Pricing and Refund, Return and Cancellation Privileges

(1) Pricing. (a) Failure to Disclose Price. It is an unfair and deceptive act or practice for any person subject to 940 CMR 3.13: 1. to fail to disclose to a buyer prior to any agreement the price or cost of any services to be provided, or 2. to fail to affix to any goods offered for sale to consumers the price at which the goods are to be sold. As used in 940 CMR 3.13, the term “affix” shall mean to price an item individually by means of a pricing tag or sticker appended to the item, or by printing the price on the product or its packaging. (b) Exemptions for Electronic Scanner Systems. The requirement of 940 CMR 3.13(1)(a)2. shall not apply to any product which bears a Universal Product Code (“UPC”) barcode, either on the product or the product packaging or on a pricing tag or sticker appended to the product, provided that: 1. the seller employs an automated retail check out system (see M.G.L. c. 98, § 56D) at the store; 2. the seller has available in the store for consumer use at least one electronic scanner for every 5,000 square feet of store selling space, with signs prominently posted adjacent to each scanner at and above eye level, identifying for consumers the location of the scanners. Stores with less than 5,000 square feet of selling space must provide, at a minimum, one such scanner for consumer use. 3. the electronic scanners available for consumer use are capable of: a. identifying and displaying the item by name or other distinguishing characteristics; b. displaying the price of the item; and c. producing an individual pricing tag for that item. At each scanner location, the seller must also provide the consumer with a means by which such pricing tag may be easily affixed or appended to the item or its packaging (e.g. adhesive pricing tag.) Such scanners must also be in compliance with the Americans with Disabilities Act Accessibility Guidelines, 28 CFR Part 36, Appendix A and the Massachusetts Architectural Access Board Regulations 521 CMR 1.00 et seq.; and 4. all items which are priced at $500 or more must be individually priced pursuant to 940 CMR 3.13(1)(a)2.. (c) Electronic Scanner Requirements A seller that employs an electronic scanner system for consumer use pursuant to 940 CMR 3.13(1)(b) shall comply with the following requirements with respect to any items not individually priced in accordance with 940 CMR 3.13(1)(a)2.: 1. the seller shall place a clear and conspicuous separate sign or shelf tag for the item, or a single sign in the case of similar items all priced the same or to which the same discount applies, at the point of display of each such item, with information sufficient to identify the item by name (for example, its brand name or description and model number, if applicable) and setting forth the current selling price of the item or the discount off the price affixed to the item. “Clear and conspicuous” as used in 940 CMR 3.13 shall mean that the price shall be of such size, color or contrast so as to be readily noticed and understood by a reasonable person to whom it is being disclosed; 2. for items that cannot easily be carried to an electronic scanner because of their size or weight, the seller must provide a scannable card or other device at the point of display of the item, so that a consumer can take the card or device to the electronic scanner to obtain the price and, if the consumer chooses, a price tag for the item, and a means by which such price tag can be affixed to or appended from the item or its packaging; and 3. the seller must establish a reasonable process to verify the accuracy of all sale prices in the seller’s electronic scanner system, and that all sale signs and shelf labels match such sale prices. (d) Additional Exemptions. The requirements of 940 CMR 3.13(1)(a)2. shall not apply to: 1. unpackaged items sold by length or area, such as chain, rope, flooring, lumber or fabric on a bolt, with a clear and conspicuous “price per” marked on the bolt or at the point of display; 2. unpackaged items sold by weight or volume from a bulk container or source, such as stone or soil, with a clear and conspicuous “price per” marked on the container or at the point of display; 3. items that must be retrieved for the consumer by store staff, such as large electronics or appliances, where the price is affixed to the individual display or representative items or items displayed in a locked case or out of reach of consumers; 4. packaged self-service items that are small in size and offered for sale within five feet of the cash register, with a clear and conspicuous “price per” marked on the container or at the point of display; 5. unpackaged items which have a weight of not more than two ounces, a volume of not more than three cubic inches, or a price of not more than .50ç, with a clear and conspicuous “price per” marked on the container or at the point of display; 6. live animals and items sold in a coin operated vending machine, with a clear and conspicuous “price per” marked on the container or at the point of display; 7. items that are located in end-aisle, segregated or other freestanding advertised “sale” promotional displays, as “sale” is defined in 940 CMR 6.00 et seq., provided that: a. a salesperson or cashier can readily discern the price of the exempted sale item; that no exempted item is affixed with an incorrect price; that the exempted item is on a current price list maintained by the seller as provided in 940 CMR 3.13(1)(d)8.; that such items are priced fully and accurately at their regular shelf or other location; and a clear and conspicuous separate sign, or a single sign in the case of similar items all priced the same, at the point of display of each exempted sale item reasonably identifies the item (for example, by its price, and brand name or description and model number, if applicable); or b. for items offered at a percentage discount, e.g. “20% off regular price,” signs or charts at the point of display identify the discount and, if the regular price or other reference price is not affixed to the items, the actual selling price of the items offered; 8. an additional 5% of stock keeping units (“SKU”) or UPCs offered for sale, provided that a clear and conspicuous separate sign, or a single sign in the case of similar items all priced the same, is placed at the point of display of each exempted item, with information sufficient to identify the item (for example, its brand name or