ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 360
(Senators Manchin, Wiedebusch, Wooton,
Holliday, Macnaughtan, Schoonover and Chernenko,
original sponsors)
____________
[Passed March 9, 1994; in effect from passage.]
____________
AN ACT to amend and reenact article one, chapter forty-seven of
the code of West Virginia, one thousand nine hundred thirty-
one, as amended, relating to regulation of trade; and
weights and measures.
Be it enacted by the Legislature of West Virginia:
That article one, chapter forty-seven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 1. WEIGHTS AND MEASURES.
§47-1-1. Definitions.
(a) "Commercial business" means any business, which in the
course of normal operation, offers or exposes goods or services
for sale, for the purpose of financial or monetary gain.
(b) "Commercial location" means a physical location or
address where businesses conduct commercial transactions. Eachphysical address or location constitutes a separate "commercial
location".
(c) "Commercial transaction" means the buying or selling of
goods or services.
(d) "Weight(s)" and/or "measure(s)" means all weights and
measures of every kind, instruments and devices for weighing and
measuring and any appliance and accessories associated with any
or all such instruments and devices.
(e) "Weight" as used in connection with any commodity or
service means net weight. When a commodity is sold by drained
weight, the term means net drained weight.
(f) "Correct" as used in connection with weights and
measures means conformance to all applicable requirements of this
article.
(g) "Primary standards" means the physical standards of the
state that serve as the legal reference from which all other
standards and weights and measures are derived.
(h) "Secondary standards" means the physical standards that
are traceable to the primary standards through comparisons, using
acceptable laboratory procedures, and used in the enforcement of
weights and measures laws and regulations.
(i) "Commissioner" means the commissioner of the West
Virginia division of labor.
(j) "Person" means both plural and the singular, as the case
demands, and includes individuals, partnerships, corporations,
companies, societies, associations and government entities.
(k) "Sale from bulk" means the sale of commodities when the
quantity is determined at the time of sale.
(l) "Package", whether standard package or random package,
means any commodity:
(1) Enclosed in a container or wrapped in any manner in
advance of wholesale or retail sale; or
(2) Whose weight or measure has been determined in advance
of wholesale or retail sale.
An individual item or lot of any commodity on which there is
marked a selling price based on an established price per unit of
weight or measure shall be considered a package (or packages).
(m) "Net weight" means the weight of a commodity excluding
any materials, substances or items not considered to be part of
the commodity. Materials, substances or items not considered to
be part of the commodity include, but are not limited to,
containers, conveyances, bags, wrappers, packaging materials,
labels, individual piece coverings, decorative accompaniments and
coupons, except that, depending on the type of service rendered,
packaging materials may be considered to be part of the service.
For example, the service of shipping includes the weight of
packing materials.
(n) "Random weight package" means a package that is one of
a lot, shipment or delivery of packages of the same commodity
with no fixed pattern of weights.
(o) "Standard package" means a package that is one of a lot,
shipment or delivery of packages of the same commodity with
identical net contents declarations. For example, one liter
bottles of carbonated soda, five pound bags of sugar or 9.4 ounce
packages of luncheon meat.
§47-1-2. State standards.
Weights and measures that are traceable to the United States
prototype standards supplied by the federal government, or
approved as being satisfactory by the national institute of
standards and technology, shall be the state primary standards of
weights and measures, and shall be maintained in such calibration
as prescribed by the national institute of standards and
technology. All secondary standards may be prescribed by the
commissioner and shall be verified upon their initial receipt,
and as often thereafter as deemed necessary by the commissioner.
In addition to the state primary standards of weights and
measures provided in this article, there shall be supplied by the
state at least one complete set of copies of these standards, to
be known as secondary standards; and such other weights, measures
and apparatus as may be found necessary to carry out the
provisions of this article, to be known as working standards.
Such weights, measures and apparatus shall be verified by the
commissioner, or at his discretion by his deputy or inspectors,
upon the initial receipt of such weights, measures and apparatus
and at least once in each year thereafter, the secondary
standards by direct comparison with the primary standards, the
working standards by comparison with the secondary standards.
