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Cumberland Farms’s ballot question to expand alcohol sales faces legal fight — from the packies

Tom Herde/Globe Staff/File

Package store owners remember the price they paid to win the Great Booze Battle of 2006. They want to avoid another costly campaign to protect their turf.

That’s why the Massachusetts Package Stores Association filed a lawsuit with the state Supreme Judicial Court on Monday.

This latest challenge involves the state’s archaic liquor license limits again. At issue this time: a ballot question pushed by Cumberland Farms that would create a new kind of beer-and-wine license for food sellers, to be made available at local authorities’ discretion, with no limits on the amount any one company could control. The proposal would also remove common ownership restrictions for traditional licenses over four years, implement new requirements for age checks at the counter, and send alcohol excise taxes to the state agency that oversees the industry.


It may sound appealing to voters. They could decide on this legislation a year from now — but not if the packies can stop this in the courts first. Rob Mellion, the trade group’s executive director, views this as a serious threat that could wipe out many of the mom-and-pops who dominate his industry.  So the association has asked the SJC to rule the ballot question unconstitutional.

One sign the packies aren’t messing around: Their legal team includes former SJC judge Bob Cordy, now with the law firm of McDermott Will & Emery.

Cordy and his team take a page from the playbook that several major business groups used last year, to shelve the “millionaires tax” referendum. (A temporary delay, it turns out.) They argue that Cumby’s is simply trying to accomplish too much with its petition, violating a requirement that ballot questions only include directly related matters. Petitioners shouldn’t bundle unrelated issues together, a practice derisively known as logrolling. They also cite a restriction against using statewide referendums to force legislators to spend state funds in a certain way.


Cumby’s is trying to pull off something that the big supermarket chains once failed to do: upend a longstanding system that protects small retailers and their sizable piece of the state’s alcohol market. You probably remember the Great Booze Battle of 2006, with its blizzard of TV ads, as supermarkets pushed a referendum to shake off the then-strict limit on three licenses per company to expand wine sales.

The grocery chains lost that fight, though not without both sides together racking up $12 million in expenses. They returned to the fray with a new ballot question in 2011, only to quickly reach a truce with the packies: The per-owner caps would gradually expand over the decade, until each company could sell alcohol in up to nine locations in the state, starting in 2020. As a result, Mellion says, the supermarkets wouldn’t push a new ballot question until 2021 at the earliest.

Beer and wine wholesalers were part of that accord. But not Cumby’s.

Mellion says his group has started talking again with the Massachusetts Food Association, which represents supermarkets, about a new agreement to take effect after the existing truce expires. But Cumby’s, Mellion says, is uninterested in a reasonable limit and instead wants to sell alcohol at all of its 200-plus convenience stores in this state.

Mellion says he also worries about the deep pockets behind Cumby’s, especially if the legal challenge fails. British convenience conglomerate EG Group acquired the Cumberland Farms chain last month from the Haseotes family, and plans to relocate its US headquarters from Ohio to the Cumby’s HQ in Westborough at the end of the year.


Matt Durand, government affairs manager at Cumby’s, says his company’s pursuit of this ballot question is unrelated to the sale to EG.

Durand points to a number of other factors instead. He cites a state task force that looked at alcohol regulations and two years ago recommended, among other things, giving local authorities more discretion over store licenses. Other drivers: the upcoming expiration of the 2011 compromise, an industry shift in which c-stores are now operating more like groceries, and a presidential election that would bring high voter turnout in 2020.

So far, so good for Cumby’s. The company has bankrolled a highly successful signature gathering campaign. Durand says nearly 130,000 names have been collected as of last week’s deadline to get them to town clerks. They are still being certified, but Durand says Cumby’s already has more than the roughly 80,000 certified signatures it needs for this round. (Cumby’s would need another 13,000-plus next year, if the Legislature doesn’t intercede first.)

Durand says he’s confident the question can withstand the legal challenge. Attorney General Maura Healey’s office has already cleared the question, saying its various aspects meet the relatedness test. (Healey’s staff declined to comment.)

The packies could have another Great Booze Battle on their hands if they can’t convince the SJC that Healey was wrong. And this one might not go their way.


Jon Chesto can be reached at jon.chesto@globe.com. Follow him on Twitter @jonchesto.