Individual Item Pricing

(1) The correct price of an item offered for sale by a food store or food department shall be disclosed to consumers in a clear and conspicuous manner. For those food stores and food departments utilizing an individual item pricing system: (a) Prices for the same item shall be consistent with each other and the correct price; (b) The correct price shall be affixed to each unit or item in a clear and conspicuous manner by means of a sticker; (c) The correct display price shelf tag, which shall be not less than one inch high for each separate SKU or separately-coded item that is exempt from item pricing, must be posted in close proximity to the item(s) offered for sale; and (d) The numbers indicating the price of the item on the display price shelf tag shall be at least ½" high. (2) In the case of a food store or food department utilizing an individual pricing system which utilizes loyalty cards or otherwise maintains a dual pricing system: (a) The non-card price shall be affixed to the item if it differs from the loyalty card price; (b) A clear and conspicuous sign at the point of display must include both the loyalty card price and the non-loyalty card price so labeled if they differ, each such price shelf tag not less than one inch high, for any such items that are exempt, as well as the savings per unit, listed either as an amount or as the percentage of savings per unit; (c) The numbers indicating the price of the item on the display price shelf tag shall be at least ½" high. (3) Exemptions From Individual Item Pricing for Food Stores or Food Departments Utilizing Individual Item Pricing. Upon a determination by the Division that: (a) A clear and conspicuous sign disclosing the item's code, its description and its correct display price shelf tag, not less than one inch high, for each separate SKU or separately coded item that is exempt is posted in close proximity to the item(s) offered for sale; (b) The numbers indicating the price(s) of the item on the display price shelf tag are at least ½" high; (c) The cashier can readily discern the item's correct price; (d) The food store or food department maintains a price list for all exempted items; and (e) The price list is available in written format at each checkout and can be reviewed by a customer upon request, or, in the alternative, is available either in written format or electronically at one or more customer-accessible locations at the food store or food department's service desk and a sign is conspicuously posted at eye level and above eye level identifying the location of the price list, the food store or food department may exempt the following classes of items from its individual pricing system: 1. Unpackaged: produce, meat, fish, poultry, delicatessen, bakery items, and any other items that are unpackaged and offered from a bulk display, provided, however, that any such item weighed or wrapped to order by a food store or food department but paid for at a place other than at the point of such weighing or wrapping shall have the correct price marked on the item immediately upon its being weighed and/or wrapped; 2. Gallons and half-gallons of milk; 3. Eggs; 4. Cigarettes, cigars, tobacco and tobacco products; 5. Individual items within a multi-item package, as long as the package is marked with the correct price; 6. Cakes, gum, candy, chips, nuts and other snack foods, if offered for sale individually, and located at the checkout area; 7. Individual greeting cards, if marked with a price code readily understandable by the consumer; 8. Individual containers of baby food of the same brand and price where vegetable or fruit is the predominant ingredient other than water, but not including juices; 9. Carbonated non-alcoholic soft drink bottles and cans; 10. Frozen food products; 11. Items sold by length, area, weight or volume, including, without limitation, chain, rope, flooring, lumber, fabric, stone or soil, that are unpackaged; 12. Items that must be retrieved for the consumer by store staff, including without limitation large electronics or appliances, or display or representative items or items displayed in a locked case or out of reach of consumers; 13. Packaged self-service items that are small in size and offered for sale in a display located at the checkout area; 14. Live animals; 15. Items sold in a coin operated vending machine; and 16. Not more than 60 additional items that are accessible to the consumer in a free-standing or end-aisle display that has at least 50 units of the same item. 17. Provided, however, that unless the deputy director determines otherwise, individual items that differ only by color, flavor or scent shall be counted as the same item if they are identical in all other aspects, including price, size, and brand. 18. Additional items, the exact number of which shall be based on the number of operable cash registers located at the main checkout location and whether the entity exempting such items is a food store or a food department. These additional exemptions shall be granted provided that: a. The food store or food department maintains an automated checkout system that has been determined to be at least 95% accurate during a price accuracy inspection conducted by the division or the division's designee; b. The food store or food department maintains a dated, written price list of the items it has chosen to exempt under this section; c. The price list includes a clear description of each item and the code number understood by the seller's automated checkout system for each item to be exempted; d. The list is maintained so that any item may be referenced easily by a consumer; e. Deletions from the list may be made at any time, but additions, substitutions, or changes may not be made to the list except twice a year, in January and July; f. No seller may exempt items required to be price-marked by other laws or regulations governing specific types of items; g. Items not on the list may not be exempted from item pricing, and no exemptions shall apply unless the exempted items price list has been established and is available on request to any consumer or any representative authorized by the deputy director; h. The dated, written price list is available in written format at each checkout and can be reviewed by a customer upon request, or, in the alternative, is available either in written format or electronicallyat one or more customer-accessible locations at the food store or food department's service desk and a sign is conspicuously posted at eye level and above eye level identifying the location of the price list; and i. No seller may exempt more than 200 items in any one department, except a grocery department: i. Food stores with one operable cash register shall be allowed to exempt 20 additional items of their own choosing; ii. Food stores with two operable cash registers shall be allowed to exempt 50 additional items of their choosing; iii. Food stores with three to four operable cash registers shall be allowed to exempt 100 additional items of their choosing; iv. Food stores with five to six operable cash registers shall be allowed to exempt 200 additional items of their choosing; v. Food stores with seven or more operable cash registers may exempt up to 400 additional items of their choosing. vi. In the case of a food department, the number of items exempted pursuant to 202 CMR 7.03(3)(d)18. shall be reduced by 75%. In no case shall the number of exemptions permitted pursuant to 202 CMR 7.03(3)(d)18. exceed 4.5% of the number of packaged grocery items carried by the seller.