Code of Massachusetts Regulations
940 CMR - OFFICE OF THE ATTORNEY GENERAL
Title 940 CMR 3.00 - General Regulations
Section 3.13 - Pricing and Refund, Return and Cancellation Privileges
Universal Citation: 940 MA Code of Regs 940.3
Current through Register 1531, September 27, 2024
(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, s. 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 Pricing and Refund, Return and Cancellation
Privileges
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 accuracy of all sale prices in
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 or 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 .50¢, 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, s. 9, and any actions brought by the Attorney General pursuant to M.G.L.
c. 93A, s. 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.
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.
Disclaimer: These regulations may not be the most recent version. Massachusetts may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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