A4523

An Act concerning surveillance-based price setting and supplementing P.L.1960, c.39 (C.56:8-1 et seq.).

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. This act shall be known and may be cited as the “Fair Price Protection Act.”

2. As used in this act:

“Bona fide discount” means an offered price that is lower than the genuine price at which a product or service is widely offered to the public on a regular basis for a reasonably substantial period of time and not for the purpose of establishing a fictitious price to enable the subsequent offer of a reduction.

“Clear and conspicuous” means in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks, in a manner that clearly calls attention to the language.

“Consumer” means a natural person who is seeking to purchase, or is solicited to purchase, groceries and other foodstuffs or services for personal, family, or household use.

Electronic shelving label” means an electronic and wireless paper, also known as “E-paper,” display that presents the product and pricing information for groceries and other foodstuffs.

“Groceries and other foodstuffs” or “product” means dairy products, meat and delicatessen products, produce products, seafood products, carbonated beverages, coffee and other beverages, snack foods, candy products, baked products, paper products, household cleaning items, health and beauty products, frozen foods, pet foods and supplies, and any other edible product not previously listed.

“Retail food store” means any retail establishment where groceries and other foodstuffs are regularly and customarily sold in a bona fide manner for off-premises consumption.

“Service” means any activity that is performed, in whole or in part, for the purpose of financial gain including, but not limited to, sale, rental, leasing, and licensing for use.

“Surveillance-based price setting” means offering or setting a customized price for a product or service for a specific consumer or group of consumers based, in whole or in part, on information collected through electronic surveillance technology, which involves the use of technological methods, systems, or tools including, but not limited to, sensors, cameras, device tracking, biometric monitoring, or other forms of observation or data collection, capable of gathering information about a consumer’s behavior, characteristics, location, or other personal attributes, whether in physical or digital environments.

“Surveillance data” means data that is related to the personal information, behavior, or biometrics of a consumer and includes data gathered, purchased, or otherwise acquired.

“Third-party grocery delivery platform” means a business entity, outside of the operation of a retail food store, that operates a website, mobile application, or digital platform that provides the service of facilitating, arranging, or enabling the purchase or delivery of groceries and other foodstuffs from a retail food store to a consumer.

3. a. Except as provided in subsection b. of this section, it shall be considered an unlawful practice and a violation of P.L.1960, c.39 (C.56:8-1 et seq.) for a retail food store or third-party grocery delivery platform to sell or offer for sale groceries and other foodstuffs or a service and charge different prices to different consumers for the same, or a substantially similar, product or service using, informed by, or based on, in whole or in part, surveillance-based price setting through the use of surveillance data collected from consumers.

b. (1) For purposes of this act, the following shall not be considered surveillance-based price setting if the conditions of paragraph (2) of this subsection are met:

(a) a difference in price that is based solely on reasonable costs associated with providing the product or service to different consumers;

(b) a bona fide discount that is offered to any member of a broadly defined group including teachers, active duty personnel, veterans, senior citizens, or students; or

(2) A retail food store or third-party grocery delivery platform shall not be in violation of subsection a. of this section if any:

(a) basis for a difference in reasonable costs associated with providing a product or service to different consumers is disclosed to the consumer prior to purchase;

(b) eligibility conditions or criteria for receiving or earning a bona fide discount are clearly and conspicuously disclosed;

(d) surveillance data used solely to offer or administer a bona fide discount is not used for any other purpose, including profiling, targeted advertising, or individualized price setting; and

(e) loyalty program that allows a user to accrue and exchange points, credits, or any similar nonmonetary system of value for a product or service does not charge a different price for those points, credits, or similar nonmonetary system of value to different consumers for the same or substantially similar product or service.

4. a. A retail food store shall not use an electronic shelving label to display the product and pricing information of groceries and other foodstuffs.

b. A retail food store shall use a method that allows for a non-digital presentation of price for groceries and other foodstuffs. If a single sign or tag does not provide the unit price information of groceries and other foodstuffs for more than one brand or size, then the following information for each product shall be provided by a retail food store the:

(1) identity;

(2) brand name;

(3) quantity of the packaged product if more than one package size per brand is displayed;

(4) total sale price; and

(5) price per appropriate unit.

c. When a non-digital presentation of price provides unit price information for groceries and other foodstuffs, the non-digital presentation of price shall be centrally located as close as practical to all products to which the non-digital presentation of price refers, and the unit price information displayed thereon shall be presented in a clear, distinct, and non-deceptive manner.

d. A violation of the provisions of this section shall be an unlawful practice and a violation of P.L.1960, c.39 (C.56:8-1 et seq.).

5. If the Attorney General has reason to believe that the interest of the residents of this State has been or is threatened or adversely affected by an act or practice of a retail food store or third-party grocery delivery platform in violation of subsection a. of section 3 or section 4 of this act, or a regulation promulgated pursuant to section 7 of this act, the Attorney General may bring a civil action on behalf of the residents of this State in any court of competent jurisdiction to:

a. enjoin the act or practice;

b. enforce compliance with the provisions of this act;

c. obtain for each violation, in addition to any other penalty provided by law, actual monetary damages incurred from the violation or $3,000, whichever is greater; or

d. obtain, for each violation, any other restitution, penalty, or relief the court may deem appropriate.

