BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 480
Senator Padilla
As Introduced
Hearing Date: May 12, 2009
Business and Professions Code
BCP:jd
SUBJECT
Shopping Carts: Electronic Tags
DESCRIPTION
This bill would establish a rebuttable presumption that a
shopping cart or laundry cart with an electronic tag, contained
below the surface, is the property of the person or business
named in the tag, and not abandoned by that person or business.
BACKGROUND
Shopping carts taken from business establishments and grocery
stores cost California retailers millions of dollars per year.
Those shopping carts can cost those stores several hundreds of
dollars apiece, and the theft of those carts is a misdemeanor.
While carts generally have a "permanently affixed" sign attached
to them that both identifies the owner of the cart, and warns
that theft is a violation of state law, those signs are commonly
broken off upon theft, leaving the person with an unidentifiable
cart.
The subsequently abandoned shopping carts become a problem for
cities and counties as they are left on streets and other public
places. Upon impounding those carts, it becomes difficult for
those cities and counties to determine the owner of the cart due
to the lack of any identifying marks. Additionally, stores
seeking to recover their carts may be unable to determine which
carts belong to them and which belong to another store.
To facilitate the use of electronic tags in carts (providing an
additional way of identifying the owner), this bill would
(more)
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establish a presumption that carts affixed with a specified
electronic tag are the property of, and not abandoned by, the
person named in the tag.
CHANGES TO EXISTING LAW
Existing law provides that it is unlawful to, among other
things, remove a shopping cart or laundry cart with a
permanently affixed sign from the premises or parking area of a
retail establishment and to abandon those carts at a location
other than the premises or parking area of the retail
establishment, with the intent to deprive the owner or retailer
of possession of the cart. (Bus. & Prof. Code Sec. 22435.2.)
Existing law provides that the above prohibitions apply only
when a cart has a permanently affixed sign that: (1) identifies
the owner; (2) notifies the public of the procedure to be used
for authorized removal of the cart; (3) notifies the public that
the unauthorized removal of the cart or unauthorized possession
is in violation of state law; and (4) lists a phone number or
address for returning removed carts. (Bus. & Prof. Code Sec.
22435.1.)
Existing law provides that a shopping cart with a sign affixed
to it may be impounded by the city, county, or city and county,
as specified. (Bus. & Prof. Sec. 22435.7.)
Existing law provides that in any civil proceeding, carts
affixed with a permanently affixed sign, as specified, establish
a rebuttable presumption that the cart is the property of the
person or business named in the sign and not abandoned by that
person or business. (Bus. & Prof. Sec. 22435.5.)
This bill would state that carts affixed with an electronic tag
also establish a rebuttable presumption that the property is
that of the person or business named in the tag and not
abandoned by that person or business.
This bill would define "electronic tag" as an electronic tag
contained below the surface of a shopping cart or laundry cart
that stores the name, address, and toll-free phone number of the
cart owner, in a format that is readable to the public
generally.
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COMMENT
1. Stated need for the bill
According to the sponsor, STS Ventures, LLC:
Under current law, a rebuttable presumption of ownership is
established for any shopping or laundry cart that is
equipped with a placard which provides the name and contact
information of the owner. (Bus. & Prof. Sec. 22435.5)
However, a person needs only to break off or make the
often-times plastic placard illegible to overcome this
protection. The result, when these carts are collected by
government entities for whatever reason, is uncertainty as
to who the cart really belongs to, and subsequent mass
storage of these un-returnable carts at government
facilities.
By updating the code section to incorporate new
identification technologies, such as electronic tags, it
will be possible for companies to positively ID and recover
their stolen shopping carts even if the placard has been
removed or defaced.
The sponsor further states that they are an early-stage venture
capital firm and that "[t]heir mission is to create growth for
portfolio companies and financial success for investors through
technologies such as those affected by SB 480."
2. Bill only intended to aid retailers in the recovery of
abandoned carts
Under existing law, it is unlawful to take certain actions with
regards to shopping carts that have a permanently affixed sign.
That sign, among other things, identifies the owner and warns
that unauthorized removal and possession is a violation of state
law. In those cases, the person removing the cart, or in
possession of the cart, has clear notice that it is both
unlawful to remove the cart and that the cart is not abandoned.
Unlike a permanently affixed sign, however, an embedded
electronic tag does not provide any visible warning or notice to
a person who may believe the owner has abandoned the cart.
Those tags store data, below the surface of a cart, that can
only be read with the appropriate reader. The author's office
states that their intent is to encourage the use of those tags
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in addition to (but not in place of) permanently affixed signs
and that those tags would allow for identification of a cart if
the "permanently affixed sign" is broken off.
