Section 11.51. Grocers' guidelist.

 

(1)   General.

(a) All sales of tangible personal property and items, property and goods under s. 77.52 (1) (b) , (c) , and (d) , Stats., are taxable except when a specific exemption applies. One of the exemptions is for "food and food ingredients," which generally exempts all food and food ingredients for human consumption, except candy, soft drinks, dietary supplements, and prepared food. This exemption also does not include many items normally available in grocery and food stores, such as soft drinks, alcoholic beverages, tobacco products, paper products, and detergents.

(b) "Food and food ingredients" is defined in s. 77.51 (3t) , Stats., to mean a substance in liquid, concentrated, solid, frozen, dried, or dehydrated form, that is sold for ingestion, or for chewing, by humans and that is ingested or chewed for its taste or nutritional value. "Food and food ingredient" does not include alcoholic beverages or tobacco.

(c) The lists in sub. (2) shall serve as a guide to grocers to determine the kinds of items that are taxable and exempt.

(2)   Guidelists.

(a) Taxable sales by grocers. Taxable sales include sales of the following items:

Adhesive tape.

Air fresheners.

Albums.

Alcoholic beverages.

Almond bark.

Ammonia.

Anti-acid products.

Anti-freeze.

Appliances.

Ash trays.

Aspirin.

Auto supplies.

Baby needs, except food.

Bags of all kinds.

Bakeware.

Baking chips, sweetened.

Baking chocolate that contains a sweetener in the form of bars, drops, or pieces.

Barbecue supplies.

Baskets.

Batteries, except hearing aid batteries.

Beauty aids.

Beer.

Binders.

Bird food and supplies.

Bleach.

Blueing.

Bobby pins and rollers.

Books.

Bottled water, sweetened.

Bottles.

Bowl cleaner.

Breath mints, unless they contain flour.

Breath sprays and strips.

Brooms.

Brushes.

Bubble bath.

Butterscotch chips.

Cake decorations, non-edible.

Cake decorations that are candy.

Calcium tablets.

Cameras and supplies.

Can openers.

Candy.

Candy apples.

Canning and freezer supplies.

Caramel apples.

Caramel corn.

Cat food and supplies.

Cereal bars, unless they contain flour.

Charcoal and starter.

Chewing gum.

Chocolate chips and other flavored chips, if sweetened.

Chocolate covered potato chips, unless they contain flour.

Chocolate covered raisins and nuts.

Cigarette lighter fluid, wicks, flints.

Cigarettes.

Cigars.

Cleaning equipment and supplies.

Cleansers.

Clocks.

Clothes lines.

Clothespins.

Clothing.

Cocktail mixes containing 50% or less fruit or vegetable juice.

Cod liver oil.

Coffee drinks that contain sweeteners, unless it also contains milk or milk products.

Cold remedies.

Combs and brushes.

Confections that are candy.

Cough drops.

Crayons.

Deli items, as explained in sub. (3) (e) 2.

Dental aids.

Deodorants.

Deodorizers.

Detergents.

Diapers.

Dietary supplements.

Dinnerware.

Disinfectants.

Distilled spirits.

Dog food and supplies.

Dolls.

Drain cleaners.

Dried fruit with sweeteners.

Drug sundries.

Dry cleaners.

Dry ice.

Dye.

Electrical supplies.

Facial tissues.

Farm and garden implements.

Feminine hygiene needs including napkins and tampons.

Fermented malt beverages.

Fertilizers.

Film.

First aid products.

Flaked coconut with sweetener.

Flash bulbs.

Flatware.

Floor care products.

Flowers and seeds.

Foil, aluminum and similar products.

Foot care products.

Frames.

Fruit drinks that contain a sweetener and have 50 percent or less fruit juice by volume.

Fruit roll-ups.

Fuel and lubricants.

Furniture polish.

Games.

Garbage bags and cans.

Garden needs.

Gifts, non-food and nonexempt food.

Ginseng sold as a dietary supplement.

Glassware.

Gloves.

Glue.

Granola bars, unless they contain flour.

Greeting cards.

Grilling supplies.

Grooming aids.

Gum.

Hair care products.

Hardware.

Health and beauty aids.

Heated foods and beverages, as explained in sub. (3) (c) .

Honey roasted and honey coated nuts.

Hosiery.

Household equipment and supplies.

Hygiene products.

Ice blocks.

Insect and pest control products.

Insulated containers.

Internal remedies.

Intoxicating liquor.

Iron tablets.

Jewelry.

Juices that contain sweeteners and 50% or less fruit or vegetable juice by volume.

Laundry products.

Lawn furniture.

Licorice, unless it contains flour.

Light bulbs and fuses.

Lozenges.

Lunch boxes.

Lye.

Magazines.

Manicure needs.

Marshmallows, unless they contain flour.

Mason jars.

Matches.

Medicinal preparations.

Milk of magnesia.

Mineral tablets.

Nail polish and remover.