6. a. A consumer who has been aggrieved by a retail food store or third-party grocery delivery platform by an act or practice in violation of subsection a. of section 3 or section 4 of this act, or a regulation promulgated pursuant to section 7 of this act, may bring a civil action against that retail food store or third-party grocery delivery platform in any court of competent jurisdiction to:

(1) enjoin the violation;

(2) obtain for each violation, in addition to any other restitution provided by law, actual monetary damages incurred from the violation or $3,000, whichever is greater; or

(3) obtain, for each violation, any other restitution, penalties, or relief the court may deem appropriate.

b. If a court finds, based on a civil action against a retail food store or third-party grocery delivery platform pursuant to subsection a. of this section, that the defendant acted willfully in committing an act in violation of subsection a. of section 3 or section 4 of this act, or a regulation promulgated pursuant to section 7 of this act, the court may, in its discretion, increase the amount of the award to an amount equal to not more than three times the amount provided under paragraph (2) of subsection a. of this section.

c. In any proceeding commenced pursuant to subsection a. of this section, the defendant shall be presumed to be in violation of subsection a. of section 3 of this act if the plaintiff can demonstrate that:

(1) two or more consumers were offered different prices by the defendant for the same, or a substantially similar, product or service during the same, or a substantially similar, period of time; or

(2) one consumer was offered different prices by the defendant for the same, or a substantially similar, product or service during the same, or a substantially similar, period of time while using different means of viewing the price.

d. In any proceeding commenced pursuant to subsection a. of this section, the defendant may rebut the presumption described in paragraphs (1) and (2) of subsection c. of this section by demonstrating that the alleged difference in price was:

(1) not informed, in whole or in part, by surveillance data; or

(2) fully explained by the exceptions set forth in subsection b. of section 3 of this act.

e. The court shall award to a prevailing plaintiff in an action under this section the litigation costs of the action and reasonable attorney’s fees, as determined by the court.

f. An action may be commenced under this section not later than five years after the date on which the consumer first discovered or had a reasonable opportunity to discover the violation.

g. Bringing a civil action under this section shall be in addition to any other remedy available to the consumer bringing the civil action.

7. The Director of the Division of Consumer Affairs shall, pursuant to the provisions of the “Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), promulgate rules and regulations necessary to effectuate the provisions of this act.

8. This act shall take effect on the first day of the seventh month next following the date of enactment, except that the Director of the Division of Consumer Affairs may take any anticipatory administrative action in advance as shall be necessary for the implementation of this act.

STATEMENT

This bill establishes the “Fair Price Protection Act.”

Under the bill, a retail food store or third-party grocery delivery platform is prohibited from selling or offering for sale groceries and other foodstuffs or a service and charging different prices to different consumers for the same, or a substantially similar, product or service using, informed by, or based on, in whole or in part, surveillance-based price setting through the use of surveillance data collected from consumers.

The bill defines “surveillance-based price setting” as offering or setting a customized price for a product or service for a specific consumer or group of consumers based on information collected through electronic surveillance technology, including sensors, cameras, device tracking, biometric monitoring, or other forms of observation or data collection capable of gathering information about a consumer’s behavior, characteristics, location, or other personal attributes.

Under the bill, it is not considered surveillance-based price setting if the difference in price for a product or service is: based solely on reasonable costs associated with providing the product or service to different consumers; a bona fide discount offered to broadly defined groups such as teachers, active duty personnel, veterans, senior citizens, or students; or a bona fide discount offered to a consumer who affirmatively and knowingly enrolls in a loyalty program. These differences in price are allowed provided that: eligibility conditions are clearly and conspicuously disclosed; discounts are offered uniformly to consumers who meet the criteria; surveillance data used solely to administer a bona fide discount is not used for any other purpose; and loyalty programs do not charge different prices for points or similar nonmonetary value for the same or substantially similar product or service.

Additionally, under the bill, a retail food store is prohibited from using electronic shelving labels to display product and pricing information of groceries and other foodstuffs and instead is required to use a method that allows for a non-digital presentation of price.

The Attorney General may bring a civil action to enjoin an act or practice that is in violation of the provision of this bill, enforce compliance, and obtain actual monetary damages incurred from the violation or $3,000, whichever is greater, as well as any other restitution, penalties, or relief the court may deem appropriate. A consumer who has been aggrieved by an act or practice that is in violation of the provision of this bill may also bring a civil action for the same relief. However, if the court finds that a defendant acted willfully, the court may increase the consumer’s award up to three times the amount provided.

The bill establishes a reputable presumption that there is a violation of the bill’s provisions if consumers are offered different prices for the same or substantially similar product or service during the same or substantially similar period of time. Additionally, the bill requires the court to award litigation costs and reasonable attorney’s fees to a prevailing plaintiff. The bill also requires an action to be brought within five years of discovery of the violation.

A violation of the bill’s provisions is an unlawful practice under the consumer fraud act, punishable by a monetary penalty of not more than $10,000 for a first offense and not more than $20,000 for any subsequent offense. In addition, violations may result in cease and desist orders issued by the Attorney General, the assessment of punitive damages, and the awarding of treble damages and costs to the injured party.