In Massachusetts, retail pricing requirements hinge on whether the goods offered for sale are grocery or non-grocery items. The default, under both schemes, is item pricing with certain exemptions, unless the retailer has a permissible and compliant consumer price scanner system. The two legal frameworks are summarized below.
The Massachusetts Grocery Pricing Law, G.L. c. 94, §§184B-184E, requires food stores and retailers with food departments to either individually price tag all food and grocery items in a clear and conspicuous manner with a sticker price or to implement, with permission from the Division of Standards, a consumer price scanner system. Under either scheme, food stores and retailers with food departments must display a shelf tag for each separately coded grocery item with the price of the item, that is at least one inch high. This pricing law is enforced by the Division of Standards.
In food stores that utilize the individual item pricing system, certain items are exempt. Notable exempt items include: (1) unpackaged produce, meat, fish, poultry, delicatessen, bakery items and any other items that are unpackaged and offered from a bulk display; (2) milk; (3) eggs; (4) tobacco products; (5) individual items within a multi-item package; (6) snack foods offered for sale individually and located at the checkout area; (7) individual greeting cards; (8) baby food; (9) soft drinks; (10) frozen food products; and (11) small items offered for sale at the checkout area. Additionally, grocery stores do not have to individually price mark up to 60 items located in end-aisle displays, and have an added individual price-mark exemption allowance based on the number of operable cash registers (up to 400 additional items of the store’s own choosing, not to exceed 4.5 percent of the number of packaged grocery items carried by the seller). With over 10,000 items in a typical supermarket, these exemptions are a small fraction of the items stores carry.
Food stores that are granted a waiver by the Division of Standards to utilize a consumer price scanner system, and therefore do not have to individually price mark every grocery item, are required to maintain a minimum number of operational scanners based on the square footage of the stores (1 scanner for every 5,000 square feet). The location of a consumer price scanner shall be disclosed by one clear and conspicuous sign at eye-level and one clear and conspicuous sign above eye level. Consumer price scanners must be equally spaced throughout the store in fixed locations.
The law requires all food stores and grocery merchants to provide itemized receipts to their customers and to sell any item at the lowest price indicated on an item, sign, or advertisement. If the checkout price is not the lowest price or does not reflect any qualifying discount, the seller: (i) shall not charge the consumer for one unit of the grocery item (if the lowest price is $10 or less); (ii) shall charge the consumer the lowest price less $10 for one unit of the grocery item (if the lowest price is more than $10); and (iii) shall charge the consumer the lowest price for any additional units of the grocery item.
The Attorney General’s Item Price Regulation, 940 C.M.R. 3.13, applies to non-grocery stores or to the non-grocery items of a mixed-product retailer. The regulation requires, among other things, that such merchants mark goods offered for sale with the selling price by either affixing a price tag or sticker on the product or its packaging, and states that it is an unfair or deceptive act or practice in violation of the Massachusetts Consumer Protection Statute, G.L. c. 93A, to fail to do so. Certain exemptions are recognized for unpackaged items sold by length or area (such as chain, rope, flooring, lumber, fabric), unpackaged items sold by weight or volume (such as stone or soil), large items that must be retrieved for the consumer by store staff (such as electronics or appliances), live animals, end-aisle sale promotional displays, and small self-service items offered at check out.
Non-food retailers who utilize electronic consumer price scanner systems may not be subject to the item pricing requirement for items that cost less than $500, but they must continue to provide shelf or rack pricing for items, and maintain a certain minimum number of operational scanners for consumer use based on square footage of the store (1 scanner for every 5,000 square feet) that are prominently marked with signs.
Sellers are obligated to sell goods at the correct price, which is the lowest of the advertised price, the posted price, the sticker price, or the checkout price, and must clearly and conspicuously disclose to a buyer the exact nature and extent of the seller’s refund, return or cancellation policy prior to completion of the purchase transaction.