MILK CONTROL

M.G.L. pt. Part I, tit. Title XV, ch. c. 94A

in effect

M.G.L. c. 94A, § 1 Definitions

c. 94A, § 1. Definitions Section 1. The following words as used in this chapter and in sections seven to nine, inclusive, of chapter twenty, unless the context otherwise requires, shall have the following meanings: ''Affiliate'', any person, or any subsidiary thereof, having either directly or indirectly, actual or legal control of or over a milk dealer, whether by stock ownership or in any other manner. ''Books and records'', books, records, accounts, contracts, memoranda, documents, papers, correspondence or other data pertaining to the business of the person in question. ''Chief'', the chief of the bureau of milk marketing in the department. ''Commissioner'', the commissioner of food and agriculture. ''Consumer'', any person, other than a milk dealer, who purchases milk for consumption. ''Co-operative Association'', a co-operative association, corporation or sales agency. ''Costs'', includes, but shall not be limited to, the Class I price, payable under either state or federal milk marketing order, for the raw milk product F.O.B. the market and all costs for the following: acquiring, assembling; transporting; receiving; cooling; pasteurizing; clarifying; separating or standardizing; packaging; refrigerating; storing; all other phases of handling and processing; advertising; selling; trading stamps; delivery; sanitation and inspection; equipment and supplies, including containers and ingredients; taxes; licenses; insurance; rent; depreciation; maintenance; power; light; administration and all other overhead; excises or assessments made by statute or by provisions of a federal milk marketing order; labor, including salaries, wages, commissions and all fringe benefits; and interest paid or accrued on indebtedness. ''Department'', the department of food and agriculture. ''Director'', the chief of the bureau of milk marketing within the department of food and agriculture. ''Fluid milk'', any milk, other than cream, which is sold, distributed or used for any purpose other than manufacture of cream, ice cream, butter or cheese; or, in any market for which the board has by order, rule or regulation, established classification on the basis of use, such portion thereof as may from time to time be classified by such order, rule or regulation within the highest use classification for the market concerned. ''Licensee'', a milk dealer licensed under any provision of this chapter or of similar provisions of earlier law. ''Market'', one or more cities or towns, or any portion thereof, designated by the commissioner as a natural milk marketing area within the commonwealth. ''Milk'', includes whole milk and cream, fresh, sour or storage; skimmed milk and buttermilk; irrespective of whether or not any such milk is flavored. ''Milk dealer'', any person, irrespective of whether such person is also a producer or an association of producers, who, on his own account or on behalf of producers, is engaged within the commonwealth in the business of receiving, purchasing, pasteurizing, bottling, processing, distributing or otherwise handling milk. No owner or operator of a hotel or restaurant who sells milk consumed on the premises where sold, and does not purchase or receive milk from producers, and no producer who delivers raw milk only to a milk dealer, shall be deemed a milk dealer for the purposes of this chapter. ''Person'', any individual, partnership, association, corporation or other business entity, or a subsidiary or affiliate thereof. ''Producer'', a person producing milk. ''Store'', includes a grocery store, dairy products store or any similar mercantile establishment at which milk is sold for consumption off the premises. ''Subsidiary'', any person of or over whom a milk dealer or an affiliate of a milk dealer has, or several milk dealers and their respective affiliates, or any of them collectively have, either directly or indirectly, actual or legal control, whether by stock ownership or in any other manner.

M.G.L. c. 94A, § 2 Powers and duties of commissioner

c. 94A, § 2. Powers and duties of commissioner Section 2. No provision of this chapter conferring a general power upon the commissioner shall be deemed to be impaired or qualified by the granting to the commissioner of any specific power or powers. Nothing in this chapter shall be construed to empower or authorize the adoption and enforcement of any public health rule or regulation by the commissioner. The commissioner shall have the following powers and duties, in addition to any others granted to him by any provision of this chapter: (1) To designate and establish as markets the several natural milk marketing areas of the commonwealth; to supervise and regulate the milk industry of the commonwealth, including the production, purchase, receipt, sale, payment and distribution of milk within the commonwealth and the control of unreasonable and burdensome surplus of milk in any market coming from either within or without the commonwealth; to prescribe such regulations as shall tend (a) equitably to apportion the total value of the milk purchased or received by any dealer, or by all dealers in any market, among the producers delivering to such dealer or dealers, on the basis of their marketings of milk during a prior representative period, and (b) to encourage the production of a regular, continuous and adequate supply for such market or markets of fresh fluid milk conforming to law; and to promote programs designed to increase the consumption of milk; (2) To investigate and regulate, as conditions permit and the purposes of this chapter require, all matters pertaining to markets, to the production, manufacture, processing, storage, transportation, disposal, distribution and sale of milk within the commonwealth, and to the establishment and maintenance of reasonable trade practices relative to milk; (3) The commissioner may, after examination and investigation, and after hearing held after due notice, adopt all orders, rules and regulations, not inconsistent with law, which he deems necessary or desirable to administer or effectuate any of the purposes of this chapter. In the administration and enforcement of this section, said commissioner may appoint and consult and advise with representative committees and groups in the milk industry, which persons shall serve voluntarily and without compensation; (4) To act as mediator and arbitrator in any controversy or issue among or between producers and milk dealers either as individuals or as groups, associations or corporations.

M.G.L. c. 94A, § 3 Enforcement of chapter by chief; appeal; hearing; notice

c. 94A, § 3. Enforcement of chapter by chief; appeal; hearing; notice Section 3. Subject to the supervision and control of the commissioner, the chief shall enforce the provisions of this chapter and all orders, rules and regulations adopted thereunder.

