Where the heck is the opposition?
That’s what package store owners across the state are wondering. It’s hard to blame them.
For years, they dueled with food retailers over who gets to sell alcohol to customers. They fought with supermarket chains in 2006, for example, and recently battled Cumberland Farms.
Now comes Question 3, the latest chapter in the saga over the strict Massachusetts limits on where shoppers can buy alcohol. This time, it’s the Massachusetts Package Stores Association behind the ballot question, which could double the number of locations where a company can sell beer or wine. And this time, the packies’ erstwhile opponents say they’re taking a pass.
The supermarkets in the Massachusetts Food Association? Staying neutral. Ditto for the New England Convenience Store & Energy Marketers Association.
The Retailers Association of Massachusetts board voted to oppose the ballot question but will not marshal any resources to do so. President Jon Hurst said his small business members are far more concerned with Question 1, the proposed income tax surcharge on high earners. So RAM is focusing on Question 1 this fall, not Question 3.
What about Cumby’s? The Westborough-based convenience store chain had previously tried to get a ballot question before voters to expand alcohol sales before shelving it in the COVID-19 pandemic’s early days. Cumby’s is now owned by British retail conglomerate EG Group. But that doesn’t mean it has given up on its quest for more liquor licenses. Far from it. The company, however, maintains it’s not actively fighting Question 3 this fall. Cumberland Farms — along with several other unnamed, like-minded retailers — did establish an opposing ballot committee, as a legal precaution. But it has not spent any money. Nor has it raised any.
MassPack filed the ballot question as a defensive measure last year to fend off a more expansive ballot question from Cumby’s and its allies. But that threat never materialized. MassPack’s question, intended as a compromise, would gradually double the allowable beer-and-wine locations for any one corporation, from nine to 18 over a decade, while scaling back the places where spirits can be sold from nine to seven. Question 3 would also bring about three key rules changes: broadening the acceptable IDs for age verification to include out-of-state driver’s licenses; banning alcohol sales through automated or self-checkout machines in stores; and changing the formula for calculating fines to link them to a store’s gross profits from all retail sales, including food and gasoline, instead of just alcohol sales.
It’s easy to understand why the mom-and-pops in MassPack want those rules changed. But why allow the big boxes so many more places to compete with packies?
You have to consider the tortured history here. For decades in Massachusetts, a single company could not sell alcohol to shoppers from more than three locations, a rule that insulated independents from big-box chains and other out-of-state rivals. Then in 2006, the supermarkets pushed a ballot question before voters that would have allowed wine in many more locations. The packies fought back. With the help of a public safety appeal to voters from police chiefs, the packies succeeded.
The food sellers tried five years later to get back on the ballot. A compromise was then reached with MassPack, allowing the cap on three locations to gradually grow, finally settling at nine.
Big chains took advantage of that opportunity, just as the packies feared. Records provided by the state Alcoholic Beverages Control Commission show Trader Joe’s now sells alcohol in eight locations, as do Price Chopper, Total Wine, Shaw’s/Star Market, BJ’s Wholesale Club, and Ocean State Job Lot. (Cumby’s, for the record, has seven alcohol licenses in Massachusetts.) Fuel sellers Energy North and Nouria Energy and Wellesley-based Roche Bros. and West Springfield-based Table & Vine are the only businesses with nine so far.
Rob Mellion, MassPack’s executive director, said his members feel like they are under siege. Hundreds of them, he said, have closed for good and transferred their licenses over the last few years amid the incursion of the retail giants.
He said that siege mentality only worsened when the start of the 2021-2022 legislative session brought a flood of bills to expand alcohol sales. Most of them — more than 100 — were home-rule petitions filed by municipal officials, seeking to go beyond limits imposed on their respective communities. Massachusetts law doesn’t just restrict the locations where one company can sell alcohol; it also limits how many such stores can be allowed in any city or town. A revival of the food-store proposal from Cumby’s, essentially creating a new license with no corporate limit, was in the mix of these bills.
MassPack members considered Cumby’s proposal a precursor to another ballot question and logically prepared a defense. No such threat arrived. But MassPack still pushed ahead with its own ballot proposal last fall, the one that would become Question 3. The association spent the $400,000 necessary to gather the bulk of the signatures to get it on the ballot. The goal of proceeding was twofold: to gain leverage in legislative negotiations at the State House and to box out a future challenge at the ballot. In that regard, Mellion is counting on a state law that prohibits questions that are “substantially the same” from appearing on the ballot for at least six years.
MassPack contributed most of the roughly $360,000 that its ballot committee has raised so far this year. Nearly 70 packies kicked in money as well, mostly with contributions ranging from $250 to $5,000. Mellion said the group has taken out print and billboard ads, while some stores are giving away space in their fliers and signs to promote the cause. TV is expensive, and MassPack hasn’t quite raised enough yet to use that medium effectively. But that could change: Representatives for nearly 300 alcohol sellers attended one of two meetings last week that Question 3 organizers hosted to galvanize support.
Cumby’s, meanwhile, is biding its time.
Senior counsel Matt Durand said Question 3 contains some changes that would help Cumby’s, and some that would not. So the company is instead waiting to resume its lobbying on Beacon Hill in 2023 to create a new “food store” license that would significantly increase where food sellers would be allowed to sell beer and wine, while improving local control over the locations.
Cumby’s hasn’t ruled out another ballot question. The state rules are clear: The next time an initiative that’s substantially similar to Question 3 could appear on the ballot is 2028.
What’s not clear is whether the Cumby’s proposal is similar enough to Question 3 to count. (Durand argues it is not, while Mellion argues it is.)
Richard Goldstein, a Boston lawyer who has advised ballot committees in the past, said the state’s highest court has not yet faced the issue of just how similar one ballot question needs to be to preclude another one. MassPack, if pressed, would likely take Cumby’s to the Supreme Judicial Court to get that definitive answer.
One thing is certain, even while they remain quiet this fall. We haven’t heard the last from food stores on this issue, regardless of what voters decide in November.