis. 2d 57, 995 N.W.2d 277, 22-0788.

100.18 Annotation The state does not need to establish that someone suffered a pecuniary loss in order to prove a violation of subs. (1) and (10r). State v. Talyansky, 2023 WI App 42, 409 Wis. 2d 57, 995 N.W.2d 277, 22-0788.

100.18 Annotation The purpose of this section is to protect the residents of Wisconsin from any untrue, deceptive, or misleading representations made to promote the sale of a product. Nothing in this section supports an interpretation that would render liable any standards-setting organization so long as a manufacturer could show that it lost sales as a result of allegedly inaccurate technical data in the standard. When nothing in a standard published by the standards-setting organization suggested that consumers choose one product over another and when the standards-setting organization’s actions were not part of a commercial transaction, a claim for a violation of this section failed. Thermal Design, Inc. v. American Society of Heating, Refrigerating & Air-Conditioning Engineers, Inc., 755 F.3d 832 (2014).

100.18 Annotation While extrinsic evidence in the form of consumer surveys or market research is not always needed for a plaintiff to survive summary judgment or judgment as a matter of law on a deceptive advertising claim, such evidence is necessary where the advertising is not clearly misleading on its face and materiality is in doubt. If the representations at issue are not misleading on their face when taken in context, to survive summary judgment the plaintiff must offer evidence that a reasonable consumer would be materially misled. The plaintiff’s own testimony is not sufficient to create an issue of fact for the jury. Weaver v. Champion Petfoods USA Inc., 3 F.4th 927 (2021).

100.18 Annotation References to ingredients used do not imply that ingredient is used exclusively. In this case, representations that food was made with fresh regional ingredients were not clearly misleading—the food did, in fact, contain some ingredients that were fresh and sourced regionally. Weaver v. Champion Petfoods USA Inc., 3 F.4th 927 (2021).

100.18 Annotation This section is reasonably geared toward notice and workable precision and is not so imprecise as to be constitutionally vague. Carpets By The Carload, Inc. v. Warren, 368 F. Supp. 1075 (1973).

100.18 Annotation One person can constitute “the public” under sub. (1). Jersild v. Aker, 775 F. Supp. 1198 (1991).

100.18 Annotation Actual interest payments incurred as a result of misrepresentations may be recovered by the defrauded party. Jersild v. Aker, 775 F. Supp. 1198 (1991).

100.18 Annotation The protections under this section are not restricted to Wisconsin residents. A suit for damages under this section requires a showing of actual pecuniary loss, not a mere showing of a misleading or deceptive statement or representation. Demitropoulos v. Bank One Milwaukee, N.A., 915 F. Supp. 1399 (1996).

100.18 Annotation There is no indication that the application of this section is restricted to use by consumers. Stoughton Trailers, Inc. v. Henkel Corp., 965 F. Supp. 1227 (1997).

100.18 Annotation Sub. (11) (b) 3. is a statute of repose to which the discovery rule does not apply. Staudt v. Artifex Ltd., 16 F. Supp. 2d 1023 (1998).

100.18 Annotation Under Wisconsin law, the economic loss doctrine does not bar recovery under this section, and it does bar recovery under s. 895.80, at least under the facts of this case. Dow v. Poltzer, 364 F. Supp. 2d 931 (2005).

100.18 Annotation While the plaintiff, a seller of goods through its website, may have been subject to misrepresentations regarding the source of customers directed to its website from defendants’ websites through a “typosquatting scheme,” the misrepresentations could not be characterized as statements made to the public relating to the purchase of merchandise and were not subject to this section. Lands’ End, Inc. v. Remy, 447 F. Supp. 2d 941 (2006).

100.18 Annotation If the Wisconsin courts had intended to exclude from the law only contracting parties as members of the public, it could have stated the rule as whether the parties had a “contracting relationship,” not the more general “particular relationship.” There was a “particular relationship” when the plaintiff had an ongoing relationship with the defendant for 13 years, selling as much as $12 million of merchandise in a single year, and thus the plaintiff was not a member of the public. Uniek, Inc. v. Dollar General Corp., 474 F. Supp. 2d 1034 (2007).

100.18 Annotation This section does not explicitly require a misrepresentation to the plaintiff, only to “the public.” However, the question is whether the representation materially induced the plaintiff’s decision to act and whether the plaintiff would have acted in the absence of the representation. Grice Engineering, Inc. v. JG Innovations, Inc., 691 F. Supp. 2d 915 (2010).