M.G.L. c. 94A, § 4 Licensing of milk dealers; exception; licenses for schools, hospitals and charitable institutions

c. 94A, § 4. Licensing of milk dealers; exception; licenses for schools, hospitals and charitable institutions Section 4. (a) No milk dealer, except as provided in subsection (b), shall within the commonwealth buy or receive milk from producers or others, or sell or distribute milk, or pasteurize, bottle, package or otherwise process milk for sale, unless he is duly licensed as provided in this chapter, and no milk dealer shall buy milk from or sell milk to another milk dealer who, being required to be licensed, is not so licensed, or in any way deal in or handle milk which he has reason to believe has previously been dealt in or handled in violation of any provision of this chapter, or of any order, rule or regulation made thereunder. (b) The commissioner, provided he shall first determine that such action will not adversely affect market conditions relative to milk, may by its order exempt from the operation of all or any portion of this chapter any milk dealer who purchases milk only from a licensed milk dealer, and whose only sales of milk are at a store. (c) Licenses required by this chapter shall be in addition to any other license required by law. (d) Any school, hospital, infirmary or other like charitable institution, located within the commonwealth and wholly supported by funds of the United States or of the commonwealth, or of any county, city, town or legally organized district within the commonwealth, and which purchases or receives from producers raw milk delivered in containers holding not less than twenty quarts each, and, on the premises of said institution, pasteurizes or otherwise processes the same for consumption on said premises, or uses the same in the manufacture of milk products for use or consumption on said premises, or proposes so to do, may make application, in the manner provided in section five, for a milk dealer license, which the commissioner is hereby authorized to grant.

M.G.L. c. 94A, § 5 Application for license; contents; renewals; display

c. 94A, § 5. Application for license; contents; renewals; display Section 5. Each person, before engaging in business as a milk dealer, shall make application to the commissioner for a license hereunder, which the commissioner is hereby authorized to grant. Such application shall state the nature of the business to be conducted, the name and principal business address in the commonwealth of the applicant, and, if a firm or association, the name and address of each member thereof, or if a corporation, the names and addresses of all officers and directors thereof, and the name of each municipality in which business is to be conducted, and such other facts with respect to the business of the applicant as may be required by the commissioner. Licenses issued hereunder shall expire twelve months from the effective date of said license. Any licensee whose application for renewal is made on or before the fifteenth day prior to the expiration date may continue to engage in the milk business pending the action of the commissioner on such application. Every application for a license made by a person other than a licensee shall be acted upon by the commissioner within thirty days after his receipt thereof. Every license issued under any provision of this chapter shall state that it is subject to this chapter and the original license or a certified copy thereof shall be conspicuously displayed by the licensee in each place of business conducted by him in this commonwealth.

M.G.L. c. 94A, § 6 Licenses; renewals; suspension; revocation; conditional licenses; hearing; notice

c. 94A, § 6. Licenses; renewals; suspension; revocation; conditional licenses; hearing; notice Section 6. The commissioner may decline to grant or renew a license, or may suspend or revoke a license already granted, or may grant a conditional or temporary license, upon due notice and hearing to the applicant or licensee; except that the commissioner may without hearing to the applicant or licensee, but upon due notice, cancel a conditional license for breach of a condition thereof, or may decline to grant or renew a license, where the license of the applicant or licensee has been refused or revoked or a conditional license has been issued for cause within the same or the next preceding license year. The commissioner may decline to grant or renew a license or may suspend or revoke a license already granted, or grant a conditional license upon due notice and hearing to the applicant or licensee, when it is satisfied of the existence of any of the following reasons: (1) That he has without reasonable cause refused to accept or refused to pay for milk purchased or received by him from a producer, or has without reasonable cause or without reasonable notice refused to accept or to pay for milk delivered or tendered to him by or on behalf of a producer in ordinary continuance of a previous course of dealing, except where such course of dealing is terminated in accordance with an express contract existing between the milk dealer and such producer with respect to the time and method of termination; (2) That in any instance he has failed without reasonable cause to account and make payment when due for milk purchased or received by him; (3) That he has committed any act or engaged in any course of conduct tending to reduce the price of pure, fresh milk to such an extent as to interfere with the supply thereof produced in the commonwealth, which supply is hereby declared to be necessary for the public health, public welfare and trade and commerce; (4) That he has engaged in a course of action which, in the opinion of the commissioner, indicates his inability or unwillingness properly to conduct the business of a milk dealer; (5) That he has been, or is, a party to a combination to fix or maintain prices contrary to law; (6) That he has engaged in a course of action such as to satisfy the commissioner of an intent on his part to deceive or defraud customers, producers or consumers; (7) That he has failed to keep, at his place of business within the commonwealth, minimum records required by order, rule or regulation of the commissioner as presently or previously constituted, or has failed to furnish the statements or information required by the commissioner under this chapter or required legally under similar provisions of earlier law, or has kept false records or furnished false statements with respect to such information; (8) That any statement made by him in reliance upon which to any degree, his license as a milk dealer was granted, renewed or restored, was false or fraudulent in any material particular; (9) That such applicant or licensee, or that any person owning any substantial interest in or having any power or control in the milk business conducted or to be conducted by the applicant or licensee, or that any person formerly owning any such interest or having any such power or control in a milk business in the commonwealth, who is, or is to be, employed by the applicant or licensee in said business, has within three years been responsible, in whole or in part, for any act on account of which a license might be denied, suspended or revoked pursuant to any provision of this chapter or any similar provision of earlier laws; (10) That the bond or other evidence of financial responsibility required of an applicant is unsatisfactory to the commissioner; (11) That he knowingly purchased, received, processed or handled milk, excluding cream, for sale within the commonwealth obtained from a dairy farm or has knowingly purchased, received, processed, or handled milk, including cream, for sale within the commonwealth obtained from a dealer not registered under sections sixteen A to sixteen G, inclusive, of chapter ninety-four or from a dealer not licensed under section forty-one of said chapter or from an operator of a milk plant or manufactory not licensed under section forty-two A of said chapter, or sold milk to or processed or handled milk for a dealer not so registered, or not so licensed under said section forty-one; (12) That he knowingly purchased, received, processed, sold or otherwise handled milk within the commonwealth in violation of any of the applicable laws, or of the rules, regulations and requirements of the commissioner; or (13) That he has violated any provision of this chapter or of similar provisions of earlier laws, or of an order, rule or regulation of the commissioner.

