American Shooting Sports Council, Inc. v. Attorney General

• Decision Date: 30 June 1999
• Citation: 711 N.E.2d 899,429 Mass. 871
• Parties: AMERICAN SHOOTING SPORTS COUNCIL, INC., & others 1 v. ATTORNEY GENERAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 899

711 N.E.2d 899

429 Mass. 871

AMERICAN SHOOTING SPORTS COUNCIL, INC., & others¹ v. ATTORNEY GENERAL.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Feb. 4, 1999.

Decided June 30, 1999.

Glenn Kaplan, Assistant Attorney General, for the defendant.

Frank A. Libby, Jr., Boston, for the plaintiffs.

The following submitted briefs for amici curiae:

Michael E. Malamut, Boston, for Associated Industries of Massachusetts.

John A. Wortmann, Jr., & Michael Paris, Boston, for Center to Prevent Handgun Violence & others.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL, & IRELAND, JJ.

GREANEY, J.

We are asked to determine whether the Attorney General lacked authority under G.L. c. 93A, § 2 (c ), to promulgate 940 Code Mass. Regs. §§ 16.00 et seq. (1997), in particular, §§ 16.03, 16.04, 16.05, 16.06(3), and 16.07, which define deceptive or unfair acts or practices in the transfer, or offer to transfer, of certain types of handguns to a consumer in the Commonwealth. The regulations, which were promulgated in October, 1997, essentially prohibit the commercial sale or transfer of handguns that fail to satisfy prescribed safety and performance requirements.

The plaintiffs filed a complaint in the Superior Court seeking declaratory and injunctive relief to prevent the Attorney General from enforcing the regulations. They alleged that, by promulgating the regulations, the Attorney General exceeded his authority under G.L. c. 93A, § 2 (c ), and that the regulations are arbitrary and capricious in violation of G.L. c. 30A, § 7. The plaintiffs further alleged that the regulations violated their rights under various provisions of the United States Constitution and 42 U.S.C. § 1983 (1994).

A few days before certain provisions of the handgun sales regulations were scheduled to take effect, the plaintiffs filed an application for a preliminary injunction, seeking to enjoin the Attorney General from enforcing the provisions on the ground that they are ultra vires. ² The provisions define as an unfair or deceptive practice the sale of a handgun (a) without a tamper-resistant serial number (§ 16.03) ³; (b) made from inferior materials (§ 16.04) ⁴; (c) without childproofing or safety devices (§ 16.05) ⁵; and (d) with a barrel shorter than three inches, unless certain disclosures are made to the customer (§ 16.06 ). ⁶ A judge in the Superior Court allowed the plaintiffs' application, in substantial part, after concluding that the plaintiffs "established a strong likelihood that they will succeed in establishing that the challenged Regulations are invalid on the grounds that they are ultra vires," and that "failure to grant the [preliminary] injunction will irreparably harm [them]."

The Attorney General appealed, pursuant to G.L. c. 231, § 118, second par., from the order entered on the preliminary injunction. We granted his application for direct appellate review.

1. In reaching her conclusion that the Attorney General lacked statutory authority to promulgate the regulations, the judge determined that, while "the harm which [G.L. c.] 93A seeks to prevent is primarily economic harm arising out of disparity in bargaining power between a merchant and a customer[,] [the regulations] seek to address the threat to the public safety posed by defective and otherwise unsafe handguns." The judge further determined that "the power granted to the Attorney General by [G.L. c. 93A,] § 2 (c ), does not encompass the power to establish design and performance standards for products sold in Massachusetts." She concluded that the "core of conduct encompassed within the phrase 'business acts and practices' is the manner and means used by merchants to market products and services to consumers." The Attorney General asserts that the judge erred by narrowly confining his regulatory authority to product marketing issues, and in concluding that G.L. c. 93A is aimed primarily at economic injury. The question concerns the scope of the Attorney General's authority in this area, and it is a question of law.

We shall first take up the nature of the Attorney General's authority. We conclude that he has the authority to regulate with respect to the type of handguns involved on two bases: (a) his authority pursuant to G.L. c. 93A, § 2 (c ), to prevent the deceptive or unfair sale or transfer of defective products which do not perform as warranted, and (b) his authority to apply G.L. c. 93A to acts and practices which the Legislature has defined as unlawful. As a consequence, we also conclude that the premise on which the preliminary injunction was issued is wrong; that some of the regulations can be implemented immediately; and that, as to the remaining regulations in dispute, there must be further proceedings in the Superior Court to determine their validity and to decide the other claims in the case.

