MA Legislature Concludes 2017/18 Formal Session

The MA House of Representatives and Senate adjourned shortly after 1:00 AM on August 1^st, concluding their formal business for the 2017-2018 legislative session.  The Legislature will continue to meet in informal session until the end of the year, where typically only non-controversial matters are handled, as there are no roll call votes taken and the objection of any one member can block the further progress of any bill.  While the last few days of the session saw action on hundreds of budget veto overrides, land takings and local bills, the Legislature also moved on a number of important, high profile issues, such as economic development and energy.  Other big bills involving health care and education funding failed to garner a consensus prior to the end of session deadline.   The following is a brief update on issues of interest to the retail industry that saw attention at the close of formal sessions. 

• H.4868, An Act relative to economic development in the commonwealth

Language establishing a 2018 Sales Tax Holiday was included in the final version of the Economic Development legislation, H.4868, which was one of the final bills to receive approval before the Legislature adjourned early in the morning on August 1^st.  The holiday weekend was held on August 11^th and 12^th.  All RAM members who benefit from the holiday weekend are encouraged to thank their local legislators who voted in support of the holiday’s passage.

The legislation also establishes new restrictions on the use of non-compete agreements in the Commonwealth, an issue the Legislature had struggled with over the past few sessions.  The new law limits non-compete agreements to one year.  Also included in the final bill were provisions to address the abusive practice of “patent trolling.”  However, the Governor vetoed the patent troll related sections of the bill, describing the legislature’s actions as “not  narrowly tailored and likely to have unintended consequences for MA residents, companies and educational institutions.”

• H.4857, An Act to Advance Clean Energy

A compromise energy bill was agreed to by the House, Senate and Governor in the final days that includes a call for utilities to increase their renewable portfolio standard, which governs the amount of clean energy they must purchase and integrate into the state’s energy system.  The standard will increase one percent by 2020, then by two percent each year until 2030, and then one percent annually thereafter.

The legislation also establishes an energy storage target, authorizes, but does not mandate, an additional procurement of 1,600 megawatts of offshore wind power, should the Department of Energy Resources (DOER) deem it feasible, and creates a "clean peak standard" for utilities, a first in the nation law intended to incentivize energy storage and deter the state’s reliance on dirty sources of energy at times of peak usage.  RAM was pleased that the costly Senate proposals calling for a carbon pricing system and a removal of the solar net metering cap were not included in the final bill.

• H.4835, An Act promoting climate change adaptation, environmental and natural resource protection, and investment in recreational assets and opportunity

The $2.4 billion Environmental Bond bill that passed at the end of the session was of interest to retailers primarily for what it did not include – a plastic bag ban.  The final bill sent to the Governor dropped the Senate passed language that called for a ban on all plastic checkout bags.  Under the Senate proposal, the only allowable options would have been recycled paper, or a reusable bag, which was defined as a sewn bag with stitched handles, made of cloth or other machine-washable fabric.  With local bag ordinances in over 80 municipalities across the Commonwealth, this issue is not going away.  

• H.4806, An Act relative to consumer protection from security breaches

Legislation proposed in reaction to the 2017 Equifax data breach reached the Governor’s desk for approval on July 25^th.  The legislation is designed to make it easier for consumers to monitor and protect their credit.  Key provisions of the bill would (1) prohibit consumer reporting agencies from charging consumers fees for placing or removing a credit freeze, (2) require anyone pulling a consumer’s credit report to first secure the consumer’s consent and disclose to the consumer the reason for pulling the report—failure to do so is deemed an unfair practice under 93A, our consumer protection statute allowing for a private right of action and treble damages, and (3) require any company that experiences a data breach involving the disclosure of a consumer’s social security number to provide free credit monitoring services for 18 months. The Governor did not sign this bill but rather sent it back to the Legislature with proposed amendments.  With its fate uncertain at this time, the issue may be pushed off to the next legislative session.

• FY2019 State Budget – (H.4800)

Three and a half weeks into the new fiscal year, Governor Baker signed the Fiscal Year 2019 budget into law, authorizing a $41.2 billion plan that does not raise taxes or fees.  There were two positive inclusions in the budget for the retail industry.  The first was language to delete all previous references in state law to “Real Time” sales tax collection with the repeal Sections 94, 95 and 142 of Chapter 47 of the Acts of 2017.  This proposed theory was misguided from the start and we applaud this resolution. 

The other budget provision of interest creates an EMAC Supplement Hardship Waiver, stating that the Department of Unemployment Assistance (DUA) “shall develop and may approve a hardship waiver for an employer experiencing a financial hardship due to its liability under an increased (EMAC) contribution…”  RAM will continue to work with the DUA as they prepare to issue regulations and guidance on how to implement this waiver application process.

• Chapter 157 of the Acts of 2018, An Act Protecting Youth from the Health Risks of Tobacco and Nicotine Addiction

Chapter 157 of the Acts of 2018 is the new youth/tobacco prevention law.  Signed by the Governor in July, the law is designed to reduce youth access to tobacco and nicotine products by increasing the purchase age of tobacco to 21, banning the sale of tobacco products in retail pharmacies and bringing vaping products within the existing legal framework regulating tobacco products. 

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The Legislature was unable to reach consensus on a number of high profile bills in play at the deadline which all failed to advance, including omnibus bills on health care financing, education funding reform, and community benefit districts.  RAM and other employer groups opposed any additional assessments included the health care bills that would increase the overall cost of health care in the Commonwealth.  We also remain committed to seeking reforms in the MassHealth program, where ballooning costs lead to the temporary EMAC Supplement assessment on employers.

Thousands of bills did not make it across the finish line by midnight on the 31^st, many of them detrimental to the retail industry.  We will continue to monitor them to ensure that none move during the informal sessions, but you can also expect most to be back next session.