M.G.L. c. 94A, § 7 Hearing; delivery and return of revoked or cancelled license

c. 94A, § 7. Hearing; delivery and return of revoked or cancelled license Section 7. (a) Before declining to grant a license of any type, or suspending or revoking a license, the commissioner shall hold a hearing and grant the applicant or licensee an opportunity to be heard in person or by attorney. A duly attested copy of the order of the commissioner upon such hearing shall be served upon the applicant or the licensee in the manner provided by section nineteen. (b) Any licensee whose license has been revoked or cancelled shall upon notice thereof forthwith deliver and return said license to the commissioner or to any authorized representative of the commissioner.

M.G.L. c. 94A, § 8 Appeal by applicant or licensee of decision of commissioner; jurisdiction of superior court

c. 94A, § 8. Appeal by applicant or licensee of decision of commissioner; jurisdiction of superior court Section 8. An applicant or licensee aggrieved by any decision of the commissioner may appeal therefrom by filing a petition in the superior court within twenty days after notice of such decision has been given under section nineteen. Upon such appeal, said court may revise or reverse such decision if such action, in its opinion, is warranted by the evidence.

M.G.L. c. 94A, § 9 Annual license fee

c. 94A, § 9. Annual license fee Section 9. Each milk dealer required to be licensed under this chapter shall pay an annual license fee, as determined annually by the commissioner of administration under the provision of section three B of chapter seven, which shall accompany his application for license; provided, however, that each store, as defined in section one of this chapter, shall be issued a license which shall expire thirty-six months from the effective date of said license.

M.G.L. c. 94A, § 10 Prices, terms and conditions relative to milk; investigations; hearings; matters considered; minimum prices

c. 94A, § 10. Prices, terms and conditions relative to milk; investigations; hearings; matters considered; minimum prices Section 10. The commissioner shall ascertain, by such examination or investigation as the situation may permit or warrant, and after a general public hearing held after due notice, what prices, terms and conditions relative to milk in the several localities and markets in the commonwealth, under the varying conditions therein, will be most beneficial to the public interest and will best protect the milk industry. In every such examination or investigation and hearing, the commissioner shall take into consideration all the conditions affecting the milk industry, including the amount necessary to yield a reasonable return to the producer and to the milk dealer. In establishing minimum prices for milk under this chapter the commissioner shall cause said prices to be fair, just and reasonable, and, to accomplish that end, shall take into consideration and be guided by costs of production, hauling, handling, processing, storage, distribution and other cost factors involved in the production and marketing of milk, including compliance with all sanitary regulations, and shall consider the balance between the supply of milk and the consumption of the same, the purchasing power of consumers as evidenced by available indices of income and general business and industrial activity, and other economic conditions affecting the milk supply and demand for milk and shall consider the prices for milk in the different markets of the commonwealth which will best protect the milk industry in the commonwealth and insure a supply of pure, fresh milk adequate to cover consumer needs.

M.G.L. c. 94A, § 11 Orders fixing minimum prices to producers and consumers; application of orders; rules and regulations

c. 94A, § 11. Orders fixing minimum prices to producers and consumers; application of orders; rules and regulations Section 11. (a) The commissioner, after making an examination and investigation authorized by this chapter and after hearing held after due notice, shall by his order fix the minimum prices paid by milk dealers to other milk dealers, and to producers and consumers for milk received, purchased, stored, manufactured, processed, sold, distributed or otherwise handled within the commonwealth and the terms and conditions under and times at which such prices are to be paid. (b) Orders relative to such minimum prices shall apply to the locality in which the milk in question is produced or to the market in which such milk is sold, or to both, and may vary in different localities or markets according to the varying and differing conditions therein. Any such order may classify such milk by such forms, classes, grades or uses as the commissioner may deem advisable and may specify the minimum prices therefor, and may require that producers of milk purchased or received under such provisions shall be paid for all such milk on the basis of the class, grade or use in which it is ultimately sold by milk dealers. (c) Each such order may provide rules and regulations for the sharing of the value of milk sold, used or disposed of in each class, grade or use, between milk dealers who are also producers, and the producers from whom milk is received or purchased by such dealers, in proportion, to their respective deliveries of milk.

M.G.L. c. 94A, § 12 Declaration of existence of emergency; petition and order establishing minimum prices; review; notice

c. 94A, § 12. Declaration of existence of emergency; petition and order establishing minimum prices; review; notice Section 12. Upon petition in writing, with an affidavit that it is signed by not less than twenty-five per cent of the Massachusetts producers who, during the month of April in the license year next preceding that in which such petition is filed, produced and delivered milk for sale or distribution as fluid milk in any particular market the boundaries and limits of which shall be set forth in said petition, and which said petition alleges that the price to the producer established under authority of this chapter or by any agreement, license, regulation or order made or issued pursuant to any federal law cannot otherwise be maintained, and further alleging that the maintenance of such price is necessary in order to secure a regular, continuous and adequate supply of fresh, pure milk sufficient to meet the requirements of the market named in said petition and to protect the public health therein, and which petition requests the commissioner to establish minimum prices, wholesale or retail, or both, for milk for such market, and if after making such examination and investigation as is authorized by this chapter or is necessary to ascertain the facts, and after public hearing held after due notice, the commissioner finds at the close of such hearing and investigation that such petition is signed by not less than twenty-five per cent of such producers who, during said month or such subsequent month as the commissioner may find is a more representative period, produced and delivered milk for sale or distribution as fluid milk in said market, that the price to the producer established under authority of this chapter or by any agreement, license, regulation or order made or issued pursuant to any federal law, cannot otherwise be maintained, and that the maintenance of such price is necessary in order to insure a regular, continuous and adequate supply of fresh, pure milk sufficient to meet the requirements of said market and to protect the public health therein, the commissioner may declare that a state of emergency exists. The commissioner is thereupon authorized to issue such orders, rules and regulations as may be necessary, including the fixing by official order of minimum wholesale or retail prices, or both, for milk sold within the market affected, irrespective of where such milk is produced. The commissioner may in like manner at any time alter, revise, amend or rescind the prices so fixed. Any such action taken by the commissioner shall be reviewed by the commissioner at least once in each year thereafter, and, if not thus reviewed, the orders issued shall terminate upon the expiration of the period of one year after the date of the issuance of such orders, and any action may likewise at any time be thus reviewed on the order of the governor. Due notice shall be given of any such review. Any price fixed pursuant to this section, and any alteration, revision or amendment thereof shall be fair, just and reasonable and shall be published as provided in section nineteen.

