State Pricing Laws may Govern how Pricing for PaintCare Products must be Displayed by Retailers
Summary: The purpose of this notice is to provide informational guidance on rules that may govern whether retailers must include the PaintCare Fee as part of the advertised “sticker price” of program-eligible products when that price is displayed to consumers prior to purchase (e.g., on sticker prices, shelf price tags, product pricing in advertisements, etc.). Retailers that choose not to incorporate the PaintCare Fee as part of the sticker price of program-eligible products may run afoul of legal requirements in some states.
Background: In all states that have paint stewardship laws, a fee (called the PaintCare Fee) must be added to the wholesale price of architectural paint sold in the state. All retailers, distributors, and manufacturers selling architectural paint in the state must pay that fee and pass it on to end consumers.
Although paint stewardship laws are silent on whether the PaintCare Fee should be incorporated into the sticker price, most states have price accuracy laws that govern the nature of pricing information that must be disclosed to consumers. Retailers should be mindful that regulators in some states may view their state’s laws as requiring retailers to incorporate the PaintCare Fee in the sticker price of the product, regardless of whether a retailer chooses to break the PaintCare Fee out separately on purchase receipts. Accordingly, PaintCare encourages retailers to review those state laws to determine if there are specific requirements regarding how the price of paint, including the PaintCare Fee, should be displayed to customers in the state(s) in which each retailer operates. A list of potentially relevant laws per state is available below.
Regardless of whether pricing accuracy laws affect how retailers must display pricing for PaintCare Products, PaintCare encourages all retailers to provide information to consumers to educate them about the PaintCare Fee and its purpose. PaintCare makes a wide variety of retail point-of-sale materials available to retailers free of charge at: https://www.paintcare.org/order-print-materials/.
Please also feel free to contact PaintCare at or by calling (855) PAINT09 if you have any questions or concerns. However, please note that PaintCare is not able to offer any legal advice or opinions to retailers. As such, if retailers opt not to incorporate the PaintCare Fee in the sticker price of products subject to that fee, retailers may want to seek guidance regarding relevant state laws and specific requirements from qualified legal counsel in your state.
Potentially Relevant Laws per State:
(Current as of 12/14/2022)
- California
Cal. Bus. & Prof. Code §12024.2: “(a) It is unlawful for any person, at the time of sale of a commodity, to do any of the following:
(1) Charge an amount greater than the price…, that is then advertised, posted, marked, displayed, or quoted for that commodity.
(2) Charge an amount greater than the lowest price posted on the commodity itself or on a shelf tag that corresponds to the commodity, notwithstanding any limitation of the time period for which the posted price is in effect.”
- Colorado
Colo. Rev. Stat. §35-14-111: “No person shall misrepresent the price of any commodity or service sold or offered, exposed, or advertised for sale by weight, measure, or count nor represent the price in any manner calculated or tending to mislead or in any way deceive a person.”
- Connecticut
Conn. Stat. §21a-73(b): “’Consumer commodity’ means any… commodity of any other kind or class,… which is customarily produced for sale to retail sales agencies or instrumentalities for consumption by individuals, or use by individuals for purposes of personal care or in the performance of services ordinarily rendered in or around the household, and which usually is consumed or expended in the course of such consumption or use;”
Conn. Stat. §21a-74: “(a) Any person who sells or offers or exposes for sale at retail any consumer commodity… shall disclose to the consumer the unit and total price of such commodity as provided in subsection (b) of this section unless exempted pursuant to section 21a-76.(b) Persons subject to the requirements of subsection (a) of this section shall disclose the unit price and total price to consumers by one or more of the following means: (1) By attachment of a stamp, tag or label directly adjacent to the consumer commodity, on the shelf on which the commodity is displayed, or by stamping or affixing the price information on each unit of a consumer commodity; or (2) if the consumer commodity is so located that it is not conspicuously visible to the consumer, or is so located that the price information if displayed in accordance with subdivision (1) would not be conspicuously visible to the consumer, by a sign or list bearing such price information, conspicuously placed near the point of procurement; or (3) by such other means as the commissioner may by regulation provide.”
Conn. Stat. §21a-76: “The provisions of sections 21a-73 to 21a-77, inclusive, shall not apply to any owner-operated single retail store or to any store occupying a total retail sales area of not more than three thousand five hundred square feet.”
- District of Columbia
D.C. Code §28-507: “(a) In any retail establishment in which the unit price information is provided in accordance with the provisions of this chapter, that information may be displayed by means of a sign that offers the unit price for one or more brands or sizes of a given commodity by means of a sticker, stamp, sign, label, or tag affixed to the shelf upon which the commodity is displayed, or by means of a sticker, stamp, sign, label, or tag affixed to the consumer commodity.
(b) Where a sign providing unit price information for one or more sizes or brands of a given commodity is used, that sign shall be displayed clearly and in a non-deceptive manner in a central location as close as practical to all items to which the sign refers.”¹
- Maine
10 MRSA §2622: “No person shall misrepresent the price of any commodity or service sold, offered, exposed or advertised for sale by weight, measure or count, nor represent the price in any manner calculated or tending to mislead or in any way deceive a person.”
10 MRSA §2627: “Whenever a package commodity or consumer commodity,… is advertised for retail sale, there must be a declaration of the price of the item either on each individual item, on the shelf where the item is located or on a placard or sign immediately adjacent to the item.”
- Minnesota
Minn. Stat. §325F.69, Sub. 1: “The act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby, is enjoinable as provided in section 325F.70.”
- New York
N.Y. AGM 197-B: “A retail store shall:
a. Display the retail price of each stock-keeping unit offered for sale, either on each unit or on easy to read shelf tags, or signs, located directly above or below or immediately adjacent to every stock-keeping unit or group of stock-keeping units of the same brand, size and price.
b. Assure that the price charged after the final total has been determined is equivalent to the retail price.