Nails.

Napkins.

Nonalcoholic beer that contains a sweetener.

Notebooks.

Nursery stock.

Nuts that are candy, such as honey roasted cashews.

Pails.

Paint and paint supplies.

Paper products, including tissues, plates, cups, towels, napkins, and writing paper.

Peanuts that are candy, such as honey roasted peanuts.

Pens and pencils.

Periodicals.

Pet food and supplies.

Plants.

Plastic utensils.

Polishes.

Popcorn that is candy, such as caramel corn.

Pots and pans.

Powder, face and body.

Prepared foods as explained in sub. (4) .

Raisins that are candy, such as yogurt coated raisins.

Razors and blades.

Records.

Root beer.

Rotisseries.

Rubber bands.

Salt, water softener.

Sandwiches that are prepared food.

Sanitary goods.

School supplies.

Scissors.

Sewing aids.

Shampoo and rinse.

Shaving supplies.

Shelf coverings.

Shoe laces and polishes.

Soaps.

Soft drinks.

Sponges.

Starch.

Stationery.

Steel wool.

Stockings.

Sun glasses.

Sun tan lotion.

Tableware.

Taffy apples.

Tape.

Tea drinks that contain sweeteners.

Thread.

Tobacco products.

Toilet tissue.

Tonics.

Tools.

Tooth brushes.

Toothpaste and powders.

Toothpicks.

Toys.

Utensils.

Vegetable juices that contain a sweetener and 50% or less juice by volume.

Video rentals.

Vitamins.

Wash cloths.

Waste baskets.

Watches.

Water, sweetened.

Water conditioners.

Wax paper.

Waxing.

Wearing apparel.

Wine making supplies.

Wrap, foil, plastic and waxed paper.

Writing supplies.

Yogurt covered raisins and nuts.

Zippers.

(b) Exempt sales by grocers. Exempt sales include sales of the following items, but not if the items meet the definition of candy, soft drinks, dietary supplements, or prepared foods:

Apple cider, sweet.

Baby food.

Bakery goods.

Baking powder and soda.

Barbecue potato chips.

Barbecue sauces.

Barbecue sunflower seeds.

Berries.

Beverage powders, unless they are a dietary supplement.

Beverages that contain milk.

Biscuit mix.

Bouillon cubes.

Bread and rolls.

Breakfast cereals.

Breakfast pastries.

Brownies.

Butter.

Cake mixes and flour.

Cakes, prepared, mixes and snack type.

Candy bars containing flour.

Canned foods, except candy, soft drinks, dietary supplements, and prepared foods.

Catsup.

Cereal and cereal products.

Cereal bars containing flour.

Cheese.

Chicken.

Chip dip.

Chips, potato, corn and similar items.

Chocolate, unsweetened or not sold in form of bars, drops, or pieces.

Citrus fruits.

Cocoa.

Coffee beans, grounds, freeze dried and coffee substitutes.

Coffee drinks that contain no sweeteners or that contain a milk or milk product.

Condiments.

Cookies and crackers.

Cooking oils.

Cones, ice cream cups.

Cotton candy not sold as prepared food.

Cream.

Dairy products.

Deli items, as explained in sub. (3) (e) .

Desserts and toppings.

Dinners, frozen.

Doughnuts.

Dressings.

Dried fruits, unsweetened.

Dried milk products.

Eggs.

Fish and fish products.

Flaked coconut without sweetener.

Flavoring extracts.

Flour.

Food coloring.

Frosting in containers.

Frozen desserts.

Frozen fruit juices.

Frozen fruits and vegetables.

Frozen juice bars.

Frozen pizza.

Frozen TV dinners.

Fruit.

Fruit juices that contain more than 50% fruit juice by volume.

Garlic.

Gelatin.

Granola bars that contain flour.

Gravy extracts and mixes.

Grits.

Hash.

Honey.

Ice cream.

Ice cream bars and similar products.

Ice cream in cones.

Ice cubes.

Icing in tubes.

Jams.

Jellies.

Juices that contain more than 50% fruit or vegetable juice by volume.

Ketchup.

Licorice containing flour.

Lobster.

Luncheon meats.

Macaroni.

Malted milk powder.

Maraschino cherries.

Margarine.

Marshmallow creme.

Marshmallows that contain flour.

Mayonnaise.

Meal.

Meat and meat products.

Meat extracts and tenderizers.

Melons.

Milk and milk products.

Mustard.

Newspapers, as defined in s. 77.51 (8) , Stats.

Noodles.

Nuts, except as provided in par. (a) .

Oil, cooking, salad.

Oleomargarine.

Olives.

Pancake mix.

Pasta.

Peanut butter.

Peanuts, in shell or canned, salted or not, except as provided in par. (a) .

Pectins.

Pepper.

Pickles.

Pie and pie fillings.

Pie crust and mixes.

Popcorn, that is not candy as defined in sub. (3) (a) .

