CONSUMER ALERT

MIKE COX

ATTORNEY GENERAL

The Attorney General provides Consumer Alerts to inform the public of unfair, misleading, or deceptive business practices, and to provide information and guidance on other issues of concern.

Item Pricing (Scanner law) FREQUENTLY ASKED Questions

Consumer or Business Alerts published by the Attorney General are provided as an information service only and are not a formal or informal legal opinion or legal advice.  Citizens who need legal advice should consult with a private attorney.  This information is provided in response to frequently asked citizen questions about the Pricing and Advertising of Consumer Items Act.  The Act's popular name is the "Scanner Law" or the "Item Pricing Act." 

References and links to the Item Pricing Act and related administrative rules are available at the end of this Alert.

Item Pricing Bill of Rights

Our State law requires that most items on store shelves be clearly marked with a price tag.  If an automatic checkout system (scanner) charges you more than the marked price of an item, and:

            1)  the transaction has been completed, and

            2)  you have a receipt indicating the item purchased and the price charged for it.

Then:

            You must notify the seller that you were overcharged, within 30 days of the transaction, either in person or in writing.  Within two days of receiving your notice, the seller may choose to refund you the difference between the amount charged and the price marked plus a "bonus" of ten times the difference, with a minimum of $1.00 and a maximum of $5.00.  If the seller refuses to give you both the refund and the bonus, you may bring a lawsuit to recover your actual damages or $250.00, whichever is greater, plus reasonable attorney fees up to $300.00. 

Frequently Asked Questions

1.   How much money do I get back when a scanner charges me more than the price marked on the item?

You are entitled to request the difference between the marked price and what you were charged plus additional compensation ("bonus") of ten times the difference.  The bonus must be at least $1.00 but may not be more than $5.00.  If the seller refuses to pay the difference and the bonus, you may sue for actual damages or $250.00, whichever is greater, plus attorneys' fees of up to $300.00. 

2.   If a price is not marked on a sale item and it scans for more than the sale price, do I get the sale price and the bonus?

You are entitled to the sale price but not the bonus.  There must be a price marked on the item - and the item has to scan for more than the price marked on it - for you to be entitled to the bonus.

3.   If I am charged more than the marked price for several duplicate items, do I get the bonus for each duplicate item?

No.  When you purchase multiple identical items you are only entitled to one bonus payment of ten times the difference between the marked price and the price you were charged, but not less than $1.00 or more than $5.00.  However, you get the difference between the marked price and the price you were charged for each item you purchased.

4.   What items do not have to be marked?

The following consumer items do not have to be individually priced:

a)         items sold by weight or volume which are not in a package

            or container;

b)         items sold in a coin-operated vending machine;

c)         prepared food intended for immediate consumption;

d)         items purchased by mail or through a catalog, or which are not otherwise visible for inspection, if the price of the item is on the consumer's written order or the bill/invoice;

e)         unpackaged food items;

f)          items which have a total weight of not more than 3 ounces, a total volume of not more than 3 cubic inches, and a total price of not more than 30 cents;

g)         live plants;

h)         live animals;

i)          motor vehicles;

j)          motor vehicle parts;

k)         packages of 20 or fewer cigarettes;

l)          greeting cards sold individually which have a readable coded price on the back of the card;

m)        merchandise ordered by a consumer as a gift to be sent directly to the recipient. 

In addition, each store is entitled to exempt 50 classes of items from being item priced - 25 classes of sale items and 25 classes of non-sale items.  A list of the non-sale exempted items must be posted in a conspicuous place.  MCL 445.353(3).  The price of the non-sale exempted items must also be posted by a conspicuous sign located in immediate conjunction to the area where the unmarked items are displayed.  MCL 445.353(4). 

5.  What does "class of item" mean when referring to items that a store may elect to exempt from being item priced?

"Class of item" means a group of consumer items which may vary by brand, style, pattern, color, or size other than weight or volume.  Items within a class must otherwise be identical and offered at the same total price.  

