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Outside Section 125

Retail Electronic Pricing Systems Exemptions

SECTION 125.   Said chapter 94, as so appearing, is hereby amended by inserting at the end thereof the following sections:-
Section 329A. (a) "Deputy director" shall mean the deputy director of the division of standards.
          (b) "Person" shall mean an individual, firm, partnership, association or corporation.
          (c) "Division" shall mean the division of standards.
          (d) "Computer-assisted check out system" shall mean any electronic device, computer system or machine which determines the selling price of a stock-keeping item by interpreting its universal product code, or by any other use of a price look-up function.
          (e) "Inspector" shall mean the deputy director or authorized agent to enforce the provisions of this chapter.
          (f) "Item price" shall mean the lowest indicated price on a shelf tag, sign or advertisement.
          (g) "Price look-up function" shall mean the capability of any checkout system to determine the retail price of a stock-keeping item electronically or by way of the manual entry into the system of a code number assigned to that particular unit by the retail store or by way of the checkout operator's consultation of a file maintained at the point of sale.
          (h) "Retail store" shall mean a store selling stock-keeping units at retail. A store which is not open to the general public but is reserved for use by its members shall come within the provisions of this definition unless the members must pay a direct fee to the store to qualify for membership and the store is not required to collect sales tax on transactions with members. Pursuant to this section a retail store shall not include any store which:
1) has its only full-time employee the owner thereof, or the parent, or the spouse or child of the owner, or in addition thereto, not more than three employees; or
2) had annual gross sales in a previous calendar year of less than $5,000,000, unless the retail store is part of a network of subsidiaries, affiliates or other member stores, under direct or indirect common control, which as a group, had annual gross sales in the previous calendar year of $5,000,000 or more; or
3) engages primarily in the sale of food for consumption on the premises or in a specialty trade which the deputy director determines, by regulation, would be inappropriate for item pricing.
          (i) "Sale items or weekend special" shall mean stock-keeping items offered for sale for a period of seven days or less in a retail store at a price below the price that the item is sold for 30 days previous to the start of the sale.
          (j) "Stock-keeping unit" shall mean each group of items offered for sale of the same brand name, quality of contents, retail price, and variety:
1) food, including all material, solid, liquid or mixed, whether simple or compound, used or intended for consumption by human beings or domestic animals normally kept as household pets and all substances or ingredients to be added thereto for any purpose; and
2) napkins, facial tissues, toilet tissues, and any disposable wrapping or container for the storage, handling or serving of food, and
3) detergents, soaps, other cleansing agents, and cleaning implements, and
4) non-prescription drugs, feminine hygiene products and health and beauty aids.
          (k) "Stock-keeping item" shall mean each item of a stock-keeping unit offered for sale.
          (l) "Universal product coding" shall mean any system of coding which entails electronic pricing.

Section 329B. (a) Notwithstanding the provision of any law or regulation to the contrary, every person who sells, offers for sale or exposes for sale in a retail store a stock-keeping unit that bears a universal product code shall disclose to the consumer the item price of each stock-keeping item as defined in section 329A of this chapter.
          (b) The following stock-keeping items need not be item priced as provided in subdivision (a) of this section and other applicable Massachusetts law provided that a shelf-price adjacent to the display is maintained for such stock-keeping items:
(1) Stock-keeping items, which are under three cubic inches in size, and weigh less than three ounces, and are priced under 50 cents,
(2) Items sold through a vending machine,
(3) Milk,
(4) Eggs,
(5) Loose fresh produce,
(6) Stock-keeping items, which are offered for sale in single packages and weighing three ounces or less,
(7) Stock-keeping items offered as a sale item or weekend special,
(8) Strained and junior size baby foods packaged in jars,
(9) Single cans or bottles of soda where the selling price for different flavors packaged for or by the consumer,
(10) Stock-keeping items, which are displayed for sale in bulk, which are either packaged for or by the consumer,
(11) Snack foods such as cakes, gum, candies, chips and nuts offered for sale in single packages and weighing five ounces or less,
(12) Food sold for consumption on premises, and
(13) Frozen juice and ice cream.
          (c) The provisions of this section may be subsequently modified or amended by order
of the deputy director, either by adding or deleting stock-keeping units from the list of exemptions or by further directing the manner in which the selling price of exempted stock-keeping units shall be posted.

Section 329C. (a) No retail store shall charge a retail price for any exempt or non-exempt stock-keeping item which exceeds the lower of any item, shelf, sale or advertised price of such stock-keeping item. In the event that the price exceeds the lowest price a store is permitted to charge for a stock-keeping unit, the store will be subject to a penalty as described in this chapter and other applicable law at the discretion of the deputy director.
          (b) In a store with a laser scanning or other computer assisted checkout system, the inspector shall be permitted to compare the item, shelf, sale, or advertised price of any one stock-keeping item within a stock-keeping unit sold in the store with the programmed computer price.
          (c) The deputy director shall establish a randomized store inspection procedure designed to eliminate any bias in selecting stores to be inspected for price auditing purposes. However, any retail store may be inspected at any time upon complaint or if the deputy director has sufficient cause to audit a particular store or stores to ensure pricing accuracy.

