Coca-Cola Bottling Co. of Wisconsin v. La Follette, COCA-COLA

• Court: Court of Appeals of Wisconsin
• Citation: 316 N.W.2d 129,106 Wis.2d 162
• Docket Number: COCA-COLA,No. 81-719,81-719
• Parties: BOTTLING COMPANY OF WISCONSIN, Plaintiff-Appellant and Cross- Respondent, v. Bronson C. La FOLLETTE, Attorney General for the State of Wisconsin, Defendant-Respondent and Cross-Appellant. *
• Decision Date: 19 January 1982

Page 129

316 N.W.2d 129 106 Wis.2d 162 COCA-COLA BOTTLING COMPANY OF WISCONSIN, Plaintiff-Appellant
and Cross- Respondent,
v.
Bronson C. La FOLLETTE, Attorney General for the State of
Wisconsin, Defendant-Respondent and
Cross-Appellant. ^* No. 81-719. Court of Appeals of Wisconsin. Submitted on Briefs Dec. 9, 1981.
Opinion Released Jan. 19, 1982.
Opinion Filed Jan. 19, 1982.

Page 130

[106 Wis.2d 163] Cook & Franke, S. C., by Francis R. Croak, Kevin J. Lyons and Jan E. Kearney, Milwaukee, for plaintiff-appellant and cross-respondent.

Bronson C. La Follette, Atty. Gen. and James C. McKay, Jr., Asst. Atty. Gen., for defendant-respondent and cross-appellant.

Before DECKER, C. J., MOSER, P. J., and RANDA, J.

DECKER, Chief Judge.

This appeal concerns the applicability of secs. 100.16 and 945.01, Stats., to Coca-Cola's [106 Wis.2d 164] "Real Caps" under-the-crown contest. We conclude that the promotion is not proscribed by either statute, reverse that portion of the judgment finding a violation of sec. 100.16, and affirm that portion finding no violation of ch. 945.

The material facts of this case are undisputed, and both parties moved the trial court for summary judgment. See Powalka v. State Mutual Life Assurance Co., 53 Wis.2d 513, 518, 192 N.W.2d 852, 854 (1972).

Coca-Cola Bottling Company of Wisconsin (Coca-Cola) manufactures and sells bottled beverages. On March 2, 1981, Coca-Cola began a sales promotion program known as the "Real Caps" contest in which consumers could win between 10cents and $1,000, depending on what, if anything, was

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printed under the liner of specially marked Coca-Cola bottlecaps. The specially marked bottlecaps were available on bottles of Coca-Cola sold in retail outlets, or could be obtained without charge by mail or in person from Coca-Cola business offices. The odds of winning were posted at participating retail outlets, publicized in newspaper ads, and printed on cards accompanying each carton of specially capped Coca-Cola. All of the specially marked bottlecaps, those with and without something printed under the cap liner, were placed in one pool which was then randomly divided into two pools, one for free distribution and the other for actual capping of bottles to be sold to consumers.

Coca-Cola brought suit seeking declaration that the Real Caps contest did not violate secs. 100.15, 100.16, and ch. 945, Stats. ¹

[106 Wis.2d 165] The Attorney General brought suit against Coca-Cola to enjoin the Real Caps contest, alleging violation of secs. 100.16 and 945.03(4), Stats. The actions were consolidated at the request of the parties, and hearings were held regarding preliminary injunctive relief. The trial court concluded that the contest violated secs. 100.16 and 939.05, ² but not ch. 945, and at the request of the parties granted summary judgment, permanently enjoining Coca-Cola from proceeding with the contest because it violated secs. 100.16 and 939.05, and permanently enjoining the Attorney General from enforcing ch. 945 regarding the contest.

Coca-Cola appeals, contending that the Real Caps contest does not violate sec. 100.16, Stats. The Attorney General cross appeals on two grounds:

(1) the contest violates ch. 945, Stats., as well as sec. 100.16; and

(2) the Attorney General cannot be restrained from enforcing criminal laws.

CHAPTER 945, STATS.

Wisconsin's substantive law on lotteries is governed by art. 4, sec. 24, of the Wisconsin Constitution. Before 1965, this provision stated, "The legislature shall never authorize any lottery, or grant any divorce." In 1965, this provision was amended to remove the constitutional obstacle to certain forms of lotteries:

The legislature shall never authorize any lottery, or grant any divorce. Except as the legislature may provide [106 Wis.2d 166] otherwise, to listen to or watch a television or radio program, to fill out a coupon or entry blank, whether or not proof of purchase is required, or to visit a mercantile establishment or other place without being required to make a purchase or pay an admittance fee does not constitute consideration as an element of a lottery. ³

The constitutional modification was followed by the enactment of sec. 945.01(2), Stats:

(2) Lottery. (a) A lottery is an enterprise wherein for a consideration the participants

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are given an opportunity to win a prize, the award of which is determined by chance, even though accompanied by some skill.

(am) "Lottery" does not include bingo or a raffle as defined in s. 163.03 if conducted under ch. 163.

(b) 1. "Consideration" in this subsection means anything which is a commercial or financial advantage to the promoter or a disadvantage to any participant, but does not include any advantage to the promoter or disadvantage to any participant caused when any participant learns from newspapers, magazines and other periodicals, radio or television where to send his name and address to the promoter.

2. In any game, drawing, contest, sweepstakes or other promotion, none of the following shall constitute consideration under this subsection:

a. To listen to or watch a television or radio program.

[106 Wis.2d 167] b. To fill out a coupon or entry blank which is received through the mail or published in a newspaper or magazine, if facsimiles thereof or handwritten and other informal entries are acceptable or if no purchase is required.

c. To furnish proof of purchase if the proof required does not consist of more than the container of any product as packaged by the manufacturer, or a part thereof, or a facsimile of either.

d. To send the coupon or entry blank and proof of purchase by mail to a designated address.

e. To fill out a coupon or entry blank obtained and deposited on the premises of a bona fide trade fair or trade show defined as an exhibition by 5 or more competitors of goods, wares or merchandise at a location other than a retail establishment or shopping center or other place where goods and services are customarily sold; but if an admission fee is charged to such exhibition all facilities for obtaining and depositing coupons or entry blanks shall be outside the area for which an admission fee is required.

f. To fill out a coupon or entry...