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An Act relative to clear and conspicuous price disclosure.
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Be it enacted by the Senate and House
of Representatives in General Court assembled, and by the authority of the
same, as follows:
SECTION 1. Chapter 94 of the General Laws is hereby amended by striking out sections 184B to 184E, inclusive, as appearing in the 2006 Official Edition, and inserting in place thereof the following 4 sections:—
Section 184B. Definitions. For purposes of this section and sections 184C to 184E, inclusive, the following words shall have the following meanings:--
“Advertised price”, the price of an item disclosed in any circular, newspaper, magazine, television or radio commercial, or in any other medium, or any published correction thereof.
“Automated checkout system”, a cash register, computer terminal, or other device capable of determining the price of an item from the item’s code and printing an itemized sales receipt for a consumer.
“Checkout price”, the price of an item charged to the consumer as listed on an automated checkout system display or on an itemized sales receipt.
“Clear and conspicuous”, of such size, color or contrast so as to be readily noticed and understood by a reasonable person.
“Code”, a unique identifier of an item that includes symbols, letters, numbers, bars or combinations thereof.
“Consumer scanner”, an electronic scanner provided for consumer use that is capable of reading an item’s code and displaying a description of the item and its price.
“Deputy director”, the deputy director of standards established in section 5 of chapter 24A.
“Discount”, a percentage off or special price to be reflected in the checkout price and indicated on the itemized sales receipt.
“Display price”, the price on a sign affixed to the display on which the unit is placed.
“Division”, the division of standards established in chapter 24A.
“Individual item”, 1 of an item.
“Item”, a specific and distinct product, good or commodity. One item is differentiated from another by having a different universal product code for items so coded; and for items not so coded, the item has any distinguishing characteristics compared to another item.
“Itemized sales receipt”, a printed sales receipt listing, at a minimum, the price charged to the consumer for each item and the quantity sold.
“Price list”, an easily referenced list maintained by the retailer that indicates the code, the description and the current price of each item excluded under subsection (d) of section 184C.
“Retailer”, as defined in section 1 of chapter 64H.
“Scanner price”, the price of an item as displayed on a consumer scanner.
“Seasonal employment”, services performed for wages for a seasonal employer during the seasonal period in the employer’s seasonal operations, after the effective date of a seasonal determination with respect to the seasonal employer.
“Sticker price”, the price on a sticker, ticket, tag or other label affixed to an individual item.
Section 184C. Clear & Conspicuous, Pricing Systems; Exemptions; Consumer Protections; Inspections; Regulations.
(a) The price of an item offered for sale by a retailer shall be disclosed to consumers in a clear and conspicuous manner. The retailer may elect to disclose the price using either an individual item pricing system or a consumer scanner pricing system.
All prices represented to the consumer for an item shall be consistent with the price for all items that are the same and shall be consistent to the checkout price for that item.
(b) An individual item pricing system shall have the price of an item on each individual item by means of a sticker, ticket, tag, or other label.
(c) A consumer scanner pricing system shall have the code of an item on each individual item by means of a sticker, ticket, tag or other label that can be read by a consumer scanner and automated checkout system.
The item’s code, its description and its price shall be disclosed in a clear and conspicuous manner at the point of display.
Each retail store using a consumer scanner pricing system shall have at least 1 operational consumer scanner. Each retail store with more than 5,000 square feet of retail space shall have at least 1 operational consumer scanner every 5,000 square feet. The location of a consumer scanner shall be disclosed in a clear and conspicuous manner.
