Retailers Say U.S. Supreme Court Should Rule in Favor of Free Speech on Credit Card Fees

The National Retail Federation called on the U.S. Supreme Court to allow merchants to freely and accurately show customers the added costs that come with paying by credit card rather than cash.

“That would be the opposite of our goal to bring 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.”

“This case isn’t about surcharging,” Duncan said. “It’s about giving retailers freedom of speech when they try to give their customers a break for paying by cash. Some states allow cash discounts but prohibit credit card surcharges. A gas station owner shouldn’t be hauled into court for saying gas is $2.90 a gallon cash and $3 credit rather than saying $3 credit and $2.90 cash.”

Justices are hearing arguments today in a case challenging laws in 10 states that prohibit merchants from imposing a surcharge when customers use a credit card. The laws, which were passed at the urging of the card industry, can be traps for merchants who give a cash discount. The lawsuit before the court argues that the laws violate merchants’ free speech rights under the First Amendment and are unconstitutionally vague under the Due Process Clause of the 14th Amendment.

Banks charge merchants a fee averaging about 2 percent of the transaction amount each time a credit card is used, and a fee of at least 21 cents when debit cards are used. The fees total more than $50 billion a year and drive up costs for consumers because card industry rules effectively require them to be built into the price of merchandise.