Massachusetts credit card surcharge bill repeals ban

Massachusetts joins other states that still have a credit card surcharge ban on the books, with a bill to repeal. Since the 2017 US Supreme Court ruling regarding the NY case that it regulates speech, every state with a surcharge has repealed, introduced a bill to repeal, has already lost a case in court, or is in the process thereof. This is especially good news for B2B companies.

Massachusetts Senate and House are both in agreement with the February 2021 bill and it is now in committee with status “arrived” as of April 13, 2021.

https://malegislature.gov/Bills/192/HD2907.Html

https://malegislature.gov/Committees/Detail/J17/192/Bills/asc/EntityNumber/?current=True&pageNumber=9

Colorado also has a bill pending. The U.S. District Court for the District of Kansas approved a part of plaintiff’s motion for summary judgment in an action concerning whether a state statute that bans credit card surcharges violates the First Amendment.

Many in the legal and credit card processing community support B2B merchants can surcharge in all states and that the regulations only apply to consumers. Numerous court cases have resulted in positive results for plaintiffs.

Does your company want to surcharge? Call Christine Speedy right now at 954-942-0483, 9-5 ET for a compliant solution. Please share your surcharge insights for others and ask any questions below. The information herein is based upon public information available at the time written and may change.

Colorado introduces bill to change credit card surcharge law in 2021

Can merchants surcharge in Colorado in 2021? A pending bill may make it possible for all merchants in 2021 or 2022. The current law says a seller, lessor, or company issuing a credit or charge card is prohibited from imposing a surcharge against a person who elects to pay for a sales or lease transaction by using a credit or charge card.

5-2-212. Surcharges on credit transactions – prohibition

(1) Except as otherwise provided in sections 24-19.5-103 (3) and 29-11.5-103 (3), C.R.S., no seller or lessor in any sales or lease transaction or any company issuing credit or charge cards may impose a surcharge on a holder who elects to use a credit or charge card in lieu of payment by cash, check, or similar means. A surcharge is any additional amount imposed at the time of the sales or lease transaction by the merchant, seller, or lessor that increases the charge to the buyer or lessee for the privilege of using a credit or charge card. For purposes of this section, charge card includes those cards pursuant to which unpaid balances are payable on demand.(2) A discount offered by a seller or lessor for the purpose of inducing payment by cash, check, or other means not involving the use of a seller or lender credit card shall not constitute a finance charge if such discount is offered to all prospective buyers and its availability is disclosed to all prospective buyers clearly and conspicuously in accordance with regulations of the administrator.

The proposed bill:

  • Repeals the prohibition; and
  • Limits the maximum surcharge amount per transaction to 2% of the total cost to the buyer for the sales or lease transaction or the merchant discount fee , which is defined as the actual fee that a seller or lessor (merchant) pays its processor or service provider to process the transaction .

Summary: A merchant is required to display notice regarding the surcharge on the merchant’s premises or, for online purchases, before an online customer’s completion of the sales or lease transaction.The bill prohibits applying the surcharge on debit or gift cards. If a merchant imposes a surcharge in violation of the bill, an individual consumer aggrieved by the violation may seek enforcement of the violation as an excess charge under the “Uniform Consumer Credit Code – Remedies and Penalties”.

In my opinion, this is a great start, however, BILL 21-091 conflicts with card network rules allowing charge up to 4% IF that’s actual cost. If merchants sell in multiple states, the 2% Colorado cap presents a challenge if the merchant average cost is higher. Most merchants will be forced to collect less for all states due to technology limitations, whereby they can only specify one rate and cannot distinguish by state.

Also, it could be interpreted that surcharge must be actual cost for EACH transaction vs avg, which few businesses have technology capability. The bill would be better if it just revoked surcharge ban, requiring businesses comply with card network rules.

  • https://leg.colorado.gov/bills/sb21-091
  • https://3dmerchant.com/blog/merchant-bulletins-downloads.

Call now for current information specific to your situation. Neither Christine Speedy nor this web site provide legal advice. Consult an attorney for all your legal questions.

Does your company want to surcharge? Call Christine Speedy right now at 954-942-0483, 9-5 ET for a compliant solution. Please share your surcharge insights for others and ask any questions below. The information herein is based upon public information available at the time written and may change.

US Court rules Kansas credit card surcharge ban unconstitutional

Kansas has prohibited surcharging for decades, but a February 25, 2021 successful challenge changes that. Like many other states that had old statutes regarding surcharging, courts are ruling in favor of plaintiff’s. The U.S. District Court for the District of Kansas a part of plaintiff’s motion for summary judgment in an action concerning whether a state statute that bans credit card surcharges violates the First Amendment.

EXCERPT: “As aptly stated by Judge Tjoflat in Dana’s R.R. Supply v. Atty. Gen., Fla., 807 F.3d 1235, 1239 (11th Cir. 2015), “surcharges and discounts are nothing more than two sides of the same coin; a surcharge is simply a ‘negative’ discount, and a discount is a ‘negative’ surcharge.” It is comparable to permitting a restauranteur to serve “half-full” beverages but not “half-empty” beverages. Id. at 1245. Kansas prefers to label the lower price attendant to cash purchases a “discount” and so prohibits Plaintiff from labeling the higher price of credit purchases as a surcharge, even though both describe the same state of affairs: cash purchasers pay less and credit card purchasers pay more because of the cost associated with using credit cards. Again, as Judge Tjoflat pointed out, such a law does not ban surcharges; it merely targets expression and could be called a “surcharges-are-fine-just-don’t-call-them-that-law.” Id. at 1245. This elevation of form over substance, which fails to directly and materially advance any substantial state interest, unjustifiably infringes on Plaintiff’s right to convey information to consumers in a way that truthfully and accurately describes the transaction and allows consumers to make an informed choice. “The First Amendment prevents staking citizens’ liberty on such distinctions in search of a difference.” Id.
On a case within its jurisdiction, and upon the filing of an appropriate pleading, the court may declare the rights of an interested party seeking such a declaration. 28 U.S.C. § 2201(a). Based on the uncontroverted facts, Plaintiff has shown that K.S.A. 16a-2-403, as interpreted in Kansas and as applied to Plaintiff, violates Plaintiff’s rights under the First Amendment. The court concludes Plaintiff is entitled to a declaratory judgment to that effect.