M.G.L. c. 94A, § 12A Payment less than minimum price; recovery; assignment of claim

c. 94A, § 12A. Payment less than minimum price; recovery; assignment of claim Section 12A. If any producer is paid by a milk dealer less than the minimum price for the sale or delivery of milk, as fixed by official order or orders of the commissioner, such producer may recover in a civil action against such milk dealer the full amount that would have been due him for such milk at the minimum price as so fixed, less the amount actually paid him for said milk, together with costs and such reasonable attorney's fees as may be allowed by the court, and any agreement between such producer and such milk dealer to sell or deliver milk for less than such minimum price shall be no defence to such action. At the written request of any such producer paid less than the minimum price for such sale or delivery of milk to which such producer is entitled under the provisions of the official order or orders of the commissioner, the commissioner may take an assignment of such claim in trust for the assigning producer and may bring an action to collect such claim, and such milk dealer shall be required to pay the costs and such reasonable attorney's fees as may be allowed by the court. The commissioner shall not be required to pay any entry fee in connection with any such court action.

M.G.L. c. 94A, § 13 Entry on premises for inspection; reports; results of inspection; definitions

c. 94A, § 13. Entry on premises for inspection; reports; results of inspection; definitions Section 13. (a) For the purpose of administering this chapter, the commissioner or any employee or other representative designated by the commissioner for the purpose, may enter, at all reasonable hours, every place where milk is being produced, stored, bottled or otherwise packaged, processed, sold or otherwise handled for sale or distribution. Any such person may also, at all reasonable hours, inspect and verify by reference to the actual operations and transactions all books and records relating to milk in any place within the commonwealth for the purpose of ascertaining facts required for proper administration of this chapter. (b) All milk dealers required to be licensed under this chapter, their affiliates and subsidiaries shall from time to time furnish to the commissioner such information as he may by order, rule or regulation require, upon and in conformity to forms or reports approved and supplied by him for the purpose of enabling him to administer and enforce this chapter and the orders, rules and regulations made thereunder. All such reports shall be on oath or made under the penalties of perjury. (c) Each milk dealer required to be licensed under this chapter shall permit any member, the commissioner or any representative designated for the purpose by him, at all reasonable hours, to enter any place occupied or controlled by such milk dealer where milk is produced, stored, bottled or otherwise packaged, pasteurized, processed, sold or otherwise handled. Each such dealer shall at all reasonable hours identify and make available to any such person all books and records relating to milk or to such milk dealer's business which are in his possession or custody or under his control, and permit such person to inspect and verify the same as provided in subsection (a). (d) The information obtained by any inspection authorized or reports required by this chapter or by similar provisions of earlier law shall be treated as confidential and shall not be disclosed by any person except as may be required in the proper administration of this chapter; provided, however, that the commissioner may use such information together with other similar information, for compilation and publication of statistics of the milk industry in this commonwealth. Such statistics shall not contain the name of, or disclose, by inference or otherwise, information obtained from the books and records of any milk dealer. (e) Except as to markets in which there is in operation and effect an order or regulation issued by the legally constituted authorities of the United States regulating the marketing of milk in such markets, and except as to markets in which there is in operation and effect an order issued by the commissioner regulating the marketing of milk in such markets upon a market-wide pool basis, each milk dealer required to be licensed under this chapter, except a milk dealer eligible for exemption under subsection (b) of section four, and except a milk dealer who is also a producer selling to consumers not more than fifty quarts of milk daily, shall, within such period as the commissioner by order, rule or regulation requires, but not later than ten days after the close of each delivery period with respect to milk or cream received by such milk dealer, file with the director, in detail and form approved by the commissioner, a report as follows:— (1) The receipts at each plant from producers, including the quantity, if any, of his own production; (2) The receipts at each plant from any other milk dealer, including a milk dealer who is also a producer; (3) The respective quantities of milk which were sold, distributed or used within each market, including sales to other milk dealers, in each use classification established by the commission. The commissioner shall compute for each such milk dealer who purchases or receives milk from producers on the composite or on a base rating plan the percentage of milk sold, distributed or used by him in each such use classification and, notwithstanding the provisions of subsection (d), shall announce by mail, postage prepaid, to all such milk dealers and to all milk producers associations within the commonwealth the results of such computation, and the minimum composite price, or minimum base and excess prices which on the basis of said report such milk dealer, pursuant to the orders, rules and regulations of the commissioner, is required to pay per hundredweight of milk containing three and seven-tenths per cent butter fat content, delivered to the plant of such milk dealer by producers during each delivery period. Such announcement shall be made on or before the fifteenth day after the end of each delivery period. If any such milk dealer receives milk from producers at more than one plant subject to the provisions of this subsection, such percentage and such minimum price or prices shall be separately computed and announced by the director for each such plant. The words ''delivery period'', as used in this subsection, shall mean, with respect to milk dealers who buy no milk from producers, a monthly period beginning on the first day of each month and, with respect to all other milk dealers, the delivery period applicable to such milk dealers as determined by order of the commissioner. The composite plan and base rating plan referred to in this subsection shall mean the composite plan and base rating plan as determined by order of the commissioner. (f) Subsection (e) shall be construed as being in addition to and in no way limiting the power and authority of the commissioner under subsection (b).