description and model number, if applicable.) The store must maintain a current and accurate price list of all items exempted under 940 CMR 3.13(1)(d)8. The seller may maintain such a list in any reasonable manner, provided that information contained on the list can be referenced easily by the person requesting it. The seller shall make the list available at the service desk for public inspection. (e) Compliance. As a defense to any class actions brought pursuant to M.G.L. c. 93A, § 9, and any actions brought by the Attorney General pursuant to M.G.L. c. 93A, § 4, any person subject to 940 CMR 3.13 shall be deemed in compliance with 940 CMR 3.13(1)(a)2. if that person demonstrates at least 95% of the UPC s or SKUs required to be individually priced pursuant to 940 CMR 3.13(1)(a)2. are so priced (an individual UPC or SKU is deemed to comply with 940 CMR 3.13(1)(a)2. if at least 75% of the items in that UPC or SKU required to be individually priced are so priced). If the person relied on the exemption provided in 940 CMR 3.13(1)(b), in whole or in part, that person shall be deemed in compliance with 940 CMR 3.13(1)(b) if that person demonstrates that the electronic scanner system employed by the person maintains at least 98% accuracy, not including undercharges, and the person has substantially complied with the specific requirements of 940 CMR 3.13(1)(b)2., 3. and 4. and 940 CMR 3.13(1)(c)1. and 2.. Compliance with these requirements may be established by means of self-audits, which shall be conducted on at least a quarterly basis, using the sample collection procedures set forth in the National Conference on Weights and Measures Publication 19, Examination Procedure for Price Verification (October 1996 Edition). The address for the National Conference on Weights and Measures is: 15245 Shady Grove Road, Site 130, Rockville, MD 20850. NCWM Publication 19 is also available at http://ts.nist.gov/ts/htdocs/230/235/h130-02/price.pdf. Records of the results of such self- audits shall be maintained for a period of a minimum of 12 months. (f) Correct Pricing. It is an unfair or deceptive act or practice for any person subject to 940 CMR 3.13 to charge a consumer an incorrect price for any item offered for sale. The “correct price” is the lowest of: the advertised price in any circular, newspaper, magazine, television or radio commercial, or in any other medium, or any published correction thereof; the price indicated on any store sign, shelf label, price tag or price sticker for the item; or the price rung up by the store’s automated retail system; provided, however, that the seller shall have no obligation to sell such item at the lowest represented price if it is the result of a gross error, if it is based on the price marked on another unit of the same item and the tendered item is marked only with a higher price, or if the price tag, label or sign shows evidence of obvious physical tampering. A “gross error”is a price which was never intended as the selling price at any time during the previous 30 day period, and which, for an item with an actual selling price of not more than $20.00, is less than half the price stated by the seller as the actual selling price, or which, for an item with an actual selling price of more than $20.00, is more than 20% below the price stated by the seller as the actual selling price. If these provisions for establishing the correct price are not determinative in a particular situation, the correct price shall be the price on the seller’s current price list. Sellers shall maintain a price accuracy and missing price report. Whenever a consumer advises the store of an incorrect price on goods, signage, or register scanner, or that goods required to be price marked are missing such price marks, or that signs required to be posted are missing, or that a price is not in the register scanner, the store shall immediately fill out a price accuracy and missing price report with those details, and immediately correct the problem, making prompt payment to consumers who have been overcharged. It shall be a complete defense in any action brought under 940 CMR 3.13(1)(f) that the seller has complied with the provisions of 940 CMR 6.13(2). (g) Effective Date. 940 CMR 3.13(1) becomes effective December 15, 2003. (2) Deceptive Pricing. No claim or representation shall be made which represents or implies, in advertising or otherwise, that a product or service may be purchased for a specified price when such is not the case; or that a product or service is being offered for sale at a reduced price when such is not the case; or that such special or reduced price is to be in effect for a limited time only when such is not the case; or otherwise deceives purchasers or prospective purchasers with respect to the price of products or services offered for sale. The following are examples of, but is not a complete list of practices declared unlawful by 940 CMR 3.13: 1. Representing or implying that a stated price is for a complete or functional product or service when in fact the product or service so priced is deficient as to parts or equipment or any other deficiency necessary and usual to the proper functioning and appearance of such product or to the usefulness and efficiency of such service; 2. Representing or implying that the price of the product includes certain services, such as delivery, installation, service or adjustments, or includes parts or accessories when such is not the case; 3. Representing or implying that prices applicable only to certain sizes to types of goods or services apply to other or all sizes or types of such goods or services. (3) Deceptive Use of "Loss Leaders”. It is an unfair trade practice to sell, or offer for sale, any product or service, at a price less than the cost thereof to the seller as a "loss leader" used in inducing the buyer to make the purchase and sold only in combination with the purchase of other merchandise or services on which the seller recovers such loss. (4) Refunds, Return and Cancellation Privileges. It is unfair and deceptive trade practice: (a) To fail to clearly and conspicuously disclose to a buyer, prior to the consummation of a transaction, the exact nature and extent of the seller's refund, return, or cancellation policy; (b) To misrepresent the nature and terms of the seller's refund, return, or cancellation policy; (c) To fail to perform any promises made to a buyer in connection with the refund, return, or cancellation privileges.