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§ 5-115 Guidelines on Multiple Pricing.
   (a)   Definitions. Whenever used in these guidelines, the following terms shall be deemed to mean and include:
      Commissioner. The Commissioner of the Department of Consumer Affairs of the City of New York.
      Consumer Protection Law. New York City Local Law 83 of 1969, as the same has, or may hereafter be, amended.
      Department. The Department of Consumer Affairs of the City of New York.
      Identical items of merchandise. "Identical items of merchandise" shall " mean a single unit of merchandise available for purchase that is of the same brand and is the same as another unit of merchandise in every other way. For the purpose of these guidelines, items of merchandise that have different prices but have no other differences shall be deemed identical.
      Item of merchandise. "Item of merchandise" shall mean a single unit of merchandise available for purchase.
      Multiple pricing. "Multiple pricing" shall mean the practice of having identical items of merchandise, as above defined, available for sale at a particular time for more than one price. For purposes of these guidelines, a difference in price achieved by the use of discount coupons, quantity purchases or the like shall not be deemed an instance of multiple pricing.
      Retail food store. "Retail food store" shall mean a store which has as its principal line of business the sale at retail of a broad range of food items.
      Truth-In-Pricing Law. "Truth-In-Pricing Law" shall mean New York City Local Law 14 of 1971, as the same has, or may hereafter be, amended.
   (b)   Consumer Protection Law. It is the enforcement policy of the Department of Consumer Affairs in interpreting the Consumer Protection Law that Multiple Pricing is a deceptive trade practice except where each of the following conditions are complied with:
      (1)   Applicability. The practice is maintained by a retail food store.
      (2)   Information program. The terms of the Multiple Pricing program are communicated to the retail food store's employees who are to implement the program and those terms are also clearly explained to its customers m New York City. The means by which the program is explained to customers shall include the conspicuous posting of the terms of the retail food store's Multiple Pricing program which terms shall include a list of any items excluded from the operation of the Multiple Pricing program and, where applicable, any method of identifying the location of multiple priced merchandise. Each sign shall cover an area of not less than 18 inches by 18 inches and shall be printed in legible type in a manner that shall make it easily readable. There shall be at least one sign for each two thousand (2,000) square feet of selling area. One such sign shall be placed near each door through which consumers enter, in such a place and positioned in such a way as to be readily seen by a consumer upon entering. No retail food store shall be required to have more signs than the greater of:
         (i)   the number of consumer entrances to such store, or
         (ii)   five signs. In addition, a smaller sign shall be placed at each cash register clearly visible to the consumer advising the consumer of the store's program of Multiple Pricing. At least two (2) weeks prior to termination of Multiple Pricing, a retail store shall so notify its customers in New York City. Such notification shall include the conspicuous posting of signs indicating such intended termination in compliance with the second paragraph of this 6 RCNY § 5-115(b).
      (3)   Retail food store internal operations. 
         (i)   Identical items of merchandise are not offered for sale at more than two prices, except that where a store has a policy of not remarking items marked for sale after the termination of the sale, identical items of merchandise may be offered for sale at three prices until the items that were marked for the sale are sold.
         (ii)   Any item of merchandise sold in a retail food store that bears more than one price, shall be sold at the lowest price shown. Having more than one price visible on any item of merchandise is a violation of the regulations of the Department and selling such merchandise at the lowest price appearing on such merchandise shall not cure any such violation.
         (iii)   Where an item of merchandise is offered for sale at a price based on a multiple purchase, as for example "2 cans for 35 cents," and an identical item of merchandise is offered for sale at a different price that is higher per item than the group price, or at a higher group price, a consumer who purchases the items of merchandise in the quantity necessary for the group price, shall be entitled to purchase said quantity at the lowest group price. By way of illustration, item X was originally priced at 2 cans for 40 cents, however the new cans of X placed on the shelf are priced at 21 cents each. A consumer purchasing 2 cans of X, one bearing the old markings and one the new would pay a total of 40 cents for the two cans.
         (iv)   In any retail food store where Multiple Pricing is in effect all items sold shall be subject to it and the only products not multiply priced may be
            (A)   items which prior to the initiation of the program were not individually marked with a price and price was disclosed by such means as a price sign at the point of sale,
            (B)   items where the retailer cannot vary the price by the requirement of any law or regulation of any governmental authority or the requirements of any fair trade agreement, and
            (C)   items for which the retailer has received the Department's prior approval to remove them from Multiple Pricing.
         (v)   Multiple priced merchandise shall be placed in such a way that
            (A)   lower priced items are grouped together and
            (B)   lower priced items are placed nearest to the consumer. On a surface which is parallel to the store floor, such as shelf merchandise, such lower priced items will be placed towards the front edge of the shelf with higher priced items behind. Where items are stacked vertically, as in freezer cabinets, the lower priced items will be stacked on top of the higher priced items and grouped at the front of the vertical space allocated to such items. If any type of physical separation of multiple priced merchandise is instituted this must be applied uniformly throughout the store and must be disclosed on the store signs referred to in 6 RCNY § 5-115(b)(2) and also at each point of sale of the item. As an example, if items at a lower price are placed on a different shelf such sign shall be placed where the higher priced item is and where the lower priced item is.