(d) A retailer may exclude the following classes of items from its individual item pricing system or its consumer scanner pricing system if: (i) a clear and conspicuous sign disclosing the item’s code, its description and its price is posted where these items are displayed; (ii) the cashier can readily discern the item’s price, (iii) the retailer maintains an itemized price list for all excluded items, and (iv) the price list is available at each checkout and can be reviewed by a customer upon request:-
(1) produce, meat, fish, poultry, delicatessen, bakery items, and any other items that are unpackaged and offered from a bulk display, except that any such item weighed or wrapped to order by the food store or food department but paid for at a place other than at the point of such weighing or wrapping shall have the correct price marked on the item;
(2) gallons and half gallons of milk;
(3) eggs;
(4) cigarettes, cigars, tobacco and tobacco products;
(5) individual items within a multi-item package, if the package is correctly price marked;
(6) cakes, gum, candy, chips, nuts and other snack foods, if offered for sale individually, and located at the checkout area;
(7) individual greeting cards, if marked with a price code readily understandable by the consumer;
(8) individual containers of baby food of the same brand and price where vegetable or fruit is the predominant ingredient other than water, but not including juices;
(9) soft drink bottles and cans located at the checkout area;
(10) in addition to those classes of items otherwise exempted, not more than 60 items that are: (i) in a retail store using an individual item pricing system and (ii) accessible to the consumer in a free standing or end-aisle display that has at least 50 individual items of the same item; provided that, unless the deputy director determines otherwise, individual items that differ only by color, flavor or scent shall be counted as the same item for the purpose of this clause if they are identical in all other aspects, including price, size and brand;
(11) frozen food products;
(12) items sold by length, area, weight or volume, including chain, rope, flooring, lumber, fabric, stone or soil, that are unpackaged;
(13) items that must be retrieved for the consumer by store staff, including (i) large electronics or appliances, (ii) display or representative items or (iii) items displayed in a locked case or out of reach of consumers;
(14) packaged self-service items that are small in size and are offered for sale located at the checkout area;
(15) live animals and items sold in a coin operated vending machine;
(16) items offered temporarily at an advertised discount; and
(17) an additional 5 per cent of items offered for sale.
(e) The retailer shall provide an itemized sales receipt to all customers.
(f) If the consumer qualifies for a discount, the discount or the discounted price shall be reflected in the checkout price and printed on the consumer’s itemized sales receipt.
(g) If there is a discrepancy between either the advertised price, the sticker price of the individual item, the scanner price, or the display price and the checkout price, a retailer shall charge a consumer the lowest price. If the checkout price is not the lowest price or does not reflect any qualifying discount, the retailer: (i) shall not charge the consumer for 1 unit of the item, if the lowest price is $10 or less; (ii) shall charge the consumer the lowest price less $10 for 1 unit of the item, if the lowest price is more than $10; and (iii) shall charge the consumer the lowest price for any additional units of the item.
This subsection shall not apply if: (1) there is evidence of obvious tampering or (2) the discrepancy is a gross error, in that the lowest price is less than half of the checkout price and the retailer, in the previous 30 days, did not intend to sell the item at the lowest price.
All retailers shall maintain data on price discrepancies. This data shall be provided to the division upon request.
The provisions of this subsection shall be clearly and conspicuously posted in the retail store.
(h) A consumer may submit a complaint to the office of the attorney general or to the division regarding compliance with this section.
(i) If the deputy director determines that a retailer is intentionally or through gross negligence violating sections 184C to 184E, inclusive, the deputy director shall notify the attorney general and the retailer shall be prohibited from using any exclusions under subsection (d) for 1 year.
(j) The deputy director may require retailers to disclose a consumer’s rights under sections 184C to 184E, inclusive.
(k) The deputy director or a representative of the deputy director shall inspect each retail store for compliance with sections 184B to 184E, inclusive. The inspection shall be conducted pursuant to the national industry standards adopted by the National Conference on Weights and Measures of the National Institute of Standards and Technology.
The retailer shall provide the inspector with access necessary to conduct an inspection.
The inspector shall notify the retailer of violations and of the fine imposed pursuant to section 184D for consumer scanner pricing systems and pursuant to section 184E for individual item pricing systems. A fine shall be paid within 30 days of issuance of the notice, unless the retailer appeals to the deputy director. If the grounds for appeal are determined to be without reasonable basis, the fine shall be doubled.
