A wholesaler who furnishes, lends or rents the use of equipment for the storage or display of selected dairy products to any person exempt under sub. (1) (b) 1.
shall not sell selected dairy products which will be stored or displayed in such equipment to any retailer using the equipment on the premises of such exempt person unless such retailer purchases said equipment in accordance with this paragraph or par. (d)
. Nothing in this paragraph shall limit sales of selected dairy products to retailers in conjunction with equipment furnished under subd. 3.
A wholesaler may sell or rent portable freezer cabinets, each with a storage capacity not exceeding 12 cubic feet, to retailers for the purpose of displaying frozen dessert novelties to retail customers.
Maintain or make repairs of any equipment owned by a retailer except those used exclusively for selected dairy products. On such repairs the wholesaler shall make charges for the service and parts at the same prices as are charged by 3rd persons rendering such service in the community where the retailer is located but in no event shall the charges be less than the cost thereof to the wholesaler plus a reasonable margin of profit.
Extend or give credit to any retailer in excess of 30 days payable 15 days thereafter.
Sell or offer to sell, directly or indirectly, any selected dairy product at less than cost with the purpose or intent of injuring, destroying or eliminating competition or a competitor or creating a monopoly, or where the effect may be any of the same. This paragraph shall apply to all sales, including those made to any instrumentality of state or local government and to all religious, charitable or educational organizations or institutions, but does not apply to sales made to the United States.
“Cost" of a selected dairy product to a wholesaler means that portion of all of the cost of raw product plus all costs of manufacturing, processing, packaging, handling, sale, delivery and overhead of such wholesaler which, under a system of accounting in accordance with sound accounting principles and reasonably adapted to the business of such wholesaler, is fairly allocable to such selected dairy product and the sale thereof to its customers or to a particular class thereof. Such cost shall include, but not be limited to, all expenses for labor, salaries, bonuses, fringe benefits, administration, rent, interest, depreciation, power, raw and processed ingredients, materials, packaging, supplies, maintenance of equipment, selling, advertising, transportation, delivery, credit losses, license and other fees, taxes, insurance, and other fixed and incidental operating expenses and costs of doing business.
The department may by rule after hearing adopt a uniform system of accounting to be used by the department in determining the cost of a selected dairy product and to require wholesalers to file reports of such cost based upon such adopted system of accounting.
Proof made at any proceeding under this paragraph of a sale or offer to sell, directly or indirectly, any selected dairy product at less than cost as determined by department rule, if adopted, shall be prima facie evidence that it was made with the purpose or intent of injuring, destroying or eliminating competition or a competitor or creating a monopoly and that the effect may be any of the same. The burden of rebutting such prima facie evidence shall be upon the person charged with a violation of this paragraph. Nothing in this paragraph shall prevent any person charged with a violation of this paragraph from rebutting such prima facie evidence by showing that the person's sale or offer to sell was made in good faith to meet competition.
This paragraph shall also apply to any retailer who owns, operates or otherwise contracts for, directly or indirectly, facilities for manufacturing or processing any selected dairy product, and to the cost of a selected dairy product, as defined in this paragraph, shall be added both the wholesale and retail markup as provided in s. 100.30
Give, offer to give, furnish, finance or otherwise make available, directly or indirectly, to any retailer or to any other person doing business with a retailer anything of value which is connected with, or which aids or assists in, or which may induce or encourage, the purchase, handling, sale, offering for sale or promotion of the sale of the wholesaler's selected dairy products by a retailer or any other person doing business with a retailer, unless given, offered, furnished, financed or otherwise made available on proportionately equal terms to all other retailers or persons doing business with retailers. The term “anything of value" as used herein includes, but is not limited to:
Any payment, discount, rebate, allowance, gift, goods, merchandise, privilege, contest, service or facility, whether or not given, offered, furnished, financed or otherwise made available in combination with or contingent on a purchase, or as compensation for or in consideration of the furnishing of any service or facility by or through a retailer.