M.G.L. c. 94A, § 14 Purchase, sale or distribution of milk below price fixed or below cost; rebates

c. 94A, § 14. Purchase, sale or distribution of milk below price fixed or below cost; rebates Section 14. (a) No milk dealer shall distribute or sell in any market within the commonwealth milk obtained from a producer or from another milk dealer if such milk was acquired from the producer within the commonwealth at a cost less than the price fixed by the commissioner to be paid for milk so acquired and distributed. (b) Any sale within the commonwealth, by any milk dealer licensed or required to be licensed under this chapter, of any milk produced within the commonwealth or received from any other source at a price less than the minimum price fixed by the commissioner for such milk shall be a violation of this chapter. (c) After the commissioner shall have fixed the price to be charged or paid for milk, whether by form, class, grade or use, no milk dealer shall purchase, receive, sell or distribute or offer to purchase, receive, sell or distribute milk at any price less than such price as shall have been made applicable to the particular transaction; and no method or device shall be lawful whereby milk is purchased, received, sold or distributed, or offered to be purchased, received, sold or distributed, at a price less than such price whether by discount, rebate, free service, advertising allowance, or by a combined price for such milk together with another commodity or service, as a result of which the total price for the milk and such other commodity or service is less than the aggregate of the prices for the same when sold or offered for sale or performed separately, or otherwise. (d) No person shall sell within the commonwealth any milk, or render any service in connection with the sale or distribution of milk, at a price less than the cost of such milk or service, including, in the case of milk sold, the original purchase price thereof, and in every instance all regular direct or indirect elements of cost as defined in section one; and no milk dealer shall evade this prohibition by the use of any method or device, whether by discount or rebate, by barter, by exchange, by free service, by distribution of free milk, by advertising allowance, by loan of equipment at less than the proper allocation of depreciation, by rental of equipment at less than fair rental value or sale of equipment at less than fair market value, nor by a combined price for such milk together with another commodity or service, as a result of which the total price for the milk and other commodity or service, is less than the aggregate of the prices for the same when sold or offered for sale or performed separately, or otherwise. In the case of any person effecting sales of milk which has not been purchased, there shall be included as a part of the cost of such milk, when sold or offered for sale, an amount equal to the purchase price which would have been payable under state or federal milk marketing order if such person had purchased such milk within the commonwealth. The provisions of this subsection and subsection (e) shall not prohibit the use of coupons, trading stamps or donations of milk exclusively for charitable purposes to any duly organized charitable corporation. The profit derived from the sale of one product, whether the same be one of those included in the term milk or some other product, shall not be utilized in cost computations as a credit to or deduction from the cost allocable to any product embraced by the term milk so as to subsidize or lower the cost of doing business with respect to such milk. With respect to a store in its capacity as a milk dealer, cost shall include the price paid by the store for milk plus that portion of the store's overhead or cost of doing business properly allocable to milk, which cost of doing business shall include, but shall not be limited to, applicable items as enumerated in the definition of cost contained in section one. (e) In connection with the sale of milk or cream (1) No milk dealer shall discriminate in price, either directly or indirectly, between different purchasers of milk of like grade, quality and quantity where the effect of such discrimination may be to lessen competition or tend to create a monopoly, or to injure, destroy, or prevent competition of any milk dealer; provided, that nothing in this paragraph shall prevent differentials which make only due allowance for difference in the cost of delivery resulting from differing methods or quantities in which such milk is delivered to such purchasers; except that nothing in this paragraph shall prevent persons engaged in selling milk from selecting their own customers in bona fide transactions and not in restraint of trade. (2) No milk dealer shall discriminate in prices in the sale of any milk between or within any of the cities or towns of the commonwealth with the intent or with the effect of unfairly diverting trade from a competitor or otherwise injuring a competitor or of destroying or lessening competition; provided, that no violation will result from different prices which reflect the actual transportation cost from the point of processing or purchase to the point of resale; and provided further, that prices made in good faith to meet competition in such city or town shall not be in violation of this paragraph. Proof of advertising, offering for sale, or selling any such milk in any one of such cities or towns at prices less than advertised, offered for sale or sold in any other such city or town by such person which cannot be accounted for as necessary to meet competition shall be prima facie evidence of violation of the provisions of this paragraph. (3) No milk dealer shall discriminate between purchasers or between or within localities, as set forth in paragraphs (1) and (2) of this subsection by any scheme of rebates, refunds, commissions or discounts whether in the form of money or otherwise, or in the form of extending to certain purchasers special services or privileges not extended to all other purchasers in the same category. (4) No milk dealer shall make or renew any money loan to a store. (5) No milk dealer shall extend credit to any store in excess of thirty days payable fifteen days thereafter. Whoever violates any provision of this subsection or subsection (f) shall be punished by a fine of not less than fifty nor more than two hundred dollars. It shall be a defense under any of the provisions of this subsection if prices are charged or other action taken for the purpose of meeting competition in good faith. It shall be a defense under any of the provisions of paragraphs (1), (2) or (3), if the price differentials involved make only due allowance for differences in the cost of manufacture, sale, or delivery, resulting from the differing methods or quantities in which such commodities are sold or delivered. The burden of proof with respect to the above two defenses shall be on the milk dealer. The provisions of this subsection shall not apply to sales to federal, state or municipal governmental bodies or agencies, or to schools, colleges, universities, libraries, churches, hospitals and charitable institutions, not operated for profit. (f) Notwithstanding the provisions of this section to the contrary, the department is hereby authorized and directed to establish a program to allow for the use of discount coupons in promotional and marketing campaigns of milk and cream for consumer use and benefit. The commissioner shall promulgate regulations necessary to carry out the provisions of this subsection. Said regulations shall be promulgated no later than 180 days from the effective date of this act and shall include, but not be limited to, reasonable and appropriate mechanisms to protect diary farms that directly market their own fluid milk or cream to the consumer and civil penalties for violation of said regulations, including possible license suspension. The use of coupons in promotional or marketing campaigns shall be subject to the approval of the commissioner and shall not be predatory towards any Massachusetts dairy farmer who directly markets and sells their own fluid milk to the consumer. The use of coupons shall not result in the sale of milk at a price that is below the cost of production. The commissioner is directed to annually study, analyze and assess the economic impact of this program on dairy farmers, producers, processors, consumers and the commonwealth's milk markets. The report shall be submitted to the joint committee on environment, natural resources and agriculture, the secretary of energy and environmental affairs and the secretary of economic development on or before October 1, 2010 and annually for the proceeding 4 years.