When found accurate upon these tests of secondary and working
standards, the standards shall be marked as correct. The
secondary standards shall be used in making all comparisons of
weights, measures and weighing and measuring devices submitted
for test in the office of the commissioner, and the primary
standards shall be used only in verifying the primary standards
and for scientific purposes.
§47-1-3. Commissioner of labor to be commissioner of weights and
measures; powers and duties; appointment of deputies and
inspectors.
The state commissioner of labor is the commissioner of
weights and measures. He may appoint such deputies and
inspectors as may be required to carry out the provisions and
purposes of this article within the limits of such appropriation
as may be made by the Legislature for the maintenance of the work
of the division of labor.
The commissioner shall:
(a) Maintain traceability of the primary standards to the
national standards in the possession of the national institute of
standards and technology;
(b) Enforce the provisions of this article;
(c) Promulgate rules for the enforcement of this article,
which rules shall have the force and effect of law;
(d) Establish labeling requirements, establish requirements
for the presentation of cost-per-unit information, establish
standards of weight, measure or count and reasonable standards of
fill for any packaged commodity, and may establish requirements
for open dating information;
(e) Grant any exemptions from the provisions of this article
or any rule promulgated pursuant thereto when appropriate to the
maintenance of good consumer practices within the state;
(f) Conduct investigations to ensure compliance with this
article;
(g) Delegate to appropriate personnel any of these
responsibilities for the proper administration of this office;
(h) Test annually the standards of weights and measures used
within the state, and approve the same when found to be correct;
(i) Inspect and test weights and measures kept, offered or
exposed for sale;
(j) Inspect and test, to ascertain if they are correct,
weights and measures commercially used:
(1) In determining the weight, measure or count of
commodities or things sold, or offered or exposed for sale, on
the basis of weight, measure or count; or
(2) In computing the basic charge or payment for services
rendered on the basis of weight, measure or count;
(k) Test all weights and measures used in checking the
receipt or disbursement of supplies in every institution, for the
maintenance of which funds are appropriated by the Legislature;
(l) Approve for use, and shall mark, such weights and
measures as are found to be correct, and shall reject and mark as
rejected such weights and measures as are found to be incorrect.
Weights and measures that have been rejected may be seized if not
corrected within the time specified or if used or disposed of in
a manner not specifically authorized. The commissioner shall
condemn and may seize and destroy the weights and measures found
to be incorrect that are not capable of being made correct;
(m) Weigh, measure or inspect packaged commodities kept,
offered or exposed for sale, sold or in the process of delivery,
to determine whether they contain the amounts represented and
whether they are kept, offered or exposed for sale in accordance
with this article or rules promulgated pursuant thereto. In
carrying out the provisions of this article, the commissionershall employ recognized sampling procedures, such as are
designated in national institute of standards and technology
handbook 133, "Checking the Net Contents of Packaged Goods";
(n) Prescribe, by rule, the appropriate term or unit of
weight or measure to be used, whenever the commissioner
determines that an existing practice of declaring the quantity of
a commodity or setting charges for a service by weight, measure,
numeric count, time or combination thereof, does not facilitate
value comparisons by consumers, or offers an opportunity for
consumer confusion;
(o) Allow reasonable variations from the stated quantity of
contents, which shall include those caused by loss or gain of
moisture during the course of good distribution practice or by
unavoidable deviations in good manufacturing practice only after
the commodity has entered intrastate commerce;
(p) Provide for the training of weights and measures
personnel, and may also establish minimum training and
performance requirements which shall then be met by all weights
and measures personnel, whether county, municipal or state. The
commissioner may adopt the training standards of the national
conference on weights and measures national training program; and
(q) From time to time, randomly inspect and test the quality
of motor fuels offered or exposed for sale in the state, to
determine compliance with the provisions of this article. He
shall also, as budget levels provide, act on complaints from
consumers in this state where fuel quality is in question.
