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
"pricing modernization act".
(2) As used in this act:
(a) "Advertising" means all representations disseminated in
any
manner by any means for the purpose of inducing, or which
that are likely to induce, directly or indirectly, the purchase of
a consumer item, service, good, merchandise, commodity, or real
property.
(b) "Automatic checkout system" means an electronic device,
computer,
or machine which that determines the price of a
consumer item by using a product identity code, and may but is not
required to include an optical scanner.
(c)
"Class of item" means a group of consumer items which
that may vary by brand, style, pattern, color, or size other than
weight or volume. Items within a class must otherwise be identical
and offered at the same total price.
(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) "Director" means the director of the department of
agriculture or his or her authorized representative.
(f) "Nonprescription medicine" means an over-the-counter drug
product, other than vitamins or a nutritional or dietary
supplement, that is subject to the labeling requirements of 21 CFR
201.66.
(g)
(f) "Person" means an individual, firm, partnership,
corporation, limited liability company, association, or other legal
entity.
(h) (g)
"Sale at retail" means
the transfer of an interest
in a consumer item by a person regularly and principally engaged in
the business of selling consumer items to a buyer for use or
consumption and not for resale.
(i) (h)
"Total price" means the
full purchase price of a
consumer item, excluding sales tax and container deposit.
Sec.
3. (1) The A person
shall clearly and conspicuously
indicate the total price of a consumer item displayed or offered
for
sale at retail shall be clearly and conspicuously indicated
in
arabic Arabic numerals. , so as to The total price must be
readable
and understandable by visual inspection , and shall be
stamped upon or affixed to the consumer item. If the consumer item
is
in a package or container, the total price shall must
be
stamped upon or affixed to the outside surface of the package or
container and need not be placed directly upon the consumer item.
(2)
The requirements of subsection Subsection (1) shall
does not apply to:
(a)
A consumer item sold by weight or volume which that
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 Act No. 167 of the Public Acts of 1933,
being
section 205.54g of the Michigan Compiled Laws the
general
sales tax act, 1933 PA 167, MCL 205.54g.
(d) A consumer item purchased by mail or through catalog
order,
or which that is not otherwise visible for inspection by
the
consumer at the time of the sale, and which 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 which that describes or names the consumer
item
and
which is enclosed with the
consumer item.
(e) An unpackaged food item.
(f)
A consumer item which 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 99 cents.
(g) Live plants, trees, seeds, or bulbs.
(h) Live animals.
(i) Motor vehicles.
(j) Motor vehicle parts.
(k) Packages of 20 or fewer cigarettes.
(l) Greeting cards sold individually which that
have a
readable coded price on the back of the card.
(m)
Merchandise ordered as a gift by a consumer which that
is sent by mail or other delivery service to a person other than
the consumer by the retailer at the request of the consumer.
(n) A consumer item sold in compliance with section 3a.
(3)
In addition to the exemptions allowed in exceptions
under subsection (2), a retailer may choose to not individually
price
mark not more than 25 75 classes of items or individual
items, which classes or items shall be listed and posted in a
conspicuous place in the retail store, and may choose to not
individually price mark not more than 25 additional classes of
items
or individual items which that are advertised or featured
at a reduced price.
(4)
The If the price and the name or description of a class
of items or individual items are not price marked pursuant to
subsection
(3), shall be indicated the retailer shall indicate
the price and the name or description of the class of items or
individual items by posting a clear, readable, and conspicuous sign
in immediate conjunction with the area in which the unmarked item
or class of items is displayed.
(5) As used in subsections (3) and (4), "item", except as
otherwise provided in this subsection, means 1 or more identical
articles
, sold in identical quantities or measures. An item may
include more than 1 product, brand, kind, size, or type of
packaging, if they are packaged together and sold as a set and the
sets are identical in all respects, including quantity or measure.
Sec. 3a. (1) Section 3(1) does not apply to a consumer item
displayed or offered for sale at retail that meets all of the
following requirements:
(a) The consumer item is not a food item or nonprescription
medicine.
(b) At the point of display of the consumer item, there is a
label or sign posted immediately above, below, or adjacent to the
consumer item that clearly and conspicuously displays to the
consumer the total price of the consumer item in arabic numerals
and a description of the consumer item, including, but not limited
to, the product name or description, brand, and size of the item.