M.G.L. c. 94A, § 14A Contracts for the supplying of milk for use in institutions supported by funds of the commonwealth; invitations to bid and bidding procedures; reports; tests

c. 94A, § 14A. Contracts for the supplying of milk for use in institutions supported by funds of the commonwealth; invitations to bid and bidding procedures; reports; tests Section 14A. Each institution supported in whole or in part by funds of the commonwealth or any political subdivision thereof, shall furnish to the commissioner, upon issue, a copy of each invitation to bid and all related specifications prepared for the purpose of soliciting proposals to supply milk for use in such institution and shall within ten days following the award of a contract for such milk supply, inform the commissioner by letter showing the name and address of and proposals submitted by each milk dealer responding to such invitation and identifying the supplier to whom the contract was awarded. The commissioner shall analyze and evaluate the above required information in relation to applicable laws, rules and regulations and shall prepare such reports thereon as he deems appropriate for distribution, upon request, to other agencies and departments of the commonwealth and other subsidiaries thereof. If a contract so awarded provides for supplying milk containing a greater percentage of milk fat or milk solids, not fat, or both, than the minimum percentages prescribed by section twelve of chapter ninety-four, the commissioner or his agent shall, from time to time during the life of such contract, take representative samples of such milk and test the same, or cause them to be tested, in an approved laboratory by officially recognized methods of analysis to determine the milkfat and milk solids not fat content thereof. The results of such tests shall be reported to the awarding institution and, if the same indicate any violation of said section twelve, to the commissioner of public health. If, in the course of sampling and testing as above described, the commissioner or his agent has reason to believe that the net quantity of milk per container is less than the quantity required to be disclosed pursuant to section one hundred and eighty-one of said chapter ninety-four, the awarding institution and the director of standards shall be so advised.

M.G.L. c. 94A, § 15 Sale by co-operative associations; statement of deductions

c. 94A, § 15. Sale by co-operative associations; statement of deductions Section 15. (a) No sale of milk by a co-operative association to a milk dealer in any market shall be made at less than the applicable minimum prices, terms and conditions of sale as set forth in the orders of the commissioner for milk bought directly from producers who are nonmembers of a co-operative association. (b) When the net return to be made for milk by a co-operative association to its members is below the net applicable return for milk as fixed by the orders of the commissioner for a nonmember of a co-operative association, said co-operative association shall submit in writing to the commission a full and complete statement in detail, setting forth the amount of the deductions which have been made from the fixed minimum prices of the commissioner and, in addition, a detailed statement of such deductions shall accompany every such payment to the member.

M.G.L. c. 94A, § 16 Examinations; investigations; general or special hearings; opportunity to appear and be heard; evidence

c. 94A, § 16. Examinations; investigations; general or special hearings; opportunity to appear and be heard; evidence Section 16. (a) The commissioner or his authorized agent, may hold any examination or investigation, or any general or special hearing required or authorized under this chapter, at such places and at such times as the commissioner deems necessary for the proper administration of this chapter. (b) Before adopting, altering or rescinding any general order, rule or regulation, the commissioner shall hold a general hearing upon the subject matter thereof, and afford all persons interested an opportunity to offer evidence pertinent thereto. (c) Before declining to grant a license, or granting a conditional or limited license, or suspending or revoking a license, or adopting any other special order, rule or regulation applying only to one or more persons named therein, the commissioner shall hold a special hearing, and afford to the applicant or licensee, or such person or persons, opportunity to appear and be heard with respect thereto. Each such applicant, milk dealer or person may be so heard in person or by attorney, and may offer evidence pertinent to the subject of the hearing, and to that end may request the commissioner to exercise its powers with respect to the compulsory attendance of witnesses and the production of books and records.

M.G.L. c. 94A, § 17 Time of notice of hearings, orders, rules and regulations

c. 94A, § 17. Time of notice of hearings, orders, rules and regulations Section 17. (a) Seven days at least before any general hearing, the commissioner shall cause a notice containing a brief but sufficient statement of the subject matter of such hearing to be published as provided in subsection (a) of section nineteen. (b) Three days at least before any general order, rule or regulation adopted by the commissioner shall become effective, such order shall be published as provided in subsection (a) of section nineteen. (c) Three days at least before any special hearing, the commissioner shall cause a notice containing a brief but sufficient statement of the acts, facts or circumstances alleged to constitute reason for denial, suspension or revocation of license, or for adoption of any other special order, rule or regulation applying only to one or more persons named therein, and specifying the time and place of such hearing, to be served upon the applicant, licensee or other person or persons concerned, in a manner provided in subsection (c) of section nineteen. (d) Three days at least before any special order, rule or regulation applying only to one or more persons named therein shall become effective, such order, rule or regulation shall be served on such person or persons in a manner provided in subsection (c) of section nineteen. (e) Except as otherwise expressly provided, three days' notice shall constitute reasonable notice of any action by, or in any proceedings had before, the commissioner. In computing a period of notice required or authorized under this chapter, Sundays and legal holidays shall be excluded.

M.G.L. c. 94A, § 18 Attendance and testimony of witnesses; production of books and records; administration of oaths; subpoenas; excuse from attendance; witness fees

c. 94A, § 18. Attendance and testimony of witnesses; production of books and records; administration of oaths; subpoenas; excuse from attendance; witness fees Section 18. (a) The commissioner may compel the attendance and testimony of witnesses and the production of books and records or any other evidence that relates to the subject matter of any examination, investigation or hearing held under authority of this chapter or of similar provisions of earlier law. The commissioner, the chief, or any hearing agent designated by the commissioner, or any employee designated by the commissioner as clerk, may administer oaths to any witness at any examination, investigation or hearing held under authority of the chapter or of similar provisions of earlier law. Any subpoena issued by the commissioner may require such attendance of witnesses and the production of evidence from any place within the commonwealth, at any designated place of hearing, and may be served in any manner provided in subsection (c) of section nineteen. (b) In case of contumacy or refusal to obey a subpoena issued to any person, the superior court, upon application by the commissioner, shall have jurisdiction to issue an order requiring such person to appear before the commissioner or his agent to produce evidence, if so ordered, or to give testimony touching the matter under investigation or in question; and any failure to obey such order of the court may be punished by said court as a contempt thereof. (c) No person shall be excused from attending and testifying or from producing books and records or other evidence in obedience to the subpoena of the commissioner, on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture; but no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying. (d) Witnesses summoned before the commissioner or his agent, shall be paid the same fees and mileage as witnesses before the courts, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like service in the courts.

