Feb. 22, 2013 at 8:21 AM ET
Charge a fee to use your credit card? It’s legal for merchants to do that, unless barred by state law. Ten states already ban such surcharges – California, Colorado, Connecticut, Florida, Kansas, Maine, Massachusetts, New York, Oklahoma and Texas – and more may join the list.
The legislatures in 13 other states are currently considering bills that would prevent these so-called “check out” fees. Lawmakers in Hawaii, Illinois, Kentucky, Maryland, Missouri, New Jersey, Pennsylvania, Rhode Island, South Carolina, Utah, Vermont, Washington and Tennessee are responding to a rule change that took place late last month. A similar bill will soon be introduced in West Virginia.
Visa and MasterCard agreed to let merchants add a surcharge to credit card transactions as part of the settlement agreement in an antitrust lawsuit brought by retailers. Until Jan. 27, both Visa and MasterCard had prohibited merchants from charging the customer for the cost of processing that credit card transaction.
The settlement does not affect Visa or MasterCard debit cards. American Express still prohibits a surcharge on any of its cards.
New Jersey Assemblyman Vincent Prieto (D-Secaucus) said he introduced a bill to ban surcharging because it would hit consumers in the pocketbook.
“The amount of the surcharge may seem miniscule on paper, but in the family budget 1.5 to 3 percent could add up to a shorter grocery list or less to spend on gas,” he said in a statement.
In Utah, Sen. Curtis Bramble (R-Provo) is sponsoring a bill that would prohibit surcharges on any type of “financial transaction card” which would include debit cards.
Major retailers are not expected to tack on a credit card surcharge, at least not any time in the immediate future. Wal-Mart, Target, Sears and Home Depot told NBC News they have no plans to add a credit card surcharge. But just the possibility has spurred some lawmakers into action.
“It’s a waste of the legislative process,” said Mallory Duncan, senior vice president of the National Retail Federation. “They could take steps to bring greater competition into the marketplace by prohibiting the price fixing of the hidden swipe fees merchants pay to process credit card transactions.”
Trish Wexler, spokesperson for the Electronic Payments Coalition, whose members include Visa and MasterCard Worldwide, told NBC News it has not taken a position on the issue.
“No one knows how checkout fees will work their way through the system,” Wexler said in an email statement, “but the settlement provides sufficient consumer protections while the process plays out.”
What about disclosures?
“Customers shouldn’t stand for it,” said Ruth Susswein Consumer Action’s deputy director of national priorities. “Our advice is to tell them you don’t like the fee and this makes you want to take your business elsewhere.”
The new rules from Visa and MasterCard require retailers who apply a credit card surcharge to post a notice at the store’s entrance. The exact percentage of the surcharge does not need to be disclosed until the point of sale. The customer receipt must list the amount of the surcharge.
Online stores with a surcharge will not be required to have a notice on the home page. They only need to alert shoppers about this when they reach the page where credit cards are first mentioned. In most cases, that means the final step of checkout when the purchase is being completed.
Not the end of this story
The settlement that allows merchants to impose a credit card surcharge is only preliminary. The court has yet to issue its final ruling in this case. That’s expected later this year.
Once that happens, various retailers and business groups plan to challenge the settlement. That could drag into late 2014.
The possibility that the settlement could be modified will probably keep most businesses of any size from instituting credit card fees for the time being.