OPINION OF THE COURT
In this dеclaratory judgment action appellant, Wegman’s Food Markets, Inc. (Wegman’s), seeks a declaration that New York’s Unit Pricing Statute, former section 193-h of the Agriculture and Markets Law (repealed and renumbered as section 214-h [L 1977, ch 874, §§ 1, 3]) is unconstitutional. Appellant further seeks to permanently enjoin defendant-re
Designed to facilitate comparative pricing by consumers, section 193-h of the Agriculture and Markets Law, enacted in 1974, requires certain retailers to provide unit price information to their customers. Only food stores, or those stores "selling primarily food at retail”, which are not primarily selling food for consumption on the premises, fall within the reach of the statute. Among food stores there is an exclusion for those engaged in a specialty trade (e.g., bakeries or delicatessens) which the commissioner determines by regulation to be inappropriate for unit pricing (§ 214-h, subd 2, par b). Stores with annual gross sales of less than two million dollars are also excluded. Drug stores which compete with appеllant, such as Rite-Aid, CVS Pharmacy and Fay’s Drugs, are exempted from the unit pricing requirement since they are not engaged in "selling primarily food”. The statute originally covered only three categories of consumer commodities commonly found in food stores: food, paper products and cleansing agents. Appellant did not contest this regulation and, in fact, had been providing its customers with unit pricing information on these items even before the enactment of section 214-h. In 1976 the statute was amended (L 1976, ch 420) by adding a fourth category of consumer commodities subjeсt to unit pricing: "non-prescription drugs, female hygiene products and toiletries” (§ 193-h, subd 2, par a, cl [4]). Wegman’s sells up to 5,000 items known as health and beauty aids, which include many of these commodities. It claims that because this latest unit pricing requirement will increase its cost of doing business and injure its cоmpetitive position the statute violates due process. Since its major rivals in home health and beauty aid sales—large drug and variety stores—are not similarly subject to the regulation, Wegman’s argues that it also violates its constitutional right to equal protection. Finally, it alleges thаt the definitions in the statute are unconstitutionally vague.
The record before us reveals that Wegman’s operates 32 retail stores which sell food, related grocery products and general merchandise. It has voluntarily provided a computerized unit price information system in аll of its stores since 1972. However, in order to comply with the amended version of the unit pricing statute, it will have to design and install a new computerized unit price information disclosure system.
Respondents rely on various documents to demonstrate that the statute serves a legitimate purpose. The legislative enactment was intended to aid consumers in protecting the buying power of their food dollars. Based on researсh studies considered by the Legislature, unit pricing is effective in reducing price differences, making price increases more obvious to the purchaser and discouraging manufacturers from disguising price increases by reducing package size (NY Legis Ann, 1974, p 276). It is estimated that unit pricing of food products can save a shopper approximately 10% in food bills. The Legislature also found that the cost of implementing a unit pricing system would not exceed $2,500 per year and that this cost is relatively constant, regardless of the size of the store. As a result, unit pricing would imposе a harsh burden on the exempted small store, but not an unreasonable burden on a large or medium-sized store. The 1976 amendment was designed to complete the purpose of the original enactment by "bringing under its coverage an important category of items found in most supermarkеts” (NY Legis Ann, 1976, pp 71-72). The Legislature found that since these products come in a variety of shapes and sizes, comparison shopping is rendered difficult in the absence of unit pricing.
With respect to Wegman’s initial argument, it is well settled that the due process clause affords little protеction from State regulation in the economic sphere. As long as the Legislature selects means which are reasonably calculated to serve a proper governmental purpose, the requirements of due process are satisfied. Only a minimal level of rationality is necessary to save an economic regulatory statute from constitutional attack on due process grounds, or, to put it another way, only where the State interferes with a citizen’s property without "rhyme or reason” does a deprivation of due process occur (Defiance Milk Prods. Co. v Du Mond,
Wegman’s principal argument is that the statute violates its right to equal protection because it treats food stores and other stores, selling identical products, differently. It agrees that the statute, as originally enacted, was valid, but cоntends that the 1976 amendment, adding the fourth category of consumer commodities, rendered it constitutionally defective. It argues that the original validity of the statute stemmed from the fact that all of the items which food stores were required to unit price were items sold primarily by food stores. Thus, it made sense to require only food stores to unit price these items. However, the added items, "non-prescription drugs, female hygiene products and toiletries”, are equally available to prospective purchasers in unregulated retail stores. In fact, as appellant points out, it derives less than 10% of its business from the sale of these items, while drug stores and general merchandise stores concentrate nearly exclusively on these items. Appellant concludes, therefore, that the statutory classification is underinclusive and arbitrary.
Equal protеction requires that all those similarly situated be treated alike. A determination of whether a legislative classification includes "all persons similarly situated” must be
Unit pricing is unquestionably a useful requirement. There is benefit in requiring the items in the fourth category to be unit priced in food stores. It may be wise and beneficial also to extend this requirement to those other stores which are currently exempt from regulation. But it is not the function of a court to sit as a superlegislature to review the wisdom of a legislative policy determination (New Orleans v Dukes, supra, at p 303; People v Illardo, supra, at p 418). An often-quoted statement of the Supreme Cоurt in Williamson v Lee Opt. Co., supra, at p 489, is particularly appropriate: "The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. * * * Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. * * * The legislature may select one phase of one field and apply a remedy there, neglecting the others [citations omitted]”. Food stores are different because they sell food. The record indicates that in 1975 the American con
Turning to Wegman’s final argument, Special Term held that the definitions contained in the unit pricing statute are sufficiently precise to satisfy the requirements of due process. We agree. Due process requires a sufficient degree of precision in legislation to provide "a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute” (United States v Harriss,
Judged by these standards, the term "food stores” is not so vague as to render the statute violative of due process. Appellant’s main objеction to the definition is that the words "selling primarily food” are unduly vague (emphasis added). It contends that, based on the amount of retail floor space devoted to the sale of nonfood items, its superstores are not engaged primarily in the sale of food. Its belief that these stores are not "food stores” as defined in the statute, however,
The order should be affirmed. Section 214-h of thе Agriculture and Markets Law, as amended (subd 2, par a, cl [4]) by chapter 420 of the Laws of 1976, is declared constitutional and respondent, Commissioner of the Department of Agriculture and Markets of the State of New York, may not be enjoined from enforcing that statute against appellant.
Simons, Callahan, Doerr and Moule, JJ., concur.
Order unanimously affirmed, without costs, and judgment entered in favor of respondents, in accordance with opinion by Cardamone, J. P.