II 111th CONGRESS 1st Session S. 710 IN THE SENATE OF THE UNITED STATES March 25, 2009 Mr. Schumer (for himself and Mr. Udall of Colorado) introduced the following bill; which was read twice and referred to the Committee on Banking, Housing, and Urban Affairs A BILL To prohibit unfair or deceptive acts or practices relating to gift certificates, store gift cards, and other general-use prepaid cards, and for other purposes.

1.

Short title

This Act may be cited as the Fair Gift Card Act of 2009.

2.

Definitions

In this Act: (1)

Debit card

The term debit card has the meaning given the term in section 603(r)(3) of the Fair Credit Reporting Act (15 U.S.C. 1681a(r)(3)). (2)

Dormancy fee; inactivity charge or fee

The terms dormancy fee and inactivity charge or fee mean a fee, charge, or penalty for non-use or inactivity of a gift certificate, store gift card, or general-use prepaid card. (3)

Financial institution

The term financial institution has the meaning given the term in section 603(t) of the Fair Credit Reporting Act (15 U.S.C. 1681a(t)). (4)

General-use prepaid card, gift certificate, and store gift card

(A)

General-use prepaid card

The term general-use prepaid card means a card or other electronic payment device issued by a financial institution or licensed money transmitter that is— (i)redeemable at multiple, unaffiliated merchants or service providers, or automated teller machines; (ii)issued in a requested amount whether or not that amount may, at the option of the issuer, be increased in value or reloaded if requested by the holder; (iii)purchased or loaded on a prepaid basis; and (iv)honored, upon presentation, by merchants for goods or services, or at automated teller machines. (B)

Gift certificate

The term gift certificate means a written promise that is— (i)redeemable at a single merchant or an affiliated group of merchants that share the same name, mark, or logo; (ii)issued in a specified amount and cannot be increased; (iii)purchased on a prepaid basis in exchange for payment; and (iv)honored upon presentation by such single merchant or affiliated group of merchants for goods or services. (C)

Store gift card

The term store gift card means a plastic card or other electronic payment device that is— (i)redeemable at a single merchant or an affiliated group of merchants that share the same name, mark, or logo; (ii)issued in a specified amount and may or may not be increased in value or reloaded; (iii)purchased on a prepaid basis in exchange for payment; and (iv)honored upon presentation by such single merchant or affiliated group of merchants for goods or services. (D)

Exclusions

The terms general-use prepaid card, gift certificate, and store gift card do not include a written promise, plastic card, or other electronic device that is— (i)used solely for telephone services; or (ii)associated with a demand deposit, checking, savings, or similar account that— (I)is in the name of an individual or on behalf of an individual at a bank or financial institution; and (II)provides payment solely by debiting such account. (5)

Licensed money transmitter

The term licensed money transmitter means a person who sells or issues payment instruments or engages in the business of receiving money for transmission or transmitting money within the United States or to locations abroad by any and all means, including payment instrument, wire, facsimile, or electronic transfer. (6)

Service fee

The term service fee means a periodic fee, charge, or penalty for holding or use of a gift certificate, store gift card, or general-use prepaid card.

3.

Unfair or deceptive acts or practices regarding gift cards

(a)

Prohibition on imposition of fees or charges

(1)

In general

Except as provided under paragraphs (2) through (4), it shall be unlawful for any person to impose, with respect to a gift certificate, store gift card, or general-use prepaid card, a dormancy fee, inactivity charge or fee, or a service fee. (2)

Exception

A dormancy fee, inactivity charge or fee, or service fee may be charged with respect to a gift certificate, store gift card, or general-use prepaid card if— (A)such certificate or card has a remaining value of $5 or less at the time such charge or fee is assessed; (B)such charge or fee does not exceed $1; (C)(i)there has been no activity with respect to the certificate or card in the 24-month period ending on the date the charge or fee is imposed; and (ii)the certificate or card was issued more than 24 months before such date; (D)the holder of the certificate or card may reload or add value to the certificate or card; and (E)the disclosure requirements of paragraph (3) are met. (3)

Disclosure requirements

The disclosure requirements of this paragraph are met if— (A)the gift certificate, store gift card, or general-use prepaid card clearly and conspicuously states in at least 10-point type— (i)that a dormancy fee, inactivity charge or fee, or service fee may be charged; (ii)the amount of such fee or charge; (iii)how often such fee or charge may be assessed; and (iv)that such fee or charge may be assessed for inactivity; and (B)the issuer of such certificate or card informs the purchaser of such charge or fee before such certificate or card is purchased, regardless of whether the certificate or card is purchased in person, over the Internet, or by telephone. (4)

Exclusion

The prohibition under paragraph (1) shall not apply to gift certificates that— (A)(i)are distributed pursuant to an award, loyalty, or promotional program; and (ii)with respect to which there is no money or other value exchanged; or (B)(i)expire not later than 30 days after the date they are sold; and (ii)are sold below the face value of the certificate to an employer or to a nonprofit or charitable organization for fund-raising purposes. (b)

Prohibition on sale of gift cards with expiration dates

(1)

In general

Except as provided under paragraph (2), it shall be unlawful for any person to sell or issue a gift certificate, store gift card, or general-use prepaid card that is subject to an expiration date. (2)

Exceptions

A gift certificate, store gift card, or general-use prepaid card may contain an expiration date if— (A)the expiration date is not less than 5 years after the date on which the card is purchased; and (B)the terms of expiration are prominently disclosed in all capital letters that are at least 10-point type.

4.

Relation to State laws

This Act and any regulations or standards established pursuant to this Act shall not supersede any provision of State law with respect to dormancy fees, inactivity charges or fees, service fees, or expiration dates of gift certificates, store gift cards, or general-use prepaid cards.

5.

Enforcement

(a)

Unfair or deceptive act or practice

A violation of this Act shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). (b)

Actions by the Commission

The Federal Trade Commission shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act. (c)

Individual cause of action

Nothing in this Act shall be construed to limit an individual's rights to enforce a State law relating to unfair or deceptive acts or practices.