Ninth Circuit Finds Credit Card Surcharge Ban Violates First Amendment
Consumers, regulators and credit card companies will be increasingly mindful of whether and how retailers apply surcharges. Retailers should likewise be mindful.
March 22, 2018 at 04:58 PM
8 minute read
A California restaurant can offer a $5 sandwich for $4.90 to customers who pay with cash but until recently state law prohibited it from offering a $4.90 sandwich and adding a 10-cent surcharge for customers who paid with credit card. Either results in a $4.90 sandwich for cash payers or a $5 sandwich credit card payers, so it may surprise retailers to learn that so-called surcharge bans are common across several states and were once federal law.
There are several reasons why retailers care about whether they may add surcharges. Those reasons have caused retailers to challenge California's and New York's surcharge bans. And now state and federal courts—including the U.S. Supreme Court—are chiming in on the debate.
In January 2018, the Ninth Circuit issued an opinion in one of these cases. It held that California's surcharge ban was unconstitutional as it applied to the pricing schemes in that case. That decision highlighted this often overlooked but evolving issue that retailers would be wise to review.
California's Surcharge Ban
Retailers impose a surcharges because credit card companies charge them fees of around 2-3 percent of the transaction cost when a customer pays by credit card. Retailers can recoup the cost of that fee by adding a surcharge unless a statute or contractual agreement prohibits them from doing so.
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