A5738

An Act concerning price setting and amending P.L.2026, c.55.

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

1. Section 3 of P.L.2026, c.55 (C.56:8-23.3) is amended to read as follows:

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 surveillance pricing or any other 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 consumers, provided that a price shall not be changed more than once in a 24-hour period except to correct a pricing error, avoid waste, or manage inventory;

(2) a bona fide discount for which eligibility conditions or criteria are publicly and 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, membership, or rewards 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] that is voluntarily available to individual consumers. A different price may be, but is not limited to being, offered based upon the following:

(a) the consumer’s purchase history or other information provided or collected in connection with the program to determine, personalize, or offer discounts, rewards, rebates, [or] coupons, or other savings opportunities; and [to individual consumers based on their purchases and loyalty programs that include]

(b) pricing benefits offered by another person[, provided that:

(a) consumers opt-in to the loyalty program on a voluntary basis;

(b) all members of the loyalty program receive pricing benefits pursuant to uniform terms and conditions;

(c) the loyalty program provides clear and conspicuous disclosures of all pricing benefits, available discounts, and data practices to participants, and shall, upon request, make the disclosures available to the Division of Consumer Affairs in the Department of Law and Public Safety no later than 14 days from the date the request was made; and

(d) the loyalty program discloses all terms and conditions and data practices to the public].

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 without the consumer’s consent unless the data is used to communicate food safety information, provide a recall notice, or conduct inventory forecasting.

(cf: P.L.2026, c.55, s.3)

2. Section 7 of P.L.2026, c.55 (C.56:8-23.7) is amended to read as follows:

7. [In addition to any other authority provided by law or regulation, the] a. A violation of the “Fair Price Protection Act” (C.56:8-23.1 et seq.), or any regulations adopted pursuant thereto, shall be enforced solely by the Attorney General. Nothing in this act shall be construed to:

(1) limit the Attorney General’s authority pursuant to any other law or create, authorize; or

(2) provide a basis for a private right of action pursuant to the “Fair Price Protection Act” (C.56:8-23.1 et seq.), P.L.1960, c.39 (C.56:8-1 et seq.), or any other law.

b. The Attorney General may, for any violation of this act[,] or any regulations adopted pursuant thereto, or when the Attorney General deems it to be in the public interest, bring a civil action on behalf of the residents of this State in any court of competent jurisdiction to:

[a.](1) enjoin the act or practice;

[b.](2) enforce compliance with the provisions of this act;

[c.] (3) obtain for each negligent or greater violation, in addition to any other penalty provided by law, actual monetary damages incurred from the violation; or

[d.](4) obtain, for each violation, any other restitution, penalty, or relief the court may deem appropriate.

c. The Attorney General shall issue a written notice to a person who violates the “Fair Price Protection Act” (C.56:8-23.1 et seq.), or any regulation adopted pursuant to the “Fair Price Protection Act” (C.56:8-23.1 et seq.), before initiating an enforcement action pursuant to subsection a. of this section. The person shall have 45 days after receipt of the notice to cure the violation. The Attorney General shall only initiate an enforcement action if the person fails to cure the violation within 45 days.

d. A violation of the act shall not be considered an unlawful practice in violation of P.L.1960, c.39 (C.56:8-1 et seq.).

(cf: P.L.2026, c.55, s.7)

3. This act shall take effect immediately.

STATEMENT

This bill concerns the assessment of penalties for a violation of the “Fair Price Protection Act,” which concerns consumer price setting.

Under the bill, a person may use personal data employed to offer consumers different prices on groceries and foodstuffs to communicate about food safety, provide recall notices, or conduct inventory forecasting. Additionally, the bill:

1) provides an exception that permits groceries and foodstuffs to be priced differently even if the price is changed more than once in 24 hours provided that the change is to correct a pricing error, avoid waste, or manage inventory; and

2) simplifies the provisions of the act that permit different pricing based upon certain bona fide discount programs.

Under this bill, a violation of the act would not be a violation of the consumer fraud act. The bill provides that the Attorney General is the only person who may bring a civil suit for a violation of the act. The bill specifies that the act does not create a private right of action for a violation of the act or limit the Attorney General’s authority pursuant to any other law. The bill also provides that the Attorney General is required to issue a written notice to a person who violates the act before bringing a suit to enforce the act. The Attorney General may only initiate an enforcement action if the person fails to cure the violation within 45 days.