The practice of charging consumers a fee for paying via credit card — known as surcharging — has been both increasingly common and increasingly controversial over the last decade. Visa and Mastercard first began to allow surcharging following a class action settlement in 2013. Even then, roughly a dozen U.S. jurisdictions still banned surcharging. But since 2018, when the Supreme Court of the United States cast doubt on the constitutionality of surcharging bans on First Amendment grounds, those bans began to erode. Now, Oklahoma has become the latest in a long line of states that have officially legalized surcharging, albeit subject to prescribed parameters.
Oklahoma’s Old Law
Oklahoma was originally among those states that prohibited surcharging. Okla. Stat. tit. 14A § 2-211 previously made it unlawful for a seller in any sales transaction to impose a surcharge on anyone who opted to pay via a credit or debit card, versus via cash, check, or similar means.
Following the Supreme Court’s ruling in 2018 that surcharging bans could implicate the First Amendment, the Attorney General of Oklahoma took an in-depth look at the state’s surcharging ban to determine whether it passed constitutional muster. In an opinion issued on December 17, 2019, the Attorney General determined that in some situations, the state surcharge ban would violate the First Amendment, while in others it would not. This decision was widely hailed as “open season” for surcharging in Oklahoma, but in fact, the surcharging ban remained on the books.
Oklahoma’s New Law
Oklahoma will officially reverse its stance on surcharging on November 1, 2025, when an amendment to Section 2-211 will take effect. The new law specifically allows surcharging subject to these limitations:
- Surcharges may be assessed only on credit cards and only if other forms of payment are also accepted. In other words, the surcharge may be assessed only if the consumer has a true choice as to how to pay.
- The surcharge is limited to the lesser of 2% of the transaction value or the cost of accepting the card.
- The surcharge must be disclosed at the point-of-entry and point-of-sale for in-person transactions, and on the home page and check-out page for online transactions. For phone transactions, the surcharge must be verbally disclosed.
Does the New Law Cover B2B Transactions?
Maybe. The statute has potentially broad application. It applies to “sellers,” which are defined as “any person, entity, or retailer doing business in the state in any sales, service, or lease transaction, including, but not limited to, any consumer credit sales transaction.” The fact the law applies to any person doing business in any sales, service, or lease transaction — and not just a consumer transaction — at least opens the possibility that this law could be construed to apply to business-to-business transactions and business-to-consumer transactions.
