[JURIST] The US Court of Appeals for the Eleventh Circuit [official website] ruled [opinion, PDF] Wednesday that a Florida state law [text] that bars retailers from imposing surcharges on credit card purchases is unconstitutional. Under the Florida statute it is a second-degree misdemeanor if a business imposes a surcharge on a customer who uses a credit card. The circuit judges ruled 2-1 against the law, finding that the statute was too burdensome on small businesses that would face prosecution for charging a surcharge. The judges found, however, that a business should be allowed to offer a discount to a customer for using cash instead of credit. The circuit judges ruled that the law violated First Amendment rights, stating that it “directly targets speech to indirectly affect commercial behavior.” Last month the US Court of Appeals for the Second Circuit ruled [JURIST report] that a New York state law banning retailers from imposing surcharges on credit card purchases was constitutional, creating a circuit split.

Credit card fees have caused litigation around the world. In October 2013 a judge for the US District Court for the Southern District of New York struck down [JURIST report] the New York state law. The court held that this “virtually incomprehensible distinction between what a vendor can and cannot tell its customers offends the First Amendment and renders section [the law] unconstitutional.” The court enjoined the state from enforcing the law. In 2012 the European General Court, the EU’s second highest court, rejected [JURIST report] a challenge by MasterCard over its cross-border credit card fees. The court upheld a decision by the European Commission that the fees violate EU antitrust rules. In 2010 the US Department of Justice (DOJ) filed a civil antitrust lawsuit [JURIST report] against MasterCard, Visa and American Express [corporate website]. The lawsuit challenged rules utilized by the companies that prevented merchants from providing discounts and rewards for using credit cards with lower merchant fees. The DOJ contended that these rules unfairly inflate costs for both consumers and merchants. Visa and MasterCard agreed to a settlement that required the companies to allow merchants using their cards to express a preference for types of payments accepted, to offer discounts to consumers for using a particular card or type of payment and to provide consumers with information regarding the costs incurred by the merchant when a particular type of credit card is used.