WASHINGTON — The National Retail Federation is hoping to dispel fears that merchants are expected to surcharge customers for using a credit card as theoretically allowed under a controversial proposed lawsuit settlement with Visa and MasterCard being debated in the courts.
“The ridiculous concept that merchants will start surcharging on any widespread basis is propaganda being spread by the card industry in an attempt to divert attention from their skyrocketing swipe fees,” NRF SVP and general counsel Mallory Duncan said. “The lawsuit sought to bring down swipe fees and the prices paid by consumers, not to increase prices. The card companies’ new surcharging proposal runs 180 degrees counter to the intent of the lawsuit.”
“While there conceivably could be exceptions, merchants in general have no intention of surcharging,” Duncan said. “We have discussed the settlement with many of our members and other merchants, and not a single one has said they will surcharge.”
While the settlement would allow retailers to surcharge, a number of obstacles would prevent most merchants from actually doing so even if they wanted to:
Ten states representing 40 percent of all U.S. credit card transactions – California, Colorado, Connecticut, Florida, Kansas, Maine, Massachusetts, New York, Oklahoma and Texas – prohibit surcharges by law.
Visa and MasterCard require a retailer to have the same card acceptance policies in all its stores. It is therefore questionable whether national chains or regional chains with stores in the 10 states above would be able to surcharge in the 40 other states.
The settlement requires merchants who surcharge Visa or MasterCard to also surcharge American Express. But American Express contracts bar merchants from surcharging that company’s cards, meaning a merchant who accepts American Express would not be allowed to surcharge any cards at all.
The settlement allows merchants to surcharge select premium credit cards that carry the highest swipe fees, but gives merchants no way to identify those cards.
Merchants would be required to go through a number of complicated steps in order to surcharge, including giving Visa and MasterCard detailed plans at least 30 days in advance, posting extensive signage in stores, and spending significant amounts to reprogram or replace cash register systems. Ironically, merchants might also have to pay swipe fees on the amount of the surcharge, further driving up fees collected by the card industry.
“National and regional chains don’t want to surcharge and probably couldn’t,” Duncan said. “Small retailers are too busy running their stores to jump through the hoops required by Visa and MasterCard and could not afford the expense. The bottom line is that very few retailers would be able to surcharge, and the vast majority don’t want to surcharge even if they could.”
The surcharge provision is part of a proposed settlement announced in July in a federal antitrust lawsuit brought by merchants against Visa and MasterCard’s swipe fees. Averaging about 2%, swipe fees are a percentage of the transaction taken by banks each time a consumer swipes a credit card to pay for a purchase, and total about $30 billion a year nationwide. The fees have tripled over the past decade, but the settlement failed to take steps to bring them under control. The majority of the plaintiffs who brought the lawsuit have repudiated the settlement and have gone to court to block it from receiving final approval.