M.G.L. c. 94A, § 19 Publication of notice of hearings, orders, rules and regulations; certification of orders; service of subpoena; service of attested copies

c. 94A, § 19. Publication of notice of hearings, orders, rules and regulations; certification of orders; service of subpoena; service of attested copies Section 19. (a) Each notice of a general hearing and each general order, rule or regulation adopted by the commissioner, shall be published by (1) Posting a copy thereof for public inspection in the main office of the commissioner; (2) Mailing a copy thereof, postage prepaid, addressed to each licensee deemed by the commissioner to be affected thereby at his principal business address in the commonwealth as appearing in the records of the commissioner, and to the clerk of each city and town, and to the county agricultural agent, if any, of each county, deemed by the commissioner to be affected thereby; (3) Mailing a copy thereof, postage prepaid, addressed to each person who has filed with the commission a written request, upon a form approved by the commissioner and supplied by the director, that a copy of each notice of general hearing and of each general order, rule or regulation affecting a specified market or markets be mailed to him at an address given in such form of request; and (4) Mailing, postage postpaid, or delivering a copy thereof, and in the case of an order, rule or regulation, a copy of a release relative thereto, to: state house press room, state house news service, any news reporting service which has filed with the commissioner written request for a copy of each notice of general hearing and general order, rule or regulation issued by the commissioner, and such other newspaper or newspapers published or circulating in the market or markets affected as in the judgment of the commissioner will afford sufficient notice and publicity thereof; and (5) In the case of each notice of general hearing, also by advertisement in such newspaper or newspapers as, in the judgment of the commission, will afford sufficient notice to the public thereof. (b) A general order, rule or regulation duly adopted by the commission, posted and published as provided by subsection (a) of this section shall, upon being filed with the state secretary as required by section thirty-seven of chapter thirty, have the force and effect of law. A copy of any such general order, rule or regulation certified by the state secretary to have been filed in his office shall be received in proceedings before any court or before the commissioner as prima facie evidence that such order, rule or regulation was duly adopted, posted, published and filed as required by law. (c) Each notice of a special hearing, each subpoena and each special order, rule or regulation applying only to one or more persons named therein, issued by the commissioner, shall be served on the person or persons affected, by (1) Mailing by registered mail, postage prepaid, an attested copy thereof addressed to each applicant or licensee affected, at his principal business address in the commonwealth as appearing in the records of the commissioner, and to each other person affected thereby at his last known address; or (2) Delivering such a copy in hand to, or leaving such a copy at the last and usual place of abode in the commonwealth of, each individual affected thereby, and, in the case of service of a notice or special order, rule or regulation on a corporation, by delivering such a copy to the president, treasurer, clerk, cashier, secretary, agent or other officer in charge of its business, or, if no such officer is found, by leaving such a copy at its principal office or place of business within the commonwealth. (d) Service by delivery of an attested copy pursuant to subsection (c) of this section may be made by any employee of the department, at any place within the commonwealth, or by any constable or other officer authorized to serve civil process at the place of delivery, or, in the case of a subpoena, by any disinterested person. The verified return by the individual delivering any such copy setting forth the manner of such service, or the return post office receipt therefore when mailed by registered mail shall be proof of service of the same.

M.G.L. c. 94A, § 21 Review; jurisdiction of superior court; injunction; declaratory judgment

c. 94A, § 21. Review; jurisdiction of superior court; injunction; declaratory judgment Section 21. Any person aggrieved by any order, rule or regulation adopted by, or other decision of, the commissioner may, by petition filed within twenty days after the publication or service of such order, rule, regulation or decision, obtain a review by the superior court of the proceedings of the commissioner on which such order, rule, regulation or decision was based. A copy of such petition, attested by the clerk of the court, shall be forthwith served upon the commissioner. The petitioner shall file in the court a transcript of the entire record in the proceedings, certified by the commissioner, including the notice, the testimony received and the findings and order or decision of the commissioner. The order, rule, regulation or decision of the commissioner shall be reviewed in accordance with the standards for review provided in paragraph (7) of section fourteen of chapter thirty A. No objection not urged before the commissioner shall be considered in review. The court may, in its discretion, remit the record to the commissioner for the correction of errors or for the taking of additional evidence. Prior to the entry of a decree of revision or reversal, no order shall be made to stay or supersede any order, rule, regulation or decision of the commissioner, nor shall any court in any proceeding restrain or enjoin the commissioner or restrain or enjoin enforcement of an order, rule, regulation or decision adopted by the commissioner, except after a hearing of which the commissioner shall have received not less than two days' notice in writing. Notwithstanding other provisions of this section, a person aggrieved by the adoption of a regulation as defined in clause (5) of section one of chapter thirty A may elect alternative judicial review of such regulation through a proceeding for declaratory relief in the same manner and to the extent provided under chapter two hundred and thirty-one A.

M.G.L. c. 94A, § 22 Penalties; report of violation; investigation; action; injunction

c. 94A, § 22. Penalties; report of violation; investigation; action; injunction Section 22. Whoever violates any provision of this chapter or of any effective rule, regulation or order of the commissioner made under this chapter or adopted by the former milk control board under any similar provision of earlier law, except as herein otherwise expressly provided, shall be punished by a fine of not more than one hundred dollars or by imprisonment for not more than one year, or both, and such fine may be imposed for each day during which such violation shall continue. A violation of any provision of this chapter or of any effective rule, regulation or order so made or adopted may be reported by any person to the commissioner, who shall investigate such complaint and may institute such action at law or in equity in any court of competent jurisdiction as may be necessary to enforce compliance with any provision of this chapter or of any effective rule, regulation or order so made or adopted, and, in addition to any other remedy, may seek relief by injunction, if in the opinion of the commissioner it is necessary to protect the public interest, without being compelled to allege or prove that an adequate remedy at law does not exist.

