Today, Acting Attorney General Matthew J. Platkin announced that the Division of Consumer Affairs has sent cease and desist warning letters to a combination of service, retail and restaurant operators in New Jersey. The letters alert merchants of their duty to disclose total selling price—including surcharges for using credit cards, debit cards or pre-paid cards (“Card Surcharges”)—to consumers.
In recent months the Division of Consumer Affairs’ Office of Consumer Protection received more than a dozen complaints from Garden State residents regarding businesses who charge consumers fees for using credit cards, debit cards or pre-paid cards.
The complaints prompted an investigation by Consumer Protection officials, resulting in a total of 14 warning letters being issued to New Jersey business operators cautioning them to cease and desist from failing to disclose the total selling price of merchandise and not notifying consumers of Card Surcharges.
“Consumers deserve to know exactly how much they are paying for a product or a service, said Acting Attorney General Platkin. “Any Card Surcharges need to be communicated clearly and in advance.”
Financial institutions commonly assess an interchange charge to merchants for processing credit, debit and pre-paid card transactions. To offset this cost, merchants may opt to add a Card Surcharge to the transaction that is paid by the customer.
The warning letters put business operators on notice that although such Card Surcharges are not illegal under the New Jersey Consumer Fraud Act, establishments are required to disclose that they are passing the fees on to consumers. Additionally, the letters warn establishments that they cannot charge prices for merchandise that differ from the prices displayed, without adequate notice to the consumer.
The New Jersey Consumer Fraud Act prohibits the sale of “any merchandise at retail unless the total selling price of such merchandise is plainly marked by a stamp, tag, label or sign either affixed to the merchandise or located at the point where the merchandise is offered for sale.” N.J.S.A. 56:8-2.5.
If an establishment imposes a Card Surcharge, that establishment must conspicuously display a notice of this fact, including the amount, at or near the point of sale. Any Card Surcharge must be disclosed before a consumer orders, not just on the final bill.
Each instance of failing to notify a consumer of a Card Surcharge – or charging more for merchandise than the displayed price – may constitute a separate violation of New Jersey’s Consumer Fraud Act. Violators are subject to a maximum penalty of $10,000 for the first violation and $20,000 for each subsequent violation, pursuant to N.J.S.A. 56:8-13.
“We are putting merchants on notice that the Division is receiving complaints and that we are focused on their practices,” said Cari Fais, Acting Director of New Jersey’s Consumer Affairs Division. “We urge merchants to immediately ensure that they are complying with the law and not hitting consumers with surprise surcharges.”
How Consumers Can Protect Their Pockets:
- Check the receipt to make sure the price charged matches the advertised or posted price of an item (plus tax, if applicable).
- Look for the merchant to display full price (excluding tax) using each method of payment accepted. For example, the merchant should display the full price if the customer pays in cash and display the amount that will be charged if a Card Surcharge applies, which can be stated as a percentage.
- Be wary of Card Surcharges that exceed the actual incremental cost of the processing fee, which is typically around 1-5 percent.
- Look out for Card Surcharges characterized as “cash discounting.” Discounting occurs only when the consumer is invited to pay less than the full posted price.
- If you think a merchant is improperly charging customers, failing to disclose charges in advance or otherwise engaging in false or misleading sales practices, you can file a complaint with the New Jersey Office of the Attorney General, Division of Consumer Affairs at: njconsumeraffairs.gov
Consumers who believe that a business is in violation of the New Jersey Consumer Fraud Act, are encouraged to file an online complaint. Consumers can also call 1-800-242-5846 to receive a complaint form by mail.