For the purposes of this chapter, a food is misbranded if it is misbranded within the meaning of 21 USC 343
See also ch. ATCP 55
, Wis. adm. code.
If an article is alleged to be misbranded because the labeling is misleading, then in determining whether the labeling is misleading, there shall be taken into account not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the labeling fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the article to which the labeling relates under the conditions of use prescribed in the labeling or under such conditions of use as are customary or usual.
Definitions and standards of identity, composition, quality and fill of container for foods, and amendments thereto, now or hereafter adopted under the federal act or this chapter are definitions and standards of identity, composition, quality and fill of container under s. 97.03
. However, when such action will promote honesty and fair dealing in the interest of consumers, the department may amend, stay or reject such federal regulations or make rules establishing definitions and standards of identity, composition, quality and fill of container for foods where no federal regulations exist, or which differ from federal regulations.
Temporary permits granted under the federal act for interstate shipment of experimental packs of food varying from the requirements of federal definitions and standards of identity are automatically effective in this state under conditions set forth in such permits.
The department may also issue temporary marketing permits upon a convincing showing of need to continue a market study where the interests of consumers are safeguarded. Such permits are subject to terms and conditions prescribed by departmental rules but may not be issued for a period exceeding 6 months plus one renewal period of 6 months after departmental review.
The department may, by rule, establish and enforce standards governing the production, processing, packaging, labeling, transportation, storage, handling, display, sale, including retail sale, and distribution of foods that are needed to protect the public from the sale of adulterated or misbranded foods.
The department shall promulgate rules establishing standards and procedures for the labeling of organic food. The rules may establish a process whereby organizations, businesses and firms certify that foods represented as organic foods comply with established standards. In this subsection, “organic food" means any food that is marketed using “organic" or any derivative of “organic" in its labeling or advertising.
See also ch. ATCP 55
, Wis. adm. code.
Prohibited acts. 97.10(1)(1)
The sale of any food that is adulterated or misbranded is prohibited.
It is unlawful to manufacture, prepare for sale, store, or sell food unless the food is protected from filth, flies, dust or other contamination or unclean, unhealthful or insanitary conditions.
No person shall be subject to the penalties of s. 97.72
for having violated sub. (1)
, if he or she establishes a guaranty or undertaking signed by, and containing the name and address of the person residing in this state from whom the article was received in good faith, to the effect that such article is not adulterated or misbranded within the meaning of ss. 97.02
History: 1971 c. 156
; 1983 a. 261
See also ch. ATCP 55
, Wis. adm. code.
FOOD SAFETY AND REGULATION
For the purpose of enforcing this chapter, the department and its agents may, at reasonable hours, enter and inspect any premises for which a license is required under this chapter or any farm, factory, warehouse, building, room, establishment or place at or in which foods are manufactured, processed, packed, packaged, stored or held for sale, and may enter any vehicle, including a vehicle used to transport or hold foods in commerce. The department and its agents may also secure samples or specimens, including samples or specimens of food and any product or substance that may affect food, examine and copy relevant documents and records, and obtain photographic and other evidence needed to enforce this chapter or a rule promulgated under this chapter. The department shall examine any samples secured and shall conduct other inspections and examinations needed to determine whether there is a violation of this chapter. The department shall pay or offer to pay the market value of samples taken.
Whenever any duly authorized inspector of the department has reasonable cause to believe that any food examined by him or her is adulterated or misbranded and is dangerous to health or misleading to the injury or damage of the purchaser or consumer, the inspector shall issue and deliver to the owner or custodian of the food a holding order prohibiting the sale or movement of the food for any purpose until the analysis or examination of the sample obtained has been completed. A holding order may be effective for a period of not longer than 14 days from the time of its delivery, but it may be reissued for one additional 14-day period if necessary to complete the analysis or examination of the food.
No food described in any such holding order so issued and delivered shall be sold or moved for any purpose without the approval of the department until such analysis or examination has been completed within the time specified in par. (a)
. If the department upon completed analysis or examination determines that the food described in such holding order is not adulterated or misbranded, then the owner or custodian thereof shall be promptly so notified in writing, and such holding order shall terminate upon such notification.
Where the analysis or examination shows that the food is adulterated or misbranded and is dangerous to health or misleading to the injury or damage of the purchaser or consumer, the owner or custodian of the food shall be so notified in writing within the effective time of the holding order. Such notice has the effect of a special order issued under s. 93.18
. Upon receipt of a notice the food subject to the holding order may not be sold, moved, disposed of or brought into compliance with applicable standards without the approval of the department. If such food is not brought into compliance, sold, moved or disposed of within 30 days, or other agreed upon period of time, from the date the owner or custodian received notice that the food was adulterated or misbranded, the department may issue an order directing the disposition of the food. Such an order has the effect of a special order issued under s. 93.18
Any person violating an order issued under this section may be fined not more than the maximum amount under subd. 2.
or imprisoned not more than one year in the county jail or both.
