Whereas, The deferred operation of this act would tend to defeat its purpose, which is to immediately regulate certain pricing practices, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.
Be it enacted by the Senate and House of Representatives
in General Court assembled, and by the authority of the same,
SECTION 1. Section one of chapter six hundred and thirty-four of the acts of nineteen hundred and eighty-six is hereby repealed.
Section 2. Section 115A of chapter 6 of the General Laws, as appearing in the 1984 Official Edition, is hereby amended by striking out, in lines 1, 11 and 22, the word "council" and inserting in place thereof, in each instance, the words:- director of standards.
Section 3. Section 181 of chapter 94 of the General Laws is hereby amended by inserting after the word eighty-four E, inserted by section 2 of chapter 634 of the acts of 1986, the words:- , except section one hundred and eighty-four A.
Section 4. Said chapter 94 is hereby further amended by striking out sections 184B to 184E, inserted by section 3 of said chapter 634, and inserting in place thereof the following four sections:-
Section 184B. For purposes of this section and sections one hundred and eighty-four C to one hundred and eighty-four E, inclusive, the following words shall have the following meanings:-
"Automatic checkout system", a cash register, computer, terminal, or other device capable of interpreting the universal product code, or any other code which is on an item offered for sale used to determine the price of the item being purchased, regardless of whether the code entry is accomplished manually, or automatically by a machine.
"Coded", any symbol, letter, number or combination thereof other than the price itself which is stored in and interpretable by the seller's automatic checkout system.
"Correct price", the advertised price in any circular, newspaper, magazine, television or radio commercial, or in any other medium, or any published correction thereof. If an item is not advertised, the correct price shall be the lowest price indicated on any store sign for the item, but not if such item is rung up at a lower price. If no sign is displayed, the correct price shall be the price of the item on its displayed unit price label, but not if such item is rung up at a lower price. If no unit price label is displayed, the correct price shall be the price rung up by the food store's or food department's automatic checkout system. If the foregoing provisions for establishing the correct price are not determinative in a particular situation, the correct price shall be the price on the seller's current price list.
"Display", two or more units of an item located together. A display shall be deemed to be checked after the correct price is ascertained and one or more units are removed from the display and examined for accurate price markings.
"End-aisle display", a display of a specific item consisting of at least fifty units, not including units in closed cartons or otherwise inaccessible to the consumer which is located in a freestanding display or at the end of, or adjacent to, a shelved tier of groceries or other items.
"Food", anything edible.
"Food department", any seller other than a food store with any grocery item section, area, or display and which sells ten or more different food items for consumption off the seller's premises at least in part to individuals for their own personal, family, or household use; provided, however, that any food section which is within a larger business and is the functional equivalent of a supermarket with its own separate checkout, may be deemed a food store by the director of standards.
"Food store", any store, shop, supermarket, grocer, convenience store, warehouse-type seller, club, outlet, or other seller, whose primary business is selling either food for consumption off the seller's premises alone or in combination with grocery items or other nondurable items typically found in a supermarket, and such items are sold at least in part to individuals for their own personal, family, or household use.
"Grocery items", any food, pet food or supply, soap, household cleaner of any type, laundry product, light bulbs, or disposable paper or plastic products.
"Gross error", a price which is less than half the price stated by the seller as the actual selling price, and which was never intended as the selling price at any time during the previous thirty day period.
"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.
"Represented price", any price represented to a consumer as the actual selling price including the price on any sign, price tag, unit price label, advertisement, item, or cash register display.
"Rung up", the price on a cash register or terminal sales slip or display which indicates the price the consumer will be charged for each item; provided, however, that such price is not the result of a keypunching error by the cashier or inspector.
"Unit", a single piece of an item, such as one can, package, bag, or multipack.
Section 184C. Except as hereinafter provided, every item in a food store and every grocery item in a food department offered for sale, whether edible or not, shall have each unit individually marked with the correct selling price. All prices represented to the consumer for the same item shall be consistent with each other and to the price rung up and charged for the item. The seller shall be responsible for the completeness and accuracy of all price marking.
The following classes of items are exempt from the price marking requirement of this section; provided, however, that the cashier can readily discern the price of the exempted item, that no exempted item is marked with an incorrect price, that the exempted item is on a current price list maintained by the seller as hereinafter provided and that a clear and conspicuous separate sign, or a single sign in the case of similar items all priced the same, larger than the seller's regular unit price label with the price no smaller than one inch high, is placed at the point of display of each exempted item containing the name of the item, the correct price, and, if appropriate, the size or other distinguishing information:
(1) unpackaged: produce, meat, fish, poultry, delicatessen, bakery items, and any other unpackaged items 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;
(4) cigarettes, cigars, tobacco and tobacco products;
(5) individual units within a multi-unit package if the package is correctly price marked;
(6) snack foods such as cakes, gum, candy, chips, and nuts if offered for sale individually, weigh less than three ounces, cost seventy-five cents or less, and are located at the checkout area;
(7) individual greeting cards; provided, however, that such cards are marked with a price code readily understandable by the consumer;
(8) individual glass jars of baby food of the same brand and price where vegetable or fruit is the predominant ingredient other than water, but not including juices; provided, however, that if offered for sale by a seller with an automatic checkout system they are coded, or if offered by a seller without such system, they are on an easily referenced price list at each cash register;
(9) not more than sixty items that are located in end-aisle displays; provided, however, that if offered for sale by a seller with an automatic checkout system they are coded, or if offered by a seller without such system they are on an easily referenced price list at each cash register; and, provided, further, that such items are fully and accurately price marked at their regular shelf location, and the seller maintains a list of such items as required by section one hundred and eighty-four D. Said sixty item limit shall be reduced by seventy-five per cent in the case of a food department. For the exclusive purpose of determining whether a seller has exceeded said sixty item limit, units of an item which differ only by flavor or scent shall be considered the same item if they are otherwise identical in all respects including price, size, and brand, unless in a particular case the director of standards determines that such units are different items.