6.  What if the store has items that apparently should be marked but are not?

Complaints regarding a store's failure to item price should be directed to the Department of Agriculture, Weights & Measures Section in the E.C. Heffron Laboratory, by calling (517) 655-8202 or in writing addressed to 940 Venture Lane, Williamston, MI  48895.

7.  Can I bring a lawsuit when the store fails to mark items?

A person who suffers a loss as a result of a violation of the Item Pricing Act may bring an individual or class action to recover actual damages or $250.00, whichever is greater, for each day on which a violation of the Act has been found, together with reasonable attorneys' fees not to exceed $300.00 in an individual action.  MCL 445.360(2).

8.  If I notify the clerk that I was overcharged for an item before I pay and the clerk corrects the overcharge, am I still entitled to the bonus? 

No.  The transaction must be complete, and you must have a receipt evidencing the overcharge before you can request the bonus.  

9.  Do I have to make a claim for the refund and the bonus before I leave the store?

No.  You have 30 days from the date you purchased the item to notify the seller in person or in writing.  The notice you provide must include evidence of the loss suffered. The seller has two days after notification to tender an amount equal to the difference between the marked price and the price charged and additional bonus equal to ten times that difference, with a minimum of $1.00 and a maximum of $5.00.  MCL 445.360a.

10. Can the seller, as a condition of paying the difference between the price I was charged and the price marked on the item, or as a condition of payment of the bonus, demand I provide my name, address, and phone number?

Probably not.  The Item Pricing Act only requires the buyer to provide evidence of the loss suffered.  When the buyer produces the receipt, the seller will likely immediately mark the receipt to indicate the difference and the bonus have been paid.  The seller, however, has two days after notification to tender the difference and any applicable bonus.  If the seller does not process the refund and applicable additional bonus immediately and you do not want to provide contact information, you will need to make arrangements to check back with the seller at a reasonable time and location.

11. Can a seller satisfy the obligation to provide a refund and bonus for scanner overcharges by giving the consumer a gift certificate?

No.  The Item Pricing Act requires that when a consumer is charged more than the marked price, the seller may avoid a lawsuit by tendering to the buyer an amount equal to the difference between the price stamped or affixed and the price charged, plus an amount equal to ten times that difference with a minimum of $1.00 and a maximum of $5.00.  MCL 445.360a(2).  Black's legal dictionary defines "tender" as "an offer of money." 

12.  Can I sue if I am overcharged due to scanner error?

Unless you are alleging the seller intentionally charged more for an item than the price marked on the item, you must first notify the seller in person or in writing and provide evidence of the loss suffered.  MCL 445.360a.  If the seller refunds the difference and any additional bonus due, you are barred from further recovery.  If the seller does not refund the difference and any additional bonus due, the consumer may bring an individual or class action to recover actual damages or $250.00, whichever is greater, for each day on which violations of the Act are found together with reasonable attorneys' fees not to exceed $300.00 in an individual action.  MCL 445.360.

13.  What if the store refuses to pay the bonus?

If the seller refunds the difference between price marked and price charged, but refuses to pay the bonus, you may bring an individual or class action to recover actual damages or $250.00, whichever is greater, for each day on which violations of the Act are found together with reasonable attorneys' fees not to exceed $300.00 in an individual action.  MCL 445.360.

14.  What if an item is advertised on sale but the clerk charges me the marked price, which is higher than the advertised sale price; am I entitled to buy the item at the advertised sale price and receive the bonus?

You are not entitled to the bonus because you were not charged more than the price marked on the item.  MCL 445.360a.  Whether you are entitled to purchase the item at the advertised sale price is a fact-specific question best answered by a court.  The failure to sell goods, merchandise, commodities, or services in the manner advertised, or the refusal to sell at the price advertised, or in accordance with other terms and conditions of the advertisement, creates a rebuttable presumption of intent to violate the Act.  MCL 445.356(2).

15.  What if an item is marked the wrong price and the clerk catches it before I pay; am I entitled to buy the item at the price marked?

