Attorney General's Opinion

Attorney General, Richard Blumenthal

November 22, 2004

Commissioner Bruce H. Gresczyk
Department of Agriculture
765 Asylum Avenue
Hartford, CT 06106

Dear Commissioner Gresczyk:

Your department requested an opinion concerning the authority of the Milk Regulation Board under Conn. Gen. Stat. § 22-133 and other related statutes "specifically in relation to the pricing of milk in the state." The answer to your inquiry is that the Milk Regulation Board has no authority under the current statutes to fix the price of milk in Connecticut.

Conn. Gen. Stat. § 22-133 provides, in relevant part:

Our examination of the text of this statute demonstrates that the General Assembly did not delegate price-setting authority to the board, even though it gave the board regulatory authority over the "sale of milk and milk products" to assure Connecticut consumers an adequate supply of milk products of at least standard quality. Id. Our examination of the language within the statute, infra, reveals that the focus of the board's authority over the sale of milk and milk products is: 1) to protect the public health by inspecting farms and by regulating the quality of milk products sold; and 2) to protect consumers, by requiring that milk products are clearly labeled and sold without false advertising, deception or fraud.

Conn. Gen. Stat. § 22-133 provides that "[t]he board may by regulation establish standards for inspection of pasteurizing plants, and farms supplying such plants, to preserve the public health and maintain the economic status of Connecticut producers." Id. In exercising its authority, the board must consider: (1) the welfare of the milk producer, dealer and the consuming public, and the need to maintain an adequate supply of milk; (2) the recommended methods for production, handling, transportation of milk and milk products; (3) the recommended methods for dairy plant operations in handling, storing, bottling and labeling of milk and milk products; (4) the healthfulness and quality of all grades and types of milk; (5) whether the various grades and types of milk (e.g. homogenized, pasteurized, skim, low-fat) handled by a dealer are offered for sale or sold without false advertising, deception, fraud or misrepresentation; (7) the standards for maintaining the economic status of Connecticut producers and supply and demand factors for inspecting of farms and plants; (8) other economic considerations applicable to inspection of farms and plants such as, distance from the Connecticut market, adequacy of pasteurization facilities within the state, the quantities of milk which are normally consumed in the Connecticut market, the frequency with which inspections are made, and (9) the sanitary standards, requirements and procedures recommended in the Grade A Pasteurized Milk Ordinance. Id.

Although the above statute references the "economic status" of Connecticut producers and charges the board with considering the "welfare" of the milk producer¹, dealer² and Connecticut consumers, it does not give the board the authority to set prices. The General Assembly may pass legislation to regulate the sale price of milk and milk products in the state, and may expressly authorize an administrative agency to "fill up the details" of the law via its regulation making authority, in accordance with the standards established by the legislature, State v. Stoddard, 123 Conn. 623, 627-628 (1940) but it has not done so in this case. Conn. Gen. Stat. § 22-133 contains no authority for the board to set prices for milk and there is no declaration of any legislative policy favoring the imposition of price controls over milk.

Additionally, it should be noted that the state previously set prices for milk, but the authorization for such regulatory action ceased in 2001. In 1991 the legislature authorized the Commissioner of Agriculture, in consultation with the Milk Regulation Board, to "adopt regulations for a system of milk prices, premiums and fees" to be effective January 1, 1994. Public Act 91-312, §45. In 1993, the legislature revoked this delegation of authority and simultaneously adopted the Northeast Dairy Compact. Public Act 93-320. The purpose of the compact was to form an interstate commission with regulatory authority to establish minimum prices for milk in the northeast region. Although the compact is still codified at Conn. Gen. Stat. § 22-203aa, it ceased to exist on September 30, 2001, pursuant to 7 U.S.C. §7256(3). At present, no administrative agency exists which has the authority to set prices for milk in Connecticut.

For the foregoing reasons, we conclude that Conn. Gen. Stat. § 22-133 does not give the board any regulatory authority to set prices of milk sold in Connecticut. Nor could we identify any other statute which grants the board said authority.

It is unfortunate that there is no legislative authority for the Board or other state agency to take action in light of the current crisis in milk pricing in our state. I agree with you that both consumers and farmers are adversely affected by inequitable pricing practices of milk retailers. I will be pleased to support a legislative initiative to stabilize the pricing of milk products in Connecticut for the benefit of our consumers and our farmers.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

¹ A "producer" is a dairy farmer, who sells milk (products) to a dealer. See, Hammerberg v. Leinert, 132 Conn. 596, 597 (1940).

² A "dealer" is engaged in buying, selling and distributing milk (products). Id., note 1.

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