Popcorn, unpopped.

Popsicles.

Potato chips.

Potato salad, as explained in sub. (3) (e) .

Poultry and poultry products.

Powdered drink mixes, except dietary supplements.

Preserves.

Pretzels.

Puddings.

Raisins, except as provided in par. (a) .

Ravioli.

Relishes.

Rice.

Rolls and biscuits.

Salad dressing.

Salt and salt substitutes.

Salted nuts.

Sardines.

Seafood.

Seasonings.

Sherbet.

Shortening.

Soup.

Spaghetti products.

Spices.

Spreads.

Sugar.

Sugar cubes.

Sweeteners.

Syrup.

Tea, bags, leaves or instant.

Tea and ice tea beverages that are not sweetened.

Trail mix.

Turkey.

Vanilla and vanilla extract.

Vegetable juices that contain more than 50% juice by volume.

Vegetables.

Vinegar.

Waffle mix.

Water, carbonated, unsweetened.

Water, flavored, unsweetened.

Water, unsweetened.

Yeast.

Yogurt and yogurt bars, cones and sundaes.

(3)   Explanations of some taxable and exempt sales by grocers. For purposes of sub. (2) :

(a)

1. "Candy" is defined in s. 77.51 (1fm) , Stats., to mean a preparation of sugar, honey, or other natural or artificial sweetener combined with chocolate, fruit, nuts, or other ingredients or flavorings in the form of bars, drops, or pieces. "Candy" does not include a preparation that contains flour or that requires refrigeration.

2. This definition is intended to be used when a person is trying to determine if a product that is commonly thought of as "candy" is in fact "candy." The definition is not intended to be applied to every type of food product sold.

Example: Many products, such as meat products, breakfast cereals, potato chips, and canned fruits and vegetables are not commonly thought of as "candy." The candy definition is not applicable to products such as these since they are not commonly thought of as candy.

3. Candy must be a "preparation" that contains certain ingredients, other than flour. A "preparation" is a product that is made by means of heating, coloring, molding, or otherwise processing any of the ingredients listed in the candy definition. For example, reducing maple syrup into pieces and adding coloring to make maple candy is a form of preparation.

4. Candy must be sold in the form of bars, drops, or pieces.

a. A "bar" is a product that is sold in the form of a square, oblong, or similar form.

b. A "drop" is a product that is sold in a round, oval, pear-shaped, or similar form.

c. A "piece" is a portion that has the same make-up as the product as a whole. Individual ingredients and loose mixtures of items that make up the product as a whole are not pieces. Exception: If a loose mixture of different items that make up the product as a whole are all individually considered candy and are sold as one product, that product is also candy.

5. In order for a product to be treated as containing "flour," the product label must specifically list the word "flour" as one of the ingredients. There is no requirement that the "flour" be grain-based and it does not matter what the flour is made from.

6. "Other ingredients or flavorings," as used in this definition, means other ingredients or flavorings that are similar to chocolate, fruits, or nuts. This phrase includes candy coatings such as carob, vanilla, and yogurt, flavorings or extracts such as vanilla, maple, mint, and almond, and seeds and other items similar to the classes of ingredients or flavorings. This phrase does not include meats, spices, seasonings such as barbecue or cheddar flavor, or herbs which are not similar to the classes of ingredients or flavorings associated with chocolate, fruits, or nuts, unless the product otherwise meets the definition of "candy."

7. The term "natural or artificial sweeteners" means an ingredient of a food product that adds a sugary sweetness to the taste of the food product and includes, but is not limited to, corn syrup, dextrose, invert sugar, sucrose, fructose, sucralose, saccharin, aspartame, stevia, fruit juice concentrates, molasses, evaporated cane juice, rice syrup, barley malt, honey, maltitol, agave, and artificial sweeteners.

8. A product that otherwise meets the definition of "candy" is not "candy" if it requires refrigeration. A product "requires refrigeration" if it must be refrigerated at the time of sale or after being opened. In order for a product to be treated as requiring refrigeration, the product label must indicate that refrigeration is required. If the label on a product that contains multiple servings indicates that it "requires refrigeration," smaller size packages of the same product are also considered to "require refrigeration." A product that otherwise meets the definition of "candy" is "candy" if the product is not required to be refrigerated, but is sold refrigerated for the convenience or preference of the customer, retailer, or manufacturer.

