[ Text of section effective until January 1, 2013. For text effective January 1, 2013, see below.]
Section 184E. Any representative authorized by the director of standards may conduct inspections of any item and shall issue notices of violation to any food store or food department for any violation of this section and sections 184B to 184D, inclusive, provided, however, that no food store or food department shall be inspected more than once a week. Violations 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. Notwithstanding the method for determining the amount of civil fines pursuant to section 29A of said chapter 98, a civil citation may be issued for $100 for each violation, up to a maximum of $2,500 per inspection. For purposes of this section each item which scans erroneously shall constitute a separate civil violation. The seller shall immediately correct all violations including those where a tolerance was granted.
In the case of any verified consumer complaint, fines for overcharging shall be limited to one violation per item. A fine shall be issued without allowance for tolerance upon verification of any consumer complaint alleging overcharging or improper price marking except for those units where the seller gave the consumer the units tendered for purchase free under a qualified price accuracy guarantee.
The director of standards may require sellers to disclose a consumer's rights under the provisions of this section and sections one hundred and eighty-four B to one hundred and eighty-four D, inclusive.
Any food store or food department which maintains and complies with the terms of a qualified price accuracy guarantee in the form prescribed below, and posts an explanation of such price accuracy guarantee at each cash register or terminal, shall have all per violation fines reduced by fifty per cent. If the director of standards determines that a food store or food department is either intentionally or through gross negligence violating any provisions of this section and sections one hundred and eighty-four B to one hundred and eighty-four D, inclusive, all the store's exemptions shall be rescinded for a period of twelve months, and the matter shall be referred to the attorney general for action against such food store or food department. Uncontested fines levied under said sections shall be paid within thirty days of issuance of the notice of violation. Any aggrieved seller may appeal any unjustified fines to the director of standards if such appeal is filed within thirty days of issuance of the notice of violation. If the grounds for appeal are determined to be without reasonable basis, the fine shall be doubled.
A qualified price accuracy guarantee at a minimum is one which immediately gives any consumer one unit free of every different item which was either (a) rung up at a price higher than the lowest price marked on the unit, and for unmarked units, the price on any sign or unit price label; or (b) rung up at a price higher than the price advertised for the item. Sellers may elect option (a) or (b), or both, but option (b) may only be elected alone if the seller advertises at least fifty packaged grocery sale items each week not including meat and produce. To take advantage of the guarantee, the consumer need only point out the over-ring to the cashier.
All food stores and food departments shall provide an itemized sales slip to all consumers indicating at a minimum the price charged for each item or unit. No food store or food department shall refuse to sell any unit tendered for purchase at the lowest price represented to the consumer by the seller or supplier; provided, however, that the seller shall have no obligation to sell such unit at the lowest represented price if it is the result of a gross error, if it is based on the price marked on another unit of the same item and the tendered unit is marked only with a higher price, or if the price tag, label, or sign shows evidence of obvious physical tampering, or if it is given away free under a price accuracy guarantee.
This section and sections one hundred and eighty-four B to one hundred and eighty-four D, inclusive, shall only apply to food stores and to grocery items in food departments. Said sections shall not diminish any obligations under other laws or regulations regarding item pricing for sellers other than food stores or for items other than grocery items in food departments. The director of standards shall not issue a fine pursuant to this section and said sections one hundred and eighty-four B to one hundred and eighty-four D, inclusive, and section fifty-six D of chapter ninety-eight for the same violation. Where a seller is also subject to the item pricing regulations or guidelines of another agency, in cases where a specified number of items is allowed to be exempted under two similar exceptions to the requirement of item pricing, such similar provisions shall not be additive. Compliance with another agency's regulations or guidelines which differ from said sections or any regulations issued hereunder by the director of standards shall not be a defense to a violation of said section or any regulations promulgated hereunder.
The director of standards may promulgate regulations or issue guidelines for the implementation or interpretation of said sections.
Failure to comply with any of the provisions of said sections shall constitute a violation and an unfair or deceptive act or practice under the provisions of chapter ninety-three A.
Chapter 94: Section 184E. Conversion from individual item pricing system to consumer price scanner system; operation and inspection of consumer price scanner system
[ Text of section as amended by 2012, 138, Sec. 1 effective January 1, 2013. See 2012, 138, Sec. 4. For text effective until January 1, 2013, see above.]
Section 184E. (a) A food store or food department seeking to convert from an individual item pricing system to a consumer price scanner system shall seek a waiver from the division. The waiver shall be granted by the division provided that the food store or food department has no outstanding fines under sections 184B to 184D, inclusive, or section 56D of chapter 98 and pays a $250 fee annually to the division if the retail space is less than 15,000 square feet, $500 fee if the retail space is greater than or equal to 15,000 square feet, but less than 30,000 square feet or a $1,000 fee if the retail space is 30,000 square feet or more.
