Prohibit surveillance-based price setting

A bill for an act

relating to consumer protection; prohibiting surveillance-based price setting;

proposing coding for new law in Minnesota Statutes, chapter 325D.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

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[325D.141] PROHIBITION ON SURVEILLANCE-BASED PRICE

SETTING.

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Subdivision 1.

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Definitions.

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(a) For purposes of this section, the following terms have

the meanings given.

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(b) "Biometric data" means:

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(1) data generated by automatic measurements, including data gathered through the use

of facial recognition technology; or

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(2) other representations of the biological characteristics of a consumer, including:

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(i) fingerprints;

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(ii) voice prints;

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(iii) iris or retina scans;

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(iv) gait; and

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(v) other unique biological patterns.

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(c) "Consumer" means an individual purchasing an item primarily for personal, family,

or household purposes.

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(d) "Electronic shelf label" means an electronic and wireless paper display or digital

price tag that presents item and pricing information.

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(e) "Electronic surveillance technology" means a technological method, system, or other

surveillance tool used to observe, monitor, or collect information related to a consumer.

Electronic surveillance technology includes sensors, cameras, device tracking, biometric

monitoring, facial recognition technology, or other forms of observation or data collection

that are capable of gathering personal information about a consumer.

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(f) "Facial recognition technology" means technology that facilitates or otherwise enables

an automated or semiautomated process that:

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(1) assists in identifying a consumer based on the physical characteristics of a consumer's

face; or

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(2) logs characteristics of a consumer's face, head, or body to infer a consumer's emotion,

associations, activities, or location.

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(g) "Item" means a specific and distinct product, good, or commodity available for sale.

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(h) "Nondigital presentation of price" means:

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(1) a sign that offers the unit price for one or more brands or sizes of a given item;

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(2) a sticker, stamp, sign, label, or tag affixed to the shelf upon which the item is

displayed; or

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(3) a sticker, stamp, sign, label, or tag affixed to the item.

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(i) "Personal information" means a consumer's quality, feature, attribute, or trait that is

reasonably capable of being directly or indirectly associated with, or could be reasonably

linked to, a particular consumer or a particular consumer's household, including:

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(1) an immutable characteristic, including race and eye color;

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(2) a mutable characteristic, including address, weight, citizenship, and family or parental

status;

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(3) identifiers, including a real name, alias, postal address, unique personal identifier,

online identifier, Internet Protocol address, email address, account name, Social Security

number, driver's license number, passport number, or other similar identifier;

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(4) commercial information, including records of personal property, products or services

purchased, obtained, or considered, or other purchasing or consuming histories or tendencies;

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(5) biometric data;

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(6) Internet or other electronic network activity information, including browsing history,

search history, or other information regarding a consumer's interaction with a website,

application, or advertisement;

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(7) geolocation data;

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(8) audio, electronic, visual, thermal, olfactory, and other similar information;

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(9) professional or employment-related information;

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(10) educational information, including educational experience, qualifications, and

affiliations;

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(11) inferences drawn from information described in this paragraph and used to create

a consumer profile that reflects the consumer's preferences, characteristics, psychological

trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes;

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(12) interests, including a consumer's political, personal, and professional affiliations;

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(13) financial circumstances, including personal or household wealth, income, property,

debt, or credit history; or

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(14) a consumer's actions, habits, behaviors, and attributes, whether in a physical or

digital environment.

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(j) "Price" means the amount charged to a consumer in relation to a transaction, including

a related cost, fee, or other material term of the transaction that has a direct bearing on the

amount the consumer pays for the item sold or offered for sale.

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(k) "Retail food store" means a store that offers food for sale to the public, not including

sales completed online.

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(l) "Surveillance-based price setting" means offering, setting, or informing a customized

price for an item for a specific consumer or group of consumers based, in whole or in part,

on personal information collected using electronic surveillance technology, including

information gathered, purchased, or otherwise acquired.

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Subd. 2.

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Prohibition on surveillance-based price setting.

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(a) A retail food store is

prohibited from engaging in surveillance-based price setting, including by:

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(1) directly or indirectly offering or adjusting the price of an item for a consumer for

the same or a substantially similar product or service based on the consumer's personal

information, including personal information collected using facial recognition technology;

or

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(2) using an electronic shelf label to change the price of an item for a consumer based

on the consumer's personal information.

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(b) A retail food store does not engage in surveillance-based price setting in violation

of paragraph (a) if the retail food store demonstrates that:

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(1) a difference in an item's price is based solely on reasonable costs associated with

providing the item to different consumers;

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(2) an item is offered at a discounted price to members of a particular group that relates

to occupation, age, military service, student status, or other group based on publicly disclosed

eligibility criteria;

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(3) a discount or reward with respect to an item is offered uniformly to all consumers

who meet the disclosed eligibility criteria;

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(4) personal information is used solely to offer or administer the discount or reward and

is not used for any other purpose, including targeted advertising and surveillance-based

price setting; and

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(5) a discount is bona fide and offered to each consumer who affirmatively and knowingly

enrolls in a loyalty program.

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(c) Notwithstanding paragraph (a), a retail food store may use a consumer's biometric

data if:

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(1) the consumer voluntarily verifies the consumer's identity by providing biometric

data; and

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(2) the retail food store:

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(i) informs the consumer or the consumer's legally authorized representative in writing

that biometric data is being collected, stored, or used by the retail food store;

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(ii) informs the consumer or the consumer's legally authorized representative in writing

of the specific purpose and length of term for which biometric data is being collected, stored,

and used;

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(iii) informs the consumer or the consumer's legally authorized representative in writing

of the specific circumstances under which biometric data is shared with law enforcement;

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(iv) receives a written release, executed by the consumer or the consumer's legally

authorized representative, authorizing the retail food store to collect, store, or use the

consumer's biometric data; and

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(v) does not sell biometric data to, or share biometric data with, a third party.

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(d) Nothing in this subdivision prohibits a retail food store from providing a consumer,

based on the consumer's purchase history, a discounted or promotional price in accordance

with the conditions in paragraph (b).

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Subd. 3.

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Required disclosure of use of facial recognition technology.

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A retail food

store that uses facial recognition technology must notify consumers, in plain and simple

language, regarding the technology's intended purpose and use through clear and conspicuous

signage placed at the retail food store's main entrance.

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Subd. 4.

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Prohibition on electronic shelf labels.

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A retail food store larger than 10,000

square feet:

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(1) is prohibited from using an electronic shelf label or digital shelf display technology

unless the prices are changed only once per day at a specific time that is disclosed to all

consumers; and

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(2) must use a nondigital presentation for the price of each item.

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