9.

a. Products that are a combination of items that are defined as "candy" and items that are defined as "food and food ingredients" are "bundled transactions" when the items are distinct and identifiable, sold for one non-itemized price, and more than 50 percent of the items are "candy." Such "bundled transactions" are subject to tax. For example, the sale of a bag of multiple types of individually wrapped bars of which more than 50 percent of the bars are "candy" that is sold for one non-itemized price is taxable.

b. If a package contains individually wrapped bars, drops, or pieces and the product label on the package separately lists the ingredients for each type of bar, drop, or piece included in the package, those bars, drops, or pieces that have "flour" listed as an ingredient are "food and food ingredients" and those bars, drops, or pieces which do not have "flour" listed as an ingredient are "candy." The determination of whether the package as a whole meets the definition of a "bundled transaction" is based on the percentage of bars, drops, or pieces that meet the definition of "food and food ingredient" as compared to the percentage of bars, drops, or pieces that meet the definition of "candy." For purposes of this subd. 9. b. , the retailer may presume that each bar, drop, or piece contained in the package has the same value and, unless the package clearly indicates otherwise, there is an equal number of each type of product contained in the package.

c. If a package contains individually wrapped bars, drops, or pieces and all of the ingredients for each of the products included in the package are listed together, as opposed to being listed separately by each product included as explained in subd. 9. b. , and even if the ingredient lists "flour" as an ingredient, the product will be treated as "candy," unless the retailer is able to ascertain that 50 percent or less of the products in the package are "candy." For purposes of this subd. 9. c. , the retailer may presume that each bar, drop, or piece contained in the package has the same value and, unless the package clearly indicates otherwise, there is an equal number of each type of product contained in the package.

10. Products whose ingredients are a combination of various unwrapped food ingredients that alone are not candy, along with unwrapped food ingredients that alone are "candy," such as breakfast cereal and trail mix with candy pieces, are considered "food and food ingredients," but not "candy." Sales of these products are not "bundled transactions" because there are not two or more distinct and identifiable products being sold. The combination of the ingredients results in a single product.

(b)

1. "Dietary supplement" is defined in s. 77.51 (3n) , Stats., to mean a product other than tobacco, that is intended to supplement a person's diet if all of the following apply:

a. The product contains a vitamin, mineral, herb or other botanical, amino acid, dietary substance that is intended for human consumption to supplement the diet by increasing total dietary intake, concentrate, metabolite, constituent, or extract, or any combination thereof.

b. The product is intended for ingestion in tablet, capsule, powder, soft-gel, gel-cap, or liquid form, or, if not intended for ingestion in such forms, is not represented as conventional food and is not represented for use as the sole item of a meal or diet.

c. The product is required to be labeled as a dietary supplement as required under 21 CFR 101.36 .

2. Dietary supplements can be identified by the "Supplemental Facts" box found on the label as required by 21 CFR 101.36 .

3. Dietary supplements include antioxidants, bee pollen, enzymes, garlic capsules, ginseng, herbal supplements, immune supports, lecithin, metabolic supplements, vitamins and minerals, and zinc lozenges.

(c) "Heated state" means sold at any temperature higher than the air temperature of the room or place where the product is sold.

(d)

1. "Soft drink" is defined in s. 77.51 (17w) , Stats., to mean a beverage that contains less than 0.5 percent of alcohol and that contains natural or artificial sweeteners. "Soft drink" does not include a beverage that contains milk or milk products; soy, rice, or similar milk substitutes; or more than 50 percent vegetable or fruit juice by volume .

2. Soft drinks are beverages that are in liquid form and do not include items that are not in liquid form such as powdered fruit drinks, powdered teas and frozen drink concentrates.

3. Natural and artificial sweeteners include corn syrup, dextrose, invert sugar, sucrose, fructose, sucralose, saccharin, aspartame, stevia, maltitol, molasses, evaporated cane juice, rice syrup, barley malt, and honey.

4.

a. Water and tea that contain any sweeteners are soft drinks.

b. Water and tea that are unsweetened are not soft drinks, even if carbonated or flavored.

(e)

1. Deli foods sold unheated by weight or volume are exempt, unless utensils are provided, as explained in sub. (4) (d) .

2. Deli foods sold in a heated state are prepared foods.

(4)   Prepared food. "Prepared food" is defined in s. 77.51 (10m) , Stats., to mean any of the following:

(a) Food and food ingredients sold in a heated state.

(b) Food and food ingredients heated by the retailer, except for the following:

1. Two or more food ingredients that are mixed or combined by a retailer for sale as a single item, if the retailer's primary classification in the North American Industry Classification System (NAICS), 2002 edition, published by the federal office of management and budget is manufacturing under subsector 311, but not including bakeries and tortilla manufacturing under industry group number 3118.

2. Bakery items made by a retailer, including breads, rolls, pastries, buns, biscuits, bagels, croissants, donuts, danish, cakes, tortes, pies, tarts, muffins, bars, cookies, and tortillas.

3. Two or more food ingredients mixed or combined by a retailer for sale as a single item, sold unheated, and sold by volume or weight.

(c) Two or more food ingredients mixed or combined by the retailer for sale as a single item, except if any of the following apply:

1. The retailer's primary classification in the North American Industry Classification System, 2002 edition, published by the federal office of management and budget is manufacturing under subsector 311, but not including bakeries and tortilla manufacturing under industry group number 3118.

