100.30 Unfair sales act.
(1) Policy. The practice of selling certain items of merchandise below cost in order to attract patronage is generally a form of deceptive advertising and an unfair method of competition in commerce. Such practice causes commercial dislocations, misleads the consumer, works back against the farmer, directly burdens and obstructs commerce, and diverts business from dealers who maintain a fair price policy. Bankruptcies among merchants who fail because of the competition of those who use such methods result in unemployment, disruption of leases, and nonpayment of taxes and loans, and contribute to an inevitable train of undesirable consequences, including economic depression.
(2) Definitions. When used in this section unless context otherwise requires:
(a) “Average posted terminal price" means the average posted rack price, as published by a petroleum price reporting service, at which motor vehicle fuel is offered for sale at the close of business on the determination date by all refiners and wholesalers of motor vehicle fuel at a terminal plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale, any cost incurred for transportation and any other charges that are not otherwise included in the average posted rack price. In this paragraph, “average" means the arithmetic mean.
(am)
1. With respect to the sale of cigarettes or other tobacco products, fermented malt beverages or intoxicating liquor or wine, “cost to retailer" means the invoice cost of the merchandise to the retailer within 30 days prior to the date of sale, or replacement cost of the merchandise to the retailer, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise taxes imposed on such merchandise or the sale thereof other than excise taxes collected by the retailer, and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the merchandise as herein set forth, to which shall be added a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be 6 percent of the cost to the retailer as herein set forth.
1m. With respect to the sale of motor vehicle fuel, “cost to retailer" means the following:
a. In the case of the retail sale of motor vehicle fuel by a refiner at a retail station owned or operated either directly or indirectly by the refiner, the refiner's lowest selling price to other retailers or to wholesalers of motor vehicle fuel on the date of the refiner's retail sale, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale and any cost incurred for transportation and any other charges not otherwise included in the invoice cost of the motor vehicle fuel, plus a markup of 9.18 percent of that amount to cover a proportionate part of the cost of doing business; or the average posted terminal price at the terminal located closest to the retail station plus a markup of 9.18 percent of the average posted terminal price to cover a proportionate part of the cost of doing business; whichever is greater.
b. In the case of the retail sale of motor vehicle fuel by a wholesaler of motor vehicle fuel, who is not a refiner, at a retail station owned or operated either directly or indirectly by the wholesaler of motor vehicle fuel, the invoice cost of the motor vehicle fuel to the wholesaler of motor vehicle fuel within 10 days prior to the date of sale, or the replacement cost of the motor vehicle fuel, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale, and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or replacement cost of the motor vehicle fuel, plus a markup of 9.18 percent of that amount to cover a proportionate part of the cost of doing business; or the average posted terminal price at the terminal located closest to the retail station plus a markup of 9.18 percent of the average posted terminal price to cover a proportionate part of the cost of doing business; whichever is greater.
c. In the case of the retail sale of motor vehicle fuel by a person other than a refiner or a wholesaler of motor vehicle fuel at a retail station, the invoice cost of the motor vehicle fuel to the retailer within 10 days prior to the date of sale, or the replacement cost of the motor vehicle fuel, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the motor vehicle fuel, plus a markup of 6 percent of that amount to cover a proportionate part of the cost of doing business; or the average posted terminal price at the terminal located closest to the retailer plus a markup of 9.18 percent of the average posted terminal price to cover a proportionate part of the cost of doing business; whichever is greater.
d. In the case of a retail sale of motor vehicle fuel by a refiner at a place other than a retail station, the refiner's lowest selling price to other retailers or to wholesalers of motor vehicle fuel on the date of the refiner's retail sale, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale and any cost incurred for transportation and any other charges not otherwise included in the invoice cost of the motor vehicle fuel to which shall be added a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be 3 percent of the cost to the retailer as set forth in this subd. 1m. d.
e. In the case of a retail sale of motor vehicle fuel by a person other than a refiner at a place other than a retail station, the invoice cost of the motor vehicle fuel to the retailer within 10 days prior to the date of the sale, or the replacement cost of the motor vehicle fuel, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the motor vehicle fuel to which shall be added a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be 3 percent of the cost to the retailer as set forth in this subd. 1m. e.
2. With respect to the sale of merchandise other than cigarettes or other tobacco products, fermented malt beverages, intoxicating liquor or wine, or motor vehicle fuel, “cost to retailer" means the invoice cost of the merchandise to the retailer, or replacement cost of the merchandise to the retailer, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise taxes imposed on such merchandise or the sale thereof other than excise taxes collected by the retailer, and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the merchandise as herein set forth.
