These regulations are promulgated pursuant to Commercial Law Article, §14-105, Annotated Code of Maryland. They are intended to effectuate the provisions of the Unit Pricing Law, §14-101 et seq., Annotated Code of Maryland, and are not intended to extend, modify, or conflict with the Unit Pricing Law or its reasonable implications. The Consumer Protection Division of the Office of the Attorney General and the Consumer Council find that some of those sales agencies required to unit price have not done so properly or in conformance with the Unit Pricing Law. The increasing costs of consumer commodities mandates the continued attention of the Division to enforce the Unit Pricing Law, as the disclosure of unit pricing information gives consumers a method of price comparisons for similar or identical consumer commodities. Thus, the availability of properly disclosed unit pricing information will provide an effective tool for informed and economical consumer purchasing. The Division and the Council further find that the General Assembly has authorized the Division to promulgate regulations to effectuate the purpose of the Unit Pricing Law, and has given the Council the role of advising the Division on these regulations. The proposed regulations explain the requirements of the Unit Pricing Law, clarify the method of disclosure, and require meaningful consumer information necessary to effectuate the Law's purpose. Provisions are proposed to set forth the responsibilities of those sales agencies required to unit price to notify the Division if an exemption from compliance is requested or if non-intentional technical errors are discovered. “Control” means the possession, direct or indirect, of the power to direct, or cause the direction of, the management and policies of a person, whether through ownership of voting securities, by contract, or otherwise. “Inventory facility” means a physical location, separate and apart from the physical location of the sales agency, where consumer commodities are stored and subject to inventory accounting, and which thereafter are distributed to the physical location of the sales agency. “Members of the immediate family” mean the spouse, son, daughter, parent, brother, and sister of the individual owner. “Multi-unit packages” means packages intended for retail sale containing two or more identically packaged or labeled units of an identical commodity in the same quantity. “Non-intentional technical errors” means inaccuracies in the unit pricing information reflected upon stamps, tags, labels, signs, or lists where these defects have resulted from a malfunction of a printing press, electronic data processing equipment, or other mechanical equipment used to produce these stamps, tags, labels, signs, or lists, or from the mistake of a computer programmer or machine operator, when this malfunction or mistake was not within the knowledge or control of the owner, operator, or management personnel of the store and when this owner, operator, or management personnel could not, with reasonable diligence, have detected and corrected these errors. “Preceding calendar year” means the immediately preceding period, January 1 through December 31. “Sales agency” means any proprietorship, partnership, corporation, or other legal or commercial entity which sells or offers for sale at retail, those consumer commodities defined in the Commercial Law Article, §14-101(b), Annotated Code of Maryland (hereinafter, the “Unit Pricing Law”). “Variety packages” means packages intended for retail sale containing two or more identical packages or units of similar but not identical commodities. Commodities which are generally the same, but which differ in weight, volume, appearance, or quality are considered similar but not identical. Not included within this definition are items under Regulation .07A. To determine whether it is exempt from compliance with the Unit Pricing Law, a sales agency shall refer to the exemptions found in Commercial Law Article, §14-102(6)(i)—(iv), Annotated Code of Maryland. A sales agency shall be given a reasonable time after the close of its fiscal year to calculate gross annual sales to determine whether it is exempt from the provisions of the Unit Pricing Law pursuant to §14-102(6)(i). For purposes of these regulations, any time in excess of 3 months shall be presumed to be unreasonable. If compliance is mandated, the sales agency shall be given 2 months to implement its unit pricing system. If the sales agency is found to be required to unit price, it shall comply with the Unit Pricing Law and these regulations no later than June 1 following the close of its fiscal year, if determined on a calendar year basis. If the sales agency's fiscal year is determined by any other method, compliance shall be required by no later than 150 days after the close of this fiscal year. For purposes of §14-102(a)(5), items shall be considered to have been directly delivered when the items have not passed through any warehouse or inventory facility which is owned or controlled directly or indirectly by the sales agency. Section 14-103(a)(2)(ii) of the Unit Pricing Law defines the categories of consumer commodities required to be unit priced. Any of these commodities which are priced for multi-unit or variety package purchase shall be unit priced on the basis of the total contents. The unit price of any consumer commodity sold with a deposit for the container's return, shall be based on the price of the item's contents without regard to the amount of the deposit. The fact that there is a deposit, however, shall be clearly and conspicuously displayed on the product or its package or near the product. The seller is not required to unit price the following: Those items specifically exempted by §14-102(a)(1)—(5); Items displayed in a non-packaged manner such as loose produce, fresh seafood, meats, and cheeses cut to order; Durable items, including any item which wears or deteriorates from usage, for example, kitchen utensils, pots and pans, and any other type of cooking or kitchen aids and household goods, such as brooms, fabric cleaning towels, and other durable goods. When the sales agency has established and clearly disclosed a no- repricing policy, whereby items on display are not repriced to reflect a higher price, the applicable unit price stamps, tags, labels, signs, or lists shall display the unit price of the higher price. When the manufacturer of a consumer commodity has offered a discount or cents off the price of items offered for sale by a sales