March 12, 2009, Introduced by Senators BROWN, JANSEN, HARDIMAN, GILBERT and KAHN and referred to the Committee on Commerce and Tourism.
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 Except as otherwise
provided in section 3a, 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
or
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.
(o) Frozen foods.
(p) Qualified perishable products. As used in this
subdivision, "qualified perishable products" means refrigerated
grade A milk and milk products, as those terms are defined in the
grade A milk law of 2001, 2001 PA 266, MCL 288.471 to 288.540, or
refrigerated eggs, cheese, butter, or soy milk.
(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 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) If a consumer item subject to this section is an item of
food or a nonprescription medicine sold by weight or volume, the
price marked on the item under subsection (1) or the sign required
under subsection (4) shall display the total price of the item and
clearly and conspicuously display the price of the item expressed
as a dollar amount per unit of weight or volume.
(6) (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 in at least 18-point font 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 every calendar quarter by a 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.
(2) In determining an accuracy rate or error rate under
subsection (1)(c), 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 21 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 21-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.
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 label 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 label 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 label 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 price displayed on the sign or label under section
3a for the item 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 price displayed on the sign or label 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 price
displayed on a sign or label under section 3a.