Hidden in Plain Sight: Consumer Rights You Did Not Know You Had

Hidden in Plain Sight: Co…

In 1516 there was a wheat and rye price crisis in Bavaria, Germany. Germans liked beer more than bread, and as a result entire crops of wheat and rye were designated for beer brewing. Bakers noticed price spikes in wheat and rye, forcing them to increase the price of bread. To combat the increase in the price of bread and also guarantee that German’s had quality beer, on April 23, 1516 Albert Wihelm IV, Duke of Bavaria put pen to parchment and promulgated the following law:

Bavaria, in the country as well as in the cities and marketplaces, the following rules apply to the sale of beer:

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[W]e wish to emphasize that in future in all cities, markets and in the country, the only ingredients used for the brewing of beer must be Barley, Hops and Water. Whosoever knowingly disregards or transgresses upon this ordinance, shall be punished by the Court authorities' confiscating such barrels of beer, without fail.

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Signed: Duke Wilhelm IV of Bavaria on April 23, 1516 in Ingolstadt.”

In addition to requiring that only barley, hops and water be used in beer making, this law, titled “the Reinheitsgebot” or beer “purity law” set price limits on beer at 2 pennies per kopf (e.g., a cup for drinking), guaranteeing many betrunkin days and nights in Bavaria.  The law remained on record for nearly 500 years, until the Provisional German Beer Law was passed in 1993. 

I often argue that the Reinheitsgebot is the first and oldest consumer protection statute in the world. Most people have a limited view of consumer protection laws or believe that Ralph Nader invented the term “consumer protection” when he released the book “Unsafe at Any Speed” in the 1960’s.  The fact is that there are numerous consumer protection laws that we do not know about that make up a vital foundation of a fair and free marketplace in Kansas and across the country. 

There are several lesser known consumer rights that play a role in our everyday lives but that you probably are not aware of. 

Protection from Credit Card Swipe Fees

Sometime in 2009, I was at a Topeka bar and noticed a sign that said “Minimum Credit Card Purchase - $10”.  I asked the bartender what he would do if I only spent $9. He informed me he would charge me $10. I asked why the bar imposed this requirement on the beer-drinking consumers like me.  The bartender grunted and said it was because the cost of accepting a credit card was so high that the bar lost money if it did not impose a minimum purchase amount.  I then used the minimum purchase price as an excuse to have another beer. What the bartender did not tell me, and likely did not know, is that until 2010, Visa, Mastercard and Discover’s written merchant agreements forbid stores from imposing a minimum amount charge on your credit card for purchases. What the bartender exposed was a complaint merchants raised about a legitimate problem, even if one disagrees with the solution.  Despite the decreasing cost of electronic transactions, the fees for accepting credit cards has increased to the extent that many merchants lose money on smaller transactions.  In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act which regulated banks, insurance, small lenders, numerous other financial entities and credit cards.  Merchants teamed up and obtained very favorable language in that law. Tucked away on page 698 of the original draft of the law is a sentence that says “A payment card network shall not . . . inhibit the ability – (i) of any person to set a minimum dollar value for the acceptance by that person of credit cards . . .” provided the minimum charge “does not exceed $10.00.”  Problem solved.

While the Dodd Frank law of 2010 allows merchants to impose a $10 minimum on your purchases, a relatively unknown provision in the Kansas Uniform Consumer Credit Code provides an important consumer protection from credit card surcharges by merchants. K.S.A. 16a-2-403 forbids any seller, lessor, credit or debit card issue from imposing any surcharges on a cardholder who uses a credit card instead of cash.  These so-called “swipe fees” are frequently added, but rarely litigated. Violations of the Kansas UCCC can, in most cases, result in payment of damages, a civil penalty or fine of up to $1,000.00, plus attorney’s fees.  Is a minimum credit card purchase requirement simply another way of imposing a swipe fee?  This is debatable.  

There are three notable exceptions to the swipe fee rule. If you pay tax debts to the state or county with a credit card, the state or county can add to the charge a fee that is  “equal to the charge paid by the state, county treasurer or the taxpayer for use of the credit card by the taxpayer.”  Similarly, a state agency collecting “fees, tuition or other charges”  by credit card “may impose an additional fee to recover the actual amount of any cost incurred by reason of the method of payment used by the payee.”