2. The item is sold unheated and by volume or weight.

3. The item is a bakery item made by the retailer, including breads, rolls, pastries, buns, biscuits, bagels, croissants, donuts, danish, cakes, tortes, pies, tarts, muffins, bars, cookies, and tortillas.

4. The food and food ingredients are only sliced, repackaged, or pasteurized by the retailer.

5. The item contains eggs, fish, meat, or poultry in raw form that requires cooking by the consumer, as recommended by the food and drug administration in chapter 3, part 401.11 of its food code to prevent food-borne illnesses.

(d)

1. Food and food ingredients sold with eating utensils that are provided by the retailer of the food and food ingredients, including plates, bowls, knives, forks, spoons, glasses, cups, napkins, or straws. However a "plate" does not include a container or packaging used to transport the food and food ingredients. Eating utensils are provided by the retailer if:

a. The eating utensils are available to the purchasers and the retailer's sales of food and food ingredients as described in pars. (a) , (b) , and (c) and food for which plates, bowls, glasses, or cups are necessary to receive the food are more than 75 percent of the retailer's total sales of all food and food ingredients at that establishment; or

b. The retailer's customary practice is to physically give or hand the utensils to the purchaser, except that plates, bowls, glasses, or cups that are necessary for the purchaser to receive the food and food ingredients need only be made available to the purchaser.

2.

a. The numerator of the percentage described in subd. 1. a. includes only sales of prepared food as defined in pars. (a) , (b) , and (c) and food for which plates, bowls, glasses, or cups are necessary to receive the food, but not including alcoholic beverages.

b. The denominator of the percentage described in subd. 1. a. includes all food and food ingredients, including prepared food, candy, dietary supplements, and soft drinks, but not including alcoholic beverages.

3.

a. If the percentage determined under subd. 2. is 75 percent or less, utensils are considered to be provided by the retailer if the retailer's customary practice is to physically give or hand the utensils to the purchaser or, in the case of plates, bowls, glasses, or cups that are necessary to receive the food, to make such items available to the purchaser.

b. If the percentage determined under subd. 2. is greater than 75 percent, utensils are considered to be provided by the retailer if the utensils are made available to the purchaser.

4.

a. For a retailer whose percentage determined under subd. 2. is greater than 75 percent, an item sold by the retailer that contains 4 or more servings packaged as one item and sold for a single price does not become prepared food simply because the retailer makes utensils available to the purchaser of the item.

b. For a retailer whose percentage determined under subd. 2. is greater than 75 percent, an item sold by the retailer that contains 4 or more servings packaged as one item and sold for a single price does become prepared food if the retailer physically gives or hands utensils to the purchaser of the item, except that plates, bowls, glasses, or cups necessary for the purchaser to receive the food, need only be made available to the purchaser.

c. For purposes of subd. 4. a. and b. , serving sizes are based on the information contained on the label of each item sold, except that, if the item sold has no label, the serving size is based on the retailer's reasonable determination.

5.

a. Except as provided in subd. 5. b. , if a retailer sells food items that have a utensil placed in a package by a person other than the retailer, the utensils are considered to be provided by the retailer.

b. Except as provided in subds. 3. and 4. , if a retailer sells food items that have a utensil placed in a package by a person other than the retailer and the person's primary classification in the North American Industrial Classification System (NAICS), 2002 edition, published by the federal office of management and budget, is manufacturing under subsector 311, the utensils are not considered to be provided by the retailer.

6.

a. For purposes of subd. 1. a. , a retailer shall determine the percentage for the retailer's tax year or business fiscal year based on the retailer's data from the retailer's prior tax or business fiscal year as soon as practical after the retailer's accounting records are available, but no later than 90 days after the day on which the retailer's tax or business fiscal year begins.

b. For retailers with more than one establishment in Wisconsin, a single determination under subd. 1. a. that combines the information for all of the retailer's establishments in Wisconsin shall be made annually, and will apply to all of the retailer's establishments in Wisconsin.

c. If a retailer has no prior tax or business fiscal year in Wisconsin, the retailer shall make a good faith estimate of its percentage under subd. 1. a. for the retailer's first tax or business fiscal year and shall adjust the estimate prospectively after the first 3 months of the retailer's operations if the actual percentage is materially different from the estimated percentage.

(5)   Federal Supplemental Nutrition Assistance Program (SNAP). A grocer's receipts from SNAP, formerly known as the federal food stamp program, are not subject to sales tax even if the items purchased by the consumer are not exempt food or food ingredients under s. 77.54 (20n) , Stats.