Section 329D. (a) Every person, store, firm, partnership, corporation, or association which uses a computer-assisted checkout system and which would otherwise be required to item price as provided in section 329C of this chapter, sections 184B through 184E, inclusive, of chapter 94, or other applicable Massachusetts law, may make an application in writing to the deputy director for a waiver of said item pricing requirement. A separate application shall be required for each store. The deputy director, subject to the approval of the secretary of administration and finance, shall establish an annual registration fee, which must be submitted with the initial application and subsequent renewal. The deputy director shall approve or reject the application within 60 days from the date of receiving the application. If the application is rejected, the application fee shall be returned. The deputy director shall establish rules and regulations regarding the retail store's electronic pricing systems, signage, and other requirements, which all applicants must meet in order to become registered.
          (b) The registration fee is based upon the number of cash registers in each store as set according to the following schedule:
Waiver Fee Per Cash Register:
1 to 3 cash registers                              $500
3 to 5 cash registers                              $750
3 to 7 cash registers                              $1,000
7 or more cash registers                    $2,000
          (c) Waiver applications and the required fee must be received at the division by October 1, 2003, and annually thereafter. Stores that fail to comply with the required registration, will be subject to violations pursuant to sections 184B through 184E, inclusive, of chapter 94 or any other applicable law or regulation. New stores or establishments that did not previously hold waivers, may apply after the October 1, 2003 deadline.
          (d) Systems approved by the deputy director must have means to provide an audit trail regarding item price changes that can be accessed by state enforcement agents upon request. All item prices once entered into the store's electronic pricing system shall remain unchanged for a minimum of 72 hours, unless the price is to be reduced or is the result of a gross pricing error.
          (e) A waiver from item pricing shall be valid for a period of one year from the date of issuance. Stores must reapply annually for renewal of waiver at the rates established in subsection (a) of this section.
          (f) Any registered retail store that fails to meet the state price accuracy standard of 98 per cent based on the price accuracy inspection procedure adopted by the division shall be re-inspected after thirty days of the initial inspection. If the store fails upon re-inspection to meet the price accuracy standard, the registration will be suspended for a period of six months. During the suspension period, the store will be required to individually item price every item offered for sale. After this period, the store can request the division, in writing, to re-inspect the store. If the store after re-inspection meets the price accuracy standard, the registration maybe re-instated.
          (g) As a condition of the waiver from item pricing pursuant to this section, each store which accepts a waiver must agree to meet the following requirements:
          (i) The store shall designate and make available price check scanners to enable consumers to confirm the price of stock-keeping items. These price check scanners shall be in locations convenient to consumers with signs of sufficient sized lettering identifying these units to consumers. Stores will submit their proposed sign and device locations to the deputy director for approval.
(ii) Each registrant shall assign an employee to check all sale prices in the store's electronic pricing system prior to the start of any sale to ensure the sale prices in the system are accurate. Each registrant shall maintain a sale price log including the following: name of the store employee, date the employee performed the pre-sale price accuracy audit, and the signature of the employee. Failure to maintain the log or to make the log available upon request by any authorized agent of the deputy director will be cause for registration suspension.
(iii) The store shall not charge any customer a price for any stock-keeping item which exceeds the item, shelf, sale or advertised price, whichever is less.
(iv) The store shall make prompt payment to consumers who have been overcharged and shall correct all pricing errors identified by consumers, guaranteeing the consumer one item free if it costs less than $10 or pay the consumer $10 if the item costs more than $10.
(v) Any item that rings up higher than the lowest advertised price shall be subject to a fine of $200 . Failure to post the required item price sign at the point of display will be subject to a fine of $100. The fine will be increased to $200 if the item rings up at a price higher than the lowest price charged for that item during the previous thirty days.
          (h) The deputy director, in his discretion, may revoke a waiver from item pricing for any of the following reasons:
(i) Failure to comply with any provisions of this chapter;
(ii) Deliberate overcharging of any consumer;
(iii) Material misrepresentation in the application for a waiver.

Section 329E. (a) The provisions of this chapter shall be enforced by the division. Upon representation of appropriate credentials, the division shall have the right to enter upon the premises of any retail store to make an inspection and to determine compliance with the provisions of this chapter.
          (b) For the purpose of determining a store's compliance with the requirements of section 329B, an inspection shall be conducted of a sample of no less than 25 stock-keeping units.
          (c) For the purpose of a violation of section 329B(a), no item shall be cited more than once in a 48 hour period.
          (d) With respect to the item price of any exempt item, the deputy director, in his discretion, may direct a retail store to post a sign in a conspicuous and unobstructed location in the manner and form prescribed by him.
          (e) For any inspection under section 329C, the store representative shall afford the inspector access to the test mode of the checkout system in use at that store or to a comparable function of said system and to the retail price information contained in a price look-up function.
          (f) The inspector shall have the authority to issue a stop removal order with respect to any stock-keeping unit being used, handled, or offered for sale in violation of sections 329B and 329C. Any such order shall be in writing and direct that the stock-keeping item shall be removed for sale pending price correction.
          (g) A hearing may be requested in writing on any fineable violation or registration suspension issued by the division. The hearing will be conducted by the division's designated hearing officer. The division's designated hearing officer shall make a written determination. Such determination may be appealed to the deputy director who, after due deliberation, shall issue an order accepting, modifying, or rejecting the hearing officer's determination.