N.Y. Agriculture & Markets Law § 197-b: Retail pricing accuracy

§ 197-b. Retail pricing accuracy. 1. Definitions. a. "Retail store"

shall mean a store that sells stock-keeping units directly to consumers

and charges or is liable for the collection of sales tax. For the

purposes of this section the term "retail store" shall include those

stores that use universal product code (UPC) scanners or price-look-up

(PLU) codes in checkout systems or use manual pricing of items.

b. "Pricing accuracy inspection" shall mean an inspection of a retail

store for the purpose of ensuring that customers are charged the correct

price for the items they purchase.

c. "Price charged" means the price a customer is charged for an item.

For prices determined by an automated checkout device, the price charged

means the price on the receipt issued to the consumer after the final

total has been determined, whether the item is scanned or actually

purchased, the device is computing or recording while in training mode,

or by using a hand-held device connected to a store's database.

d. "Stock-keeping unit" means each group of items offered for sale of

the same brand, quantity of contents, retail price, and having different

colors, flavors, or varieties.

e. "Retail price" means the lowest advertised, written, posted, or

marked price of a stock-keeping unit.

f. "Overcharge" means a price charged that is higher than the retail

price.

g. "Undercharge" means a price charged that is lower than the retail

price.

h. "Large overcharge" means an error of twenty-five cents on any

individual item up to two dollars and fifty cents and ten percent

thereafter.

2. Pricing requirements. A retail store shall:

a. Display the retail price of each stock-keeping unit offered for

sale, either on each unit or on easy to read shelf tags, or signs,

located directly above or below or immediately adjacent to every

stock-keeping unit or group of stock-keeping units of the same brand,

size and price.

b. Assure that the price charged after the final total has been

determined is equivalent to the retail price.

c. If a UPC scanner system is used to determine the price charged,

provide the appropriate inspection official access to the checkout

system in use at such retail store to verify the price charged for items

included in a pricing accuracy inspection. Access shall be provided to

the system either in normal operating mode, in training mode, or through

a hand-held or other device tied to the store's database.

d. Post, in a conspicuous place, the refund policy of such retail

store in the event of an overcharge.

3. Test procedures and accuracy requirements. a. The commissioner

shall, by regulation, adopt test procedures utilizing randomized

sampling techniques. Such procedures shall be consistent with the

examination procedure for price verification developed by the national

conference on weights and measures and published in the national

institute of standards and technology handbook one hundred thirty. For

purposes of this section, pricing accuracy inspections shall, to the

extent possible, be conducted at a time and in a manner that does not

interrupt the normal flow of retail business at the retail store.

b. A retail store at least three hundred square feet in size shall be

deemed in compliance if ninety-eight percent of the items in the sample

selected are accurately priced. For purposes of this section retail

stores that are less than three thousand square feet and employ a manual

pricing system shall be deemed in compliance if, effective June first,

two thousand seven through May thirty-first, two thousand eight, at

least ninety-six percent of the items in the sample selected are

accurately priced and beginning on June first, two thousand eight at

least ninety-eight percent of the items in the sample selected are

accurately priced.

c. In addition to establishing a standard frequency of inspection

consistent with the provisions of paragraph a of this subdivision, the

commissioner or a weights and measures official may conduct inspections

of individual items in response to consumer complaints or as a follow-up

on items ordered to be corrected in a previous inspection.

4. Enforcement procedures. a. The commissioner or a weights and

measures official shall advise the operator of the retail store of any

pricing error encountered in an inspection. If the correction cannot be

made immediately, then, the commissioner or a weights and measures

official shall issue a stop removal order for items subject to

overcharges and such stock-keeping units shall be removed from sale

until correction is made.

b. Upon finding a violation of this section, the commissioner or the

municipal director of weights and measures may impose civil penalties as

prescribed in section thirty-nine of this chapter. Such penalty shall

not exceed three hundred dollars per violation for violations assessed

during an initial inspection in a calendar year and shall not exceed six

hundred dollars per violation for violations assessed in a second or

subsequent inspection during a calendar year. In determining the amount

of any civil penalty imposed, the magnitude of the errors, corrective

action taken by the retail store, history of such prior conduct, or

other relevant information shall be considered. Penalties may only be

imposed for:

(1) Overcharges found in a sample selected using the procedures

adopted pursuant to subdivision three of this section, when overcharges

number more than two percent of the sample. Each such overcharge may be

considered a separate violation provided, however, that any overcharge

for a single stock-keeping unit that includes more than one item in such

unit shall count as a single violation and not as separate violations

for each item in the stock-keeping unit.

(2) A large overcharge found on an individual item.

(3) An overcharge verified in response to a consumer complaint.

(4) Overcharges found on follow-up inspections of items ordered

corrected.

(5) Failure to disclose the retail price of a stock-keeping unit

pursuant to paragraph a of subdivision two of this section.

(6) Failure to conspicuously post a refund policy pursuant to

paragraph d of subdivision two of this section.

5. Local pricing laws. Nothing in this section shall be construed to

prohibit a political subdivision of the state from continuing to

implement and enforce any local pricing law or regulation in effect

prior to the effective date of this section. Where a political

subdivision has a local pricing law in effect prior to the effective

date of this section, the provisions of this section shall have no force

and effect until such time as the political subdivision repeals its

local pricing law. Any political subdivision of the state not having any

local pricing law or regulation in effect prior to the effective date of

this section shall adopt and implement the pricing accuracy provisions

set forth in this section or by regulations adopted pursuant to this

section.