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Items such as cough drops, breath sprays, and throat lozenges, although they are ingested or chewed, are not food and food ingredients. Gen- erally, these types of products will not have a “Nutrition (al) Facts” box on the label and are subject to Wisconsin sales or use tax since they are tangible personal property.

Note: The terms “candy,” “dietary supplement,” “prepared food,” and “soft drink,” as defined in this Part II., each represent a specific type of “food or food ingredient,” as defined in Part II.C.

  • D.

    Prepared food” is defined in sec. 77.51(10m), Wis. Stats., to mean any of the following:

    • 1.

      Food and food ingredients sold in a heated state.

Food and food ingredients are sold in a heat- ed state if they are sold at a temperature that is higher than the air temperature of the room or place where the item is sold. Food and food ingredients that are sold unheated by the retailer and heated by the customer are not sold in a heated state.

Example 1: A retailer cooks chicken using a rotisserie. The retailer then sells these chickens in a heated state. The sale of the heated rotisserie chicken is the sale of pre- pared food.

Example 2: Customer purchases a donut from Grocer in an unheated state. Grocer has a microwave that customers can use to heat the food and food ingredients they purchase, if they so desire. Customer uses the microwave to heat the donut and then takes the heated donut to the register and pays for it. The donut sold by Grocer is not sold in a heated state since the donut was not heated by Grocer.

  • 2.

    Food and food ingredients heated by the re- tailer, except for the following:

    • (a)

      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 In- dustry 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 manu-

facturing under number 3118.



Example: A food manufacturer classi- fied under industry code 31161 of the North American Industry Classification System NAICS), 2002 edition, makes hot dogs by mixing and combining two 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 previously heated by the retailer while they were being man- ufactured, they are not prepared food because the retailer’s primary classifi- cation in the 2002 NAICS is manufacturing under subsector 311, as- suming the hot dogs do not meet any of the other definitions of prepared food.

(b) Bakery items made by a retailer, includ- ing breads, rolls, pastries, buns, biscuits, bagels, croissants, donuts, danish, cakes, tortes, pies, tarts, muffins, bars, cookies, and tortillas.

Example 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 cus- tomer. Although the cake was heated by the retailer, it is not prepared food be- cause it meets the exception for bakery items. This also assumes the cake does not meet any of the other definitions of prepared food.

Example 2: A bakery mixes two or more ingredients together to make a ba- gel. The bagel is then heated and placed in a heated display case for sale to a customer. The bagel is prepared food

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