History: Cr. Register, December, 1977, No. 264 , eff. 1-1-78; am. (2) (b), Register, June, 1983, No. 330 , eff. 7-1-83; am. (2) (a) and (b), Register, September, 1984, No. 345 , eff. 10-1-84; am. (1), (2) (a), (b) and (c) (intro.), 2., 3., and 4., cr. (2) (c) 5. and (3), Register, June, 1991, No. 426 , eff. 7-1-91; am. (2) (a) and (b), Register, December, 1992, No. 444 , eff. 1-1-93; am. (1) and (2) (a) and (b), Register, December, 1996, No. 492 , eff. 1-1-97; am. (1) and (2) (a) and (b), r. (2) (c) (intro.), renum. (2) (c) 1. to 4. to be (3) (a) to (d), (2) (c) 5. to be (3) (g) 1., (3) to be (4) and am. (3) (c) and (d), (3) (g) 1.; cr. (3) (intro.), (e), (f), (g) 2. and (h), Register, October, 1999, No. 526 , eff. 11-1-99; EmR0924 : emerg. r. and recr. eff. 10-1-09; CR 09-090 : r. and recr. Register May 2010 No. 653 , eff. 6-1-10; correction in (2) (a) made under s. 13.92 (4) (b) 7. , Stats., Register May 2010 No. 653 ; CR 10-094 : am. (2) (a), (3) (a) 2., (d) 3., (e) 2., (5) Register November 2010 No. 659 , eff. 12-1-10; CR 12-014 : am. (2) (a), (b), r. and recr. (3) (a) 2., cr. (3) (a) 3. to 10., am. (4) (b) 1. (Example), 2. (Example 1), cr. (4) (b) 3. (Example), (c) 3. (Examples), 4. (Example), am. (4) (d) 1. (intro.), a., b., cr. (4) (d) 1. b. (Examples) Register August 2012 No. 680 , eff. 9-1-12.