The maximum fine under this paragraph equals $10,000 plus the retail value of the product moved, sold or disposed of in violation of the order issued under this section.
The department may issue a special order as provided under s. 93.18
to any person engaged in the production, processing, sale or distribution of food if the department finds a violation of this chapter or the rules promulgated under this chapter. An order shall state the violations found and shall specify a fixed period of time for correction. If the department finds that a piece of equipment, a facility or a practice used is a danger to public health, it may order that the situation be abated or eliminated immediately and that the equipment, facility or practice not be used until the violation is corrected and the correction is confirmed by the department. The department may, instead of issuing an order, accept written agreements of voluntary compliance which have the effect of an order.
The department may, by summary order and without prior notice or hearing, suspend a license or permit issued under this chapter if the department finds that there has been a substantial failure to comply with the applicable requirements of this chapter and the rules promulgated under this chapter and that the continuation of the violations constitutes a serious danger to public health. The order shall be in writing, have the force and effect of an order issued under s. 93.18
, and is subject to right of hearing before the department, if requested within 10 days after date of service. Hearings, if requested, shall be conducted within 10 days after receipt of a request for a hearing. Enforcement of the order shall not be stayed pending action on the hearing.
Any person who does either of the following may be fined not more than $5,000 or imprisoned not more than one year in the county jail or both:
Assaults, restrains, threatens, intimidates, impedes, interferes with, or otherwise obstructs a department inspector, employee or agent in the performance of his or her duties.
Gives false information to a department inspector, employee or agent with the intent to mislead the inspector, employee or agent in the performance of his or her duties.
Any person who fails to comply with an order issued under this chapter may be required to forfeit $50 for each day of noncompliance.
See also ch. ATCP 55
, Wis. adm. code.
A warrantless inspection of a dairy farm under authority of ss. 93.08, 93.15 (2), and 97.12 (1) and related administrative rules made without prior notice and without the owner being present was not unconstitutional. Because the administrative rules govern operations, equipment, and processes not typically conducted in residential areas, the rules and statutes sufficiently preclude making warrantless searches of residences. Lundeen v. DATCP, 189 Wis. 2d 255
, 525 N.W.2d 758
(Ct. App. 1994).
Sale of fish flour regulated.
No person shall sell any food product for human consumption within this state containing whole fish flour, except fish flour made from the normally edible portions of fish or fish protein concentrate. No package containing fish flour or fish protein concentrate shall be sold by any person unless it bears a statement declaring that the contents thereof are made only from the edible portions of fish.
Buttermaker and cheesemaker license. 97.17(1)(1)
In this section the terms “buttermaker" and “cheesemaker" mean a person employed or who may be employed in a butter or a cheese factory who has charge of and supervision over the actual process of manufacturing butter or cheese, and shall not include a person employed in a butter or cheese factory for the purpose of assisting in the manufacture of such product. This section shall not affect a person making up a product produced on the person's farm, nor shall it be unlawful for a licensed cheesemaker employed in a licensed cheese factory to make butter or whey cream butter for the use or consumption only of the patrons thereof.
No person shall engage as a buttermaker or cheesemaker unless the person has a license from the department. The license shall be issued by the department under regulations that the department shall prescribe relating to the qualifications of applicants for licenses. The qualifications shall include the applicant's record in operating and keeping in sanitary condition the butter or cheese factory in which the applicant has been employed.
Application for a buttermaker's or cheesemaker's license shall be made upon a form furnished by the department. Upon receipt of the application the department shall issue a permit to the applicant to carry on the work of a buttermaker or cheesemaker. The permit shall have the force and effect of a license to a buttermaker or cheesemaker until a license shall have been issued to the applicant or until the applicant shall have been notified of the denial of the application. At the time that the permit is issued, the department shall furnish the applicant with the regulations incident to securing a license and also suggestions relating to the proper method of operating butter or cheese factories.
Each application for a license shall be accompanied by a fee that is $50 unless otherwise established by department rule, except that an individual who is eligible for the veterans fee waiver program under s. 45.44
is not required to pay a fee.
The license shall expire on the first day of January of the 2nd year commencing after the date of issuance or renewal. Renewal applications shall be submitted on department forms and be accompanied by the biennial license fee under sub. (4)
See also ch. ATCP 69
, Wis. adm. code.
Butter and cheese grader license requirements. 97.175(1)(1)
In this section and ss. 97.176
, “butter grader" or “cheese grader" means a person who grades butter or cheese.
