HB-4158, As Passed House, March 17, 2011
HOUSE BILL NO. 4158
A bill to regulate certain pricing of consumer items and the
advertising of consumer items, goods, merchandise, and commodities;
to prescribe the powers and duties of certain state and local
officials; to provide remedies and penalties; to make
appropriations; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"shopping reform and modernization act".
Sec. 2. As used in this act:
(a) "Advertise" means the use or dissemination of an
advertising by a person that is subject to this act.
(b) "Advertising" or "advertisement" means a communication or
representation that is disseminated in any manner by any means for
the purpose of inducing, or that is likely to induce, directly or
indirectly, the purchase of a consumer item, good, merchandise, or
(c) "Automatic checkout system" means an electronic device,
computer, or machine that determines the price of a consumer item
by using a product identity code. An automatic checkout system may
but is not required to include an optical scanner.
(d) "Consumer item" means an article of tangible personal
property used or consumed, or bought for use or consumption,
primarily for personal, family, or household purposes.
(e) A price is "displayed" for a consumer item if the price is
stamped, affixed, or otherwise marked on the consumer item; or the
price of the consumer item is displayed, by signage, by an
electronic reader, or by any other method that clearly and
reasonably conveys the current price of the consumer item, to a
consumer when in the store at the place where the item is located.
(f) "Person" means an individual, corporation, limited
liability company, partnership, association, or other legal entity.
(g) "Sale at retail" means a transfer of an interest in a
consumer item by a person that is regularly and principally engaged
in the business of selling consumer items to a buyer for use or
consumption and not for resale.
(h) "Total price" means the full purchase price of a consumer
item, excluding sales tax and container deposit.
Sec. 3. (1) All of the following apply to the director of the
department of agriculture and rural development:
(a) He or she is responsible for the implementation and
administration of sections 7 and 8.
(b) He or she shall investigate complaints concerning
violations of sections 7 and 8 and conduct any other investigations
he or she considers advisable.
(c) As the state director of weights and measures, he or she
shall promulgate rules under the administrative procedures act of
1969, 1969 PA 306, MCL 24.201 to 24.328, to implement and
administer sections 7 and 8.
Sec. 4. (1) A person shall not knowingly advertise the
availability of a consumer item for sale at retail at a sale or
special price, or as being reduced in price by an amount or
proportion, unless the advertisement meets all of the following:
(a) It includes the dates that item is available at the
advertised price, or the quantity available at the advertised
(b) If applicable, it states that the item is available at
that price only as long as the advertised quantity lasts or as long
as quantities or supplies last.
(c) If there is a limitation on the quantity available of a
consumer item to each customer, that limitation is clearly
(2) If a person advertises a consumer item at a specific price
that is not indicated to be a special, sale, or reduced price, the
advertiser shall do 1 of the following:
(a) Make the consumer item available at the advertised price
for not less than 5 days after the date the consumer item was last
advertised. If the item is not available for that period of time,
the requirements of subsection (3) apply. The advertiser is not
required to make the consumer item available nor fulfill the
requirements of subsection (3) if the unavailability of the
consumer item is due to a governmental action, a plant closing, or
an act of God and if the specific cause of the unavailability of
the consumer item is posted conspicuously for review by the
(b) Indicate in the advertisement the dates the consumer item
is available at the advertised price. If the item is not available
for those dates, the requirements of subsection (3) apply.
(c) Indicate in the advertisement the quantity of the consumer
item that is available at the advertised price and include in the
advertisement that the consumer item is available at the advertised
price only as long as the stated quantity lasts.
(3) If an advertisement under this section does not state the
quantity of a consumer item available or meet the requirements of
subsection (1) or (2)(c), and if the consumer item cannot be sold
at the advertised price throughout the advertised period of sale,
the advertiser shall make available to the customer a written
guarantee to deliver under the advertised conditions the consumer
item at a future date stated in the guarantee, or when notified by
the advertiser that the item is available. If the advertised
consumer item cannot be obtained to satisfy the condition of the
guarantee, the advertiser may provide a similar consumer item of
equal or greater monetary value.
(4) If an advertiser elects in a written guarantee under
subsection (3) to notify a consumer when a consumer item will be
available, the notification of availability shall take place within
90 days after the guarantee is given. After the notice of
availability is given, the advertiser shall hold the consumer item
for delivery to the customer for at least 7 days, except the
advertiser is required to hold the consumer item for only 2 days if
it is a perishable item.
(5) This section does not apply to baked goods, fresh fruit,
or fresh vegetables.
Sec. 5. (1) A person shall not knowingly make, publish,
disseminate, circulate, or place before the public an advertisement
that contains a statement or representation that is untrue,
deceptive, or misleading.
(2) A failure to sell goods, merchandise, or commodities in
the manner advertised, or a refusal to sell at the price at which
they are advertised or in accordance with other terms and
conditions of the advertisement, creates a rebuttable presumption
of an intent to violate this act.