When necessary for the enforcement of this article or rules
promulgated pursuant thereto, the commissioner is:
(1) Authorized to enter any commercial premises during
normal business hours, without formal warrant, for the purpose of
enforcement of this article;
(2) Empowered to issue stop-use, hold and removal orders
with respect to any weights and measures commercially used, and
stop-sale, hold and removal orders with respect to any packaged
commodities or bulk commodities kept, offered or exposed for
sale;
(3) Empowered to seize, for use as evidence, without formal
warrant, any incorrect or unapproved weight, measure, package or
commodity found to be used, retained, offered or exposed for sale
or sold in violation of the provisions of this article or rules
promulgated pursuant thereto;
(4) Empowered to stop any commercial vehicle and, after
presentation of his credentials, inspect the contents, require
that the person in charge of that vehicle produce any documents
in his possession concerning the contents, and require him or her
to proceed with the vehicle to some specified place for
inspection; and
(5) With respect to the enforcement of this article, the
commissioner is hereby vested with special police powers, and is
authorized to arrest, without formal warrant, any violator of
this article.
§47-1-4. Systems of weights and measures; technical requirements
for weighing and measuring devices.
The system of weights and measures in customary use in the
United States and the metric system of weights and measures are
jointly recognized, and either one or both of these systems shallbe used for all commercial purposes in the state. The
definitions of basic units of weight and measure, the tables and
measure, and weights and measures equivalents as published by the
national institute of standards and technology are recognized and
shall govern weighing and measuring equipment and transactions in
the state.
The specifications, tolerances and other technical
requirements for commercial, law enforcement, data gathering and
other weighing and measuring devices as adopted by the national
conference on weights and measures and published in national
institute of standards and technology handbook 44,
"Specifications, Tolerances, and Other Technical Requirements for
Weighing and Measuring Devices" and supplements thereto or
revisions thereof, shall apply to weighing and measuring devices
in the state, except insofar as modified or rejected by
legislative rule.
§47-1-5. Requirements for packaging and labeling.
The uniform packaging and labeling regulation as adopted by
the national conference on weights and measures and published in
the national institute of standards and technology handbook 130,
"Uniform Laws and Regulations" and supplements thereto or
revisions thereof, shall apply to packaging and labeling in the
state, except insofar as modified or rejected by legislative
rule.
§47-1-6. Requirements for the method of sale of commodities.
The uniform regulation for the method of sale of commodities
as adopted by the national conference on weights and measures and
published in the national institute of standards and technologyhandbook 130, "Uniform Laws and Regulations" and supplements
thereto and revisions thereof, shall apply to the method of sale
of commodities in the state, except insofar as modified or
rejected by legislative rule.
§47-1-7. Requirements for unit pricing.
The uniform unit pricing regulation as adopted by the
national conference on weights and measures and published in
national institute of standards and technology handbook 130,
"Uniform Laws and Regulations" and supplements thereto and
revisions thereof, shall apply to unit pricing in the state,
except insofar as modified or rejected by legislative rule.
§47-1-8. Requirements for the registration of service persons
and service agencies for commercial weighing and measuring
devices.
The uniform regulation for the voluntary registration of
service persons and service agencies for commercial weighing and
measuring devices as adopted by the national conference of
weights and measures and published in national institute of
standards and technology handbook 130, "Uniform Laws and
Regulations" and supplements thereto or revisions thereof, shall
apply to the registration of service persons and service agencies
in the state, except insofar as modified or rejected by
legislative rule.
§47-1-9. Requirements for open dating.
The uniform open dating regulation as adopted by the
national conference on weights and measures and published in
national institute of standards and technology handbook 130,
"Uniform Laws and Regulations" and supplements thereto andrevisions thereof, shall apply to open dating in the state,
except insofar as modified or rejected by legislative rule.
§47-1-10. Requirements for type evaluation.
The uniform regulation for national type evaluation as
adopted by the national conference on weights and measures and
published in national institute of standards and technology
handbook 130, "Uniform Laws and Regulations" and supplements
thereto and revisions thereof, shall apply to type evaluation in
the state, except insofar as modified or rejected by legislative
rule.
§47-1-11. Requirements for motor fuel.