No person may act as a butter grader or a cheese grader without a license granted by the department. A person desiring a license shall apply on a form furnished by the department and shall pay to the department a fee that is $50 unless otherwise established by department rule, except that an individual who is eligible for the veterans fee waiver program under s. 45.44
is not required to pay a fee. Before issuing a license, the department shall require the applicant to demonstrate his or her competence to act as a butter grader or a cheese grader in a manner determined by the department. A license expires on September 30 of the 2nd year commencing after the date of issuance.
Butter graders and cheese graders must act in accordance with the standards and requirements established under ss. 93.07
The department may deny, suspend or revoke a license under this section by an order if the department finds that the applicant or licensee is not qualified to act as a butter grader or cheese grader or that the applicant or licensee has applied inaccurate grades or has obtained the license by fraud, perjury or through error. The department shall notify the applicant or licensee of the order and shall follow the procedures for issuing a special order under s. 93.18
Butter; grading; label. 97.176(1)(1)
It is unlawful to sell, offer or expose for sale, or have in possession with intent to sell, any butter at retail unless it has been graded. Butter shall be graded as follows:
Grade, Wisconsin, undergrade — all butter below Wisconsin B.
United States AA, A, and B grades shall be accepted in lieu of the corresponding Wisconsin AA, A, and B grades, but all United States grades below B shall, for the purpose of this section, correspond to Wisconsin undergrade.
As used in this section, score or grade means the grading of butter by its examination for flavor and aroma, body and texture, color, salt, package and by the use of other tests or procedures approved by the department for ascertaining the quality of butter in whole or in part.
Details for methods and procedures to be used for ascertaining quality, for labeling, and for arbitrating disputes with respect to grades, shall be developed by the department as a result of public hearings to be held at a convenient location in the state.
Butter from outside of the state sold within the state shall be provided with a label which indicates that it complies with the state grade standards as provided in this section and which indicates the grade in a manner equivalent to the requirements for butter manufactured and sold within the state.
Butter that carries the state grade labels shall be graded by butter graders licensed under s. 97.175
No person, for himself or herself, or as an agent, shall advertise the sale of any butter at a stated price, unless the grade of the butter is set forth in such advertisement in not less than 10-point type.
History: 1977 c. 29
s. 1650m (4)
; 1983 a. 131
; Stats. 1983 s. 97.176; 1991 a. 39
; 1993 a. 492
See also ch. ATCP 85
, Wis. adm. code.
Wisconsin's butter-grading law does not violate the due process clause, the equal protection clause, or the dormant commerce clause. This section is rationally related to the state's legitimate interest in consumer protection and does not discriminate against out-of-state businesses. Minerva Dairy, Inc. v. Harsdorf, 905 F.3d 1047
Cheese; grading; labeling. 97.177(1)(1)
The department shall by rule adopt standards for grades of cheese manufactured in Wisconsin.
Cheese which carries a state grade must be graded by a cheese grader licensed under s. 97.175
and must conform to the standards for the grade. Graded cheese must be plainly labeled to indicate the grade of the cheese and the license number of the cheese grader.
Cheese manufactured in Wisconsin must be labeled on either the cheese itself or the container at the factory where it is manufactured. The label must remain on the cheese until the cheese is used in a different food manufacturing process or relabeled by the buyer for later sale. The label must contain all of the following:
The factory number designated by the department.
The number of the vat in which the cheese was manufactured if more than one vat of cheese was manufactured in the factory on the same day.
The department may adopt rules for the administration of this section.
History: 1983 a. 131
See also ch. ATCP 81
, Wis. adm. code.
Oleomargarine regulations. 97.18(1)(a)
For the purposes of this section “oleomargarine" or “margarine" includes oleomargarine, margarine, butterine and other similar substances, fats and fat compounds sufficiently adaptable to the ordinary uses of butter, to lead readily to use as an alternative to butter, but this section shall not apply to lard, cream cheese, cheese food compounds, nor to any other dairy product made exclusively of cow's milk or milk solids with or without added vitamins, if such product is sold or distributed in such manner and form as will clearly distinguish it from butter. Nor shall this section apply to shortenings not churned or emulsified in milk or cream or having a melting point of 112 degrees Fahrenheit or more as determined by the capillary tube method unless there is sold or given away with such shortening any compound which, when mixed with such shortening, makes oleomargarine, butterine or similar substances.
“Colored oleomargarine" or “colored margarine" is oleomargarine or margarine having a tint or shade containing more than 1 6/10 degrees of yellow or of yellow and red collectively but with an excess of yellow over red, as measured in terms of Lovibond tintometer scales or its equivalent.
No person shall sell, offer or expose for sale at retail any oleomargarine or margarine unless:
Such oleomargarine or margarine is packaged;
The net weight of the contents of any package sold in a retail establishment is one pound;
There appears on the label of the package the word “oleomargarine" or “margarine" in type or lettering at least as large as any other type or lettering on the label in a color of print which clearly contrasts with its background, and a full accurate statement of the ingredients contained in the oleomargarine or margarine; and