Some California businesses, but not all, are exempt from surcharge ban

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After 9th Circuit Court ruling, there is a lack of clarity about enforcement

Your Business Credit with Elaine Pofeldt

Elaine Pofeldt is a journalist whose articles on entrepreneurship and careers have appeared in Fortune, Working Mother, Money and many other publications. She is a former senior editor at Fortune Small Business magazine and an entrepreneur herself, as co-founder of 200kfreelancer.com. Her book, “The Million-Dollar, One-Person Business,” was released in 2018. She writes “Your Business Credit,” a weekly column about small business and credit, for CreditCards.com.

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Is it true that only the five businesses who sued over the surcharge ban in California are allowed to add a surcharge for debit and credit card purchases? 

According to the Califorinia attorney general’s website, these specific parties are excused from the law. Other businesses will be judged on a case-by-case basis.

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Dear Your Business Credit, 
You
need to update your information on debit and credit cards in California. The
law has changed again. It’s now illegal once again, except for the five parties
who sued, to charge any fee for using a debit or credit card in California.
Please read the 9th Circuit opinion. NEVER has a contract between parties
trumped state law! – John  

Dear John, 
Thank you for writing in response to my column “Can
my gas station charge me for using my card?

In the event other readers had similar concerns, I ran your
comment past Jen Lee, the attorney I interviewed for that column.

“You covered this in the original article,” Lee responded in
an email. “Technically, the 9th Circuit opinion applies only to the five
entities that filed the suit, meaning, only those five entities have the
official blessing of the court to pass on the processing fee. The theory is
that other entities that are using the exact same structure would also prevail,
but it’s not guaranteed. That’s why we gave best practices, with the
understanding that it’s a very gray area right now.”

Lee stressed that this is her interpretation of the law. “I
think the biggest issue here is the unknown,” she wrote. “No one knows what the
state is enforcing and everyone thinks they are right.”

Surcharge allowed in some cases, not all

It does appear there is a lack of clarity as to how the
state will be enforcing this at the moment. With regard to the January 2018 9th Circuit opinion, the state attorney general’s office currently says on its website:

“In 1985, California passed a law that prohibited merchants
from adding a surcharge (an extra fee) when customers pay by credit card
instead of cash. That law does allow merchants to give customers discounts for
paying by cash, check, or debit card, as long as that discount is offered to
all customers. The law was challenged by several businesses, and in January of
2018 a federal court held that the law could not be enforced as to the
businesses which brought that case, but did not generally prohibit its enforcement.
Therefore each use of a credit card surcharge would need to be evaluated based
on its own particular facts.

“In any case, merchants are not allowed to mislead
customers, such as by falsely advertising a lower price than they actually
charge or hiding any differences between credit card, debit card, and cash
prices. If a merchant fails to clearly and prominently disclose—before you pay
or seek to pay for an item—what it will charge for the item, including any
additional fees, that may violate California laws prohibiting deceptive or
false advertising. Be sure to check the cash register display and your receipt
to make sure that the price you’re being charged matches the advertised or
posted price of an item (plus tax, if applicable).”

Neither Lee nor I are clear on what you’re referring to as a
contract between parties trumping state law, so I have not addressed this.

A surcharge could lead to trouble

My advice for business owners in California who are thinking
of adding a surcharge to credit card purchases is to ask your attorney for advice.
This is an evolving area, and as such, could be a can of worms.

Tip

Tip: Business owners in California who are thinking of adding a surcharge should ask their attorney’s advice first. 

As the California Attorney General’s Office puts it on its
website, “If you believe a merchant is improperly charging customers, failing
to disclose what it is charging, or otherwise engaging in false or misleading
sales practices, you should file a complaint with the Attorney General’s
Office.”

Many people grumble about surcharges, and we’re likely to see more
complaints about them, so this is an area where you want to be very careful.

See related: Card surcharge ban laws take another blow in California court, Convenience fees: When is it OK to charge extra to use a credit card?





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