         (vi)   In all places where multiple priced items are offered for sale some clear identifying symbol shall be conspicuously displayed at the point of sale to indicate the availability of merchandise at a lower price. This requirement shall apply whether or not the retail food store is subject to the requirements of the Truth-In-Pricing Law. The symbol and the fact that the symbol designates the presence of lower priced merchandise shall be disclosed in the signs referred to in 6 RCNY § 5-115(b)(2).
      (4)   Advertising. 
         (i)   The fact that any item may be available at a lower price shall not be advertised where such lower price is due to Multiple Pricing. Advertising material may contain a general statement concerning any Multiple Pricing policy in effect in any store or group of stores.
         (ii)   When a sale is advertised the sale price shall be lower than the lowest price at which items of the merchandise are then available for sale in any quantity.
         (iii)   Where, in advertising material, a potential savings to the consumer is described in such terms as "save 3 cents off regular price by purchasing X at 75 cents a can" the saving shown must be based on the lower price of the merchandise.
         (iv)   All advertising material relating to Multiple Pricing shall contain a list of any items excluded from the operation of multiple pricing.
         (v)   When retail food stores are subject to a common ownership, as in a chain, or though not commonly owned, participate in an advertising program under some common name covering more than one store, if one or more stores in the group is not utilizing Multiple Pricing, each store not using Multiple Pricing shall be specifically identified. Such statements as "... not available in certain stores" will not be permissible.
         (vi)   If merchandise is available at a price lower than the advertised price, it shall be sold at the price shown on the item of merchandise. Having merchandise available for sale at a price lower than the sale price is a violation of 6 RCNY § 5-115(b)(4)(ii) hereof and selling such merchandise at such lower price shall not cure any such violation.
   (c)   Unit pricing. In stores subject to the requirement of the Truth-In-Pricing Law, unit pricing stickers will be prepared which indicate in all instances either
      (1)   unit pricing data at each price at which an item is being sold, or
      (2)   unit pricing information at the highest price that an item of merchandise is being sold and some method of clearly identifying at each place, where any merchandise is being sold at multiple prices that some of the same merchandise is available at a lower price. That method of disclosure shall be set out and explained in the signs referred to in 6 RCNY § 5-115(b)(2).
   (d)   Notification of the department. Any retail food store intending to use Multiple Pricing shall advise the Department in writing sent certified mail addressed to the Commissioner at 42 Broadway, New York, N.Y. 10004. Such notice shall be mailed at least one (1) business day prior to initiating such program. Such notice shall be accompanied by copies of all instructions given to store employees concerning procedures which affect Multiple Pricing together with copies of any and all advertising materials discussing Multiple Pricing to be used by any retail food store or group of retail food stores. Retail food stores shall have the duty to notify the Commissioner when they intend to use any instructions or advertising materials not previously submitted to the Department. Notification of the Department pursuant to this paragraph shall not imply review of, or consent to the use of, such material by the Department. Any retail food store intending to terminate Multiple Pricing shall advise the Department in writing sent certified mail addressed to the Commissioner at 42 Broadway, New York, N.Y. 10004. Such notice shall be mailed at least two (2) weeks prior to terminating such program.
   (e)   Powers of the Commissioner.
      (1)   The Commissioner has the power to require such information as he or she may reasonably require to determine the administration and effect of any program of Multiple Pricing and such materials shall be supplied promptly and at no cost and expense to the Department of Consumer Affairs.
      (2)   The Commissioner has the power to require additional steps to be taken by a retail food store to comply with the intent of these guidelines as she, in her discretion, may deem appropriate including the further publicizing of Multiple Pricing.
      (3)   If these guidelines or directions of the Commissioner issued pursuant to these guidelines are not complied with after passage of sufficient time to allow for compliance, such failure shall be deemed a violation of the Consumer Protection Law or the Truth-In-Pricing Law, or both, as the case may be, and the Commissioner shall thereupon take such steps as shall be necessary to assure compliance or she may deny the retail food store the opportunity of operating a Multiple Pricing program. Each violation of a provision of these guidelines shall be treated as a separate violation under the appropriate law.
   (f)   Amendment. The Commissioner reserves the right at any time and from time to time to revise, amend, revoke or to otherwise modify or annul the effect of these guidelines.
   (g)   Other laws. Nothing herein contained shall be deemed to interpret, waive or modify the requirements of any law, rule or regulation of the City of New York, the State of New York or the Federal Government other than the Consumer Protection Law and the Truth-In-Pricing Law.