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NEW JERSEY REGISTER
VOLUME 39, ISSUE 14
ISSUE DATE: JULY 16, 2007
RULE PROPOSALS
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS

Proposed Amendment: N.J.A.C. 13:45A-9.2

Click here to view Interested Persons Statement

General Advertising Practices

Rainchecks

Authorized By: Stephen B. Nolan, Acting Director, New Jersey Division of Consumer Affairs.

Authority: N.J.S.A. 56:8-2.32.

Calendar Reference: See Summary below for explanation of exemption to calendar requirement.

Proposal Number: PRN 2007-232.

Submit written comments by September 14, 2007 to:

Stephen B. Nolan, Acting Director
Office of the Director
New Jersey Division of Consumer Affairs
124 Halsey Street
P.O. Box 45027
Newark, NJ 07101

The agency proposal follows:

Summary

The Raincheck Policy Disclosure Act (Act), P.L. 2006, c. 59 ( N.J.S.A. 56:8-2.28 et seq.), was enacted on August 2, 2006. It codifies much of N.J.A.C. 13:45A-9.2(a)8 and adds additional disclosure requirements for retail mercantile establishments that issue rainchecks. N.J.A.C 13:45A-9.2(a)8i requires an advertiser who issues rainchecks to satisfy the raincheck within 60 days of issuance. The Division proposes to amend subparagraph (a)8i to conform to the Act, which requires the advertiser to offer a raincheck holder a different item of merchandise of the same kind, quality and price as the merchandise for which the raincheck was originally issued, if the advertiser, after a good faith effort, cannot obtain the advertised merchandise within the 60-day period. In the case of merchandise with an advertised price greater than $ 15.00 per unit, N.J.A.C. l3:45A-9.2(a)8ii now requires an advertiser who issues rain checks to notify the holder of a raincheck when the merchandise is available and hold it for a reasonable time. The Division proposes to amend subparagraph (a)8ii to conform to the Act to require the advertiser to hold merchandise for at least 10 days after giving notice or until the end of the 60-day period for which the raincheck is valid, whichever is longer. The proposed amendment to subparagraph (a)8ii also clarifies that for merchandise sold by weight or other standard of measure under N.J.A.C. 13:45A-l4, the $ 15.00 threshold applies to the unit price of the merchandise. The Division proposes to add a subparagraph (a)8iv to N.J.A.C. l3:45A-9.2 to require an advertiser who offers rainchecks to post its raincheck policy in certain conspicuous places in a retail mercantile establishment, consistent with the Act. The statute and the rule, as it is proposed to be amended, apply to advertisers who offer rainchecks. They do not require an advertiser to do so. The Division has determined that the comment period for this proposal shall be 60 days. Therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirement.

Social Impact

Both consumers who are issued rainchecks and advertisers who issue them will benefit from the proposed amendments because the proposed amendments will conform the regulations to the Act, avoiding confusion that would result from having differing requirements in the Act and the regulations. Raincheck holders will be entitled to be offered merchandise of substantially the same kind, quality and price if the advertiser, after a good faith effort, is unable to obtain the advertised merchandise for which the raincheck was issued. Advertisers will benefit from the proposed amendments that clarify what happens if the advertiser is unable to obtain the originally advertised merchandise, what $ 15.00 per unit means, and what is a reasonable time to hold the merchandise.

Economic Impact

The Division does not anticipate that the proposed amendments will have a significant economic impact since they do not require advertisers to issue rainchecks. However, there may be some administrative costs associated with compliance, particularly the requirements for posting a sign stating the raincheck policy.

Federal Standards Statement

A Federal standards analysis is not required because the rule and the proposed amendments are not subject to any Federal standards or requirements.

Jobs Impact

The Division does not anticipate that the proposed amendments will increase or decrease jobs in the State.

Agriculture Industry Impact

The proposed amendments will have no impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

The proposed amendments do not require that an advertiser issue rainchecks. They apply only to advertisers who choose to do so. The proposed amendments impose no reporting or recordkeeping requirements, but do contain compliance requirements, which are discussed in the Summary above. The interests of consumers sought to be protected by the proposed amendments are the same regardless of the size of the business and, therefore, affected businesses of all sizes are subject to the same requirements. The economic impact of the compliance requirements are discussed in the Economic Impact above. The proposed amendments apply to small businesses, as defined in the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., as well as large businesses. Professional services are not required for compliance.

Smart Growth Impact

The Division does not believe that the proposed amendments will have any impact upon the achievement of smart growth or upon the implementation of the State Development and Redevelopment Plan.

Full text of the proposal follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

13:45A-9.2 General advertising practices

(a) Without limiting the application of N.J.S.A. 56:8-1 et seq., the following practices shall be unlawful with respect to all advertisements:

1.-7. (No change.)

8. Whenever an advertiser provides a raincheck for an advertised item which is not available for immediate purchase, the failure to:

i. Honor or satisfy such raincheck within 60 days of issuance unless an extension of such time period is agreed to by the holder thereof or, if after a good faith effort an advertiser cannot procure for the holder of the raincheck the advertised merchandise within the 60-day period, failure to offer the holder of the raincheck a different item of merchandise of substantially the same kind, quality and price as the original advertised merchandise; and

ii. Give written or telephonic notice to the holder thereof when the merchandise is available and hold such merchandise for [a reasonable time] not less than 10 days after giving such notice or to the end of the 60-day period for which the raincheck is valid, whichever is longer, for all merchandise with an advertised unit price greater than $ 15.00 [per unit]; [and]

iii. Offer a raincheck to all customers who are unable, due to the unavailability thereof, to purchase the advertised merchandise during the period of time during which the merchandise has been advertised as available for sale[.]; and

iv. Conspicuously post its raincheck policy on a sign in at least one of the following locations:

(1) Affixed to a cash register or location of the point of sale;

(2) So situated as to be clearly visible to the buyer;

(3) Posted at each store entrance used by the public;

(4) At the location where the merchandise was offered for sale;

(5) In an advertisement for merchandise; or

(6) Printed on the receipt of sale.

9.-13. (No change.)



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