Any transaction involving the use of a coupon, token, slip, punch card, trading stamp or other device similar in nature, including any part of a container or package intended to be used as such device, and which transaction involves any participation by or purchase from a retailer.
The good faith meeting of competition by offering or making available services and facilities offered or made available by a competitor.
Nothing in this paragraph authorizes the sale of selected dairy products, or the furnishing of services or facilities in violation of pars. (a)
Operation of retail outlet by wholesaler.
Nothing in this section shall be interpreted to prohibit the operation of a retail outlet by a wholesaler for retail sales or to prohibit the use by the wholesaler in such retail outlet of any equipment or advertising or miscellaneous matter owned by the wholesaler provided that such retail outlet is under direct control and management of the wholesaler.
Unlawful acts of retailers.
It is unlawful for any retailer or any officer, director, employee or agent thereof to solicit or receive, directly or indirectly, from or through a wholesaler, broker or another retailer, anything which is prohibited by sub. (2)
, where the retailer, officer, director, employee or agent knows or, in the exercise of reasonable prudence, should know that the same is prohibited.
It is unlawful for a broker, or any officer or agent thereof, to participate, directly or indirectly, in any unfair trade practice described in sub. (2)
It is unlawful for a wholesaler to engage or offer to engage in any unfair trade practice described in sub. (2)
, directly or indirectly, through a broker.
Except as provided in subd. 2.
, a manufacturer or processor of selected dairy products shall pay a fee under par. (c)
on its sales of those selected dairy products to which all of the following apply:
does not apply to the operator of a retail food establishment licensed under s. 97.30
who manufactures or processes selected dairy products at that establishment solely for retail sale at that establishment.
The first person in this state to receive selected dairy products that are manufactured or processed outside of this state and that are packaged for sale to consumers shall pay a fee under par. (c)
on sales of those selected dairy products to persons in this state.
The fee under this subsection is 5.49 cents per hundred pounds of ice cream products and 0.44 cent per hundred pounds of other dairy products or such other amount as specified by the department by rule. The fee shall be paid to the department by the 25th day of each month for sales made during the preceding month.
The failure to pay fees under this subsection within the time provided under par. (c)
is a violation of this section. The department may also commence an action to recover the amount of any overdue fees plus interest at the rate of 2 percent per month for each month that the fees are delinquent.
The department shall keep confidential information obtained under this subsection concerning the amount of dairy products sold by specific manufacturers and processors.
The provisions of ss. 133.04
shall not apply to any conduct either permitted, required or prohibited under this section.
It is the duty of the department to investigate, ascertain and determine whether this section or lawful orders issued hereunder are being violated and for such purposes the department shall have all the powers conferred by ch. 93
This section shall apply to transactions, acts or omissions which take place in whole or in part outside this state. In any action or administrative proceeding the department has jurisdiction of the person served under s. 801.11
when any act or omission outside this state by the defendant or respondent results in local injury or may have the effect of injuring competition or a competitor in this state or unfairly diverts trade or business from a competitor, if at the time:
Solicitation or service activities were carried on within this state by or on behalf of the defendant or respondent; or
Selected dairy products processed, serviced, distributed or manufactured by the defendant or respondent were received for resale in this state at retail or wholesale without regard to where sale or delivery takes place.
Any person violating this section shall forfeit not less than $100 nor more than $5,000 for each violation.
The department, after public hearing held under s. 93.18
, may issue a special order against any person requiring such person to cease and desist from acts, practices or omissions determined by the department to violate this section. Such orders shall be subject to judicial review under ch. 227
. Any violation of a special order issued hereunder shall be punishable as a contempt under ch. 785
in the manner provided for disobedience of a lawful order of a court, upon the filing of an affidavit by the department of the commission of such violation in any court of record in the county where the violation occurred.
The department, in addition to or in lieu of any other remedies herein provided, may apply to a circuit court for a temporary or permanent injunction to prevent, restrain or enjoin any person from violating this section or any special order of the department issued hereunder, without being compelled to allege or prove that an adequate remedy at law does not exist.