The uniform regulation for motor fuel as adopted by the
national conference on weights and measures and published in
national institute of standards and technology handbook 130,
"Uniform Laws and Regulations" and supplements thereto and
revisions thereof, shall apply to motor fuel quality in the
state, except insofar as modified or rejected by legislative
rule.
§47-1-12. Misrepresentation of quantity.
No person may:
(a) Sell, offer or expose for sale less than the quantity
represented; nor
(b) Take more than the represented quantity when, as buyer,
he furnishes the weight or measure by means of which the quantity
is determined; nor
(c) Represent the quantity in any manner calculated or
tending to mislead or in any way deceive another person.
§47-1-13. Misrepresentation of pricing.
No person may 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.
§47-1-14. Method of sale.
Except as otherwise provided by the commissioner or by
firmly established trade custom and practice:
(a) Commodities in liquid form shall be sold by liquid
measure or by weight; and
(b) Commodities not in liquid form shall be sold by weight,
by measure or by count.
The method of sale shall provide accurate and adequate
quantity information that permits the buyer to make price and
quantity comparisons.
§47-1-15. Sale from bulk.
All bulk sales in which the buyer and seller are not both
present to witness the measurement, all bulk deliveries of
heating fuel and all other bulk sales specified by rule of the
commissioner, shall be accompanied by a delivery ticket
containing the following information:
(a) The name and address of the buyer and seller;
(b) The date delivered;
(c) The quantity delivered and the quantity upon which the
price is based, if this differs from the delivered quantity, for
example, when temperature compensated sales are made;
(d) The unit price, unless otherwise agreed upon by both
buyer and seller;
(e) The identity in the most descriptive terms commerciallypracticable, including any quality representation made in
connection with the sale; and
(f) The count of individually wrapped packages, if more than
one, in the instance of commodities bought from bulk but
delivered in packages.
§47-1-16. Information required on packages.
Except as otherwise provided in this article or by rule
promulgated pursuant thereto, any package whether a random
package or a standard package, kept for the purpose of sale or
offered or exposed for sale shall bear on the outside of the
package a definite, plain and conspicuous declaration of:
(a) The identity of the commodity in the package, unless the
same can easily be identified through the wrapper or container;
(b) The quantity of contents in terms of weight, measure or
count; and
(c) The name and place of business of the manufacturer,
packer or distributor, in the case of any package kept, offered,
or exposed for sale or sold in any place other than on the
premises where packed.
§47-1-17. Declarations of unit price on random weight packages.
In addition to the declarations required by section fifteen
of this article, any package being one of a lot containing random
weights of the same commodity, at the time it is offered or
exposed for sale at retail, shall bear on the outside of the
package a plain and conspicuous declaration of the price per
kilogram or pound and the total selling price of the package.
§47-1-18. Advertising packages for sale.
Whenever a packaged commodity is advertised in any mannerwith the retail price stated, there shall be closely and
conspicuously associated with the retail price a declaration of
quantity as is required by law or rule to appear on the package.
Where a dual declaration is required, only the declaration that
sets forth the quantity in terms of the smaller unit of weight or
measure need appear in the advertisement.
§47-1-19. State weights and measures division.
There shall be a state division of weights and measures
located for administrative purposes within the division of labor.
The division is charged with, but not limited to, performing the
following functions on behalf of the citizens of the state:
(a) Assuring that weights and measures in commercial service
with the state are suitable for their intended use, properly
installed and accurate and are so maintained by their owner or
user;
(b) Preventing unfair or deceptive dealing by weight or
measure in any commodity or service advertised, packaged, sold or
purchased within the state;
(c) Making available to all users of physical standards or
weighing and measuring equipment who are registered under the
provisions of section twenty-one of this article, the precision
calibration and related metrological certification capabilities
of the weights and measures facilities of the division;
(d) Promoting uniformity, to the extent practicable and
desirable, between weights and measures requirements of the state
and those of other states and federal agencies;
(e) Encouraging desirable economic growth while protecting
the consumer through the adoption by rule of weights and measuresrequirements as necessary to assure equity among buyers and
sellers.