Note

The definition of candy would be applied in a situation where a person is trying to determine if a product is "candy" as opposed to a cookie. Microsoft Windows NT 6.1.7601 Service Pack 1 A listing that determines whether various products meet the definition of "candy" was prepared by the Streamlined Sales Tax Governing Board (SSTGB) and can be found in the Rules and Procedures of the SSTGB at http://www.streamlinedsalestax.org . Microsoft Windows NT 6.1.7601 Service Pack 1 Example: Company A sells one pound square blocks of chocolate. The blocks of chocolate are "bars." Microsoft Windows NT 6.1.7601 Service Pack 1 Example: Company B sells chocolate chips in a bag. Each individual chocolate chip contains all of the ingredients indicated on the label. The chocolate chips are "drops." Microsoft Windows NT 6.1.7601 Service Pack 1 Examples: 1) Company C sells jellybeans in a bag. Each jellybean is made up of the ingredients indicated on the label. Each jellybean is a "piece" or "drop." Microsoft Windows NT 6.1.7601 Service Pack 1 2) Company D sells trail mix in a bag. The product being sold (e.g., trail mix), is made up of a mixture of carob chips, peanuts, raisins, and sunflower seeds. The individual items that make-up the trail mix are not "pieces," but instead are the ingredients, which when combined, make up the trail mix. Therefore, the trail mix is not sold in the form of bars, drops, or pieces. Microsoft Windows NT 6.1.7601 Service Pack 1 3) Company E sells a product called "candy lover's mix." "Candy lovers mix" is a product that is made up of a loose mixture of jellybeans, toffee, and caramels. Individually, the jellybeans, toffee, and caramels are all candy. The sale of the mixture is the sale of candy since all of the individual items that make up the product are individually considered to be candy. Microsoft Windows NT 6.1.7601 Service Pack 1 Examples: 1) The ingredient list for a breakfast bar lists "flour" as one of the ingredients. This breakfast bar is not "candy" since it contains flour. Microsoft Windows NT 6.1.7601 Service Pack 1 2) The ingredient list for a breakfast bar lists "peanut flour" as one of the ingredients. This breakfast bar is not candy because it contains flour. Microsoft Windows NT 6.1.7601 Service Pack 1 3) The ingredient list for a breakfast bar that otherwise meets the definition of "candy" lists "whole grain" as one of the ingredients, but does not specifically list "flour" as one of the ingredients. This breakfast bar is candy because the word "flour" is not included in the ingredient list. Microsoft Windows NT 6.1.7601 Service Pack 1 4) Company E sells a box of chocolates that are not individually wrapped. The ingredient list on the label for the box of chocolates identifies flour as one of the ingredients. The box of chocolates is not candy since flour is identified as one of the ingredients on the label. Microsoft Windows NT 6.1.7601 Service Pack 1 5) Company F sells a box of chocolates that are not individually wrapped. The ingredient list on the label for the box of chocolates, which otherwise meets the definition of "candy," does not identify flour as one of the ingredients. The box of chocolates is candy. Microsoft Windows NT 6.1.7601 Service Pack 1 Examples: 1) Retailer A sells barbecue flavored peanuts. The ingredient label for the barbecue flavored peanuts indicates that the product contains peanuts, sugar, and various other ingredients, including barbecue flavoring. Since the barbecue flavored peanuts contain a combination of sweeteners and nuts, and flour is not listed on the label and the nuts do not require refrigeration, they are candy. Microsoft Windows NT 6.1.7601 Service Pack 1 2) Retailer B sells barbecue potato chips. Potato chips are potatoes, a vegetable, and are not commonly thought of as candy. The barbecue potato chips are food and food ingredients and not candy. The fact that the ingredient label for the barbecue potato chips indicates that the product contains barbecue seasoning which contains a sweetener does not change the fact that the barbecue potato chips are not commonly thought of as candy. Microsoft Windows NT 6.1.7601 Service Pack 1 Examples: 1) A grocery store sells candy bars at room temperature or from a refrigerated display case. Unless the candy bar is required to be refrigerated, it is still candy, even if it was refrigerated when sold. Microsoft Windows NT 6.1.7601 Service Pack 1 2) Company A sells sweetened fruit snacks in a bag that contains multiple servings. The label on the bag indicates that after opening, the sweetened fruit snacks must be refrigerated. The sweetened fruit snacks "require refrigeration" and therefore are not candy. Microsoft Windows NT 6.1.7601 Service Pack 1 3) Company A sells sweetened fruit snacks in single serving containers. Other than for packaging, the sweetened fruit snacks are identical to the sweetened fruit snacks in Example 2 above. However, since this container of sweetened fruit snacks only contains one serving, it is presumed that it will be used immediately, and the label does not indicate that after opening, the product must be refrigerated. Even though the label does not contain the statement that after opening the sweetened fruit snacks must be refrigerated, these sweetened fruit snacks are considered to "require refrigeration" and therefore are not candy. Microsoft Windows NT 6.1.7601 Service Pack 1 4) Company A sells chocolate truffles. The label on the truffles indicates to keep the product cool and dry, but does not indicate that the product must be refrigerated. Since the chocolate truffles are not required to be refrigerated, even though the label indicates to keep them cool, the chocolate truffles do not "require refrigeration." Microsoft Windows NT 6.1.7601 Service Pack 1 Examples: 1) Retailer A sells a package that contains 100 total pieces of food and food ingredients. There are 10 different types of foods and food ingredients in the package. Eight of the types of food and food ingredients included in the package meet the definition of "candy," while two of the types included do not meet the definition of "candy." It is a reasonable presumption that 20 (2/10 times 100) of the pieces are not "candy" and 80 (8/10 times 100) of the pieces are "candy." Therefore, since 80 percent of the product is "candy," the sales price of the entire package is taxable as a bundled transaction. Microsoft Windows NT 6.1.7601 Service Pack 1 2) Retailer B sells bulk food and food ingredients by the pound. Each food and food ingredient is in a separate bin or container. Some of the food and food ingredients are "candy" and some of them are not because they contain flour. However, regardless of the items chosen, the retailer charges the customer $3.49 per pound. Customer C selects some items that are candy and some that are not and puts them in a bag. Since some of the items in the bag are "candy," the retailer shall treat the entire package as a bundled transaction containing primarily "candy," unless the retailer ascertains that 50 percent or less of the items in the bag are "candy." Microsoft Windows NT 6.1.7601 Service Pack 1 Examples: 1) A grocer's deli sells potato salad, fruit