The retailer shall immediately correct any noncompliance with section 184C when notified by the inspector.
(l) If a retailer intends to switch from an individual item pricing system to a consumer scanner pricing system and the retailer has a collective bargaining unit with employees of which item pricing is any part of their job responsibility, then the retailer shall submit an affidavit to the division of standards prior to the switch stating that protections, including a complaint process, are in place so that those employees will not suffer any wage or benefit loss due to the switch.
This affidavit shall include the number of employees within the unit and the wages and benefits each employee receives. If any individual employee’s wages or benefits change adversely due to the switch and not due to seasonal employment, the retailer shall disclose prices using an individual item pricing system and be subject to a fine of not more than $5,000.
(m) The deputy director shall promulgate regulations to effectuate the purposes of sections 184B to 184E, inclusive, that are based on national industry standards.
(n) The division shall retain all registration fees and fines collected not to exceed $2,000,000 annually. The retained revenue collected may be used by the division to support its enforcement activities and for grants to approved agents to assist the division in the enforcement of the provisions of this law. Any revenue generated on an annual basis over this amount shall revert to the General Fund.
Section 184D. Consumer Scanner Item Pricing Inspection Fees, Violations, Fines.
(a) Inspections of retail stores using a consumer scanner pricing system shall occur not more than once a year, unless, within the previous 30 days, a pattern of consumer complaints is verified or the retail store is not in compliance with subsection (c) at its most recent inspection and may be reinspected once every 72-hour period until the retail store is found to be in compliance with subsection (c)
(b) An inspection fee shall be assessed per inspection on each retailer using a consumer scanner pricing system. The fee shall be $250 if the retail space is less than 20,000 square feet and $500 if the retail space is 20,000 square feet or more. This fee shall be waived if the retailer demonstrates at the time of the inspection that it has annual sales revenue of $5,000,000 or less for all its retail stores in Massachusetts, according to its most recent Massachusetts tax return.
(c) A retailer using a consumer scanner pricing system shall be in violation if (i) during an inspection, it scores less than a 98 per cent price accuracy rate or (ii) it is not in compliance with subsection (c) of section 184C.
(d) A violation of subsection (c) shall be punished for the first offense within a year by a fine of $250, for the second offense within a year by a fine of $500, and for a subsequent offense within a year by a fine of $1,000, up to a maximum of $5,000 a year; provided, however, that the deputy director of standards may reduce the fine under section 29A of chapter 98.
Section 184E. Individual Item Pricing Inspection Fees, Violations, Fines.
(a) Inspections of retail stores using an individual item pricing system shall occur not more than once a week.
(b) There shall be no inspection fee assessed on retailers using an individual item pricing system.
(c) A retailer using an individual item pricing system shall be in violation if, during an inspection: (i) there is no price on an individual item and it has not been excluded under subsection (d) of section 184C; (ii) the retailer has excluded an item under said subsection (d) of said section 184C, but has not meet the requirements of the subsection, or (iii) the checkout price is not the lowest price for an individual item.
Multiple individual items from the same display of an item which are found in violation of the same infraction shall be considered 1 violation.
(d) A violation of subsection (c) shall be punished for the first offense by a fine of $100, for the second offense by a fine of $250, and for a subsequent offense, by a fine of $500. A civil citation may be issued for $100 for each violation, up to a maximum of $2,500 per inspection; provided, however, that the deputy director may reduce the fine under section 29A of chapter 98.
SECTION 2. Section 56D of chapter 98 is hereby repealed.
SECTION 3. Any retailer who, as of December 31, 2008, was not subject to sections 184C to 184E, inclusive, of chapter 94 of the General Laws shall not be assessed an inspection fee for any inspections conducted under section 184D of chapter 94 until January 1, 2011.
SECTION 4. This act shall take effect on January 1, 2009.