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If a retailer includes in the name of his store, or in any other "out-of-store" manner represents the regular retail operation of his entire store by use of the words "discount," "outlet," "bargain," "warehouse," or any other term implying that all goods and services are regularly sold at less than genuine list, catalog, suggested or retail market prices, then 75 percent of the retailer's dollar volume in the last selling season exclusive of fair-traded items must have been from items which were in fact sold for at least 5 percent less than genuine list, catalog, suggested or retail market price.
A retailer may not use the words "discount," "bargain," "warehouse," "bargain basement," or other similar terms in characterizing a particular department or section within his regular retail operation unless
(a) a substantial percentage of the dollar volume of the last previous selling season within that department or section was derived from items sold for less than genuine list, catalogue, suggested or retail market prices. It shall be presumptive evidence of violation of this section if the advertiser cannot show that at least 35 percent of the dollar volume in the last previous selling season within that department or section was derived from items selling for less than genuine list, catalog, suggested or retail market prices for such items; or
(b) all items not presently being sold for at least 5 percent less than genuine catalog, list, suggested or retail market price, are clearly and conspicuously designated as non-discount items. This requirement of designation may be satisfied by segregation of identified non-discount items, shelf labels, or other prominent signs, a listing of non-discount items clearly and conspicuously displayed in the relevant department, or a standardized sticker or tag with a clear and conspicuous explanation that the item to which it is affixed is a non-discount item.
Example: A shoe department in a retail store sells brands X, Y, and Z shoes. Brand X is sold at less than retail market price, and brands Y and Z are sold at retail market price. In the last previous selling season, 35 percent of all shoe sales came from the sale of brand X shoes. The store is in compliance with this article. But if less than 35 percent of all sales came from sales of brand X shoes, brands Y and Z must be conspicuously designated as nondiscount items in order for the department to be called "discount shoe department."
All discounts, sales, reductions or savings must be meaningful, and not merely nominal or insignificant. All articles and services so advertised must be offered at a reduction or savings of at least 5 percent from the price to which the advertiser's is being compared, unless [in the case of items retailing for over $100] the advertisement clearly sets forth the actual percentage of reduction or the dollar amount of the reduction.
The retailer either must have in stock or on order, or be prepared to supply within a reasonable time sufficient quantities of each advertised item or service to fulfill reasonably anticipated public demand, or clearly conspicuously disclose in the advertisement any items or services of genuinely limited availability. A retailer is not "prepared to supply" merchandise unless he has communicated with suppliers and ascertained, prior to advertising, that the merchandise is available to him.
All disclosures and words of limitation or qualification required by this part shall be written or printed in letters at least one third as high and one third as broad as the largest words or numbers appearing in the advertisement which relate to or describe the reduction, discount or savings, but in no event in less than ten point type. In radio announcements, the disclosure or words of limitation or qualification shall be clearly spoken, and in television announcements they shall be part of the radio track and not merely part of the picture.
(a) Each person who advertises or represents the existence of a discount, reduction or savings shall for three months maintain records demonstrating compliance with this part at his principal place of business within the City of New York or at a location where such records are normally maintained by such person.
Example: An advertiser who advertises "20 percent off Brand X cameras" must maintain records demonstrating that the reduction is from the bona fide selling price. If the cameras were last sold at such lower price eleven months ago, the advertiser must retain the records indicating the earlier price. These records must be kept for a period of three months after the sale is over.
(b) Where the Commissioner of Consumer Affairs or her delegate requests a person to produce by mail information or records to demonstrate compliance with this part, and the information, or original, carbon, photographic or electrostatic copies of the records are available in the company's files, the person shall mail a copy of such information to the person requesting it within seven business days after receipt of the request unless such time period is extended by the Chief of the Law Enforcement Division. Where the information is available to the person but not in his possession, or where the record must be reconstructed (e.g., where they have been stored in the memory bank of a computer), the person shall mail a copy of such information to the person requesting it within a reasonable period of time, not to exceed sixty business days, after receipt of the request unless such time period is extended by the Chief of the Law Enforcement Division. In lieu of mailing requested information or records to the Commissioner, a person may grant access to the files for purpose of examination and to copy documentary evidence by advising the Commissioner in writing within 5 business days after receipt of the request that such access will be granted provided the information or records are kept in New York City.
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