On February 11, a group of Florida retainers, including a jewelry store and hobby shop, filed an appeal before the Eleventh Circuit Court of Appeals that, in part, challenges Florida’s law prohibiting merchants from charging “swipe fees” on credit card sales.  According to the retailers, the state law is unconstitutional and violates the First Amendment because it criminalizes verbiage regarding credit card surcharges while, at the same time, allowing language about discounts for cash and debit purchases.  The retailers claim that the law draws a line based on words and labels, rather than economic realities, and is causing ongoing harm to the First Amendment rights of Florida merchants to fully inform consumers of the costs of credit.

In September 2014, the U.S. District Court for the Northern District of Florida ruled against the retailers and found the no-surcharge law constitutional. The court said that whether the law had legitimate or persuasive legislative goals was up to the Florida legislature, and such laws should be “subject only to rational-basis scrutiny.”

In their appellate brief, the retailers fired back against that conclusion, stating: “If you use dual pricing, you may tell your customers only that they are paying $2 less to pay without credit (a ‘discount’), not that they are paying $2 more to pay with credit (a ‘surcharge’) — even though they are paying $2 more for credit.  …  Liability thus turns on the words used to describe identical conduct – nothing else.”

New York is, according to the retailers, the only other state that adopted a criminal no-surcharge statute that was the same as Florida’s.  That law was struck down in 2013, however, when a judge found that it violated the First Amendment and was “constitutionally vague.”

Consumer rights groups filed amicus curiae briefs in support of the retailers in December 2014.  They argued that the law is actually hurting consumers, adding that, “[t]he purpose and practical effect of the no-surcharge rule is to conceal the underlying true costs of credit by spreading those costs among all consumers.”