§47-1-20. State measurement laboratory.
The commissioner shall operate and maintain a state
measurement laboratory certified and approved by the national
institute of standards and technology. The laboratory shall be
used to both house and maintain the state primary standards and
secondary standards as traceable to the national standards and to
test or calibrate any secondary or working standards which are
submitted for test as required by this article.
The commissioner shall provide such personnel as required to
operate the laboratory in a manner which is consistent with the
needs of this article. Personnel shall be trained and certified
to perform all such calibrations and tests as required by the
national institute of standards and technology to maintain
traceability of the state standards to national standards, and to
properly maintain the laboratory facility as certified and
traceable to the national institute of standards and technology.
§47-1-21. Registration of business.
On or before the first day of October, one thousand nine
hundred ninety-four, every commercial business in the state
which, in the course of conducting business, utilizes weights,
measures and weighing and measuring devices covered by this
article shall obtain a certificate of device registration for the
commercial devices covered by this article, from the division.
After the first day of October, one thousand nine hundred ninety-
four, it shall be unlawful in the state to conduct business
subject to the provisions of this article without having firstobtained a certificate of device registration from the division.
Application for a certificate of device registration shall be
made on a form provided by the division.
A certificate of device registration is valid for twelve
months from the date of issue. The certificate of device
registration shall be posted within the place of business.
Application for the renewal of a certificate of device
registration shall be made on a form provided by the division at
least thirty days prior to the renewal due date. The
commissioner may deny the renewal of device registration for
cause where the cause is the result of the conviction of the
applicant, in a court of competent jurisdiction, for a violation
of this article.
§47-1-22. Civil penalties.
(a) No person shall:
(1) Use or have in possession for use in commerce any
incorrect weight or measure;
(2) Sell or offer for sale for use in commerce any incorrect
weight or measure;
(3) Remove any tag, seal or mark from any weight or measure,
without specific authorization from the weights and measures
section; or
(4) Violate any provisions of this article or rules
promulgated under it, not defined in subsection (a), section
twenty-three of this article.
(b) Any person who violates subsection (a) of this section
or any rule promulgated by the commissioner may be assessed a
civil penalty by the commissioner, which penalty shall not bemore than one thousand dollars for each violation. Each
violation shall constitute a separate offense. In determining
the amount of the penalty, the commissioner shall consider the
person's history of previous violations, the appropriateness of
such penalty to the size of the business of the person charged,
the gravity of the violation and the demonstrated good faith of
the person charged in attempting to achieve rapid compliance
after notification of a violation.
A civil penalty may be assessed by the commissioner only
after the commissioner shall have given at least ten days notice
to the person. Notice shall be in writing, shall contain a
short, plain statement of the matter asserted, and shall
designate a time and place for a hearing where the person may
show cause why the civil penalty should not be imposed. Notice
of hearing shall be sent by registered mail. The person may, at
the time designated for the hearing, produce evidence on his or
her behalf and be represented by council.
Any person aggrieved by a decision of the commissioner shall
have the right to a contested case hearing under the provisions
of article five, chapter twenty-nine-a of this code, et seq
.
§47-1-23. Criminal penalties.
(a) No person shall:
(1) Hinder or obstruct any weights and measures official in
the performance of his duties;
(2) Impersonate in any way the commissioner, his assistants,
deputies or inspectors;
(3) Use in commerce any weight or measure which has not been
inspected and approved by the commissioner of weights andmeasures of his or her authorized inspectors or deputies; or
(4) Use or have in his or her possession for the purpose of
selling or using any device or instrument to be used to or
calculated to falsify any weight or measure.
(b) Any person who, by himself or herself or by his or her
servant or agent, or as the servant or agent of another person,
knowingly violates subsection (a) of this section, is guilty of
a misdemeanor, and, upon a first conviction, shall be fined not
more than one hundred dollars, or imprisoned for not more than
ninety days, or both fined and imprisoned; and upon a second or
subsequent conviction, he or she shall be fined not less than one
hundred nor more than one thousand dollars, or imprisoned for not
more than six months, or both fined and imprisoned.