The provisions of s. 93.06 (7)
shall be applicable to violations of this section insofar as permits, certificates, registrations or licenses issued by the department for the manufacture, distribution, and sale of selected dairy products are concerned, provided that any suspension or revocation thereof pursuant to s. 93.06 (7)
can be ordered only for failure to comply with any special order issued pursuant to par. (b)
or with any permanent injunction issued pursuant to par. (c)
, should such failure continue after such order or such injunction becomes final on the completion of any review proceedings. In such proceedings the department shall follow the hearing procedure set forth in s. 93.18
for special orders. Judicial review shall be as provided in ch. 227
Any person suffering pecuniary loss because of any violation of this section may sue for damages therefor in any court of competent jurisdiction and shall recover treble the amount of such pecuniary loss, together with costs, including a reasonable attorney's fee.
Any retailer or wholesaler may file a written verified complaint with the department alleging facts which, if proved, would support a charge that a person named therein is engaging in unfair trade practices as defined in this section. Whenever such a complaint is filed it is the duty of the department to proceed to hearing and adjudication as provided in par. (b)
A final judgment, decree or order hereafter rendered in any civil or criminal action or special proceeding, or in any special order proceeding under par. (b)
, brought by or on behalf of the state under this section to the effect that a defendant or respondent has violated said law shall be prima facie evidence against such defendant or respondent in any action or special proceeding brought by any other party against such defendant or respondent under said law, as to all matters respecting which said judgment, decree or order would be an estoppel as between the parties thereto but this subsection shall not apply to judgments, decrees or special orders entered by consent.
Removal or sale of equipment.
Any equipment furnished by wholesalers to retailers prior to August 17, 1963, shall be removed from the retailers' premises or sold pursuant to sub. (2) (d)
by January 1, 1964. The minimum selling price of such equipment, if fully depreciated in accordance with sub. (2) (e)
, shall not be less than $10 per unit.
The department may promulgate rules which are necessary for the efficient administration of this section. The department may also promulgate rules which set standards for the nondiscriminatory sale and furnishing of services or facilities in connection with the sale or distribution of selected dairy products and for the good faith meeting of competition.
History: 1971 c. 238
; Sup. Ct. Order, 67 Wis. 2d 585, 774 (1975); 1975 c. 39
; 1979 c. 32
s. 92 (13)
; 1979 c. 209
; 1983 a. 62
; 1983 a. 189
, 329 (20)
, (31); 1987 a. 399
; 1993 a. 112
; 1995 a. 27
; 2001 a. 10
; 2005 a. 253
See also ch. ATCP 103
, Wis. adm. code.
Contracts in violation void.
All contracts and agreements made in violation of s. 100.201
Vehicle protection product warranties. 100.203(1)(a)
“Administrator" means a party other than the warrantor whom the warrantor designates to be responsible for the administration of warranties.
“Commissioner" means the commissioner of insurance.
“Incidental costs" means expenses incurred by the warranty holder that are specified in the warranty and that are related to the failure of the vehicle protection product to perform as the warranty provides. “Incidental costs" include insurance policy deductibles, rental vehicle charges, the difference between the actual value of the stolen vehicle at the time of theft and the cost of a replacement vehicle, sales taxes, registration fees, transaction fees, and mechanical inspection fees.
“Vehicle protection product" means a device, system, or service installed on or applied to a vehicle that is designed to prevent loss or damage to the vehicle. “Vehicle protection product" includes alarm systems, body-part marking products, steering locks, window-etch products, pedal and ignition locks, fuel and ignition kill switches, and electronic, radio, and satellite tracking devices.
“Warrantor" means a person who is obligated to the warranty holder under the terms of the warranty.
“Warranty" means a written representation, made to a warranty holder, that applies to a vehicle protection product and that asserts that the vehicle protection product will prevent specified loss or damage to a vehicle or the warrantor will pay the warranty holder specified incidental costs.
