N.Y. Agriculture & Markets Law § 214-h: Unit pricing

§ 214-h. Unit pricing. 1. Consumer information required. Each person

who sells, offers or exposes for sale in a retail store a consumer

commodity shall disclose to the consumer the unit price and the total

price of the commodity as provided in this section.

2. Definitions. a. "Consumer commodities" shall mean the following,

however packaged or contained:

(1) food, including all material, solid, liquid or mixed, whether

simple or compound, used or intended for consumption by human beings or

domestic animals normally kept as household pets and all substances or

ingredients to be added thereto for any purpose; and

(2) napkins, facial tissues, toilet tissues, foil wrapping, plastic

wrapping, paper toweling, disposable plates; and

(3) detergents, soaps and other cleansing agents; and

(4) non-prescription drugs, female hygiene products and toiletries.

b. "Retail store" shall mean a store which sells consumer commodities

at retail, which store is not primarily engaged in the sale of food for

consumption on the premises, or which is not primarily engaged in a

specialty trade which the commissioner determines, by regulation, would

be inappropriate for unit pricing. An establishment which sells consumer

commodities only to its members shall be deemed to be included within

this definition unless the members must pay a direct fee to qualify for

membership and the establishment is not required to collect sales tax on

transactions with members, pursuant to article twenty-eight of the tax

law.

c. "Unit price" of a consumer commodity shall mean the price per

measure.

d. "Price per measure" shall mean:

(1) price per pound for commodities whose net quantity is expressed in

units of weight, except for such commodities whose net weight is less

than one ounce which shall be expressed as price per ounce and

commodities in powdered form which purport to be or are represented for

special dietary use solely as a food for infants by reason of its

simulation of human milk or suitability as a complete or partial

substitute for human milk which shall be expressed as price per

reconstituted fluid ounce; provided that the same unit of measure is

used for the same commodity in all sizes;

(2) price per pint or quart for commodities whose net quantity is

stated in fluid ounces, pints, quarts or gallons or a combination

thereof, except for such commodities in concentrated liquid or ready to

feed form which purport to be or are represented for special dietary use

solely as a food for infants by reason of its simulation of human milk

or suitability as a complete or partial substitute for human milk which

shall be expressed as price per reconstituted fluid ounce for

commodities in concentrated liquid form and price per fluid ounce for

commodities in ready to feed form; provided that the same unit of

measure is used for the same commodity in all sizes sold in the retail

establishment;

(3) price per one hundred for commodities whose net quantity is

expressed by count, except as otherwise provided by regulation;

(4) price per foot for commodities whose net quantity is stated in

units of length, except for such commodities whose net quantity exceeds

one hundred feet, which shall be expressed as price per one hundred

feet, and the "ply" count, if any, provided that the same unit of

measure is used for the same commodity in all sizes;

(5) price per square foot or square yard, as appropriate, for

commodities whose net quantity is expressed in units of area and the

"ply" count, if any, provided that the same unit of measure is used for

the same commodity in all sizes; or

(6) such other price per measure, including metric equivalents of the

customary measures, as the commissioner shall by regulation permit. The

commissioner shall establish such metric equivalents whenever he

determines that any commodity subject to the provisions of this section

is being sold, offered or exposed for sale by metric measure.

3. Exemptions. a. The provisions of this section shall not apply to

the following consumer commodities:

(1) food sold for consumption on the premises;

(2) prepackaged food containing separate and identifiable kinds of

food segregated by physical division within the package; and any other

foods for which the commissioner determines, by rules and regulation,

that unit pricing would not be meaningful;

(3) any food which is primarily or exclusively a gourmet or specialty

food, provided that the commissioner determines by regulation that unit

pricing would be impractical for such food, and provided further that

such food is segregated and displayed as a gourmet or specialty food;

(4) any commodity whose net quantity as offered for sale is one pound,

one ounce, one pint or quart, one hundred count, one foot, one hundred

feet, one square foot, one square yard or equivalent metric units

established by the commissioner, provided that it has the retail price

marked plainly thereon;

(5) milk, and other similar low fat products such as two percent milk,

one percent milk and skim milk, cream, melloream and vegetable oil blend

whose net quantity as offered for sale is one half pint, one pint, one

quart, one half gallon, one gallon, one half liter, one liter; frozen

desserts such as ice cream, light ice cream, low-fat ice cream, fat-free

ice cream, sherbet, sorbet, frozen yogurt, and any other product similar

in appearance, odor and taste to such products whose net quantity as

offered for sale is one half pint, one pint, one quart, one half gallon,

one gallon, and multiples of quarts and gallons; and butter, vegetable

spread, oleo margarine and margarine whose net quantity is one fourth

pound, one half pound, one pound or multiples of one pound, one hundred

twenty-five grams, two hundred fifty grams, five hundred grams or

multiples of five hundred grams, flour whose net quantity as offered for

sale is in five or ten pound bags;

(6) fresh food produce.

b. The provisions of this section shall not apply to convenience

stores which include small stores which typically sell motor fuel,

tobacco products, fast food and beverages and do not offer sufficient

quantity of consumer commodities to make unit pricing useful to

consumers or to any retail store having had annual gross sales of

consumer commodities in the previous calendar year of less than two and

one-half million dollars, unless the store is a part of a network of

subsidiaries, affiliates or other member stores, under direct or

indirect common control, with five or more stores located in New York,

which, as a group, had annual gross sales the previous calendar year of

two and one-half million dollars or more of consumer commodities.

4. Means of disclosure. A consumer commodity sold, or offered for sale

or exposed for sale, subject to this section, shall have the unit price

and total price disclosed to the consumer in one of the following ways:

a. if the item is conspicuously visible to the consumer, by the

attachment of a stamp, tag or label directly under the item on the shelf

on which the item is displayed, or, in the case of refrigerated items

not displayed on shelves, in a manner to be prescribed by regulation; or

b. if the item is not conspicuously visible to the consumer, by a sign

or list conspicuously placed near the point of procurement, or by

affixing the unit price and total price on the commodity itself.

5. The commissioner may promulgate regulations to effectuate this

section.

6. Nothing in this section shall be construed to conflict with or

limit section one hundred ninety of this chapter.

7. Violations and penalties. a. A violation of this section shall be

subject to the applicable penalties of this chapter except for the

penalties specified in section forty-one thereof.

For purposes of this section, each group of identical consumer

commodities for which on any single day the total selling price or price

per measure is not displayed in accordance with this section or the

regulations promulgated thereunder shall be considered a violation of

this section. Improper unit pricing caused by nonintentional technical

errors, however, shall not constitute a violation.

b. Each group of units not unit priced or improperly unit priced shall

constitute a violation. Each individual unit, however, not unit priced

or improperly unit priced shall not constitute a violation unless

displayed alone.

c. Each day a violation is continued shall constitute a separate

violation.

d. The provisions of this section and the regulations promulgated

hereunder may be enforced concurrently by the director of a municipal

consumer affairs office or a municipal director of weights and measures.

8. Preemption. Except as provided in paragraph b of subdivision three

of this section, any local law, ordinance, rule or regulation relating

to labeling, displaying or other disclosure of the price per measure of

any commodity must be consistent with the provisions of this section and

the rules and regulations adopted hereunder.