100.18 Annotation This section does not provide a cause of action for misrepresentations made to non-parties; this section is not designed to protect product manufacturers from the deceptive acts of their competitors. Riddell, Inc. v. Schutt Sports, Inc., 724 F. Supp. 2d 963 (2010).

100.18 Annotation This section applies to only commercial transactions. Thermal Design, Inc. v. American Society of Heating, Refrigerating & Air-Conditioning Engineers, Inc., 775 F. Supp. 2d 1082 (2011).

100.18 Annotation A nondisclosure of facts, combined with an affirmative representation that is undermined by the non-disclosed facts, may result in liability under sub. (1). In such situations, the existence of the undisclosed facts may show that the affirmative representation is untrue, deceptive, or misleading. Price-related misrepresentations that the defendant purportedly made to consumers—namely, that its goods were “regularly” priced at certain values—were indeed related to corresponding omissions—namely, that the “regular” prices appearing on the defendant’s goods were not accurate. These affirmative representations were actionable representations of fact under this section. Murillo v. Kohl’s Corp., 197 F. Supp. 3d 1119 (2016).

100.18 Annotation Sub. (1) is disjunctive, prohibiting “untrue, deceptive, or misleading” representations. Nothing in sub. (1) states that a plaintiff must plead that a representation is untrue or that it is true but deceptive or misleading. In the same vein, Wisconsin case law does not suggest that a plaintiff must allege the representation was literally true but deceptive or misleading. Wisconsin courts group these three concepts together. Blitz v. Monsanto Co., 317 F. Supp. 3d 1042 (2018).

100.18 Annotation Substantively, sub. (1) does not appear to require anything different from or additional to a labeling or packaging requirement under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 USC 136 et seq. Under Bates, 544 U.S. 431 (2005), therefore, the two statutes’ requirements are “equivalent,” and the plaintiff’s cause of action under sub. (1) is not preempted by FIFRA. Although a verdict awarding damages in favor of the plaintiff might well motivate the defendant to change its label, such a verdict does not create the kind of legal “requirement” prohibited under FIFRA’s preemption statement. Blitz v. Monsanto Co., 317 F. Supp. 3d 1042 (2018).

100.18 Annotation Nothing in sub. (1) suggests that its purpose is to regulate advertisers who are physically located in Wisconsin but who advertise elsewhere. The phrase “in this state” must be understood as referring to the location of the advertising rather than the advertiser. The Wisconsin Deceptive Trade Practices Act does not apply unless a person makes a deceptive representation that is likely to reach and induce action by a purchaser in Wisconsin. T&M Farms v. CNH Industrial America, LLC, 488 F. Supp. 3d 756 (2020). But see State v. Talyansky, 2023 WI App 42, 409 Wis. 2d 57, 995 N.W.2d 277, 22-0788.

100.18 Annotation Protection for Consumers Against Unfair and Deceptive Business. Jeffries. 57 MLR 559 (1974).

100.18 Annotation The Resurgence of Caveat Emptor: Puffery Undermines the Pro-Consumer Trend in Wisconsin’s Misrepresentation Doctrine. Goretzke. 2003 WLR 171.

100.18 Annotation Private enforcement of consumer laws in Wisconsin. Waxman. WBB May 1983.

100.18 Annotation Protecting Consumers in the Modern Age: Wisconsin’s Deceptive Trade Practices Act. Hinkston. Wis. Law. Oct. 2008.

100.18 Annotation Navigating Wisconsin’s Consumer Protection System. Greene. Wis. Law. Sept. 2017.

100.182 100.182 Fraudulent drug advertising.

100.182(1) (1) In this section, “drug” has the meaning specified in s. 450.01 (10).

100.182(2) (2) No person may advertise the availability of any drug or publish or circulate such an advertisement with the intent of selling, increasing the consumption of or generating interest in the drug if the advertisement contains any untrue, deceptive or misleading representations material to the effects of the drug.

100.182(3) (3) No person may expressly or impliedly represent that a substance may be used to obtain physical or psychological effects associated with the use of a drug in order to promote the sale of the substance unless it is lawfully marketed for human consumption under the United States food, drug and cosmetic act under 21 USC 301 to 392. A representation that the substance is not intended for human consumption is not a defense to prosecution for violating this subsection.

100.182(4) (4) No person may advertise a drug that the person knows is intentionally manufactured substantially to resemble a controlled substance or that the person represents to be of a nature, appearance or effect that will allow the recipient to display, sell, deliver, distribute or use the drug as a controlled substance, unless the drug is controlled under ch. 961.

100.182(5) (5)