We previously reported its progress in Legal Bytes and last week, President Obama signed into law the Credit Card Act of 2009. Although the bulk of the Act (and the bulk of the publicity surrounding its enactment and passage) deals with credit cards, it also amends the Electronic Funds Transfer Act and implements federal regulation of general use pre-paid cards, gift certificates and store (retail) gift cards. The new law is scheduled to take effect Aug. 21, 2010, and substantively deals with dormancy fees (so-called “inactivity” or service fees) and expiration dates.
In the area of dormancy or inactivity fees, the new law prohibits them unless there has been no activity for 12 months. In addition, in order to impose any such fees, certain disclosures must be made to the consumer prior to purchase. The new law also prohibits expiration dates of less than five years, and requires clear and conspicuous disclosure of the expiration date, if any. In addition, gift certificates issued as part of an award, loyalty or promotional program (i.e., no money or other consideration is given) are, as is the case with many state laws, excluded. And speaking of state laws, the Act specifically does not pre-empt state laws that provide greater consumer protection.
What else should you know. First, plastic cards and payment code devices used solely for telephone services or that are reloadable, are not marketed or labeled as gift cards or certificates, not marketed to the general public, and issued in paper form only (including those that apply to tickets and events), are not covered by the requirements of the new Act. Second, the law authorizes the Board of Governors of the Federal Reserve, in consultation with the FTC, to develop requirements concerning the amount of dormancy fees that can be charged (only once each month), and to more carefully seek to define which provisions of the Electronic Fund Transfer Act and Regulation E apply in this context.
So, for states that have had no, or lesser, consumer protections, the Act clearly establishes a minimum federal threshold for the imposition of dormancy fees and the prohibition of expiration dates earlier than five years. For states that already have or may yet impose more stringent requirements, those requirements are specifically permitted under the Act, so you will still have to keep track of state requirements in this area.
If you need to know, you need to contact Keri Bruce or Joseph Rosenbaum – or your favorite Rimon attorney – who will be more than happy to help you.