This is a fact-specific question best answered by a court.  A store may not knowingly charge or attempt to charge a price higher than the price marked on the item.  MCL 445.354.  Therefore, the consumer may have a claim if the store will not sell the item at the price marked.  However, the consumer may face obstacles convincing a court that the store knowingly charged the higher price when the pricing mistake is not intentional and will result in an obvious windfall to the consumer.

16.  Does the Item Pricing and Advertising of Consumer Items Act apply to "wholesale" or buying club stores?

This is a fact-specific question.  The law requires that the total price of a consumer item offered for sale at retail be priced clearly and conspicuously.  MCL 445.353(1).  "Sale at retail" means the transfer of an interest in a consumer item by a person regularly and principally engaged in the business of selling consumer items to a buyer for use or consumption and not for resale.  MCL 445.351(g).  Thus, it may depend on the store, the types of items it sells, and whether those items are intended for resale.  For the Act to apply, the items must be "bought for use or consumption primarily for personal, family, or household purposes."  MCL § 445.351(d).

17.  Does the Item Pricing Act apply to the sale of alcohol?

Yes.  However, another law - the Liquor Control Code - must also be considered.  MCL 436.1101 - MCL 436.2303.  Under the Liquor Control Code, alcoholic liquor may not be sold below the "minimum retail selling price" set by the Liquor Control Commission spirits must be sold at a mandated price while beer and wine may not be sold below cost.  MCL 436.1229.  Therefore, the difference between the amount charged and the marked price is only refundable if the retailer has charged more than the minimum retail selling prices:  1) in the case of spirits, more than the statutorily mandated price; and 2) in the case of beer and wine, more than the retailer's cost. 

If the consumer is due a bonus, this amount must be paid if the seller wants to preclude the consumer from bringing a lawsuit because the bonus is not a price adjustment.  The payment of the bonus is an amount paid by the seller for their error and is distinct from the price the consumer paid for the alcohol. 

The payment of the difference between the amount charged and the marked price, however, is essentially a price adjustment, and as such, might not be refundable in certain circumstances (i.e., if the retailer has charged the exact minimum retail selling price).  Since alcohol is not an exempt item under the Item Pricing Act, and the Legislature is presumed to know that another law (the Liquor Control Code) requires certain alcohol pricing, this conclusion interprets the legislative intent when the laws are read together.

Consumers should direct complaints regarding alcohol pricing to the Enforcement Division of the Michigan Liquor Control Commission by calling (517) 322-1370 or writing to Michigan Liquor Control Commission, 7150

Harris Drive, PO Box 30005, Lansing, MI 48909.  Violations may be reported online at http://www.reportunder21.com/ or by calling the toll-free hotline 1-866-893-2121.

ITEM PRICING ACT & RELATED ADMINISTRATIVE RULES

The Pricing and Advertising of Consumer Items Act (MCL 445.351 et seq) is available at: 

http://www.mileg.org/mileg.asp?page=getObject&objName=mcl-Act-449-of-1976&queryid=8861339&highlight=. 

The Department of Attorney General's Administrative Rules (1979 AC, R 14.201-14.211) are available at:

http://www.state.mi.us/orr/emi/admincode.asp?AdminCode=Single&Admin_Num=01400201&Dpt=&RngHigh=02904672.

The Department of Agriculture's Administrative Rules (1979 AC, R 285.555.1-285.555.2) are available at:

http://www.state.mi.us/orr/emi/admincode.asp?AdminCode=Single&Admin_Num=28500555001&Dpt=&RngHigh=29103101.

DOLLAR-BILL-SIZED BILL OF RIGHTS & QUESTIONS OR COMPLAINTS

To obtain a dollar-bill-sized reminder of your "Item Pricing Bill of Rights," to ask questions or obtain complaint information, contact the Attorney General's Consumer Protection Division:

Consumer Protection Division
P.O. Box 30213
Lansing, MI 48909

517-373-1140
Fax: 517-241-3771

Toll free: 877-765-8388

www.michigan.gov/ag (online complaint form)