(a) Section 2 (a ) of G.L. c. 93A "states the substantive core of the act: 'Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.' " Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 766, 407 N.E.2d 297 (1980). Subsection (b ) instructs the courts to define "unfair or deceptive acts" with reference to "the interpretations given by the Federal Trade Commission [FTC] and the Federal Courts to section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. [§ ] 45[a] ) [FTC Act], as from time to time amended." It is within this context that subsection (c ) permits the Attorney General to "make rules and regulations interpreting the provisions of subsection 2 (a )," so long as they are not "inconsistent with the rules, regulations and decisions of the [FTC] and the Federal Courts interpreting the provisions of [the FTC Act], as from time to time amended." Thus, § 2 generally limits the Attorney General's rule-making power to be within the concepts of deception or unfairness, as guided by administrative and judicial interpretation of the FTC Act. Purity Supreme, supra at 776, 407 N.E.2d 297.

In addition to the above, the Attorney General's power is limited in certain other respects. He cannot regulate under G.L. c. 93A in areas where the regulation is expressly or implicitly proscribed by law or by judicial decision. See G.L. c. 93A, § 3. See also Reiter Oldsmobile, Inc. v. General Motors Corp., 378 Mass. 707, 711-712, 393 N.E.2d 376 (1979); DePasquale v. Ogden Suffolk Downs, Inc., 29 Mass.App.Ct. 658, 662, 564 N.E.2d 584 (1990). He also generally cannot regulate in a way which conflicts with legislation. Cf. Lowell Gas Co. v. Attorney Gen., 377 Mass. 37, 42-43, 385 N.E.2d 240 (1979); Dodd v. Commercial Union Ins. Co., 373 Mass. 72, 76-78, 365 N.E.2d 802 (1977). ⁷ Further, Federal law generally preempts State regulation of many consumer products (but not firearms), as defined by statute. See the Consumer Product Safety Act, 15 U.S.C. § 2075(a) (1994); 15 U.S.C. § 2052 (1994). ⁸ There are other limitations on the Attorney General's authority that we need not set forth here as they do not concern the issue before us.

With respect to the regulation of product safety and performance, the following considerations have pertinence to the Attorney General's authority. The Attorney General may not use his regulatory authority to pursue general policy goals or public issues that limit or ban the sale of lawful products under the general rubric that purchasers of the products, or third parties who may come into contact with them, would be better off if the products were not marketed at all. Questions concerning whether such products should be sold, or their sales restricted, are primarily legislative in character, and, if regulation by government agencies is to occur, it is ordinarily to be done pursuant to a delegation of authority by the Legislature. The Attorney General may however, regulate in an area not otherwise withheld from his consideration, even if the regulation may affect the ability of the vendor to sell its product, if he can establish that the regulations define acts or practices which violate G.L. c. 93A, § 2 (a ). See Purity Supreme, supra at 775, 407 N.E.2d 297.

In this context, the Attorney General may regulate deceptive or unfair acts or practices in the sale of products which fail fundamental requirements of safety and performance. Here, we are in an area where the purchaser is sold a product which the purchaser reasonably believes is safe, if used as directed, and will perform in the manner expected of like products. If, during ordinary use in keeping with directions, the product performs in a deviantly unsafe or unexpected way, the product's sale has occurred in circumstances which make the sale deceptive or unfair. This is especially so where harmful or unexpected risks or dangers inherent in the product, or latent performance inadequacies, cannot be detected by the average user or cannot be avoided by adequate disclosures or warnings. See Commonwealth v. Johnson Insulation, 425 Mass. 650, 660-661, 682 N.E.2d 1323 (1997) ("An article is not unreasonably dangerous merely because some risk of harm is associated with its use, but only where it is dangerous 'to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.' Restatement [Second] of Torts, § 402A comment i, at 352 [1965]").

An example may be helpful at this point. A power lawnmower possesses certain dangers, many of which are apparent, and all of which can be guarded against by proper disclosures and warnings. If used as expected the power lawnmower will safely and adequately cut grass. However, a power lawnmower which blows up, or catches fire when used in a normal manner, or which cannot adequately cut grass does not perform in an expected way. A consumer could validly claim that, in acquiring such a lawnmower, he has been dealt with unfairly...