This is an appeal from a Superior Court summary judgment for the Alcoholic Beverages Control Commission (commission) affirming a decision of the commission. Pursuant to its decision, the commission had ordered Franklin and Robert Naif eh (doing business as Central Liquor Company, hereinafter Central) to cease and desist from selling to M. H. Gоrdon & Son, Inc. (Gordon), or to any other Massachusetts wholesaler, “alcoholic beverages the price of which fails to correspond exactly with the affirmed prices in effect under [G. L. c. 138, §§ 25B and 25D].” 2 The commission had reached its decision after a hearing held on November 2, 1978, at which it found that Central had sold alcoholic beverages to Gordon at prices which did not conform exactly to the affirmed prices of those products. Gordon then sold these products to retail outlets in Massachusetts.
The plaintiffs commenced an action in the Superior Court for judicial review of the commission’s order, pursuant to G. L. c. 30A, § 14. A Superior Court judge denied
*66
the plaintiffs’ application for a preliminary injunction staying enforcement of the commission’s decision and also denied a motion to remand the action to the commission for the taking of additional evidence. The plaintiffs moved for summary judgment. This motion was denied аnd summary judgment was entered for the commission. Mass. R. Civ. P. 56 (c),
The pertinent facts are as follows. Gordon does not buy alcoholic beverages directly from Joseph E. Seagram & Sons, Inc. (Seagram), in Indiana. Gordon instead сhose to buy Seagram’s products from Central, which is located in Oklahoma. Central buys the Seagram’s products from a Seagram’s distribution center in Oklahoma and then ships them to Gordon. The commission found that the price charged by Central to Gordon was the sum of (1) the Massachusetts affirmed price; and (2) a service, handling, and shipping charge incurred by the manufacturer of the alcoholic beverage (Seagram) in shipping its products from its distillery in Indiana to Oklahoma, and in handling the products once there. 3 This price is greater than the price charged by Seagram for identical products sold directly to Massachusetts wholеsalers at the affirmed price.
The plaintiffs advance three arguments in their appeal: (1) that the difference between the Massachusetts affirmed price and that paid by Gordon to Central was merely a legitimate “laid-in cost” and not part of the price and that, therefore, there was no violation of §§ 25B and 25D; (2) that §§ 25B and 25D, as written and as applied, are in conflict with the Sherman Act, 15 U.S.C. § 1 et seq. (1976), and are thus unconstitutional;
4
and (3) that §§ 25B and 25D,
*67
as applied, create a burden on interstate commerce and unconstitutionally conflict with the commerce clause of the United States Constitution, art. 1, § 8. We find no merit in the plaintiffs’ first two contentions, and we do not reach the third because it is argued for the first time on appeal. See
Trimmer, petitioner,
The commission has raised several threshold issues which must be addressed before we can reach the substance of this case. We shall address such issues in the context of our discussions of each argument presеnted by the plaintiffs.
1. Violation of G. L. c. 138, §§ 25B ir 25D. The commission argues, initially, that the plaintiffs waived their claim that they did not violate §§ 25B and 25D.
In his memorandum of decision, the trial judge stated that the “plaintiff does not argue in his brief that there was not a violation of General Laws Chapter 138, Sections 25B and 25D, but more appropriately bases his motion for summаry judgment on the unconstitutionality of the affirmative law.” The general rule is that an issue not raised in the trial court cannot be argued for the first time on appeal. See, e.g.,
Royal Indem. Co.
v.
Blakely,
The record persuades us that the issue whether the plaintiffs violated the statute has not been raised for the first time
*68
on appeal, and was, in fact, ruled upon by the Superior Court judge and that the plaintiffs have a right to argue this issue on appeal. Cf.
Lenari
v.
Kingston,
Turning to the merits, the plaintiffs argue that the higher price paid by Gordon to Central merely represents the shipping costs incurred in transporting thе products from Indiana to Oklahoma. Charging the higher price in this context, the plaintiffs continue, is expressly permitted by G. L. c. 138, § 25D (d), wherein differentials in price are permitted if due to differences in “the actual cost of delivery.” We disagree.
The plaintiffs accurately cite to the statute, but the statutory exemption for delivery costs does not apply here. Gordon bought products from Central for the affirmed price plus an added charge. That this added charge can be traced to the cost of shipping the alcoholic beverages to Central in Oklahoma is not material. Some of the costs of the prоducts could certainly be traced to the cost of shipping grain to Seagram in Indiana, or to other costs of doing business. It is the price paid by Gordon to Central that the Legislature addressed in the statute, and we must deal with that here. That price was above the affirmed price and thus violated the language оf G. L. c. 138, § 25B
(d).
See
M.H. Gordon & Son
v.
Alcoholic Beverages Control Comm’n,
2.
Sherman Act.
The commission first argues that, since the plaintiffs failed to raise an antitrust claim before the commission, they were precluded from raising it before the Superior Court and that we should not allow them to argue it here. The general rule is that it is too late to raise a claim before a reviewing court if the рoint had not been raised before the administrative agency.
Charrons Case,
As Justice Black stated in
Hormel
v.
Helvering,
Second, it is at least arguable that the decision in
California Retail Liquor Dealers Ass’n
v.
Midcal Aluminum, Inc.,
The commission next argues that Gordon is barred from raising the Sherman Act claim by the doctrine of res judicata, more currently known as issue preclusion. Restatement (Second) of Judgments § 27 (1982). The commission points to
M.H. Gordon & Son
v.