(b) “Cost to retailer" and “cost to wholesaler" as defined in pars. (am) and (c) mean bona fide costs; and purchases made by retailers, wholesalers, wholesalers of motor vehicle fuel and refiners at prices which cannot be justified by prevailing market conditions within this state shall not be used in determining cost to the retailer and cost to the wholesaler. Prices at which purchases of merchandise other than motor vehicle fuel are made by retailers or wholesalers cannot be justified by prevailing market conditions in this state when they are below the lowest prices at which the manufacturer or producer of such merchandise sells to other retailers or wholesalers in this state. Prices at which sales of motor vehicle fuel are made by retailers, wholesalers, wholesalers of motor vehicle fuel and refiners cannot be justified by prevailing market conditions in this state when they are below the applicable cost to retailers and cost to wholesalers specified under pars. (am) and (c).
(c)
1.
a. With respect to the sale of cigarettes or other tobacco products, fermented malt beverages or intoxicating liquor or wine, “cost to wholesaler" means, except as provided in subd. 1. b., the invoice cost of the merchandise to the wholesaler within 30 days prior to the date of sale, or the replacement cost of the merchandise to the wholesaler, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise taxes imposed on the sale thereof prior to the sale at retail, and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the merchandise as herein set forth, to which shall be added, except for sales at wholesale between wholesalers, a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be 3 percent of the cost to the wholesaler as herein set forth.
b. For every person holding a permit as a distributor as defined in s. 139.30 (3) or as a multiple retailer as defined in s. 139.30 (8), with respect to that portion of the person's business which involves the purchase and sale of cigarettes “cost to wholesaler" means the cost charged by the cigarette manufacturer, disregarding any manufacturer's discount or any discount under s. 139.32 (5), plus the amount of tax imposed under s. 139.31. Except for a sale at wholesale between wholesalers, a markup to cover a proportionate part of the cost of doing business shall be added to the cost to wholesaler. In the absence of proof of a lesser cost, this markup shall be 3 percent of the cost to wholesaler as set forth in this subd. 1. b.
1g. With respect to the wholesale sale of motor vehicle fuel by a refiner, “cost to wholesaler" means the refiner's lowest selling price to other retailers or to wholesalers of motor vehicle fuel on the date of the refiner's wholesale sale, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale and any cost incurred for transportation and any other charges not otherwise included in the invoice cost of the motor vehicle fuel, to which shall be added a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be 3 percent of the cost to the wholesaler as set forth in this subdivision.
1r. With respect to the wholesale sale of motor vehicle fuel by a person other than a refiner, “cost to wholesaler" means the invoice cost of the motor vehicle fuel to the wholesaler of motor vehicle fuel within 10 days prior to the date of the sale or the replacement cost of the motor vehicle fuel, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the motor vehicle fuel to which shall be added a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be 3 percent of the cost to the wholesaler as set forth in this subdivision.
2. With respect to the sale of merchandise other than cigarettes or other tobacco products, fermented malt beverages, intoxicating liquor or wine, or motor vehicle fuel, “cost to wholesaler" means the invoice cost of the merchandise to the wholesaler, or the replacement cost of the merchandise to the wholesaler, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise taxes imposed on the sale thereof prior to the sale at retail, and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the merchandise as herein set forth.
(cg)
1. Except as provided in subd. 2., “determination date" is the day preceding the day of the sale at retail of motor vehicle fuel.
2. If a retailer sells motor vehicle fuel on a day other than the day on which the retailer last purchased any motor vehicle fuel and the sale of the motor vehicle fuel by the retailer occurs no later than 10 days after its last purchase by the retailer, “determination date" means any of the following dates selected by the retailer:
a. The day preceding the day of the sale of motor vehicle fuel by the retailer.
b. The day on which motor vehicle fuel was last purchased by the retailer.
(cj) “Existing price of a competitor" means a price being simultaneously offered to a buyer for merchandise of like quality and quantity by a person who is a direct competitor of the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner and from whom the buyer can practicably purchase the merchandise.
(cL) “Petroleum price reporting service" means a wholesale petroleum product price reporting service that is recognized nationwide.
(cm) “Refiner" means a manufacturer, producer or refiner of motor vehicle fuel.
(d) “Replacement cost" means the cost computed as specified in par. (am) or (c) at which the merchandise sold could have been bought by the retailer, wholesaler or wholesaler of motor vehicle fuel at any time if bought in the same quantity as the retailer's, wholesaler's or wholesaler of motor vehicle fuel's last purchase of the said merchandise.
(e) “Retailer" includes every person engaged in the business of making sales at retail within this state, but, in the case of a person engaged in the business of selling both at retail and at wholesale, such term shall be applied only to the retail portion of such business.
