POSTED BY Ben Feilich


As recent trends over the last several years have revealed, Thanksgiving Day, the fourth Thursday in November, is when Black Friday begins.  Across the United States, commercial retail stores such as Wal-Mart, Best Buy, Target, and Sears open their doors to the masses – thirsty for the lowest prices and best deals, but driven by the fear of scarcity or missed opportunities.  Massachusetts, however, forbids commercial retail stores like the ones mentioned above from opening until 12:00 AM the day after Thanksgiving.  These Puritan-era blue laws prevent retail stores from operating on Thanksgiving Day, among other holidays, unless the retail store falls under an exception identified in M.G.L. ch. 136, § 6.  As Internet sales on Thanksgiving Day and Black Friday rise, these restrictive, dated laws are seemingly becoming obsolete.  Long gone are the days where a consumer would need to stand outside for several hours, potentially in freezing weather depending on your location, on Thanksgiving evening (or earlier), missing dessert, waiting in line to hopefully acquire a voucher to be able to make a purchase.


There is indisputable evidence that consumers are spending more online during the holiday season.  On Thanksgiving Day in 2012, consumers spent $633 million online, a 32% increase from 2011.  Consumers spent $1.042 billion online on Black Friday in 2012, a 26% jump from 2011.


Online sales on Black Friday in 2013 saw a 12% increase from the year before, totaling $1.198 billion.  According to Business Insider, “$1.964 billion was the overall online sales for Thanksgiving and Black Friday – up over 18.5% from 2012”.  While online sales from Thanksgiving Day and Black Friday saw big jumps, brick and mortar store sales increased only slightly: 2.3% from 2012 with a total of $12.3 billion in purchases.  Additionally, more people than ever are making their Black Friday purchases through smartphones and mobile devices: PayPal reported a 121% increase in global mobile payments in 2013 from the previous year; and mobile sales on Black Friday in 2013 accounted of 21.8% of all online sales, an increase of nearly 43% from 2012.


So why are consumers making more purchases online on Thanksgiving Day and Black Friday?  An explanation for the trend may be attributed to a myriad of reasons, but are typically credited to greater selection and availability of online promotions, sales, and deals, poor weather conditions, and societal protest of what has become normal business practice to open brick and mortar retail stores on Thanksgiving Day.  Several major retail and wholesale chains have responded to recent public outcry by remaining closed on Thanksgiving Day, opening stores on Black Friday typically around 5 or 6 AM.


One argument actively made against the commercially restrictive Massachusetts blue laws is that consumers are traveling to neighboring states on Thanksgiving that do not have similar laws.  As of 2014, Rhode Island and Maine have similar blue laws barring retailers from opening on Thanksgiving Day and Christmas Day.  However, it is important to keep in mind that the purpose of blue laws is not necessarily to deter consumers from making retail purchases, but to protect employees from being required to work.


Obviously a phenomenal amount of money is still being spent in brick and mortar retail stores on Thanksgiving Day despite the trend of increasing online sales.  By no means am I suggesting that Massachusetts repeal or modify its in-place blue laws with respect to its Thanksgiving Day prohibitions.  If Massachusetts wants to continue protecting employees of the state, considering that the vast majority of sales revenue still originates from brick and mortar retail, these blue laws ought to remain as they are.  What the data provided above does reveal, however, is that the way consumers are spending is rapidly shifting.  It is not outside the realm of possibility to see online sales on Thanksgiving Day surpass brick and mortar retail sales within the next ten or so years as more consumers have access to Internet-connected devices and retailers offer more convincing “online-exclusive” promotions and sales.


Perhaps this Thanksgiving Day and Black Friday trend is evidence of a bigger picture shift in consumer behavior.  Maybe, just maybe, brick and mortar retail stores as we know them now will cease to exist and storefronts will serve only to display available products, allowing consumers to test or experience products prior to purchasing online.  Having a fully stocked storefront will no longer be a concern as all products may be shipped from warehouses as online orders are placed.  Employees will be more like customer services representatives, purposed to answer a customer’s questions, and less like sales agents.  Individuals with MBAs, naturally, might be better equipped to tackle the questions, issues, and hypothetical in this paragraph than a law student such as myself.


Bio: Ben is a Staff Member of the Journal of High Technology Law.  He is currently a 3L at Suffolk Law with a concentration in Intellectual Property.  He holds a B.A. in Literature from Florida State University and was born in Hollywood, FL.  Ben currently resides in Allston, MA with two cats named after Major League Baseball Hall of Fame inductees.

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