You Have the Right to be Entertained as Advertised

As a musician, it is important for me to be entertained several times a year at rock concerts. In fact, as I type this, I am listing to Wilco’s “Kicking Television: Live in Chicago” a live album released by Wilco in 2005. Thankfully, since 2010, Kansas law has protected my right to rock with legitimate performers via the Truth in Musical Performance Advertising Act which is a part of and supplement to the Kansas Consumer Protection Act.  “It shall be unlawful for any person to advertise or conduct a live musical performance or production in this state through the use of false, deceptive or misleading affiliation, connection or association between a performing group and a recording group.” The act is part of the Kansas Consumer Protection Act and provides for civil penalties (up to $10,000 per violation), as a remedy for litigants. The act also allows the Attorney General or a county or district attorney to obtain an injunction before the performance begins.

This begs the question, can any county attorney or district attorney demand verification that the artists are actually as advertised?  If so, this theoretically means that a county or district attorney, or an assistant attorney general should be checking the ID’s of Mick Jagger or Keith Richards when/if the Rolling Stones play a concert in Kansas.  There is an exception for “salute or tribute” bands, so I can go ahead and start my Men at Work tribute band.

Dodd Frank Protects Your Day in Court

Arbitration clauses have quickly turned into the bane of the existence of numerous trial lawyers across the country since a case called Southland Corp. v. Keating held that the Federal Arbitration Act applied to contracts governed under state law.   The Dodd Frank Wall Street Reform and Consumer Protection Act directly outlawed arbitration clauses in mortgage loans. The same law, via 15 U.S.C. § 1639c(e), states no provision of a mortgage loan shall bar a consumer from brining a court action for damages or other relief in connection with a violation of federal law.  Thus, not only does the new law prohibit arbitration agreements, it also prohibits preventing a consumer from having his or her day in court for violations of federal law.  Importantly, the law applies to both residential mortgages and “open-end consumer credit” secured by one’s principal dwelling. Thus, the law, via Regulation Z’s definition of “principal dwelling,” applies to second mortgages; home equity lines and first mortgages, one to four unit homes, manufactured homes, condominiums, cooperatives, as well as mobiles homes or trailers used as residences.

Involuntary Bumps from an Airline Should Result in Cold, Hard Cash

We all know that airlines do not guarantee their schedules. Airlines overbook flights on purpose, a practice that is technically illegal as an unfair and deceptive act or an unfair method of competition that violates federal law. The Department of Transportation allows this practice, provided the airlines compensate consumers that are involuntarily bumped. The law requires this payment be made to bumped passengers in the form of check or cash. Airlines attempt to negotiate with passengers to avoid paying the maximum required amounts, so it is important to know the rules. According to the Department of Transportation, airline regulations require the following:

•     If you are bumped involuntarily and the airline arranges substitute transportation that is scheduled to get you to your final destination (including later connections) within one hour of your original scheduled arrival time, there is no compensation.

•     If the airline arranges substitute transportation that is scheduled to arrive at your destination between one and two hours after your original arrival time (between one and four hours on international flights), the airline must pay you an amount equal to 200% of your one-way fare to your final destination that day, with a $650 maximum.

•     If the substitute transportation is scheduled to get you to your destination more than two hours later (four hours internationally), or if the airline does not make any substitute travel arrangements for you, the compensation doubles (400% of your one-way fare, $1300 maximum).

By the way, if you are a bump victim, you get to keep your original ticket and use it on another flight.  Remember, just because an airlines have a maximum it has to pay does not mean you can’t negotiate an even higher amount.  Airlines know that they are required to keep data on bumped passengers and can be fined by the Department of Transportation if they do not comply with regulations.  This is an incentive for airlines to pay. 

Conclusion

There are thousands of consumer protections hidden around us in plain sight. Whether it be a 500-year old beer law or the payment of cash for overselling a flight, consumer protection laws are there to help us navigate the competitive marketplace.  In a world that increasingly stacks the deck against consumers, knowing your rights is imperative to ensuring a fair landscape for consumers and businesses alike. 

Originally published in the Journal of the Kansas Association for Justice, Vol. 38, Issue 4 (March 2015).

Tai J. Vokins is an attorney licensed to practice in state and federal courts in Kansas.  If you have questions about consumer rights, call Tai at 785-842-6311

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.

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