
    Retail Sales by Weight
    June 11, 1946.
   Miller, Deputy Attorney General,

This department is in receipt of your request for advice, in which you ask if commodities, such as groceries, meats and vegetables, ordered by telephone or personal contact from merchants or their representatives, and not weighed, measured or counted in the presence of the purchaser, when wrapped in paper, placed in bags or put in some other kind of a container for delivery at a later time, should be marked to show their net content in either weight, measure or numerical count and considered as packages, under the provisions of the Act of July 24, 1913, P. L. 965, as amended by the Act of May 18, 1945, P. L. 788, sometimes referred to as the Commodities Act, 76 PS §§241-249, inclusive.

The Commodities Act of 1913, as amended, 76 PS §241, contains, among others, the following definitions:

“The word ‘commodity,’ as used in this act, shall mean any thing, goods, wares, merchandise, compound, mixture or preparation, products of manufacture of any tangible personal property, which may be lawfully kept, sold, or offered for sale. . . .

“The word ‘package,’ as used in this act, shall mean everything'containing one or more than one unit of any commodity, tied or bound together, or put up in box, bag, pack, bundle, container, bottle, jar, can or any other form of receptacle or vessel, not considered as an approved measure, except cases, cartons, crates, bundles or bales used for bulk shipping or storage: Provided, That enclosed packages are marked as to weight, measure or numerical count.

“The word ‘department,’ as used in this act, shall mean the Department of Internal Affairs.

“The word ‘person,’ as used in this act, shall be construed to include any individual, firm, partnership, unincorporated association, corporation, association, agent, representative or employe thereof.”

The act, as amended, defines “package” as meaning everything containing one or more units of any commodity, except cases, cartons, crates, and bundles or bales used for bulk shipping.

Section 7, as amended, exempts packages selling for five cents or less, or containing liquid commodities of less than one ounce liquid measure, or containing dry commodities of less than one ounce avoirdupois, from the provisions of the act.

Section 10 expressly provides that the act does not apply to wholesalers, jobbers or commission merchants. They are not required to mark the net quantity of the contents on containers, or packages handled, sold or offered for sale by them.

The original Act of 1913 did not contain an express definition of the word “package”, nor provide for a manner of sale of commodities, nor contain a provision requiring a statement of the counting, measuring or weighing of commodities not considered as packages in full view of the purchaser at the time of sale, as now required by the amending Act of May 18, 1945, P. L. 788, sec. 2, 76 PS §242, which provides as follows:

“(1) All liquid commodities, when sold in bulk or from bulk, shall be sold by weight or liquid measure. All dry commodities, when sold in bulk or from bulk, shall be sold by weight, dry measure or numerical count, unless otherwise designated to be sold in a special manner. No dry commodities shall be sold by liquid measure.

“ (2) All meat and meat products, poultry and poultry products, except eggs, shall be sold by weight; only eggs may be sold by numerical count.

“(3) Wood used for fuel shall be sold by weight or by the cord of 128 cubic feet, or fraction thereof, and accompanied by a statement or invoice certifying the amount sold.

“All commodities not considered as packages within the meaning of the act or labeled as to net contents at the time of sale, shall be counted, measured or weighed in full view of the purchaser a't the time of sale, and on weighing or measuring devices as approved by the department and inspected as to accuracy by the several State, county and city inspectors of weights and measures ; and statement of result of such count, measure or weight to be made to the purchaser by the person making the sale.

“Any dry commodity sold in bulk must be accompanied by a statement of weight.”

Section 7 of the act, as amended, 76 PS §247, prohibits any person from distributing, selling or having in his possession with intent to sell any commodity in package form, unless the net quantity of the contents shall be plainly and conspicuously marked on the outside of the package in terms of weight, measure or numerical count, provided, however, that reasonable variations shall be permitted, and tolerances may be established by rules and regulations of the Department of Internal Affairs. Producers and manufacturers of commodities are required to secure permission for any tolerances desired from the Department of Internal Affairs.

Section 7, as supplemented, 76 PS §247.1 authorizes the Secretary of Internal Affairs to adopt and promulgate rules and regulations, not inconsistent with the provisions of the act, to carry into effect the intent and purpose of the act.

The purposes of the act are clearly to improve mercantile relationships and practices in the commercial transactions affected by the establishment of the required uniform methods. The legislature has provided a means of lessening the possibilities of frauds and errors in transactions involving sales or distributions of the commodities covered, by requiring the sellers and distributors, to whom the act is applicable, to communicate the net weights, measures or numerical counts of the commodities to the buyer in the manner directed by the act.

Commodities, such as groceries, meats and vegetables, when ordered by telephone or personal contact from merchants or their representatives and not weighed, measured or counted in the presence of the purchaser, are within the purview of the act.

In circumstances where the buyer is not physically present at the time the commodities are weighed, counted or measured, the seller is still required to communicate to him the weights, measures or numerical counts of the commodities sold to the buyer. This may be done in compliance with section 2 of the act, as amended, 76 PS §242.2 in the case of dry commodities sold in bulk, by a statement of weight accompanying the commodities. If the statement of weight, measure or count is marked on each package containing a commodity or clearly expressed in the account accompanying the order, the purposes and express provisions of the act are met.

. We are, therefore, of the opinion and you are accordingly advised that commodities, such as groceries, meats and vegetables, ordered by telephone or personal contact from merchants or their representatives, and not weighed, measured or counted in the presence of the purchaser, when wrapped in paper, placed in bags or put in some other kind of a container for delivery at a later time, either must be marked to show their net content in weight, measure or numerical count, or must he accompanied by a statement clearly indicating such weight, measure or numerical count.  