Wisconsin Administrative Code
Department of Agriculture, Trade and Consumer Protection
ATCP 90-139 - Trade and Consumer Protection
Chapter ATCP 127 - Direct Marketing
Subchapter I - Definitions
Section ATCP 127.01 - Definitions

Universal Citation: WI Admin Code ยง ATCP 127.01

Current through August 26, 2024

In this chapter:

(1) "Acquirer" means a financial institution or other person who, under a license or authorization granted by a credit card system operator, authorizes merchants to honor credit cards and submit credit card sales drafts for payment through the credit card system.

(2) "Consumer" means an individual to whom a seller advertises, offers to sell, sells or promotes the sale of consumer goods or services. "Consumer" does not include an individual who purchases consumer goods or services in a business capacity, or for resale to others.

(3) "Consumer goods or services" means goods or services typically used for personal, family or household purposes. "Consumer goods or services" includes personal investment opportunities, personal business opportunities and personal training courses but does not include any of the following:

(a) Investment opportunities, business opportunities and training courses when offered to a business, rather than a consumer.

(b) Real estate, other than cemetery lots or timeshares as defined in s. 707.02(24), Stats.

(c) Pay-per-call services sold in compliance with s. 196.208, Stats.

(d) A newspaper subscription that the consumer may cancel at any time without penalty.

(4) "Credit" means the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment.

(5) "Credit card" means any card or other device which entitles an authorized holder to obtain goods, services or other things of value on credit.

(6) "Credit card sales draft" means any record or evidence of a credit card transaction.

(7) "Credit card system" means the system through which credit card transactions, using credit cards issued or licensed by the credit card system operator, are processed for payment.

(8) "Credit card system operator" means a person who operates a credit card system, or who licenses others to operate a credit card system.

(9) "Department" means the state of Wisconsin department of agriculture, trade and consumer protection.

(10) "Disclose" means to make a clear and conspicuous statement which is reasonably designed to be noticed and readily understood by the consumer.

(11) "Individual" means a natural person.

(12) "Investment opportunity" means anything, tangible or intangible, that is offered, sold or traded based wholly or in part on representations, either express or implied, about past, present or future income, profit or appreciation. "Investment opportunity" does not include a security sold in compliance with ch. 551, Stats., or a franchise investment sold in compliance with ch. 553, Stats.

(13) "Mass advertisement" means a solicitation which a seller publishes or makes accessible to an unrestricted mass audience. "Mass advertisement" includes a solicitation published in a newspaper, magazine, radio broadcast, television broadcast or internet home page. "Mass advertisement" does not include a solicitation which a seller addresses to an individual consumer, to a consumer's residence, or to a gathering of consumers invited by means of telephone, mail or face-to-face solicitations under this chapter.

(14) "Merchant" means a person who is authorized, under a written agreement with an acquirer, to honor credit cards and submit credit card sales drafts to the acquirer for payment and processing through the credit card system.

(15) "Person" means an individual, corporation, partnership, cooperative, limited liability company, trust or other legal entity.

(16) "Prize promotion" means any of the following:

(a) A sweepstakes or other game of chance.

(b) A seller's express or implied representation that a consumer has won, has been selected to receive, may be eligible to receive, or may have a chance to receive a prize.

(c) Any communication from a seller to a consumer in which the seller is required to give the consumer a prize notice under s. 100.171, Stats.

(17) "Purchase" means to buy or lease consumer goods or services.

(18) "Purchase contract" means an agreement to purchase consumer goods or services, regardless of whether that agreement is subject to a later right of cancellation. "Purchase contract" does not include the following agreements, but does include a purchase commitment which arises under any of those agreements as a result of the consumer's subsequent action or omission:

(a) An agreement authorizing the trial delivery of consumer goods or services which the consumer has not yet agreed to purchase, provided that the agreement includes no minimum purchase requirement.

(b) A negative option plan that is covered by and complies with 16 CFR 425 .

Note: Some direct marketers offer trial delivery plans in which the consumer agrees to receive trial deliveries of goods which the consumer has not yet agreed to purchase. Under these agreements, a consumer is typically free to reject or return any trial delivery without purchasing that delivery. But under the trial delivery agreement, the seller may bill the consumer for the delivered goods if the consumer fails to reject or return the delivery within a specified time. Although the consumer's initial agreement to receive trial deliveries is not itself a "purchase contract" (unless it includes a minimum purchase commitment), the consumer effectively enters into a "purchase contract" for a particular delivery when the consumer fails to return or reject that delivery according to the trial delivery agreement.

(19) "Sale" means the passing of an ownership or leasehold interest in consumer goods or services to a consumer for a price.

(20) "Sell" means to engage in the sale of consumer goods or services, or to accept payment pursuant to a purported sale of consumer goods or services.

(21) "Seller" means a person, other than a bank, savings bank, savings and loan association, credit union, insurance company, public utility or telecommunications carrier engaged in exempt activities under s. 93.01(1m), Stats., who is engaged in the business of selling, offering to sell, or promoting the sale of consumer goods or services to consumers. "Seller" includes all of the following:

(a) A person who accepts payment for a purported sale of consumer goods or services to a consumer.

(b) An employee or agent of a seller.

(c) A person who makes solicitations under arrangement with a seller.

Note: For example, a telemarketing firm that makes telephone solicitations on behalf of a "seller" is also a "seller" for purposes of this chapter. Individual employees of the telemarketing firm are also "sellers," for purposes of this chapter, when making telephone solicitations to consumers.

(22) "Solicitation" means a communication received by a consumer at a place other than the seller's regular place of business, in which a seller offers or promotes the sale of consumer goods or services to a consumer, or which is part of a seller's plan or scheme to sell consumer goods or services to a consumer. "Solicitation" does not include any of the following:

(a) A mass advertisement.

(b) A telephone, mail or electronic communication initiated by the consumer, unless prompted by the seller's prior solicitation to the consumer.

Note: Paragraph (b) does not except a face-to-face communication.

(c) A written communication that invites a consumer to the seller's regular place of business.

(d) A communication initiated by a consumer at an established public market, unless that communication was prompted by the seller's prior solicitation to the consumer.

Note: For example, a routine transaction at a farmers market is not a "solicitation" under this chapter, even though it occurs at a place other than the seller's "regular place of business."

(e) The delivery, to a consumer, of goods or services sold to the consumer in a transaction other than a telephone, mail or face-to-face transaction under this chapter.

Note: A "solicitation" under sub. (22) is covered by this rule even though it is not the first communication between the seller and the consumer.

(23) "Written" or "in writing," as applied to a seller's disclosure to a consumer, means legibly printed on paper or another tangible nonelectronic medium that is delivered to the consumer, or legibly printed in an electronic form that the consumer can electronically retrieve, store or print for future reference.

Disclaimer: These regulations may not be the most recent version. Wisconsin may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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