(f) With respect to the sale of merchandise other than motor vehicle fuel, “retailer" and “wholesaler" shall both be applied to any merchant who buys merchandise for resale at retail from the manufacturer or producer thereof and to any wholesaler under par. (L) 2. and, as to that merchandise or that wholesaler, the terms “cost to retailer" and “cost to wholesaler" as defined in pars. (am) and (c) shall both be applied, including the markup requirements.
(g) “Sell", “sale" or “sold" includes any advertising or offer to sell or any transfer of merchandise where title is retained by the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner as security for the payment of the purchase price. In determining the selling price of merchandise by wholesalers, wholesalers of motor vehicle fuel, retailers and refiners under this section, all fractions of a cent shall be carried to the next full cent.
(h) “Sell at retail", “sales at retail" and “retail sale" mean any transfer for a valuable consideration, made in the ordinary course of trade or in the usual prosecution of the retailer's business, of title to tangible personal property to the purchaser for consumption or use other than resale or further processing or manufacturing.
(i) “Sell at wholesale", “sales at wholesale" and “wholesale sales" include any transfer for a valuable consideration made in ordinary course of trade or the usual conduct of the wholesaler's business, of title to tangible personal property to the purchaser for purposes of resale or further processing or manufacturing.
(j) “Terminal" means a motor vehicle fuel storage and distribution facility that is supplied by a pipeline or marine vessel, from which facility motor vehicle fuel may be removed at a rack and from which facility at least 3 refiners or wholesalers of motor vehicle fuel sell motor vehicle fuel.
(k) In the case of retail sales of alcohol beverages, “trade discount" shall not include discounts in the form of cash or merchandise.
(L) “Wholesaler" includes every person holding a permit as a multiple retailer under s. 139.30 (8) and every person engaged in the business of making sales at wholesale, other than sales of motor vehicle fuel at wholesale, within this state except as follows:
1. In the case of a person engaged in the business of selling both at wholesale and at retail, “wholesaler" applies only to the wholesale portion of that business.
2. In the case of a person holding a permit as a multiple retailer as defined in s. 139.30 (8), “wholesaler" applies to that portion of the person's business involving the purchase and sale of cigarettes and to any wholesale portion of that person's business.
(m) “Wholesaler of motor vehicle fuel" includes any of the following:
1. A person who stores motor vehicle fuel and sells it through 5 or more retail outlets that the person owns or operates.
2. A person who acquires motor vehicle fuel from a refiner or as a sale at wholesale and stores it in a bulk storage facility other than a retail station for further sale and distribution.
3. A person engaged in the business of making sales at wholesale of motor vehicle fuel within this state.
4. A person engaged in the business of selling diesel fuel if that person's sales of diesel fuel accounted for at least 60 percent of that person's total sales of motor vehicle fuel in the previous year or, if that person did not engage in the business of selling diesel fuel in the previous year, if that person reasonably anticipates that sales of diesel fuel will account for at least 60 percent of that person's total sales of motor vehicle fuel in the current year.
(2m) Definitions; construction.
(a) When one or more items of merchandise are furnished or sold in combination with or on condition of the purchase of one or more other items, or are so advertised, all items shall be included in determining cost under sub. (2) (am) or (c); and if any of the items included therein are separately priced, such separate price shall be subject to the requirements of this section.
(b) With respect to the sale of merchandise other than motor vehicle fuel, any retailer who also sells to other retailers shall use the invoice cost to other retailers in computing the selling price at retail under sub. (2) (am); and if that retailer is a manufacturer or producer, both sub. (2) (am) and (c) shall be used in computing the selling price at retail. In the absence of sales to other retailers, the manufacturer's or producer's invoice cost to wholesalers shall be used in computing the manufacturer's or producer's selling price at retail as provided in sub. (2) (am) and (c).
(c) When 2 or more terminals are included in the same geographic area by a petroleum price reporting service, they shall be considered one terminal for purposes of sub. (2) (am) 1m. a., b. and c.
(3) Illegality of loss leaders. Any sale of any item of merchandise either by a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner, at less than cost as defined in this section with the intent or effect of inducing the purchase of other merchandise or of unfairly diverting trade from a competitor, impairs and prevents fair competition, injures public welfare and is unfair competition and contrary to public policy and the policy of this section. Such sales are prohibited. Evidence of any sale of any item of merchandise by any retailer, wholesaler, wholesaler of motor vehicle fuel or refiner at less than cost as defined in this section shall be prima facie evidence of intent or effect to induce the purchase of other merchandise, or to unfairly divert trade from a competitor, or to otherwise injure a competitor.
(4) Penalties. For any violation of sub. (3), the department or a district attorney may commence an action on behalf of the state to recover a forfeiture of not less than $50 nor more than $500 for the first violation and not less than $200 nor more than $2,500 for each subsequent violation.
