[ Text of section effective until January 1, 2013. For text effective January 1, 2013, see below.]
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.
Chapter 94: Section 184D. Inspection of food stores and food departments for compliance with Secs. 184B to 184E; violations and fines; consumer complaint of noncompliance
[ 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 184D. (a) The deputy director or the deputy director's inspectors and sealers of weights and measures and those deputies, as defined in section 1 of chapter 98, shall inspect each food store or food department for compliance with sections 184B to 184E, inclusive. The inspections 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 or any other rules or guidelines promulgated by the division pertaining to the implementation and enforcement of sections 184B to 184E, inclusive. Nothing shall inhibit the oversampling of sale items during inspections. A food store or food department shall provide the inspector with access necessary to conduct an inspection. The deputy director shall notify the food store or food department in writing of violations of this section and of any fines imposed pursuant to sections 184B to 184E, inclusive.
(b) Violations of sections 184B to 184E, inclusive, for which fines shall be levied shall include, but not be limited to: (1) having no price marked on a unit that is required to be priced and is not exempted; (2) having an incorrect price on a unit; (3) having an incorrect or missing sign; or (4) overcharging on a unit. A unit shall be deemed to be overcharged once it is rung up at a price higher than any represented price. Notwithstanding the method for determining the amount of civil fines under section 29A of chapter 98, a civil citation may be issued for $200 for each violation, up to a maximum of $5,000 per inspection. If an item is advertised either in a food store, food department or in a circular as on sale or discounted because of a loyalty card price and the item registers at a higher price at the checkout counter than indicated by a sale or loyalty card price, a civil citation shall be issued for $300 for each violation, up to a maximum of $5,000 per inspection. The deputy director shall not issue a fine under sections 184B to 184E, inclusive, and section 56D of chapter 98 for the same violation.
(c) A fine imposed by the deputy director shall be paid within 21 days of issuance of the notice, unless the seller appeals pursuant to the civil citation appeal process found in section 29A of chapter 98. The food store or food department shall immediately correct any noncompliance with sections 184B to 184E, inclusive, when notified by the inspector.
(d) The deputy director or any representative authorized by the division may conduct inspections of any item and shall issue notices of violation to any food store or food department for any violation of sections 184B to 184E, inclusive; provided, however, that no food store or food department shall be inspected more than once a month, unless such inspection is intended to verify the correction of violations found during a recent inspection or to verify the validity of a specific consumer complaint made through the process in subsection (e). For the purposes of this section, each occasion that an item scans erroneously during an inspector's attempt to verify its correct price shall constitute a separate civil violation. The seller shall immediately correct all violations.
(e) A consumer may submit a complaint to the attorney general or to the deputy director regarding noncompliance with sections 184B to 184E, inclusive. All food stores or food departments subject to sections 184B to 184E, inclusive, shall provide, upon request, a complaint form for the consumer to complete and submit. Each submitted complaint shall be investigated. In the case of any verified consumer complaint, fines for overcharging shall be limited to 1 violation per item. A fine shall be issued upon verification of any consumer complaint alleging overcharging or improper price marking.
(f) If the deputy director determines that a food store or a food department is either intentionally or through gross negligence violating any provisions of sections 184B to 184E, inclusive, the deputy director shall provide written notice of such determination to the food store or food department and the food store or food department shall have 30 days to cure these violations. If upon re-inspection, the deputy director determines that the food store or food department still is not in substantial compliance with this section and sections 184B to 184E, inclusive, all of the food store's or food department's exemptions shall be rescinded for a period of 12 months and the matter shall be referred to the attorney general for action against that food store or food department.
(g) Sections 184B to 184E, 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. If 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 2 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 184B to 184E, inclusive, or any regulations issued under those sections by the deputy director shall not be a defense to a violation of said sections or any regulations promulgated under said sections hereunder.
(h) The division may retain all registration fees and fines it collects under sections 184B to 184E, inclusive, sections 56D and 56E of chapter 98 not to exceed $2,500,000 annually in order to support its enforcement activities; provided, however, that any excess fees and fines, up to $1,000,000 in excess of this figure, shall be used to fund the division of standards municipal grant program for approved agents to assist the division in lieu of a legislative appropriation. In the event that the division and the municipal grant program are fully funded, all additional revenue shall be turned over to the General Fund.