M.G.L. c. 94A, § 22A Construction and enforcement of chapter; acts or omissions of officers or agents acting for principal

c. 94A, § 22A. Construction and enforcement of chapter; acts or omissions of officers or agents acting for principal Section 22A. When construing and enforcing the provisions of this chapter, the act, omission or failure of any officer, agent or other person acting for or employed by any individual, corporation, company, society or association within the scope of his employment or office, shall in each case be also deemed to be the act, omission or failure of such individual, corporation, company, society or association, as well as that of the officer, agent or other person acting for or employed by him or it.

M.G.L. c. 94A, § 23 Agreements, licenses, rules, regulations or orders in conflict with federal law

c. 94A, § 23. Agreements, licenses, rules, regulations or orders in conflict with federal law Section 23. When any agreement, license, rule, regulation or order made or issued pursuant to any relevant federal law shall be in effect in any market or geographical area within the commonwealth, any provision of this chapter, inconsistent or in conflict with such agreement, license, rule, regulation or order, shall not apply to such market or area; but, subject to the foregoing, this chapter shall be in effect throughout the commonwealth, including every such market and area.

M.G.L. c. 94A, § 24 Uniform milk control; co-operation with United States and other states; enactment of compact by Congress; delegation formed

c. 94A, § 24. Uniform milk control; co-operation with United States and other states; enactment of compact by Congress; delegation formed Section 24. (a) The commissioner may confer with legally constituted authorities of other states and of the United States with respect to uniform milk control within and among such states; may join in conducting joint investigations, holding joint hearings and issuing joint or concurrent orders; and may enter into one or more compacts for such uniform milk control, subject to such federal approval as may be authorized or required by law. (b) In order to promote such uniform milk control with respect to milk delivered for sale, distribution or use in any market located partly or wholly in this or any other state, the milk supply of which is at the time drawn in part from this commonwealth and in part from any other state, the commissioner, after examination and investigation and after hearing held after due notice, may, if it finds that such action is beneficial to the public interest and will promote one or more of the purposes of this chapter, join, in fixing, or fix, by such joint or concurrent and complementary order minimum prices to be paid by milk dealers to other milk dealers, producers or other persons for milk purchased, received, pasteurized, bottled or otherwise packaged, processed, or otherwise handled within the commonwealth for sale, distribution or disposal in any such market or natural marketing area; and may, if it finds such action beneficial to the public interest, in or in connection with any such order, include or adopt: (1) Any provision, term or condition which the commissioner is by any other provision of this chapter empowered to include or adopt with reference to milk similarly purchased, received, pasteurized, bottled or otherwise packaged, processed, or otherwise handled, for sale, distribution or disposal in a market located in and drawing its milk supply wholly from within the commonwealth. (2) Provisions whereby the commissioner may join in the appointment of a joint market administrator or other joint agency, and defining his or its powers and duties which shall include only the following powers: (i) to administer such joint order or concurrent and complementary orders, in accordance with its or their terms and provisions; (ii) to make rules and regulations to effectuate said terms and provisions; (iii) to receive, investigate and report complaints of violations of said order or orders. (3) Provisions that each milk dealer subject to such order or orders shall pay to said joint market administrator or other agency such handler's pro rata share, as approved by the commissioner, of such expenses as the commissioner finds will be necessarily incurred by such administrator or agency in administering said order or orders. (4) Provisions for the joint calculation and announcement of (i) Basic production averages for all producers delivering milk for sale or distribution as fluid milk in said market; (ii) A common uniform price for all milk delivered to all milk dealers selling or distributing, or otherwise handling, milk in said market, or common uniform prices for all milk delivered by producers to each such milk dealer; subject in either case to adjustments for grade, quality, test or location, or to a further adjustment to make uniform the returns to all such producers for milk delivered within their basic production averages. (c) The purpose of this section is to promote co-operation with the legally constituted authorities of other states and of the United States with respect to uniform milk control. This section and the orders, rules and regulations of the commissioner issued under authority thereof shall be interpreted and construed, together with any joint or concurrent and complementary orders of the legally constituted authorities of the United States or of other states, in such manner as to effectuate the general purpose to make uniform the effect of the orders, rules and regulations of the commissioner and of said authorities of the United States or of other states, regulating the interstate and intrastate transactions of milk dealers in or with respect to milk sold, distributed or disposed of in any such market. Upon formal enactment of any compact relative to uniform milk control by the United States Congress and participating states, there shall be appointed by the governor a delegation of five persons whose duty it shall be to cast the vote of the commonwealth as provided for in said compact, two of whom shall be farmers as defined in section one A of chapter one hundred and twenty-eight who shall be principally engaged in dairying and nominated by an organization of dairy farmers based in Massachusetts with a majority of its membership residents of Massachusetts; one of whom shall be a licensed milk dealer; one who shall be a consumer; and the commissioner or his designee, who shall serve as chairman. Terms of appointment of the gubernatorial members shall be for three years, except that upon initial formation of the delegation two persons shall be appointed to serve terms of two years and two persons shall be appointed to serve terms of three years. Upon formal enactment of any compact relative to uniform milk control by the United States Congress and participating states, the commissioner shall report annually to the joint committee on natural resources and agriculture and the house and senate committees on ways and means as to the status of said compact as well as its impacts upon the farmers, milk dealers, and consumers of the commonwealth.

M.G.L. c. 94A, § 25 Public interest; intention and purpose of statute

c. 94A, § 25. Public interest; intention and purpose of statute Section 25. It is hereby declared that the production and distribution of milk is an industry affected with a paramount public interest relating to the public health. The intention and purpose of this chapter is hereby declared to extend to the regulation of said industry and to the control of all milk sold or offered for sale in the commonwealth, to the full extent permitted by the constitutions of the commonwealth and of the United States, respectively.

M.G.L. c. 94A, § 26 Partial invalidity

c. 94A, § 26. Partial invalidity Section 26. If any provision of this chapter, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this chapter, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.

M.G.L. c. 94A, § 27 Short title

c. 94A, § 27. Short title Section 27. This chapter may be cited as the Milk Control Law.

Source: Massachusetts General Court (malegislature.gov)URL: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter94AFetched: 10/20/2026