For more information, see Surcharge law resources under Merchant Alerts & Rules Links or contact your acquirer for accurate and current information specific to your situation. Neither Christine Speedy nor this web site provide legal advice. Consult an attorney for all your legal questions.

Does your company want to surcharge? Call Christine Speedy right now at 954-942-0483, 9-5 ET for a compliant solution. Please share your comments below. The information herein is based upon public information available at the time written and may change.

Joint Statement by the Federal Bureau of Investigation (FBI), the Cybersecurity and Infrastructure Security Agency (CISA), and the Office of the Director of National Intelligence (ODNI)

Over the course of the past several days, the FBI, CISA, and ODNI have become aware of a significant and ongoing cybersecurity campaign. Pursuant to Presidential Policy Directive (PPD) 41, the FBI, CISA, and ODNI have formed a Cyber Unified Coordination Group (UCG) to coordinate a whole-of-government response to this significant cyber incident. The UCG is intended to unify the individual efforts of these agencies as they focus on their separate responsibilities. This is a developing situation, and while we continue to work to understand the full extent of this campaign, we know this compromise has affected networks within the federal government.

As the lead for threat response, the FBI is investigating and gathering intelligence in order to attribute, pursue, and disrupt the responsible threat actors. The FBI is engaging with known and suspected victims, and information gained through FBI’s efforts will provide indicators to network defenders and intelligence to our government partners to enable further action.

As the lead for asset response activities, CISA took immediate action and issued an Emergency Directive instructing federal civilian agencies to immediately disconnect or power down affected SolarWinds Orion products from their network. CISA remains in regular contact with our government, private sector and international partners, providing technical assistance upon request, and making needed information and resources available to help those affected recover quickly from this incident. CISA is engaging with our public and private stakeholders across the critical infrastructure community to ensure they understand their exposure and are taking steps to identify and mitigate any compromises.

As the lead for intelligence support and related activities, ODNI is helping to marshal all of the Intelligence Community’s relevant resources to support this effort and share information across the United States Government.

To report suspicious or criminal activity related to information found in this statement, contact your local FBI field office at https://www.fbi.gov/contact-us/field-offices. To request incident response resources or technical assistance related to this statement, visit https://www.us-cert.gov/report.

What is carding and how can merchants mitigate risk?

Ecommerce merchants have been hit by credit card carding attacks by fraudsters for years. There’s tons of cardholder data on the dark web and even DIY instructions on how to commit fraud. With EMV implemented in retail, and the fast growth of ecommerce due to Coronavirus, carding is a serious risk for merchants for both attempted and successful transactions.

What is carding?

Carding, also known as credit card stuffing or card verification, is a web security threat where unauthorized people (carders or attackers) use multiple software tools, primarily bots, to attempt to verify if a debit or credit card is good. A typical bot attack will incur thousands of attempted authorizations. Bots do not typically seek a particular site, just opportunities to exploit a weakness.

What are the costly repercussions of carding attacks?

The merchant is dealt with several financial blows:

  • Attempted transactions will incur a payment gateway fee.
  • Attempted transactions may incur a merchant account authorization fee if the gateway didn’t kill before getting to the acquirer. This can happen if the gateway supports a rules based decision making.
  • Completed transaction fraud whereby the product was shipped to the fraudster because the card was approved.
  • Chargeback fees can be initiated by the issuer or the cardholder. If the merchant is not using 3-D Secure, they will surely be out of luck.

How can merchants mitigate risk of bot attacks?

A key first line of defense is preventing the bot initiating an exchange with payment gateway. For example, reCAPTCHA is a free developer tool from Google to protect your web site from abuse. reCAPTCHA v3 returns a score for each request without user friction, which means if it passes, the user can check out. Have you ever had to go through multiple screen challenges to identify the sidewalks or traffic lights? reCAPTCHA v3 is different from older versions. The score is based on interactions with your site and enables you to take an appropriate action for your site automatically. For more information click here for Google reCAPTCHA.

Note, PCI DSS V 3.2.1 Requirement 6: Develop and maintain secure systems and applications. this section includes web sites. Visa cites using Velocity tools specifically in their ecommerce guidance for merchants. For example, a fraud mitigation velocity tool might automatically manage attempted transactions based upon number of attempts from same IP address or other duplicate data within a specific timeframe. Note, fraudsters have gotten smarter and bot attacks are not as simplistic to detect as just a few years ago. For this reason, the use of AI and other tools is growing, especially for larger merchants.

Call Christine Speedy, for simple solutions to card not present payment transaction problems, 954-942-0483, 9-5 ET. Christine is Founder of 3D Merchant Services, PCI Council Qualfied Integrator Reseller (QIR), and is a credit card processing expert with specialized expertise in card not present and B2B payment processing technology. Less than 1% of all merchant services sales representatives are QIR certified. Christine is an authorized independent sales agent for a variety of merchant services and payment technology solutions.