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\u2019s motion for summary judgment in an action concerning whether a state statute that bans credit card surcharges violates the First Amendment. <\/p>\n\n\n\n
EXCERPT: “As aptly stated by Judge Tjoflat in Dana\u2019s R.R. Supply v. Atty. Gen., Fla., 807 F.3d 1235, 1239 (11th Cir. 2015), \u201csurcharges and discounts are nothing more than two sides of the same coin; a surcharge is simply a \u2018negative\u2019 discount, and a discount is a \u2018negative\u2019 surcharge.\u201d It is comparable to permitting a restauranteur to serve \u201chalf-full\u201d beverages but not \u201chalf-empty\u201d beverages. Id. at 1245. Kansas prefers to label the lower price attendant to cash purchases a \u201cdiscount\u201d 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 \u201csurcharges-are-fine-just-don\u2019t-call-them-that-law.\u201d Id. at 1245. This elevation of form over substance, which fails to directly and materially advance any substantial state interest, unjustifiably infringes on Plaintiff\u2019s right to convey information to consumers in a way that truthfully and accurately describes the transaction and allows consumers to make an informed choice. \u201cThe First Amendment prevents staking citizens\u2019 liberty on such distinctions in search of a difference.\u201d Id. For more information, see Surcharge law resources under Merchant Alerts & Rules Links<\/a> 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.<\/p>\n\n\n\n Does your company want to surcharge? Call Christine Speedy<\/a> right now<\/strong> 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.<\/p>\n","protected":false},"excerpt":{"rendered":" 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 … Continue reading
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. \u00a7 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\u2019s rights under the First Amendment. The court concludes Plaintiff is entitled to a declaratory judgment to that effect.<\/em>“<\/p>\n\n\n\n