(5) Special remedies. In addition to the penalties under sub. (4), both of the following remedies apply for a violation of sub. (3):
(a) The department may issue a special order as provided in s. 93.18 against a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner requiring the person to cease and desist from violating this section in the sale of cigarettes or other tobacco products, fermented malt beverages, intoxicating liquor or wine or motor vehicle fuel. The department or a district attorney may commence an action on behalf of the state against a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner who violates a special order issued under this paragraph to recover a forfeiture of not less than $200 nor more than $5,000 for each violation.
(b) The department or a district attorney may bring an action to enjoin a violation of this section without being compelled to allege or prove that an adequate remedy at law does not exist. An action under this paragraph may be commenced and prosecuted by the department or a district attorney, in the name of the state, in a circuit court in the county where the offense occurred or in Dane County, notwithstanding s. 801.50.
(5m) Private cause of action. Any person who is injured or threatened with injury as a result of a sale or purchase of motor vehicle fuel in violation of sub. (3) may bring an action against the person who violated sub. (3) for temporary or permanent injunctive relief or an action against the person for 3 times the amount of any monetary loss sustained or an amount equal to $2,000, whichever is greater, multiplied by each day of continued violation, together with costs, including accounting fees and reasonable attorney fees, notwithstanding s. 814.04 (1). An action under this subsection may not be brought after 180 days after the date of a violation of sub. (3).
(5r) Private cause of action; sale of tobacco products. Any person who is injured or threatened with injury as a result of a sale or purchase of cigarettes or other tobacco products in violation of this section may bring an action against the person who violated this section for temporary or permanent injunctive relief or an action against the person for 3 times the amount of any monetary loss sustained or an amount equal to $2,000, whichever is greater, multiplied by each day of continued violation, together with costs, including accounting fees and reasonable attorney fees, notwithstanding s. 814.04 (1).
(6) Exceptions.
(a) The provisions of this section shall not apply to sales at retail or sales at wholesale where:
1. Merchandise is sold in bona fide clearance sales.
2. Perishable merchandise must be sold promptly in order to forestall loss.
3. Merchandise is imperfect or damaged or is being discontinued.
4. Merchandise is sold upon the final liquidation of any business.
5. Merchandise is sold for charitable purposes or to relief agencies.
6. Merchandise is sold on contract to departments of the government or governmental institutions.
7. The price of merchandise is made in good faith to meet an existing price of a competitor and is based on evidence in the possession of the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner in the form of an advertisement, proof of sale or receipted purchase, price survey or other business record maintained by the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner in the ordinary course of trade or the usual conduct of business.
8. Merchandise is sold by any officer acting under the order or direction of any court.
9. Motor vehicle fuel is sold by a person to a wholesaler of motor vehicle fuel, who may sell the motor vehicle fuel at either retail or wholesale.
(b) No retailer or wholesaler may claim the exemptions under par. (a) 1. to 4. if he or she limits or otherwise restricts the quantity of such merchandise which can be purchased by any buyer or if he or she fails to conspicuously disclose the reason for such sale in all advertisements relating thereto and on a label or tag on such merchandise or on a placard where the merchandise is displayed for sale.
(c) No person may claim the exemption under par. (a) 7. if that person holds a permit under subch. II of ch. 139.
(d) No retailer or wholesaler may claim the exemption under par. (a) 7. if that wholesaler or retailer holds a permit under subch. II of ch. 139.
(7) Notification requirements.
(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.
(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.
(c) If a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner complies with par. (a), all of the following apply:
1. The department may not proceed under sub. (5) against the retailer, wholesaler, wholesaler of motor vehicle fuel or refiner.
2. The retailer, wholesaler, wholesaler of motor vehicle fuel or refiner is immune from liability under sub. (5m).
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.
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 100, 00-2493.
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.
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.
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.
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. R. C. Samanta Roy Institute of Science and Technology, Inc. 2006 WI App 14, 289 Wis. 2d 196, 709 N.W.2d 98, 05-0427.
“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.
Sub. (2) (Lm) [now (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 (2) (k)] is not a catchall prohibition against all trade discounts and does not apply to bona fide quantity discounts. 63 Atty. Gen. 516.
This section does not violate federal antitrust laws or constitutional due process. 77 Atty. Gen. 163.
This section was not unconstitutional as applied to a cigarette wholesaler licensed under s. 139.30 (3). Eby -Brown v. DOR, 295 F.3d 749 (2002).
Flying J, Inc., 597 F. Supp. 2d 848, is reversed. The minimum markup provisions are not preempted by the Sherman Antitrust Act and are enforceable. Flying J, Inc. v. Van Hollen, 621 F.3d 658 (2010).
Wisconsin's unfair sales act — Unfair to whom? Waxman, 66 MLR 293 (1983).