Accordingly, this bill would create a rebuttable presumption, in
civil proceedings, that a cart has not been abandoned and is the
property of the person or business named in the electronic tag
embedded below the surface of the cart. It should be noted that
although this bill would not change the requirement that a cart
must have a permanently affixed sign in order for its
unauthorized removal to be a violation of Business and
Professions Code Section 22435.2 (that section details
prohibited acts with regards to shopping carts with affixed
signs), the suggested amendment below would clarify that an
electronic tag can only be used for the stated purpose of the
bill, identifying the owner of a cart.
Specifically, the author and sponsor state that it is their
intent to facilitate the return of stolen carts collected by
government entities and not use the presumption to prosecute
individuals for theft. The sponsor states that civil
proceedings (for which the presumption would apply) generally
don't occur and that the presumption would be used by cities to
determine the owner of a cart after it has been impounded. To
ensure that the presumption applies only to the intended
circumstances, the following amendment is suggested:
Suggested amendment:
On page 2, line 13, after the period, insert:
SEC. 2. The rebuttable presumption established pursuant to
subdivision (a) of Section 22435.5 of the Business and
Professions Code with regards to electronic tags shall apply
only for the purpose of allowing a city, county, or city and
county to identify the owner of an abandoned shopping cart or
laundry cart.
3. Format readable to the public generally
This bill would define "electronic tag" as a tag below the
surface of a cart that contains specified information in a
format that is readable to the public generally. The general
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public does not have the tag readers necessary to read these
tags - moreover, since the sponsor states that the intended
product is a non-RFID (potentially proprietary format)
electronic tag, it is unclear how accessible the readers will
be, or if the sole source of those readers would be companies
that purchase the technology from one of the sponsor's portfolio
companies. Regardless of the sponsor's intent, the term
"electronic tag" appears broad enough to include both RFID and
non-RFID devices.
To address the issue of the public's general inability to read
the tags, the Committee should consider whether the bill should
be amended to, instead, apply the rebuttable presumption to
electronic tags that are readable with technology that is
generally available to the public.
Suggested amendment:
On page 2, lines 12 through 13, strike "to the public
generally" and insert:
with technology generally available to the public
4. California Grocers Association request for amendments
The California Grocers Association (CGA) expresses concern that
by authorizing electronic tags for carts, this bill could become
a mandate on either the local or state level, "with grocers left
to shoulder the substantial financial burdens that may be
associated with implementation of proposed new systems." CGA
further contends that "it is entirely possible that [system]
costs could be significant and far outweigh the costs of
effective technologies currently in use."
Accordingly, CGA requests that the bill be amended to ensure
that the technology is widely available to grocers, and to
prohibit local governments from mandating the use of electronic
tag technology or from requiring grocers to pay for system
operating costs incurred by local governments.
5. Privacy implications of encouraging electronic tags in
shopping carts
Although the use of electronic and RFID tags in all shopping
carts may be inevitable, the Committee should consider the
long-term implications of encouraging the use of electronic tags
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in carts. For example, an October, 2006 article in RFID Journal
entitled, Grocery Retailers Test RFID-Enabled Shopping Carts,
noted:
. . . the system can be used by a store to track shopping
behavior and determine how long the wait is at a deli
counter or other specific service areas, how long a shopper
looks through items on a specific aisle, and when the number
of shoppers in a store has reached a point where more
checkout stands must be opened.
Thus, a shopping cart with an RFID tag could track a shopper
throughout the store, and then associate the shopper's shopping
behaviors with their supermarket rewards card upon checkout. To
ensure that this bill does not have the effect of incentivizing
the use of electronic tags that are later used to track
customers, the following amendment is suggested to ensure that
the tag is only used to identify the owner of the cart:
Suggested amendment:
On page 2, line 13, before the period, insert:
except that the term shall not include an electronic tag that
is used for a purpose other than to identify the owner of a
shopping cart or laundry cart
Support : California Retailers Association; California State
Sheriffs' Association
Opposition : None Known
HISTORY
Source : STS Ventures, LLC
Related Pending Legislation :
SB 446 (Walters), would enact an identical provision relating to
electronic tags in laundry or shopping carts. This bill is
currently in the Senate Judiciary Committee.
Prior Legislation :
SB 388 (Corbett, 2007), would have required any private entity
that sells, furnishes, or otherwise issues a card or other item
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containing a radio frequency identification (RFID) tag to make
certain disclosures to the recipient cardholder. This bill died
on the Assembly Floor.
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