agency, the unit price stamps, tags, labels, signs, or lists shall display the higher price. If different brands of the same consumer commodity are expressed in more than one measuring unit, the sales agency, if it is possible to do so, shall unit price the items consistently within the same product category. The more familiar measuring unit found in the product group is to be used if conversion and uniformity are possible. When metric units appear on the consumer commodity, in addition to the other units of measure, the sales agency may use both units of measure on any stamps, tags, labels, signs, or lists. Section 14-104(1) of the Unit Pricing Law provides for the method of disclosing the required unit pricing information. The unit pricing tags, stamps, or labels shall contain in easily readable and understandable print the price of the item, the unit price, the unit of measure, the name and size of the item, and the brand name if there is one. The tags, stamps, or labels need not be any special size, but shall be conspicuously visible to the consumer. Section 14-104(2) of the Unit Pricing Law provides for the method of disclosing the required unit pricing information on items inconspicuous to the consumer. The signs or lists shall contain in easily readable and understandable print the price of the item, the unit price, the unit of measure, the name and size of the item, and the brand name if there is one. If the consumer commodities are refrigerated, and attachment of stamps, tags, or labels is not practical, the sales agency shall disclose the required unit pricing information by signs or lists. These signs or lists shall be clear, conspicuous, and near the consumer commodities, and the information readily available to the consumer without need for the consumer to inquire of, or otherwise contact store personnel. The unit price may be shown in type which is at least the size of “elite” type. However, this price shall be identified as the “unit price” or “price per (unit of measure).” The designation of the unit price per measure of 1 dollar or more shall be expressed in terms of dollars and cents. If the unit price is under 1 dollar, it shall be listed: To the tenth of a cent (i.e., an item priced at 25.54 cents may read 25.5 cents or 25.5); or To the whole cent. The sales agency shall accurately and consistently use the same method of rounding up or down to compute the price to the whole cent. The sales agency shall have the option of using §C(1) or (2) but may not implement both methods. If any errors are alleged by the Division which would subject the sales agency to the enforcement provisions of the Unit Pricing Law, the sales agency shall submit data which shows by the preponderance of the evidence that the errors are non-intentional technical errors. The data submitted to the Division may contain the following information: Any specific malfunction of the printing press, electronic data processing equipment, or other mechanical equipment used to produce the stamps, tags, labels, signs, or lists; Any specific mistake made by the computer programmer or machine operator; Specific reasons why the malfunction or mistake was not within the knowledge or control of the owner, operator, or management personnel of the store; Specific reasons why the owner, operator, or management personnel could not, within reasonable diligence, have detected or corrected these errors; The name, address, and telephone number of the person or persons responsible for the alleged error; Whether the sales agency had prior similar problems with the printing press, electronic data processing equipment, or other mechanical equipment responsible for the alleged error, and what action was taken by the sales agency to correct the malfunction; Whether the sales agency had prior similar problems with the computer programmer or machine operator responsible for the alleged mistake and what action was taken by the sales agency to correct the mistake. The Division may not consider non-intentional technical errors to be violations of these regulations. Under §14-105(a)(2), the Attorney General may exempt any sales agency which is using a program of unit pricing which is approximately as or more comprehensive than the program required by the Unit Pricing Law. The following procedures are to be followed by any sales agency requesting an exemption under Maryland law and these regulations: A request shall be made in writing; A request shall be supported by a detailed description of the plan being used; An exemption requested shall be conditioned upon the sales agency agreeing to continue the plan without change, unless prior approval of the Consumer Protection Division is obtained; A request shall be signed by the owner, partners, or corporate officers of the sales agency making the request. A sales agency which does business in more than one jurisdiction where unit pricing is required by statute, ordinance, rule, or regulation, may apply for exemption from Maryland law and these regulations if: The system of unit pricing will be approximately as comprehensive as the program required by Maryland law; The sales agency submits copies of the statute and the regulations of the other jurisdiction and agrees to conduct its unit pricing program in Maryland in the same manner that it conducts unit pricing in the other jurisdiction or jurisdictions; The plan of unit pricing will not be confusing to Maryland consumers; and The request for an exemption complies with conditions in §B(1)—(4) or A, of this regulation. No exemption provided for in §A or B, of this regulation, will be considered to have been granted until the Consumer Protection Division of the Office of the Attorney General has, in writing, advised the sales agency that it is exempt. The Unit Pricing Law requires 90 percent compliance, which may be based on either of the following, at the option of the sales agency: Dollar volume of items required to be unit priced; Number of items which the store carried which are required to be unit priced. Every sales agency shall advise the Office of the Attorney General, Division of Consumer Protection, of the option as provided in §A, of this regulation, which it has elected to use. A sales agency may not then change its option until it has notified the Division of Consumer Protection of the change and this office has acknowledged receipt of the change. Commercial Law Article, §14-105, Annotated Code of Maryland Effective date: September 1, 1972 Chapter revised effective June 2, 1978 (5:11 Md. R. 880)