Section 184D. In addition to the exemptions in section one hundred and eighty-four C, food stores or food departments which, for a majority of the items offered for sale, utilize an automatic checkout system which is at least ninety-five per cent accurate as determined by the director of standards may also exempt up to a maximum of four hundred additional items; provided, however, that they are coded and subject to the following limitations and qualifications and those in section one hundred and eighty-four C:
(1) The exact number of additional exempt items allowed by this section shall be based on the number of operable cash registers or terminals located at the seller's main checkout location, but not to exceed four hundred. Cash registers at the seller's courtesy desk, or otherwise away from the main checkout location, if the seller maintains such main checkout location, shall not be included in the calculation, unless approved by the director of standards.
Sellers with one operable cash register shall be allowed to exempt twenty additional items of their own choosing. Sellers with two, three to four, or five to six operable cash registers shall be allowed to exempt fifty, one hundred or two hundred additional items respectively. Sellers with seven or more operable cash registers may exempt up to four hundred additional items. In the case of a food department, the number obtained in the above calculation shall be reduced by seventy-five per cent. In no case shall the number of exemptions permitted by this exception exceed four and one-half per cent of the number of packaged grocery items carried by the seller.
(2) Any food store or food department permitted to exempt additional items under this section shall establish at each store location a dated written list of the items it has chosen to exempt. The list shall include a readily understandable description of each item and the code number understood by the seller's automatic checkout system. The list shall be maintained so that any item may be referenced easily. Deletions may be made from the list at any time, but no additions, substitutions, or changes may be made to the list except twice a year in January and July starting with July nineteen hundred and eighty-seven. The exemption permitted by this section shall not apply to any item not on that list and shall not apply unless such list has been established and is available upon request at the store to any consumer or any representative authorized by the director of standards. The director of standards may require the periodic filing of such list with his office. No seller may choose to exempt items required to be price marked by other laws or regulations governing specific types of items, or may exempt more than two hundred items in any one department except in the dry grocery department.
(3) All food stores and food departments shall maintain a current and accurate price list of all items exempted under the provisions of section one hundred and eighty-four C and this section. Such list may be maintained in any reasonable manner, including by an automatic checkout system or merged with nonexempt items; provided, however, that information contained therein can be referenced easily by the person requesting it. All food stores and food departments shall also maintain a separate, current, written or printed list of the items it chooses to exempt under the provisions applying to end-aisle displays. Such lists shall be made available upon request to any representative authorized by the director of standards, and the price for any item contained therein shall be provided to any person upon request.
(4) Violations of the provisions of section one hundred and eighty-four B to one hundred and eighty-four E, inclusive, for which fines shall be levied shall include: having no price marked on any unit that is required to be priced and is not exempted; having an incorrect price on any unit; having an incorrect or missing sign; or overcharging on any unit. A unit shall be deemed to be overcharged once it is rung up at a price higher than any represented price.
There shall be a tolerance for error on all fineable violations discovered during an in-store inspection except overcharging. In the case of a display checked for unmarked and incorrectly marked units, the tolerance shall be such that the one display of an item most in violation out of each twenty displays checked shall be excluded in computing that fine. Said tolerance shall not be less than one display per inspection. In the case of a violation for incorrect or missing signs, the tolerance for error shall be calculated such that the number of sign violations actually found among those checked shall be reduced by ten per cent, but by not less than one violation, and such violations omitted shall be excluded in computing any fine. Each unit or sign in violation shall constitute a separate violation; provided, however, that no item may be subject to violations for both overcharging and incorrect price markings. Multiple units from the same display of an item which are found in violation of the same infraction shall be considered one fineable violation. An inspector may inspect any or all units in any display of any item. The seller shall allow the inspector access to the seller's automatic checkout system.
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 one hundred and eighty-four B to one hundred and eighty-four D, inclusive; provided, however, that no food store or food department shall be inspected more than once a week. The fine shall be one hundred dollars for each violation, up to a maximum fine of twenty-five hundred dollars per inspection. 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.
Section 5. Section 56D of chapter 98 of the General Laws, as amended by section 4 of said chapter 634, is hereby further amended by striking out the last paragraph and inserting in place thereof the following paragraph:-
For the purposes of this section, an automated retail check out system shall mean a cash register, computer, terminal, or other device capable of interpreting the universal product code, or any other code which is on an item offered for sale to consumers used to determine the price of the item being purchased, regardless of whether the code entry is accomplished manually, or automatically by a machine.
SECTION 6. This act shall take effect as of March twenty-third, nineteen hundred and eighty-seven.