MASSACHUSETTS HOUSE BILL NO. 4636

H00310'05 * DAM HOUSE BILL No. 4636
HOUSE BILL No. 4636

April 20, 2005, Introduced by Reps. Hildenbrand, Accavitti, Drolet, Huizenga, Stahl, Palsrok, Gosselin, Murphy, Gonzales, Cushingberry, Elsenheimer, Wenke, Garfield, Marleau, Brandenburg, LaJoy, David Law, Pearce, Green, Hansen, Sheen, Hoogendyk, Pavlov, Farhat, Baxter, Jones, Moolenaar, Steil, Taub, Robertson, Nitz, Mortimer, Vander Veen, Proos, Caul, Stakoe, Ward, Palmer, DeRoche, Hummel, Kooiman and Lemmons, III and referred to the Committee on Commerce.

A bill to amend 1976 PA 449, entitled "An act to regulate the pricing of consumer items and the advertising of consumer items, services, goods, merchandise,
commodities, and real property; to prescribe the powers and duties of certain state and local officials in relation thereto; to provide remedies and penalties; and to repeal certain acts and parts of acts," by amending sections 1 and 3 (MCL 445.351 and 445.353) and by adding sections 3a and 3b.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1. (1) THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE 1
"PRICING MODERNIZATION ACT". 2 (2) As used in this act: 3 (a) "Advertising" means all representations disseminated in 4 any manner by any means for the purpose of inducing, or which 5 THAT are likely to induce, directly or indirectly, the purchase of 6

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a consumer item, service, good, merchandise, commodity, or real 1 property. 2
(b) "Automatic checkout system" means an electronic device, 3 computer, or machine which THAT determines the price of a 4 consumer item by using a product identity code, and may but is not 5 required to include an optical scanner. 6 (c) "Class of item" means a group of consumer items which 7 THAT may vary by brand, style, pattern, color, or size other than 8 weight or volume. Items within a class must otherwise be identical 9 and offered at the same total price. 10 (d) "Consumer item" means an article of tangible personal 11 property used or consumed, or bought for use or consumption, 12 primarily for personal, family, or household purposes. 13 (e) "Director" means the director of the department of 14
agriculture or his OR HER authorized representative. 15 (F) "NONPRESCRIPTION MEDICINE" MEANS AN OVER-THE-COUNTER DRUG 16 PRODUCT, OTHER THAN VITAMINS OR A NUTRITIONAL OR DIETARY 17 SUPPLEMENT, THAT IS SUBJECT TO THE LABELING REQUIREMENTS OF 21 CFR 18 201.66. 19
(G) (f) "Person" means an individual, firm, partnership, 20 corporation, LIMITED LIABILITY COMPANY, association, or other legal 21 entity. 22 (H) (g) "Sale at retail" means the transfer of an interest 23 in a consumer item by a person regularly and principally engaged in 24 the business of selling consumer items to a buyer for use or 25 consumption and not for resale. 26 (I) (h) "Total price" means the full purchase price of a 27

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consumer item, excluding sales tax and container deposit. 1 Sec. 3. (1) The A PERSON SHALL CLEARLY AND CONSPICUOUSLY 2 INDICATE THE total price of a consumer item displayed or offered 3 for sale at retail shall be clearly and conspicuously indicated 4 in arabic ARABIC numerals. , so as to THE TOTAL PRICE MUST be 5 readable and understandable by visual inspection , and shall be 6 stamped upon or affixed to the consumer item. If the consumer item 7 i
s in a package or container, the total price shall MUST be 8 stamped upon or affixed to the outside surface of the package or 9 container and need not be placed directly upon the consumer item. 10 (2) The requirements of subsection SUBSECTION (1) shall 11 DOES not apply to: 12 (a) A consumer item sold by weight or volume which THAT is 13 not in a package or container. 14 (b) A consumer item sold in a coin operated vending machine. 15 (c) Prepared food intended for immediate consumption, as 16 defined in section 4g of Act No. 167 of the Public Acts of 1933, 17 being section 205.54g of the Michigan Compiled Laws THE GENERAL 18 SALES TAX ACT, 1933 PA 167, MCL 205.54G. 19 (d) A consumer item purchased by mail or through catalog 20 order, or which THAT is not otherwise visible for inspection by 21 the consumer at the time of the sale, and which THAT is ordered 22 or requested by the consumer, if the price of the CONSUMER item is 23 on the consumer's written order or request or on a bill, invoice, 24 or other notice which THAT describes or names the CONSUMER item 25 and which is enclosed with the CONSUMER item. 26 (e) An unpackaged food item. 27

