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Bans on Credit Card Surcharges Face First Amendment Challenges

State laws that prohibit retailers from charging customers a surcharge for using a credit card are being challenged on First Amendment grounds.

For more than four decades, California’s Song-Beverly Credit Card Act of 1971 prohibited retailers from charging credit card customers such a surcharge. In Italian Colors Restaurant, et al. v. Harris, 99 F.Supp.3d 1199 (E.D. Cal. 2015), a federal judge ruled that the law unconstitutionally limits retailers’ freedom of speech. The California attorney general appealed, and the case is set for oral argument before the Ninth Circuit Court of Appeals on August 17.

The outcome may be influenced by the U.S. Supreme Court’s decision in March of this year in Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017), that a similar New York ban on credit card surcharges implicates the First Amendment. That case has been remanded to the Second Circuit to determine whether the ban

Certification of Compliance with Flammability Standards No Longer Required for “Inherently Safe” Adult Clothing

Until recently, federal law required many adult clothing manufacturers and importers to issue certificates of compliance with applicable flammability standards, even though certain fabrics had already been determined to meet such standards.

Effective March 25, 2016, however, the Consumer Product Safety Commission (“CPSC”) gave the industry a reprieve – a new policy eliminating the need for certificates of compliance for adult clothing made from certain fabrics. The relevant fabrics include plain surface fabrics weighing at least 2.6 ounces per square yard and all fabrics that are made from acrylic, modacrylic, nylon, olefin, polyester or wool. The policy is expected to save manufacturers roughly $250 million yearly in certificate preparation costs. Click here for more information.

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