- Oregon
ORS §618: “Whenever any commodity or service is sold, offered or exposed for sale, by weight, measure or count, the price shall not be misrepresented, nor shall the price be represented in any manner calculated or tending to mislead or deceive an actual or prospective purchaser.”
- Rhode Island
R.I. Gen. Laws §6-31-1(1): “(1) “Consumer commodity” means any food, drug, device, or cosmetic and other article, product, or commodity of any other kind or class, except for drugs sold only by prescription, that:
(i) Are customarily produced for sale to retail sales agencies or instrumentalities for consumption by individuals; for use by individuals for purposes of personal care; or in the performance of services ordinarily rendered in or around the household; and
(ii) Usually are consumed or expended in the course of the consumption or use.”230-30-25 R.I. Code R. § 1.3(A): “Consumer commodity” means any food, drug, device, or cosmetic and other article, product, or commodity of any other kind or class, except for drugs sold only by prescription, which:
1. Are customarily produced for sale to retail agencies or instrumentalities for consumption by individuals, for use by individuals for purposes of personal care or in the performance of services ordinarily rendered in or around the household, and
2. Usually are consumed or expended in the course of such consumption or use.230-30-25 R.I. Code R. § 1.4:
A. Retail sellers need not comply with the provisions of this Part as to the following packaged consumer commodities:
1. Medicine sold by prescription only;
2. Beverages subject to or complying with packaging or labeling requirements imposed under the Federal Alcohol Administration Act;
3. Those consumer commodities sold in units of whole pounds, pints, quarts, or gallons, and not a fraction thereof which have a retail price plainly marked thereon; but only the particular consumer commodity sold in such units shall be exempt; and
4. Consumer commodities sold by any retail establishment operated by any person, firm, corporation or other business entity with fewer than eight (8) full-time employees and less than two (2) retail outlets.
R.I. Gen. Laws §6-31-2(b): “(b) Every person who sells, offers for sale, or exposes for sale at retail any consumer commodity shall disclose to the consumer the total price of the consumer commodity as provided in this chapter.”R.I. Gen. Laws §6-31-3: “Persons subject to the requirements of § 6-31-2 shall disclose the unit price and total price to consumers in one or more of the following appropriate ways:
(1) If the consumer commodity is so located that it is not conspicuously visible to the consumer, or if the consumer commodity is so located that the price information, if displayed in accordance with subdivision (2), would not be conspicuously visible to the consumer by a sign or list bearing the price information conspicuously placed near the point of procurement; or
(2) By attachment of a stamp, tag, or label directly adjacent to the consumer commodity, on the shelf on which the commodity is displayed, or by stamping or affixing the price information on the commodity itself; provided, however, that upon each commodity shall be stamped or affixed the total price of the commodity in arabic numerals if and when a computerized system is used;”R.I. Gen. Laws §6-13-13: “It shall be unlawful to intentionally obstruct the view of any price being registered by a cash register or similar device, or the total cost of purchases, during a sale at retail of any goods or merchandise if the price is not visible to the consumer in another display on the same register or device.
- Vermont
9 V.S.A §2677: “Whenever any commodity or service is sold, or is offered, exposed, or advertised for sale…, the price shall not be misrepresented, nor shall the price be represented in any manner calculated or tending to mislead or deceive an actual or prospective purchaser.”
6 V.S.A. §681(2): “(2) “Consumer commodity” means any food, drug, device, or cosmetic and other article, product, or commodity of any other kind or class, except for drugs sold only by prescription:(A) which are customarily produced for sale to retail sales agencies or instrumentalities for consumption by individuals, for use by individuals for purposes of personal care, or in the performance of services ordinarily rendered in or around the household; and(B) which usually are consumed or expended in the course of such consumption or use.”
6 V.S.A. §682(b): “(b) Every person who sells, offers for sale, or exposes for sale at retail any consumer commodity shall disclose to the consumer the total price of the consumer commodity as provided in this chapter.”
VT Code of Rule 20 031 018 §2: “PERSONS TO WHOM REGULATIONS APPLY
If required by law, any person who sells, offers or exposes for sale at retail any of the consumer commodities or products designated in Section 6 of these regulations shall disclose to the consumer the price per unit of weight, measure or count and the total price thereof, as required by Section 4 of these regulations [sic].”6 V.S.A. §683: “Persons subject to the requirements of section 682 of this title shall disclose the unit price and total price to consumers in one or more of the following appropriate ways:
(1) If the consumer commodity is so located that it is not conspicuously visible to the consumer, or if the consumer commodity is so located that the price information if displayed in accordance with subdivision (2) of this section would not be conspicuously visible to the consumer, by a sign or list bearing the price information, conspicuously placed near the point of procurement; or(2) by attachment of a stamp, tag, or label directly adjacent to the consumer commodity, on the shelf on which the commodity is displayed, or by stamping or affixing the price information on the commodity itself; or…”
- Washington
RCW §19.94.390: “Whenever any commodity or service is sold, or is offered, exposed, or advertised for sale,… the price shall not be misrepresented, nor shall the price be represented in any manner calculated or tending to mislead or deceive an actual or prospective purchaser.“
A. During the preceding calendar year, sold a gross volume of consumer commodities of less than $750,000;
B. Is not part of a company which consists of 10 or more sales agencies in or out of the District of Columbia;
C. Derives less than 15% of its total revenues from consumer commodities subject to this chapter; or
D. Is owned and operated by not more than one individual and the members of the person’s immediate family.
D.C. Stat. §28-5205(10).