Legislation to Stop Third Party Delivery "Ghosting" Practices

December 4, 2020
Massachusetts Restaurant Association

Massachusetts State House

Massachusetts one big step closer to putting an end to third-party delivery "ghosting" practices
Today, both the House and the Senate passed compromise budget legislation. Included in the agreement is language that would require third-party delivery companies to get a restaurant's written consent to be listed on their platforms.
It has become common practice for delivery companies to add non-partner restaurants to their listings. This has created frustration for restaurants who didn’t even know that they were listed, and confusion for customers who think they are patronizing a restaurant.
This language is a welcome change for our industry. For years, third-party delivery apps have casually listed restaurant brands, menus and logos on their platforms without asking permission. This will ensure that the apps get permission before listing a brand or menu. 
The language below now must be signed by the Governor to become law.
SECTION 100. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:-
“Covered establishment”, a restaurant or other eating or drinking establishment offering same-day food or drink for sale in a single commercial transaction through any third-party delivery service platform, from 1 or more retail locations within the commonwealth.
“Third-party delivery service company”, a corporation, partnership, sole proprietorship or other entity qualified to do business in the commonwealth that is engaged in facilitating same-day delivery or pickup of food and beverages through a third-party delivery service platform for not less than 20 separately owned and operated covered establishments.
(b)(1) A third-party delivery service company shall not use a likeness, trademark or other intellectual property belonging to a covered establishment without obtaining written consent from said establishment to use the likeness, trademark or other intellectual property. Written consent under this subsection shall be reflected in a valid agreement.
(2) To enter into a valid agreement under this section, the third-party delivery service company shall be registered to do business in this state.
(3) An agreement under this section shall not require the covered establishment to indemnify the third-party delivery service company, an independent contractor acting on behalf of the third-party delivery service company, or a registered agent of the third-party delivery service company for damages or harm that may occur after a product leaves the said establishment’s place of business. A provision of an agreement that is contrary to this section is void and unenforceable.
Federal Stimulus Update
There is discussion ongoing in Washington DC as Congress decides whether or not to do another stimulus bill. There are multiple proposals circulating.
Anything that gets House and Senate leaders out of their partisan corners is a good thing… we need Congress talking and we need to work towards a solution that prevents thousands of restaurants from closing this month. The restaurant industry has been the hardest hit by the pandemic and recent limitations in dozens of states are pushing operators beyond their limits to survive. 
We will update as we know more.