(3) For purposes of this section, the extent to which an
advertising fails to reveal facts that are material in light of the
representations made or suggested in a positive manner shall be
considered in determining whether the advertising is deceptive or
(4) A person shall not make, publish, disseminate, circulate,
or place before the public an advertisement with the intent,
design, or purpose not to sell the goods, merchandise, or
commodities at the price stated in the advertisement or otherwise
communicated, or with intent not to sell the goods, merchandise, or
commodities included in the advertisement.
(5) A person shall not advertise, call attention to, or give
publicity to the sale of goods, merchandise, or commodities that
the person knows are not first class, if the manufacturer of those
goods, merchandise, or commodities has rejected them as not first
class, unless there is displayed directly in connection with the
name and description of the goods, merchandise, or commodities, a
direct and unequivocal statement, phrase, or word that clearly
indicates that the advertised goods, merchandise, or commodities
are seconds or are blemished goods, merchandise, or commodities, or
have been rejected by the manufacturer of the goods, merchandise,
or commodities. For purposes of this section, goods, merchandise,
or commodities that are advertised, offered for sale, and sold as a
unit or set consisting of more than 1 part or piece are
sufficiently identified as not first class if advertised, offered
for sale, and sold as a unit or set at the single price advertised,
and are displayed in connection with a direct and unequivocal
statement, phrase, or word identifying the goods as not first
class. As used in this subsection, "not first class" means the
goods, merchandise, or commodities are substantially defective or
consist of articles or units or parts commonly referred to as
seconds or blemished goods, merchandise, or commodities.
Sec. 6. Sections 4 and 5 do not apply to an owner, publisher,
printer, agent, or employee of a newspaper, a person that publishes
any other publication, periodical, or circular, including a
circular prepared for national distribution, a person that provides
outdoor advertising, or a radio or television station, if that
person in good faith and without knowledge of the falsity or
deceptive character of the advertisement, publishes, causes to be
published, or takes part in the publication of an advertisement
that violates section 4 or 5.
Sec. 7. (1) Except as otherwise provided in subsection (2), a
person shall display the total price of a consumer item offered for
sale at retail at the place of the retail sale.
(2) Subsection (1) does not apply to any of the following:
(a) A consumer item that is sold by weight or volume and is
not in a package or container.
(b) A consumer item sold in a coin-operated vending machine.
(c) Prepared food intended for immediate consumption, as
defined in section 4g of the general sales tax act, 1933 PA 167,
(d) A consumer item purchased by mail or through catalog
order, or that is not otherwise visible for inspection by the
consumer at the time of the sale, and that is ordered or requested
by the consumer, if the price of the consumer item is on the
consumer's written order or request or on a bill, invoice, or other
notice that describes or names the consumer item and is enclosed
with the consumer item.
(e) An unpackaged food item.
(f) A consumer item that has a total weight of not more than 3
ounces, a total volume of not more than 3 cubic inches, and a total
price of not more than 30 cents.
(g) Live plants.
(h) Live animals.
(i) Motor vehicles.
(j) Motor vehicle parts.
(k) Packages of 20 or fewer cigarettes.
(l) Greeting cards that are sold individually and have a
readable coded price on the back of the card.
(m) Merchandise that is ordered as a gift by a consumer and is
sent by mail or other delivery service to a person other than the
consumer by the retailer at the request of the consumer.
Sec. 8. (1) A person shall not knowingly charge or attempt to
charge for a consumer item that is subject to section 7 a retail
sale price that is higher than the price displayed for that item.
(2) It is not a violation of subsection (1) to charge a total
price for a consumer item that is subject to section 7 that is less
than the price displayed for that item.
(3) It is prima facie evidence of a violation of this section
if a price a person charges or attempts to charge for a consumer
item that is subject to section 7 is established by electronic
identification or calculation by an automatic checkout system and
that price exceeds the price displayed for that item.
Sec. 9. (1) Except as provided in subsection (4), this section
applies to a sale at retail that meets all of the following
(a) There is a price displayed for the consumer item.
(b) The sale is recorded by an automatic checkout system.
(c) The buyer is given a receipt that describes the item and
states the price charged for the item.
(2) Before bringing or joining in an action under section
12(2), within 30 days after purchasing a consumer item, a buyer who
suffers loss because the price charged for the item is more than
the price displayed for that item shall notify the seller in person
or in writing that the price charged is more than the price
displayed for that item. The notice shall include evidence of the
loss suffered by the buyer. If the seller pays the buyer 1 of the
following amounts within 2 days after the seller receives
notification under this subsection, the buyer is barred from any
further recovery for that loss:
(a) Unless subdivision (b) applies, an amount equal to the
difference between the price displayed and the price charged for
the consumer item, plus an amount equal to 10 times that difference
but that is not less than $1.00 or more than $5.00.
