Requires item pricing with limited exception

-institutes permanent item pricing requirements;

-defines terms including "stock keeping unit" and "stock keeping item";

-establishes an item-specific list of goods which are exempt from the item pricing requirement, which include:

a. Milk,

b. Eggs,

c. unpackaged fresh produce,

d. unpackaged food offered for sale in bulk,

e. food sold for consumption on the premises,

f. stock keeping items which are under three cubic inches in size, and weigh less than three ounces, and are priced under one dollar,

g. snack foods such as cake, gum, candies, chips and nuts offered for sale in single packages and weighing five ounces or less,

h. cigarettes, cigars, tobacco, and tobacco products,

i. items sold through a vending machine,

j. 7 day sale items,

k. frozen food sold in plastic bags.

-clarifies the prohibition against charging a consumer more than the lowest of an item's shelf, item, sale, or advertised price;

-provides for enforcement of item pricing by allowing the Department to inspect a sample of no less than fifty stock keeping units, and to also inspect any stock keeping unit upon which a consumer complaint is received;

-provides for enforcement of the price accuracy provision by allowing the Department to compare the item, shelf, sale, or advertised price on any stock keeping item, up to 500 stock keeping items at anyone inspection, with the programmed computer price;

-establishes penalties as follows for each stock keeping unit with three or more unmarked items: upon a first violation, $50 for each of the first four violations; $100 for each of the next" twelve violations; and $150 for each additional violation - with $5,000 cap on total penalties on a first inspection. For penalties in second. and subsequent violations, the penalties are doubled without limitation;

-establishes the following penalties for violations of the price accuracy law, in the event the programmed computer price exceeds the item, shelf, sale or advertised price of any stock keeping item: $50 per violation for the first 2% of the stock keeping items compared; $100 per violation for the next 2%; and $300 per violation for each additional violation. For subsequent violations in a twelve-month period, the above penalties are doubled;

-allows inspectors to issue stop-removal orders for items lacking item prices as well as for scanners or other devices that inaccurately price stock keeping items; stop-removal orders for scanning systems or other devices could be stayed for up to two hours while the store corrects the errors if either: the items affected are not offered for sale or notices are posted at cash registers concerning the errors and the store ensures that consumers are charged the correct prices;

-provides that the municipal directors of consumer affairs offices and weights and measures offices may enforce the item pricing law after giving notice to the Department of Agriculture and Markets; and

-provides that localities may adopt and enforce additional local laws which exceed the minimum applicable standards in this section.

The former section 214-1 of the Agriculture and Markets Law required food retailers to affix prices onto certain items through June 30, 1991. The following items were specifically exempt from the item pricing requirement:

a. identical items within a multi-item package;

b. Milk;

c. items that are under three cubic inches, weigh less than three ounces and cost less than 50 cents;

d. Eggs;

e. unpackaged bulk or fresh produce;

f. items sold in vending machines;

g. food sold for consumption on the premises;

h. sale items;

i. snack foods; and

j. cigarettes, cigars, tobacco, and tobacco products.

In addition, food retailers were permitted to refrain from placing item prices on up to 4.5% of the non-exempt commodities offered for sale. New York City and other localities have enacted item pricing laws following the expiration of section 214-i, but there is no uniform State law on item pricing now in effect.

Justification

The former law on item pricing, which required food retailers to affix prices onto products, provided an essential protection for consumers, particularly those on fixed incomes. Without an item price, a consumer cannot verify the accuracy of the cashier or laser scanner at the check-out counter, compare the prices of various items throughout a

store, or compute the cost of a market basket. Consumers consistently report that they want and need item pricing.

Without a clear and enforceable statute, however, stores do not rigorously item price their commodities and consumers become more and more frustrated with the absence of item prices on the products for which they shop. Additionally, due to consumer complaints that scanners charge prices higher than advertised, the bill provides for the Department to compare scanner prices with the price identified on the shelf, the item, or in the sale promotion. The former State law was less than effective, primarily because of problems in implementation and enforcement. Chapter 577 of the Laws of 1989 extended the item pricing law through June 1991, with the understanding that the Legislature would work in good faith to pass a bill that contained stronger enforcement mechanisms. Under the open 4.5% exemption which previously existed, the products that were not required to be item priced could change from day to day. In addition, determining violators of the 4.5% exemption generally required an exhaustive inspection in which inspectors had to count all the non-exempt items offered for sale in a store in order to determine bow many items may be excluded from item pricing and how many items in fact had been item priced in a given sample. The inspectors and store owners alike found the Handbook 133 procedure to be unworkable in sampling products to determine violations. The penalties provided under the expired law often amounted to no more than a slap on the wrist even for stores that consistently failed to follow the item pricing law. This proposal makes the penalty structure for item pricing consistent with penalties for violations relating to the labeling, advertising, packaging and safety of food. Moreover, the bill's stop-removal order provisions give inspectors the necessary authorization to stop the sale of inaccurately priced items on scanning or other pricing systems until they are connected. The provision for a two-hour stay for stop-removal orders affecting an entire laser scanning system or other device provides a reasonable amount of time to stores to rectify their errors while ensuring that consumers are charged the correct prices pending the adjustments necessary.

The bill would provide a state item pricing law which is permanent and enforceable, with which stores can comply and that safeguards the most basic of consumer protections: the right to know.

Fiscal implications

None.

Effective date

This act shall take effect on the thirtieth day after it shall have become a law.