Did a Connecticut store using UPC scanners have to mark the selling price on each product in 1991?

Plain-English summary

The Connecticut Attorney General concluded that, under the law as it stood in 1991, a retailer using universal product coding to total purchases had to mark each UPC-bearing consumer commodity with its current retail price. The marked price had to be the amount the customer would actually pay at the cash register. The opinion answered yes to the question whether an individually unmarked covered item violated the price-marking requirement.

The Attorney General based that reading on the statute's command to mark “each consumer commodity,” the broad definition of consumer commodity, and a regulation defining “retail price” as the price marked on the product at which it would be sold. The opinion emphasized the statute's mandatory word “shall.” It addressed the specified UPC-checkout circumstances, rather than announcing a rule for every kind of store or product.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

For retailers using UPC checkout: The opinion read Conn. Gen. Stat. § 21a-79 to require a price marked on each covered, UPC-bearing item. The price had to correspond to the amount charged when the customer bought it. The opinion did not treat the marking requirement as optional simply because the checkout system read a code.

For consumer protection staff: The conclusion applied when a person or business used universal coding to total retail purchases. The opinion used the statutory definition in Conn. Gen. Stat. § 21a-73 and the regulation's definition of retail price to identify which products and prices the rule concerned.

For shoppers: At the time of this opinion, the item-marking rule addressed products such as food, cosmetics, and household-use goods within the statute's “consumer commodity” definition. The quoted definition excluded drugs sold only by prescription.

Common questions

Did a barcode alone satisfy the 1991 price-marking rule?

No. The Attorney General said each covered item bearing a universal product code had to carry its retail price when the seller used coding to total purchases.

Which price did the store have to put on the product?

The opinion said the marked retail price had to be the price at which the customer actually bought the item at the cash register.

Did the opinion cover every consumer product in every store?

It applied the rule to a “consumer commodity” as defined in the statute, bearing a universal product code, when the seller used universal coding to total the customer's purchases. The definition quoted in the opinion expressly excluded prescription-only drugs.

Background and statutory framework

Conn. Gen. Stat. § 21a-79 required businesses using universal product coding at checkout to mark each UPC-bearing consumer commodity with its retail price. Conn. Gen. Stat. § 21a-73 defined that product category. The opinion also quoted the state regulation defining retail price as the price marked on the item at which it would be sold. It drew on the ordinary meaning of “each” and the mandatory wording “shall” to conclude that individual marking was required in the circumstances presented.

Citations and references

The opinion cites All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 194 (1989), for ordinary statutory wording and quotes the governing statute and regulation in its original text below.

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/1991-formal-opinions/hon-gloria-schaffer-department-of-consumer-protection-1991030-formal-opinion-attorney-general-of-con

Original opinion text

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."