(b) If a loss is suffered by a buyer on 2 or more identical
consumer items in a single transaction, an amount equal to the
difference between the price displayed and the price charged for
each of those identical items, plus an amount equal to 10 times
that difference for 1 of the identical items but that is not less
than $1.00 or more than $5.00.
(3) If a seller does not pay a buyer who suffers a loss
described in subsection (2) the amount described in that subsection
for that loss, the buyer may bring or join in an action against the
seller under section 12(2).
(4) This section does not apply to a sale at retail in which
the seller intentionally charges more for a consumer item than the
price displayed for the item.
Sec. 10. (1) The attorney general may maintain an action to
enjoin a continuing violation of this act. If the court finds that
the defendant is violating or has violated this act, it shall
enjoin the defendant from continuing that violation. It is not
necessary that actual damages to a person are alleged or proved for
a court to enjoin a defendant under this section.
(2) The attorney general shall not institute a proceeding for
an injunction under this section unless the attorney general has
notified the defendant of his or her intention to seek an
injunction if the defendant does not cease and desist or take
positive action to cease and desist from continuing to act in a
manner that violates this act. The attorney general must provide
this notice at least 48 hours before instituting the proceeding. A
court shall not issue the injunction if the defendant ceased, or
took positive action to cease and desist, violating this act after
receiving the notice from the attorney general.
(3) The attorney general may accept an assurance of
discontinuance of an act or practice alleged to be a violation of
this act from the person engaging in, or that was engaged in, that
act or practice. An assurance of discontinuance shall be in writing
and be filed with the clerk of the circuit court of the county in
which the alleged violator resides or has its principal place of
business. A filing fee is not required for the filing of an
assurance of discontinuance with the clerk of the circuit court. An
assurance of discontinuance shall be signed by the alleged violator
and shall contain a statement describing each act or practice to
which the assurance of discontinuance applies and the specific
provisions of this act prohibiting that act or practice. An
assurance of discontinuance is not considered an admission of any
fact or issue at law.
(4) If a prosecuting attorney or law enforcement officer
receives notice of an alleged violation of this act, of a violation
of an injunction, order, decree, or judgment issued in an action
brought under this section, or of an assurance of discontinuance
given under subsection (3), he or she shall immediately forward
written notice of the violation, and any information he or she has
concerning the violation, to the office of the attorney general.
(5) A person that knowingly violates this act or the terms of
an injunction, order, decree, or judgment issued under this section
shall pay to the state a civil fine of not more than $1,000.00 for
the first violation and not more than $5,000.00 for the second and
any subsequent violation. For the purposes of this subsection, the
court that issues an injunction, order, decree, or judgment under
this section retains jurisdiction, the action is continued, and the
attorney general may petition for recovery of the civil fine
described in this subsection.
(6) The attorney general may promulgate rules to implement and
administer this act under the administrative procedures act of
1969, 1969 PA 306, MCL 24.201 to 24.328.
Sec. 11. (1) For the fiscal year ending September 30, 2011,
$100,000.00 is appropriated from the general fund to the department
of attorney general to develop and implement a public consumer
education program to provide general information and advice
regarding the advertising and pricing requirements of this act and
the remedies available to consumers under this act.
(2) The attorney general shall establish and maintain an
internet website available to the public that provides general
information and advice regarding the advertising and pricing
requirements of this act and the remedies available to consumers
under this act.
(3) The appropriation made and the expenditures authorized
under this section and the department of attorney general are
subject to the management and budget act, 1984 PA 431, MCL 18.1101
Sec. 12. (1) Whether or not a person seeks damages or has an
adequate remedy at law, a person may bring an action to do either
or both of the following if the attorney general or prosecuting
attorney fails to initiate action within 60 days after receiving
notice of an alleged violation of this act:
(a) Obtain a declaratory judgment that an act or practice
violates this act.
(b) Enjoin by temporary or permanent injunction a person that
is engaging or is about to engage in an act or practice that
violates this act.
(2) Except as provided in section 9, a person that suffers
loss as a result of a violation of this act may bring an individual
or a class action to recover actual damages or $250.00, whichever
is greater, for each day on which a violation of this act is found,
together with reasonable attorneys' fees that do not exceed $300.00
in an individual action.
Sec. 13. A prosecuting attorney may conduct an investigation
under this act and may institute and prosecute an action under this
House Bill No. 4158 as amended March 17, 2011
act in the same manner as the attorney general.
Sec. 14. (1) The remedies provided under this act are the
exclusive remedies for violations of section 4, 7, 8, or 9.
(2) A city, village, township, or county shall not enact an
ordinance or other regulation that is inconsistent with this act or
with a rule promulgated under this act.
<<Enacting section 1. 1976 PA 449, MCL 445.351 to 445.364, is
repealed effective September 1, 2011.
Enacting section 2. This act takes effect September 1, 2011.>>