A federal appeals court has dealt the retail sector a setback in the ongoing fight over surcharges on credit card purchases.

The 2nd U.S. Circuit Court of Appeals ruled recently that a New York law banning those surcharges does not violate the U.S. Constitution. The decision overturns an earlier ruling by U.S. District Judge Jed Rakoff, who found in favor of a group of merchants who want the right to impose the markups.

The New York case is similar to suits brought by merchants in California, Texas and Florida. In all four cases, the plaintiffs have argued that the state surcharge bans violate the First Amendment.

The plaintiffs’ reasoning is that the state laws allow merchants to provide discounts to customers who pay in cash, and those offers are economically equivalent to surcharging credit card purchases. So the states are impermissibly regulating the language that the retailers use to describe their pricing schemes, according to the argument.

The appeals court in New York rejected that argument, as district courts have in Texas and Florida. But the plaintiffs won at the district-court level in California. The lower-court decisions in California, Texas and Florida are all being appealed.

“This is not the end of the line,” Deepak Gupta, the lawyer who brought all four lawsuits, said Monday.

Retailers have long fought for the right to impose surcharges to discourage consumers from using plastic, which costs merchants more money to process than cash.

For nearly two decades, the surcharges were banned under card companies’ contracts with merchants, but those restrictions were removed as part of a multibillion-dollar legal settlement in 2012. Still, roughly 10 states, including New York, Florida, California and Texas, have laws banning credit card surcharges.

Since 2012 surcharges have not become widespread in the other 40 states, and some in the retail industry doubt whether overturning the prohibitions in the 10 states that have them would have much practical benefit for merchants. 

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