S3612 S3717 SCS

An Act concerning 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 price at which groceries and other foodstuffs are widely offered to the public and not for the purpose of establishing a fictitious price to enable the subsequent offer of a reduction.

“Electronic shelving label” means an electronic and Internet-connected display that presents the product and pricing information for groceries and other foodstuffs.

“Groceries and other foodstuffs” 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.

“Location” means consumer geolocation data that is used to infer a consumer's identity, permanent residence, or membership in a protected class. “Location” shall not include data used to fulfill a requested good or service, calculate operational costs, or assess supply, demand, and local marketplace conditions.

“Person” means any natural person or a legal representative, partnership, corporation, company, trust, business entity or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee or cestuis que trustent thereof.

“Personal data” means any information that is linked or is reasonably linkable to an identified or identifiable person.

“Personalized algorithmic pricing” means a pricing strategy in which the price of groceries and other foodstuffs is determined, adjusted, optimized, or recommended by an algorithm or automated system, based, in whole or in part, on using personal data, including data derived, or inferred from other data, and that results in price variation for individual consumers or groups of consumers.

“Surveillance pricing” means any action taken to price groceries and other foodstuffs as determined, adjusted, optimized, or recommended by an algorithm or automated system, in whole or in part, based, in whole or in part, on personal data, whether in physical or digital environments. This shall include, but not be limited to, 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 person’s behavior, characteristics, location, or other personal attributes, whether in physical or digital environments.

3. a. Notwithstanding any law, regulation, or rule to the contrary, it shall be considered an unlawful practice and a violation of P.L.1960, c.39 (C.56:8-1 et seq.) for a person to use personalized algorithmic pricing, surveillance pricing, or any pricing strategy that determines or varies the sale price of groceries and other foodstuffs based, in whole or in part, on personal data.

b. The provisions of this section shall not prohibit any person from offering a different price on groceries and other foodstuffs based upon:

(1) reasonable costs associated with providing groceries and other foodstuffs to different persons;

(2) a bona fide discount for which eligibility conditions or criteria are conspicuously disclosed and uniformly offered based upon those conditions or criteria, and to which any member of a broadly defined group, including, but not limited to a group of teachers or veterans, is eligible; or

(3) a bona fide discount offered as part of a loyalty program, including loyalty programs that allow the accrual or exchange of points, credits, or any similar nonmonetary system of value, or loyalty programs that offer coupons to individual customers based on their purchases.

c. To the extent a person employs personal data to offer a difference in price on groceries and other foodstuffs pursuant to subsection b. of this section, that personal data shall not be used for any other purpose.

4. It shall be considered an unlawful practice and a violation of P.L.1960, c.39 (C.56:8-1 et seq.) for any person to use an electronic shelving label connected to any technology that employs personalized algorithmic pricing, surveillance pricing, or any pricing strategy that determines or varies the sale price of groceries and other foodstuffs based, in whole or in part, on personal data.

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 person in violation of subsection a. of section 3 or of section 4 of this act, or a regulation promulgated pursuant to section 6 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 $50,000, whichever is greater; or

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

6. The Director of the Division of Consumer Affairs in the Department of Law and Public Safety may adopt rules and regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) to effectuate the provisions of this act.

7. 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.