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(f) A consumer item which THAT has a total weight of not 1 more than 3 ounces, a total volume of not more than 3 cubic inches, 2 a nd a total price of not more than 30 99 cents. 3 (g) Live plants, TREES, SEEDS, OR BULBS. 4 (h) Live animals. 5 (i) Motor vehicles. 6 (j) Motor vehicle parts. 7 (k) Packages of 20 or fewer cigarettes. 8 (l) Greeting cards sold individually which THAT have a 9 readable coded price on the back of the card. 10 (m) Merchandise ordered as a gift by a consumer which THAT 11 is sent by mail or other delivery service to a person other than 12 the consumer by the retailer at the request of the consumer. 13 (N) A CONSUMER ITEM SOLD IN COMPLIANCE WITH SECTION 3A. 14 (3) In addition to the exemptions allowed in EXCEPTIONS 15 UNDER subsection (2), a retailer may choose to not individually 16 price mark not more than 25 75 classes of items or individual 17 items, which classes or items shall be listed and posted in a 18 conspicuous place in the retail store, and may choose to not 19
individually price mark not more than 25 additional classes of 20 items or individual items which THAT are advertised or featured 21 at a reduced price. 22
(4) The IF THE price and the name or description of a class 23 of items or individual items ARE not PRICE marked pursuant to 24 subsection (3), shall be indicated THE RETAILER SHALL INDICATE 25 THE PRICE AND THE NAME OR DESCRIPTION OF THE CLASS OF ITEMS OR 26 INDIVIDUAL ITEMS by POSTING a clear, readable, and conspicuous sign 27

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in immediate conjunction with the area in which the unmarked item 1 or class of items is displayed. 2 (5) As used in subsections (3) and (4), "item", except as 3
otherwise provided in this subsection, means 1 or more identical 4 articles , sold in identical quantities or measures. An item may 5 include more than 1 product, brand, kind, size, or type of 6 packaging, if they are packaged together and sold as a set and the 7 sets are identical in all respects, including quantity or measure. 8 SEC. 3A. (1) SECTION 3(1) DOES NOT APPLY TO A CONSUMER ITEM 9 DISPLAYED OR OFFERED FOR SALE AT RETAIL THAT MEETS ALL OF THE 10 FOLLOWING REQUIREMENTS: 11 (A) THE CONSUMER ITEM IS NOT A FOOD ITEM OR NONPRESCRIPTION 12 MEDICINE. 13 (B) AT THE POINT OF DISPLAY OF THE CONSUMER ITEM, THERE IS A 14 LABEL OR SIGN POSTED IMMEDIATELY ABOVE, BELOW, OR ADJACENT TO THE 15
CONSUMER ITEM THAT CLEARLY AND CONSPICUOUSLY DISPLAYS TO THE 16 CONSUMER THE TOTAL PRICE OF THE CONSUMER ITEM IN ARABIC NUMERALS 17 AND A DESCRIPTION OF THE CONSUMER ITEM, INCLUDING, BUT NOT LIMITED 18 TO, THE PRODUCT NAME OR DESCRIPTION, BRAND, AND SIZE OF THE ITEM. 19 (C) THE RETAILER UTILIZES AN AUTOMATIC CHECKOUT SYSTEM AT THE 20 RETAIL STORE THAT IS AUDITED AT LEAST EVERY CALENDAR QUARTER BY AN 21 INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT OR ACCOUNTING FIRM, AND THE 22 ACCOUNTANT OR FIRM CERTIFIES, AND ISSUES A CERTIFICATE OF 23 COMPLIANCE, THAT THE AUTOMATIC CHECKOUT SYSTEM MEETS 1 OF THE 24 FOLLOWING: 25 (i) DEMONSTRATES AN ACCURACY RATE OF NOT LESS THAN 98%. 26 (ii) HAS AN ERROR RATE NOT GREATER THAN 2% FOR SALES OF 27