salad, cheese, ham, coleslaw, corned beef and fresh rolls at room temperature. These items are sold by weight or volume and utensils are not provided. The sale of these items is not taxable. Microsoft Windows NT 6.1.7601 Service Pack 1 2) A grocer's deli sells a serving of each of the following for $3.59: potato salad, fruit salad, cheese, ham, coleslaw, corned beef and fresh rolls and provides utensils. The sale is taxable as a sale of prepared food. Microsoft Windows NT 6.1.7601 Service Pack 1 3) A grocer's deli sells party trays by weight or volume in an unheated condition and for which utensils are not provided. The types of party trays include shrimp and sauce, meats, fresh vegetables, fresh fruits, cheeses or cookies. The sale of these party trays is not subject to tax. Microsoft Windows NT 6.1.7601 Service Pack 1 Example: A retailer sells heated sandwiches to a customer. The heated sandwich is prepared food. Microsoft Windows NT 6.1.7601 Service Pack 1 Example: A food manufacturer classified under industry code 31161 of the North American Industry Classification System (NAICS), 2002 edition, makes hot dogs by mixing and combining 2 or more food ingredients, heating the hot dogs so that they are fully cooked and then packaging the hot dogs for sale once they have cooled. Although the hot dogs were heated by the retailer while they were being manufactured, they are not prepared food because they meet the exception in par. (b) 1., assuming the hot dogs do not meet any of the other definitions of prepared food. Microsoft Windows NT 6.1.7601 Service Pack 1 Examples: 1) A bakery mixes ingredients together to make a cake. The cake mix is then heated (baked). Once the cake cools, it is decorated and sold to a customer. Although the cake was heated by the retailer, it is not prepared food because it meets the exception in par. (b) 2., assuming the cake does not meet any of the other definitions of prepared food. Microsoft Windows NT 6.1.7601 Service Pack 1 2) A bakery mixes 2 or more ingredients together to make a bagel. The bagel is then heated and placed in a heated display case for sale to a customer. The bagel is prepared food since it is sold heated. Although the bagel would meet the exception provided in par. (b) 2., since it is sold heated, it is prepared food. Microsoft Windows NT 6.1.7601 Service Pack 1 Example: Grocery Store A prepares potato salad for sale to its customers. Grocery Store A boils the potatoes, cuts the potatoes up, and combines the potatoes with various other ingredients to make potato salad. Once the potato salad has cooled, Grocery Store A sells the potato salad for $2 per pound. Although the potatoes were previously heated by the retailer when the potato salad was being made, the potato salad is not prepared food since it is sold unheated by weight, assuming the potato salad does not meet any of the other definitions of prepared food. Microsoft Windows NT 6.1.7601 Service Pack 1 Examples: 1) Restaurant A purchases various food and food ingredients (eggs, flour, sugar, ice cream, fudge, cookie bits, etc.) to make cakes with an ice cream layer. Restaurant A makes a layer of cake using the eggs, flour, sugar, etc. Once the cake layers are baked and cooled, Restaurant A covers one of the cake layers with a layer of fudge and cookie bits. Restaurant A then places another cake layer over the fudge and cookie bits and covers the second cake layer with a layer of ice cream. Restaurant A decorates the top of the cake according to instructions provided by its customer. Although this cake is two or more ingredients mixed or combined by the retailer for sale as a single item, it is excluded from the definition of prepared food because it is primarily a bakery item and is not subject to Wisconsin sales or use tax, assuming the cake does not meet any of the other definitions of prepared food. Microsoft Windows NT 6.1.7601 Service Pack 1 2) Restaurant B purchases various food and food ingredients (eggs, flour, sugar, ice cream, fudge, cookie bits, etc.) to make a layered ice cream cake. Restaurant B makes a layer of cake using the eggs, flour, sugar, etc. Once the cake layer is baked and cooled, Restaurant B places the cake layer between two layers of ice cream. Restaurant B decorates the top of the cake according to instructions provided by its customer. This cake is prepared food and subject to Wisconsin sales or use tax since Restaurant B mixed or combined 2 or more ingredients to make the cake, and the ice cream cake is not primarily a bakery item. Microsoft Windows NT 6.1.7601 Service Pack 1 Example: Grocer C sells cheese trays. The cheese trays are put together by the grocer selecting the various types of cheeses and slicing the amount of each type of cheese it wants to include, placing each type of sliced cheese on the tray, and then wrapping the cheese tray. The cheese tray is not prepared food since the cheese on the tray was only sliced and repackaged, assuming the cheese tray does not meet any of the other definitions of prepared food. Microsoft Windows NT 6.1.7601 Service Pack 1 Examples: 1) Deli A has a self-service salad bar. Customers go to the salad bar, pick up a clam shell container at the salad bar, and place the items they would like in the clam shell container. The clam shell container is a plate or bowl necessary for the customer to receive the food and is made available to the customer. Therefore, sales from the self-service salad bar are sales of prepared food. Microsoft Windows NT 6.1.7601 Service Pack 1 2) Retailer X has a self-service milk machine. Customers go to the milk machine, pick-up a disposable cup, and fill it with whatever kind of milk they want. The cup is necessary for the customer to receive the milk and is made available to the customer. Therefore, sales of milk in this manner are sales of prepared food. Microsoft Windows NT 6.1.7601 Service Pack 1 Section Tax 11.51 interprets ss. 77.51 (1fm) , (3n) , (3t) , (10m) , and (17w) , 77.52 (1) , and 77.54 (15) and (20n) , Stats. Microsoft Windows NT 6.1.7601 Service Pack 1 The interpretations in s. Tax 11.51 are effective under the general sales and use tax law on and after September 1, 1969, except: (a) Sales of cigarettes became taxable on September 1, 1975, pursuant to Chapter 39, Laws of 1975 ; (b) Magazines and periodicals sold over-the-counter became taxable on September 1, 1983, pursuant to 1983 Wis. Act 27 ; (c) The definitions of "meals" and "sandwiches" and the tax treatment of prepackaged food combinations became effective August 1, 1997, pursuant to 1997 Wis. Act 237 ; The definitions of "candy," "dietary supplement," "food and food ingredient," "prepared food," and "soft drink," and the exemption for food and food ingredients became effective October 1, 2009, pursuant to 2009 Wis. Act 2 ; and (d) The change of the term "gross receipts" to "sales price" and the separate impositions of tax on coins and stamps sold above face value under s. 77.52 (1) (b) , Stats., certain leased property affixed to real property under s. 77.52 (1) (c) , Stats., and digital goods under s. 77.52 (1) (d) , Stats., became effective October 1, 2009, pursuant to 2009 Wis. Act 2 . Microsoft Windows NT 6.1.7601 Service Pack 1