Supreme Court hands win to retailers


WASHINGTON — Retailers may soon have a voice when it comes to disclosing surcharges related to card payments.

The Supreme Court ruled on Wednesday, March 29, that First Amendment free speech rights should be considered when determining how merchants disclose to their shoppers that credit card swipe fees can drive up the price of merchandise.

A long-standing law in New York state — as well as those in nine other states — implied that retailers may not advertise or disclose that credit or debit card purchases were subject to a 2% to 3% surcharge.

Justices concluded that this “surcharge ban” — which was often support-ed by the credit card industry — violates “free speech” and retailers’ First Amendment rights.

“Today’s ruling is a clear stand in favor of the free speech protections of the First Amendment,” the National Retail Federation’s senior VP and General Counsel Mallory Duncan said. “The nation’s highest court has recognized that whether a merchant chooses to communicate credit card fees through a surcharge or through a cash discount is a matter of speech.”

Based on the decision, retailers now can better convey how these fees drive up the price of merchandise by billions of dollars a year, according to the NRF.

“Most retailers have no desire to surcharge their customers for using cred-it cards,” Duncan said. “That would be the opposite of our industry’s goal of bringing credit card swipe fees under control. But merchants do want to be able to show customers the cost of using a credit card without running afoul of the law.”

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