Number 10. October 8, 1968

Number 10. October 8, 1968 ALCOHOLIC BE VERA GES CONTROL COMMISSION State Office Building 100 Cambridge Street Boston, Massachusetts 02202 Gentlemen: You have requested my opinion relative to the interpretation of G.L. c. 138, § 25C(a). That subsection provides that: "No brand of alcoholic beverages shall be sold within the commonwealth to a wholesaler or retailer, and no manufacturer or wholesaler shall sell, offer for sale, solicit any order for, or advertise, any alcoholic beverages, the container of which bears a label stating the brand or the name of the owner or producer, unless a schedule of minimum consumer prices for each such brand of alcoholic beverages shall first have been filed with the commission and is then in effect. '" This provision is part of a regulatory scheme which includes § 25C(d). The latter section provides that the prices filed with the Commission shall not go into effect unless approved by it "as not being excessive, inadequate, or unfairly discriminatory." It is the administration of this § 25C(d) which was the subject of our recent special report to the Commission. In your letter request of October 7, you state that "[d]ue to a lack of administrative personnel and resources, the Commission is unable to properly approve prices" under § 25C(d), for the forthcoming November-December price period. Therefore, you have expressed your concern that no minimum consumer prices may be "in effect" for purposes of §25C(a) for this period. You have asked for our opinion as to whether, in these circumstances, the fact that no minimum consumer prices will be "in effect" would prohibit the sale of alcoholic beverages by wholesalers to retailers. On the basis of the facts as stated in your letter, including your factual conclusion that the failure to approve prices is "[d] ue to a lack of administrative personnel and resources," I conclude that in the present extraordinary circumstances, § 25C(a) would not prohibit such sales. Plainly that statute necessarily presupposes that the Commission will have the resources to have processed the price schedules filed with it so as to enable it, in accordance with § 25C(d), to approve the prices "as not being excessive, inadequate, or unfairly discriminatory." Where the Commission has not simply withheld its approval because of the failure of particular prices in a schedule to meet the required statutory standard, but has conceded that it is impossible for it to determine such compliance for any prices, then in my opinion the Legislature did not intend § 25C(a) to prohibit all sales from wholesalers to retailers. Otherwise the entire distribution of alcoholic beverages in the Commonwealth would be 46 P.D. 12 paralyzed, a result which would be directly contrary to the stated purpose of the Legislature "to meet the reasonable demand of the public for pure alcoholic beverages. " G.L. c. 138, § 23. Very truly yours, ELLIOT L. RICHARDSON A ttornev General