Merchants Beware: After a Recent Court Decision, Printing any Part of the Expiration Date on a Credit or Debit Card Receipt May be a Willful Violation of Federal Law

Under the Fair and Accurate Credit Transactions Act, or FACTA, retailers, hotels and restaurants that accept credit or debit cards may not print the expiration date or more than the last five digits of the card number on any electronically printed receipt provided at the point of sale.  11 U.S.C. 1681c(g)(1).  In January, the Third Circuit Court of Appeals held that a merchant violates FACTA when its receipt shows any part of the expiration date.

Although “expiration date” is not defined in the statute, the court in Long v. Tommy Hilfiger U.S.A., Inc. observed that if different merchants were to choose different portions of the expiration date to omit, it would be possible to ascertain the full expiration date from multiple receipts.  According to the court, “This, of course, would be inconsistent with the statute’s objective of preventing identity theft and a result certainly not intended by Congress.”  Furthermore, said the court, the fact that Congress had permitted merchants to print up to the last five digits of the card number indicated that Congress knew how to permit part of the expiration date to be printed, but chose not to.

In the Long case, the plaintiff sued Tommy Hilfiger U.S.A. and sought punitive damages and attorney fees under 15 U.S.C. 1681n(a), which makes such damages available for willful violations of FACTA.  The Long court decided, however, that the retailer’s conduct was not willful, in part because no circuit court of appeals had yet determined whether partial expiration dates were permissible under FACTA.  Now that one circuit has held that printing credit/debit card expiration dates is not permissible, merchants are well advised to omit expiration dates entirely from electronically printed receipts.

As always, if you have questions about this — or any other post here on — please contact any member of the Retail, Hotel & Restaurant team.