Wisconsin Court of Appeals rules double damages for food mislabeling.

Byline: David Ziemer

A consumer cannot bring a private action based on mislabeled food under sec. 100.18, but he can do so under sec. 100.20, the Wisconsin Court of Appeals held on Oct. 20.

According to his complaint, Michael Gallego purchased artificially colored salmon from a Wal-Mart store in Madison, believing the salmon to be "naturally raised or wild" salmon because of its "pink or reddish coloring." Farm-raised salmon naturally has a gray color.

Gallego alleged that, by not informing consumers that the salmon was artificially-colored, farm-raised salmon, Wal-Mart misled Gallego and other consumers into buying more fish and paying a higher price than they would have if the true origin of the salmon had not been misrepresented.

Gallego's action was filed on behalf of himself and a class consisting of consumers who, during a specified period, purchased artificially colored salmon from Wal-Mart's stores that was "not labeled or advertised as containing artificial coloring." He sought damages pursuant to sec. 100.18 and sec. 100.20.

Dane County Circuit Court Judge Moria G. Krueger dismissed the action, holding that sec. 100.183, which does not allow for private actions, governs violations of food-labeling regulations, rather than sec. 100.18, and that sec. 100.20 did not apply.

Gallego appealed, and in a decision by Judge David G. Deininger, the court of appeals affirmed the dismissal of the sec. 100.18 claim, but reversed as to the sec. 100.20 claim.

Section 100.18

The court agreed that sec. 100.18 did not apply. Sections 100.18 and 100.183 are largely identical in prohibiting misleading advertising. The two substantive differences are: only sec. 100.18 allows for private actions; and sec. 100.183 governs "articles of food," while sec. 100.18 governs (relevant to this action) "merchandise."

The court acknowledged that, in two previous published cases involving sec. 100.18, "merchandise" has been interpreted to include food: Tim Torres Enterprises v. Linscott, 142 Wis.2d 556, 416 N.W.2d 670 (Ct.App.1987); and Winkelman v. Kraft Foods, Inc., 2005 WI App 25, 279 Wis.2d 335, 693 N.W.2d 756, review denied, 2005 WI 134, 700 N.W.2d (WI Jun. 1, 2005).

However, the issue was not raised at all in Linscott, but the case instead involved sufficiency of evidence, and in Winkelman, the issue was not whether food was included in the definition of "merchandise," but whether an arbitrator's conclusion that it was included was manifestly unreasonable. The...