(c) The retailer utilizes an automatic checkout system at the
retail store that is audited at least every calendar quarter by an
independent certified public accountant or accounting firm, and the
accountant or firm certifies, and issues a certificate of
compliance, that the automatic checkout system meets 1 of the
following:
(i) Demonstrates an accuracy rate of not less than 98%.
(ii) Has an error rate not greater than 2% for sales of
consumer items during the preceding calendar quarter.
(d) The retailer provides at least 1 remote UPC code scanner
for each 5,000 square feet of retail floor selling space in each
retail store location. A remote UPC code scanner provided under
this subdivision must meet all of the following requirements:
(i) Be compatible with and synchronized with the UPC code
scanning capability of the retailer's automatic checkout system
used at the point of sale.
(ii) Be readily accessible to consumers and located in a
convenient place within the retail store.
(iii) Display the price of a consumer item scanned by a consumer
in Arabic numerals.
(e) The retailer provides at least 1 remote UPC code scanner
for each 10,000 square feet of retail floor selling space in each
retail store location. A remote UPC code scanner provided under
this subdivision must meet all of the following requirements:
(i) Be compatible with and synchronized with the UPC code
scanning capability of the retailer's automatic checkout system
used at the point of sale.
(ii) Be readily accessible to consumers and located in a
convenient place within the retail store.
(iii) Display the price of a consumer item scanned by a consumer
in Arabic numerals.
(iv) Allow a consumer to print the price of a consumer item on
a label that the consumer can affix to the item.
(2) In determining an accuracy rate or error rate under
subsection (1)(b), the certified public accountant or accounting
firm shall include overcharges to a consumer but not undercharges.
The accountant or firm may use recognized sampling techniques in
the quarterly audit. A retailer shall maintain audit reports and
certificates of compliance for 5 years and make them available to
the director on request. The retailer shall post the most recent
certificate of compliance in a conspicuous location in the retail
store.
(3) If the retailer fails to meet the accuracy and
certification requirements of subsection (1) for a retail store,
the retailer has 30 days in which to correct any system
deficiencies and to obtain a recertification from the certified
public accountant or accounting firm. If the retailer does not
obtain a recertification within the 30-day period, this section
does not apply to the consumer items at that retail store, and the
retailer shall comply with section 3 with respect to the consumer
items described in this section, and may not utilize the exception
to section 3(1) contained in this section at that retail store for
a period of at least 180 days.
(4) The director is responsible for the implementation and the
administration of this section. The department may promulgate rules
pursuant to the administrative procedures act of 1969, 1969 PA 306,
MCL 24.201 to 24.328, regarding audit and certification standards
for automatic checkout systems and remote UPC code scanners.
Sec. 3b. (1) A person shall not knowingly charge or attempt to
charge for a consumer item a retail price exceeding the price
displayed on a sign or displayed by a remote UPC code scanner under
section 3a. It is not a violation of this act to charge for a
consumer item a total price less than the price displayed on a sign
or displayed by a remote UPC code scanner under section 3a.
(2) It is prima facie evidence of a violation of this section
if a price charged or attempted to be charged as a result of
electronic identification or calculation by an automatic checkout
system exceeds the price displayed on a sign or displayed by a
remote UPC code scanner under section 3a.
(3) Before bringing or joining an action under section 10(2),
within 30 days after purchasing a consumer item that is not a food
item or nonprescription medicine at a retail store that meets the
accuracy and certification requirement of section 3a, a consumer
who suffers a loss because the price charged for the consumer item
is more than the displayed price for the item or the price printed
by the remote UPC code scanner shall notify the retailer in person
or in writing of the price discrepancy. If, within 2 days after the
notification, the retailer tenders to the consumer an amount equal
to the difference between the displayed price or the price printed
by the remote UPC code scanner and the price charged, plus an
amount equal to 20 times that difference, but that is not less than
$2.00 or more than $10.00, the consumer is barred from further
recovery for that loss. If the loss is suffered by 1 consumer
within 1 transaction on 2 or more identical items, the retailer
shall tender the difference on each item, plus an amount equal to
20 times the difference on a single item but that is not less than
$2.00 and not more than $10.00. If the retailer does not tender
this amount, the consumer may bring or join in an action as
provided in section 10(2).
(4) Subsection (3) does not apply to a sale at retail if the
retailer intentionally charges more for an item than the posted
price or the price displayed by a remote UPC code scanner.