Attorney General: Hon. Gloria Schaffer, Department of Consumer Protection, 1991-030 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

October 10, 1991

Hon. Gloria Schaffer
Department of Consumer Protection
165 Capitol Avenue
Hartford, CT 06106

Dear Commissioner Schaffer:

Former Commissioner Heslin requested an opinion from this office on "whether any consumer commodity which is not individually marked with its current selling price is in violation of Conn. Gen. Stat. 21a-79 and 21a-79-a of the Regulations of Connecticut State Agencies." The answer is yes.

Section (b) of Conn. Gen. Stat. 21a-79 states that "[a]ny person, firm, partnership, association or corporation which utilizes universal coding in totaling a retail customer's purchases shall mark or cause to be marked each consumer commodity which bears a Universal Product Code with its retail price." To determine the meaning of these provisions, it is necessary to focus on a number of definitions in Conn. Gen.. Stat. 21a-73 and 21a-79(a) and 21a-79-1 of the Regulations of Connecticut State Agencies.1

The term "consumer commodity" as used in Conn. Gen. Stat. 21a-79(b) "shall have the same meaning as in section 21a-73." Conn. Gen. Stat. 21a-73 (a). In turn, 21a-73 broadly defines the term "consumer commodity" as follows:

'Consumer commodity' means any food, drug device, cosmetic or other article, product, or commodity of any other kind or class, except drugs sold only by prescription, which is customarily produced for sale to retail sales agencies or instrumentalities for consumption by individuals, or use by individuals for purposes of personal care or in the performance of services ordinarily rendered in or around the household, and which usually is consumed or expended in the course of such consumption or use....

The term "consumer commodity" mentioned in 21a-79(b) is preceded by the qualifying work "each". Also mentioned din 21a-79(b) is the term "retail price." The term "retail price" is defined by 21a-79-1 of the Regulations of Connecticut State Agencies as "the price marked on the consumer commodity at which said consumer commodity is to be sold to the consumer."2

In applying these definitions to the language of 21a-79(b), the only sensible meaning of the provisions of 21a-79(b) is that each individual consumer commodity, as defined in 21a-73, bearing a universal product code and presently being offered or sale to customers, shall at the item of such sale have a marked retail price at which the customer will actually purchase such consumer commodity at the cash register. Nothing within the language of 21a-79 suggests anything different. "Words in a statute must be given their plain and ordinary meaning and be interpreted in their natural and usual meaning unless the context indicates that a different meaning was intended." All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 194 (1989).

This interpretation of 21a-79(b) finds further support in the use of the mandatory word "shall" in 21a-79(b), in contrast to the permissive word "may" used in Conn. Gen. Stat. 21a-79(c) and Conn. Gen. Stat. 21a-79(d). When the words "shall" and "may" appear in the same legislative provisions, it can be assumed that the words "shall" and "may" were used with knowledge of the difference in their ordinary meanings. See Caulkins . Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986). "The use of the word 'shall' by the legislature connotes that the performance of the statutory requirement is mandatory rather than permissive." Id. at 717. The use of the mandatory word "shall" in 21a-79(c), without further qualification, makes clear that the language of 21a-79(b) does not provide for any deviation form marking each individual consumer commodity with a retail price which the customer will be charged at the cash register.

In light of the foregoing, it is our opinion that the failure to mark each individual consumer commodity bearing a universal product code, with a retail price at which the consumer commodity is sold to the customer would be a violation of 21a-79(b) in such cases where any person, firm partnership, associate or corporation utilizes coding in totaling a retail customer's purchases.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Michael A. Arcari
Assistant Attorney General

RB/MAA/ps


1 In statutory construction, courts are bound to accept a specific definition in pertinent legislation. International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974). This rule is equally applicable to an agency regulation that is legislative in character. Neptune Park Assn. v. Steinberg, 138 Con. 357, 362, 84 A.2d 687 (1951). In the absence of a statutory definition of a ward or phrase, courts are directed to construe the word or phrase "according to the commonly approved usage of the language...." Conn. Gen.. Stat. 1-1(a).

2 As an aid in implementing the substantive provisions of 21a-79(b), Conn. Gen. Stat. 21a-79(c) authorizes the Commissioner of Consumer Protection to adopt regulations "concerning the marking of prices and use of universal product coding on each unit of a consumer commodity."


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