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CONSUMER ITEMS DURING THE PRECEDING CALENDAR QUARTER. 1 (D) THE RETAILER PROVIDES AT LEAST 1 REMOTE UPC CODE SCANNER 2
FOR EACH 5,000 SQUARE FEET OF RETAIL FLOOR SELLING SPACE IN EACH 3 RETAIL STORE LOCATION. A REMOTE UPC CODE SCANNER PROVIDED UNDER 4 THIS SUBDIVISION MUST MEET ALL OF THE FOLLOWING REQUIREMENTS: 5 (i) BE COMPATIBLE WITH AND SYNCHRONIZED WITH THE UPC CODE 6 SCANNING CAPABILITY OF THE RETAILER'S AUTOMATIC CHECKOUT SYSTEM 7 USED AT THE POINT OF SALE. 8 (ii) BE READILY ACCESSIBLE TO CONSUMERS AND LOCATED IN A 9 CONVENIENT PLACE WITHIN THE RETAIL STORE. 10 (iii) DISPLAY THE PRICE OF A CONSUMER ITEM SCANNED BY A CONSUMER 11 IN ARABIC NUMERALS. 12 (E) THE RETAILER PROVIDES AT LEAST 1 REMOTE UPC CODE SCANNER 13 FOR EACH 10,000 SQUARE FEET OF RETAIL FLOOR SELLING SPACE IN EACH 14 RETAIL STORE LOCATION. A REMOTE UPC CODE SCANNER PROVIDED UNDER 15 THIS SUBDIVISION MUST MEET ALL OF THE FOLLOWING REQUIREMENTS: 16 (i) BE COMPATIBLE WITH AND SYNCHRONIZED WITH THE UPC CODE 17 SCANNING CAPABILITY OF THE RETAILER'S AUTOMATIC CHECKOUT SYSTEM 18 USED AT THE POINT OF SALE. 19 (ii) BE READILY ACCESSIBLE TO CONSUMERS AND LOCATED IN A 20 CONVENIENT PLACE WITHIN THE RETAIL STORE. 21 (iii) DISPLAY THE PRICE OF A CONSUMER ITEM SCANNED BY A CONSUMER 22 IN ARABIC NUMERALS. 23 (iv) ALLOW A CONSUMER TO PRINT THE PRICE OF A CONSUMER ITEM ON 24 A LABEL THAT THE CONSUMER CAN AFFIX TO THE ITEM. 25 (2) IN DETERMINING AN ACCURACY RATE OR ERROR RATE UNDER 26 SUBSECTION (1)(B), THE CERTIFIED PUBLIC ACCOUNTANT OR ACCOUNTING 27

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FIRM SHALL INCLUDE OVERCHARGES TO A CONSUMER BUT NOT UNDERCHARGES. 1 THE ACCOUNTANT OR FIRM MAY USE RECOGNIZED SAMPLING TECHNIQUES IN 2 THE QUARTERLY AUDIT. A RETAILER SHALL MAINTAIN AUDIT REPORTS AND 3 CERTIFICATES OF COMPLIANCE FOR 5 YEARS AND MAKE THEM AVAILABLE TO 4 THE DIRECTOR ON REQUEST. THE RETAILER SHALL POST THE MOST RECENT 5 CERTIFICATE OF COMPLIANCE IN A CONSPICUOUS LOCATION IN THE RETAIL 6 STORE. 7
(3) IF THE RETAILER FAILS TO MEET THE ACCURACY AND 8 CERTIFICATION REQUIREMENTS OF SUBSECTION (1) FOR A RETAIL STORE, 9 THE RETAILER HAS 30 DAYS IN WHICH TO CORRECT ANY SYSTEM 10
DEFICIENCIES AND TO OBTAIN A RECERTIFICATION FROM THE CERTIFIED 11 PUBLIC ACCOUNTANT OR ACCOUNTING FIRM. IF THE RETAILER DOES NOT 12 OBTAIN A RECERTIFICATION WITHIN THE 30-DAY PERIOD, THIS SECTION 13 DOES NOT APPLY TO THE CONSUMER ITEMS AT THAT RETAIL STORE, AND THE 14 RETAILER SHALL COMPLY WITH SECTION 3 WITH RESPECT TO THE CONSUMER 15 ITEMS DESCRIBED IN THIS SECTION, AND MAY NOT UTILIZE THE EXCEPTION 16 TO SECTION 3(1) CONTAINED IN THIS SECTION AT THAT RETAIL STORE FOR 17 A PERIOD OF AT LEAST 180 DAYS. 18 (4) THE DIRECTOR IS RESPONSIBLE FOR THE IMPLEMENTATION AND THE 19 ADMINISTRATION OF THIS SECTION. THE DEPARTMENT MAY PROMULGATE RULES 20 PURSUANT TO THE ADMINISTRATIVE PROCEDURES ACT OF 1969, 1969 PA 306, 21 MCL 24.201 TO 24.328, REGARDING AUDIT AND CERTIFICATION STANDARDS 22 FOR AUTOMATIC CHECKOUT SYSTEMS AND REMOTE UPC CODE SCANNERS. 23 SEC. 3B. (1) A PERSON SHALL NOT KNOWINGLY CHARGE OR ATTEMPT TO 24
CHARGE FOR A CONSUMER ITEM A RETAIL PRICE EXCEEDING THE PRICE 25 DISPLAYED ON A SIGN OR DISPLAYED BY A REMOTE UPC CODE SCANNER UNDER 26 SECTION 3A. IT IS NOT A VIOLATION OF THIS ACT TO CHARGE FOR A 27