(b) Under the regulations promulgated under this chapter, the division shall require each applicant to complete a "no job loss'' affidavit which shall include, but not be limited to, the number of people employed at the time of the application process and the establishment of a complaint process, to ensure that full and part-time employees do not suffer any wage or benefit loss due to the transfer. After the filing of the affidavit, if there is any resulting job loss at the store due to the implementation of the waiver, as determined by the division, not attributed to seasonal employment or verifiable economic pressures, the store shall be required to use an individual item pricing system for 1 year under sections 184B to 184E, inclusive, or other applicable laws or regulations promulgated hereunder and be subject to a fine of not more than $5,000.
(c) A food store or food department using a consumer price scanner system shall be subject to inspection by the deputy director for compliance with this section. The deputy director shall not cause any food store or food department using a consumer price scanner system to be inspected more than once per calendar month. If, within the previous 30 days, there is a verified pattern of consumer complaints or, upon regular inspection, the food store or food department is not in compliance with this section, the division may inspect a food store or food department using a consumer scanner pricing system once every week until the food store or food department is found to be in compliance with this section.
(d) Each food store or food department with more than 5,000 square feet of retail space that employs a consumer price scanner system shall have at least 1 fully operational consumer price scanner for every 5,000 square feet of retail space or part thereof. The location of a consumer price scanner shall be disclosed by 1 clear and conspicuous sign at eye-level and 1 clear and conspicuous sign above eye level. Consumer price scanners shall be equally spaced throughout the store in fixed locations. A food store or food department with more than 5,000 square feet shall have at least 1 fully operational consumer price scanner capable of producing an individual item pricing tag. At all such scanner locations, the food store or food department shall provide the consumer with a means by which such pricing tag may be affixed or appended to the item or its packaging, such as tape or an adhesive price tag. The deputy director may, by regulation, authorize new technologies in lieu of required consumer price scanners which further the intent of this section, including, but not limited to, hand held or shopping cart attached scanners which retain in memory and itemize all scanned items. Such technologies may reduce the required number of consumer scanners by no more than 50 per cent.
(e) Consumer price scanners shall be deemed fully operational if: (1) the consumer price scanner clearly and conspicuously identifies and displays the item by name or other distinguishing characteristics; and (2) the consumer price scanner displays the item's correct price when the item is scanned and, in the case of a food store or food department that uses loyalty cards or otherwise maintains a dual pricing system, the consumer price scanner displays both the loyalty card price and the non-card price if they differ. A sign containing contact information for the division shall be posted by each consumer price scanner so that consumers may report broken consumer price scanners. Such consumer price scanners shall be in compliance with the Americans with Disabilities Act Accessibility Guidelines, 28 CFR Part 36, Appendix A and the architectural access board regulations 521 CMR 1.00, et. seq. Any violation of this subsection shall be considered in determining a consumer price scanner's pass or fail designation as defined in subsection (i).
(f) Any food store or food department with more than 5,000 square feet of total space converting from an individual item pricing system to a consumer price scanner pricing system shall within 3 months of such conversion hire or maintain not less than 2 employees whose responsibilities shall include the maintenance of all consumer price scanners within the food store or food department.
(g) An inspector may choose to test a food store or food department's consumer price scanner system for accuracy. The inspector may choose the sample size for accuracy tests provided that the size of sample is not less than 50 items and not more than 200 items. Any scanning that yields an incorrect price that causes a food store or food department's consumer price scanner accuracy rating to fall below 98 per cent shall constitute a separate violation. This subsection shall not be used to impact a scanner's pass or fail grade as defined in subsection (i) but the cumulative violations of this subsection in any particular store or department shall be used in contributing toward the maximum fine imposed under the same subsection.
(h) Upon inspection, the deputy director shall notify the store manager, who shall provide the inspector with a map of the food store or food department outlining the consumer price scanner locations and the food store or food department's square footage of retail space. The food store or food department's number of scanners shall be sufficient for the food store or food department's size under subsection (d). Any violation of this subsection shall result in a fine of $1,000, which shall not count toward the maximum fine established under subsection (i); provided, however, that the deputy director may reduce this fine consistent with section 29A of chapter 98.
(i) Each consumer price scanner shall be graded on a pass or fail basis by inspectors. A failing consumer price scanner shall include, but not be limited to, missing consumer price scanners or inadequate signage under subsection (d). Each scanner found to have failed the test shall constitute a separate violation of this section. Notwithstanding the method for determining the amount of civil fines under section 29A of chapter 98, a civil fine may be issued for $200 for each violation, up to a maximum of $2,500 per inspection; provided, however, that the deputy director may reduce any fine imposed under this section consistent with said section 29A of said chapter 98.