§ 184E — Conversion from individual item pricing system to consumer price scanner system; operation and inspection of consumer price scanner system

Section 184E. (a) A food store or food department seeking to convert from an individual item pricing system to a consumer price scanner system shall seek a waiver from the division. The waiver shall be granted by the division provided that the food store or food department has no outstanding fines under sections 184B to 184D, inclusive, or section 56D of chapter 98 and pays a $250 fee annually to the division if the retail space is less than 15,000 square feet, $500 fee if the retail space is greater than or equal to 15,000 square feet, but less than 30,000 square feet or a $1,000 fee if the retail space is 30,000 square feet or more.(b) Under the regulations promulgated under this chapter, the division shall require each applicant to complete a ''no job loss'' affidavit which shall include, but not be limited to, the number of people employed at the time of the application process and the establishment of a complaint process, to ensure that full and part-time employees do not suffer any wage or benefit loss due to the transfer. After the filing of the affidavit, if there is any resulting job loss at the store due to the implementation of the waiver, as determined by the division, not attributed to seasonal employment or verifiable economic pressures, the store shall be required to use an individual item pricing system for 1 year under sections 184B to 184E, inclusive, or other applicable laws or regulations promulgated hereunder and be subject to a fine of not more than $5,000.(c) A food store or food department using a consumer price scanner system shall be subject to inspection by the deputy director for compliance with this section. The deputy director shall not cause any food store or food department using a consumer price scanner system to be inspected more than once per calendar month. If, within the previous 30 days, there is a verified pattern of consumer complaints or, upon regular inspection, the food store or food department is not in compliance with this section, the division may inspect a food store or food department using a consumer scanner pricing system once every week until the food store or food department is found to be in compliance with this section.(d) Each food store or food department with more than 5,000 square feet of retail space that employs a consumer price scanner system shall have at least 1 fully operational consumer price scanner for every 5,000 square feet of retail space or part thereof. The location of a consumer price scanner shall be disclosed by 1 clear and conspicuous sign at eye-level and 1 clear and conspicuous sign above eye level. Consumer price scanners shall be equally spaced throughout the store in fixed locations. A food store or food department with more than 5,000 square feet but less than 20,000 square feet shall have 1 fully operational consumer price scanner capable of producing an individual item pricing tag, located at the front of the food store or food department. A food store or food department with more than 20,000 square feet shall have 2 fully operational consumer price scanners capable of producing an individual item pricing tag, with at least 1 located at the front of the food store or food department. At all such scanner locations, the food store or food department shall provide the consumer with a means by which such pricing tag may be affixed or appended to the item or its packaging, such as tape or an adhesive price tag. The deputy director may, by regulation, authorize new technologies in lieu of required consumer price scanners which further the intent of this section, including, but not limited to, hand held or shopping cart attached scanners which retain in memory and itemize all scanned items. Such technologies may reduce the required number of consumer scanners by no more than 50 per cent.(e) Consumer price scanners shall be deemed fully operational if: (1) the consumer price scanner clearly and conspicuously identifies and displays the item by name or other distinguishing characteristics; and (2) the consumer price scanner displays the item's correct price when the item is scanned and, in the case of a food store or food department that uses loyalty cards or otherwise maintains a dual pricing system, the consumer price scanner displays both the loyalty card price and the non-card price if they differ. A sign containing contact information for the division shall be posted by each consumer price scanner so that consumers may report broken consumer price scanners. Such consumer price scanners shall be in compliance with the Americans with Disabilities Act Accessibility Guidelines, 28 CFR Part 36, Appendix A and the architectural access board regulations 521 CMR 1.00, et. seq. Any violation of this subsection shall be considered in determining a consumer price scanner's pass or fail designation as defined in subsection (i).(f) Any food store or food department with more than 5,000 square feet of total space converting from an individual item pricing system to a consumer price scanner pricing system shall within 3 months of such conversion hire or maintain not less than 2 employees whose responsibilities shall include the maintenance of all consumer price scanners within the food store or food department.(g) An inspector may choose to test a food store or food department's consumer price scanner system for accuracy. The inspector may choose the sample size for accuracy tests provided that the size of sample is not less than 50 items and not more than 200 items. Any scanning that yields an incorrect price that causes a food store or food department's consumer price scanner accuracy rating to fall below 98 per cent shall constitute a separate violation. This subsection shall not be used to impact a scanner's pass or fail grade as defined in subsection (i) but the cumulative violations of this subsection in any particular store or department shall be used in contributing toward the maximum fine imposed under the same subsection.(h) Upon inspection, the deputy director shall notify the store manager, who shall provide the inspector with a map of the food store or food department outlining the consumer price scanner locations and the food store or food department's square footage of retail space. The food store or food department's number of scanners shall be sufficient for the food store or food department's size under subsection (d). Any violation of this subsection shall result in a fine of $1,000, which shall not count toward the maximum fine established under subsection (i); provided, however, that the deputy director may reduce this fine consistent with section 29A of chapter 98.(i) Each consumer price scanner shall be graded on a pass or fail basis by inspectors. A failing consumer price scanner shall include, but not be limited to, missing consumer price scanners or inadequate signage under subsection (d). Each scanner found to have failed the test shall constitute a separate violation of this section. Notwithstanding the method for determining the amount of civil fines under section 29A of chapter 98, a civil fine may be issued for $200 for each violation, up to a maximum of $2,500 per inspection; provided, however, that the deputy director may reduce any fine imposed under this section consistent with said section 29A of said chapter 98.