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CONSUMER ITEM A TOTAL PRICE LESS THAN THE PRICE DISPLAYED ON A SIGN 1 OR DISPLAYED BY A REMOTE UPC CODE SCANNER UNDER SECTION 3A. 2 (2) IT IS PRIMA FACIE EVIDENCE OF A VIOLATION OF THIS SECTION 3 IF A PRICE CHARGED OR ATTEMPTED TO BE CHARGED AS A RESULT OF 4 ELECTRONIC IDENTIFICATION OR CALCULATION BY AN AUTOMATIC CHECKOUT 5 SYSTEM EXCEEDS THE PRICE DISPLAYED ON A SIGN OR DISPLAYED BY A 6 REMOTE UPC CODE SCANNER UNDER SECTION 3A. 7 (3) BEFORE BRINGING OR JOINING AN ACTION UNDER SECTION 10(2), 8 WITHIN 30 DAYS AFTER PURCHASING A CONSUMER ITEM THAT IS NOT A FOOD 9 ITEM OR NONPRESCRIPTION MEDICINE AT A RETAIL STORE THAT MEETS THE 10 ACCURACY AND CERTIFICATION REQUIREMENT OF SECTION 3A, A CONSUMER 11 WHO SUFFERS A LOSS BECAUSE THE PRICE CHARGED FOR THE CONSUMER ITEM 12 IS MORE THAN THE DISPLAYED PRICE FOR THE ITEM OR THE PRICE PRINTED 13
BY THE REMOTE UPC CODE SCANNER SHALL NOTIFY THE RETAILER IN PERSON 14 OR IN WRITING OF THE PRICE DISCREPANCY. IF, WITHIN 2 DAYS AFTER THE 15 NOTIFICATION, THE RETAILER TENDERS TO THE CONSUMER AN AMOUNT EQUAL 16 TO THE DIFFERENCE BETWEEN THE DISPLAYED PRICE OR THE PRICE PRINTED 17 BY THE REMOTE UPC CODE SCANNER AND THE PRICE CHARGED, PLUS AN 18 AMOUNT EQUAL TO 20 TIMES THAT DIFFERENCE, BUT THAT IS NOT LESS THAN 19 $2.00 OR MORE THAN $10.00, THE CONSUMER IS BARRED FROM FURTHER 20 RECOVERY FOR THAT LOSS. IF THE LOSS IS SUFFERED BY 1 CONSUMER 21 WITHIN 1 TRANSACTION ON 2 OR MORE IDENTICAL ITEMS, THE RETAILER 22 SHALL TENDER THE DIFFERENCE ON EACH ITEM, PLUS AN AMOUNT EQUAL TO 23 20 TIMES THE DIFFERENCE ON A SINGLE ITEM BUT THAT IS NOT LESS THAN 24 $2.00 AND NOT MORE THAN $10.00. IF THE RETAILER DOES NOT TENDER 25 THIS AMOUNT, THE CONSUMER MAY BRING OR JOIN IN AN ACTION AS 26 PROVIDED IN SECTION 10(2). 27

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(4) SUBSECTION (3) DOES NOT APPLY TO A SALE AT RETAIL IF THE 1
RETAILER INTENTIONALLY CHARGES MORE FOR AN ITEM THAN THE POSTED 2 PRICE OR THE PRICE DISPLAYED BY A REMOTE UPC CODE SCANNER. 3