Alcoholic Beverages Control Comm’n,
We need not enter into a prolonged discussion concerning whether the Sherman Act claim could have been litigated in the prior
M. H. Gordon
case. Rather, we point to the fact that Central was not a party in that case. See generally Restatement of Judgments § 93(b) (1942);
Rudow
v.
Fogel,
The plaintiffs argue that the scheme set up by the interplay between §§ 25B and 25D and the commission’s decision in this case make out a violation of the Sherman Act. The commission counters that its application of the statutes is immune from regulation by virtue of the “State аction” exemption to the antitrust laws.
It has been long established that some business transactions and some State regulations, which otherwise would be subject to antitrust laws, are immune from antitrust scrutiny pursuant to the “State action” exemption.
Parker
v.
Brown,
In Parker, the Court reviewed a system established by California for the price maintenance of raisins. The Court held, first, that Congress did not intend to preempt the field of State-sanctioned anticompetitive activity. Parker v. Brown, supra at 350-351. Emphasizing that pursuant to California’s statutory and regulatory scheme the State had to approve the program and enforce it, the Court held that the Sherman Act did not apply.
Important gloss was not added to
Parker
until the 1970’s. In
Goldfarb
v.
Virginia State Bar, supra,
the Court held that a State must compel the challenged conduct bеfore the doctrine would apply. In
Bates
v.
State Bar of Ariz., supra
at 361, the Court said that the doctrine of State action applies if the private party “acts as the agent of the [State] under its continuous supervision.” In
California Retail Liquor Dealers Ass’n
v.
Midcal Aluminum, Inc., supra,
the Court stated that
Parker
v.
Brown, supra,
and subsequent decisions established two standards for antitrust immunity: “First, the challenged restraint must be ‘one clearly articulated and аffirmatively expressed as state policy’; second, the policy must be ‘actively supervised’ by the State itself.”
Midcal,
We have no doubt that the Commonwealth’s scheme, as articulated by §§ 25B and 25D, satisfies the first part of the Midcal test. The plaintiffs do not question this conclusion. It is clear that the Commonwealth has a strong policy with respect to the prohibition of price discrimination against Massachusetts consumers. See M.H. Gordon & Son v. Alcoholic Beverages Control Comm’n, supra at 593.
Whether the statutory scheme under examination here passes the second part of the Midcal test requires closer ex *72 amination. In Midcal, a State statute required all wine producers and wholesalers to file price schedules with the State. No wine was tо be sold to a retailer for a price other than that set in the schedule. Penalties for selling below the posted price included fines, license suspension, or license revocation. California had no direct control over wine prices, and it did not review the reasonableness of the prices set. The Supreme Court held that the program “does not meet the second requirement for Parker immunity. The State simply authorizes price-setting and enforces the prices established by private parties. The State neither establishes prices nor reviews the reasonableness of the price schedules .... The Stаte does not monitor market conditions or engage in any ‘pointed reexamination’ of the program.” California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., supra at 105-106. The commission argues that §§ 25B and 25D mandate, in contrast to the California scheme rejected in Midcal, active supervision and thus fall within the Parker “State action” doctrine. We agree.
As in the California scheme, it is not the Commonwealth but private parties who set prices. G. L. c. 138, § 25D
(a).
And, as in Californiа, the Commonwealth may impose penalties for violating the statute. G. L. c. 138, § 25D
(e).
But the similarity between the two schemes ends there. While the commission ordinarily has no direct control over alcoholic beverage prices, in some instances, if not inconsistent with the purposes of the statute, the commission may allow such beverages to be sold at specific, approved prices different from the affirmed prices. G. L. c. 138, § 25B
(d). M.H. Gordon & Son
v.
Alcoholic Beverages Control Comm’n, supra
at 590. Thus, as we stated in the first M.
H. Gordon & Son
case, the “commission is . . . the final arbiter of the price at which alcoholic beverages are sold by suppliers to Massachusetts wholesalers.”
M.H. Gordon & Son,
3.
Commerce clause.
The plaintiffs argue, finally, that §§ 25B and 25D impose an unconstitutional burden on interstate commerce. We decline to reach this issue, as it is abundantly clear that it was not raised at the trial court and appears here an an afterthought. Unlike the claim that the plaintiffs did not violatе the statute, nowhere in the record
6
is there any factual basis for us to examine the issue of the commerce clause. Because the issue is being raised for the first time on appeal, we will not consider it. See
Royal Indem. Co.
v.
Blakely,
Judgment affirmed.
Notes
An extensive discussion of §§ 25B and 25D may be found in
M.H. Gordon & Son
v.
Alcoholic Beverages Control Comm’n,
This is the same price Central paid to Seagram. Central’s profits resulted from charges for shipping the products from Oklahoma to Massachusetts and from interest gained on cash flow.
While the plaintiffs do not state the basis fоr their constitutional argument, we assume that they construe the purported conflict between the Commonwealth’s statute and the Sherman Act as a violation of the supremacy clause of the United States Constitution, art. 6.
This is especially true when we are asked to address an issue of law. If extensive fact finding is rеquired, remand to an administrative agency is usually the better procedure. See G. L. c. 30A, § 14 (7).
The complaint does allege that the decision of the commission was “[i]n violation of constitutional provisions.” In light of the judge’s memorandum, however, it is readily apparent to us that the commerce clause claim was not brought to his attention.