“Warranty holder" means the person who purchases a vehicle protection product that includes a warranty or who is a permitted transferee under the terms of the warranty.
“Warranty reimbursement insurance policy" means an insurance policy that is issued to a warrantor to provide reimbursement to the warrantor for, or to pay on behalf of the warrantor, all obligations incurred by the warrantor under the terms and conditions of the insured warranties sold by the warrantor.
Registration and filing requirements of warrantors. 100.203(2)(a)(a)
A person shall register with the office by filing a form prescribed by the commissioner before operating as a warrantor or representing to the public that the person is a warrantor.
Warrantor registration records shall be filed with the office annually and shall be updated within 30 days of any change.
The registration records shall contain the following information, which shall be available to the public:
The warrantor's name, any names under which the warrantor does business in this state, the warrantor's principal office address, and the warrantor's telephone number.
The name and address of the warrantor's agent for service of process in this state if other than the warrantor.
The registration records shall contain the following information, which is confidential and not available for inspection or copying under s. 19.35 (1)
The name of the warrantor's executive officer directly responsible for the warrantor's vehicle protection product business.
The name, address, and telephone number of any administrator that the warrantor designates to be responsible for the administration of warranties in this state.
A copy of the warranty reimbursement insurance policy or other financial information required under sub. (3)
A copy of each warranty that the warrantor plans to use in this state.
A statement indicating that the warrantor qualifies to do business in this state under sub. (3) (a)
or that the warrantor qualifies to do business in this state under sub. (3) (b)
If a registrant fails to register by the renewal deadline, the commissioner shall give the registrant written notice of the failure. The registrant shall have 30 days to complete the renewal before his or her registration is suspended.
If a registrant's registration is suspended under subd. 1.
, the suspension shall last until the registrant registers and pays any late payment, except that the registration shall be terminated one year after the renewal deadline if the registrant has not registered or paid any late payment.
A person who sells or solicits a sale of a vehicle protection product that includes a warranty but who is not a warrantor is not required to register as a warrantor to sell the vehicle protection product.
No person may sell, or offer to sell, a vehicle protection product that includes a warranty unless the warrantor meets one of the following conditions:
The warrantor is insured under a warranty reimbursement insurance policy that meets the conditions specified in s. 632.185 (2)
and has filed with the commissioner a copy of the warranty reimbursement insurance policy.
The warrantor's net worth, or the total of all outstanding ownership interests in the warrantor, is at least $50,000,000, or, if the warrantor is a subsidiary, the parent entity's net worth is at least $50,000,000. If the warrantor files with the U.S. Securities and Exchange Commission, the warrantor provides the commissioner with a copy of the warrantor's, or the parent entity's, most recent U.S. Securities and Exchange Commission form 10-K or form 20-f, filed within the preceding year pursuant to 15 USC 78L
(b) or (g), 78m
, or 78o
(d). If the warrantor does not file with the U.S. Securities and Exchange Commission, the warrantor provides the commissioner a copy of the warrantor's, or the parent entity's, audited financial statements. If the warrantor's parent entity's forms or audited financial statements are filed to meet the condition specified under this subsection, then the parent entity shall agree to guarantee the obligations of the warrantor relating to warranties issued by the warrantor in this state.
Every warranty shall be written in clear language that is understandable to lay persons and shall be printed or typed in easy-to-read size and style of type. No warranty may be included with a vehicle protection product unless it meets all of the following conditions:
If the warrantor chooses to meet its financial responsibility obligations under sub. (3) (a)
The warranty states that the obligations of the warrantor to the warranty holder are guaranteed under a warranty reimbursement insurance policy and states the name and address of the insurer.
The warranty states that if a warranty holder makes a claim against a party other than the issuer of the warranty reimbursement insurance policy, the warranty holder may make a direct claim against the insurer if the warrantor fails to pay any claim or to meet any obligation under the terms of the warranty within 60 days after proof of loss has been filed with the warrantor.
The warranty identifies the warrantor, the seller, and the warranty holder.