CONSUMER ALERT

MIKE COX

ATTORNEY GENERAL

The Attorney General provides Consumer Alerts to inform the public of unfair, misleading, or deceptive business practices, and to provide information and guidance on other issues of concern.  Consumer alerts are not legal advice, legal authority, or a binding legal opinion from the Department of Attorney General.

GIFT CARDS & GIFT CERTIFICATES

2009 UPDATE

According to the National Retail Federation, consumers are expected to spend 24.9 billion on gift cards this holiday season.  Despite the ease and popularity of gift cards, there are drawbacks to consider before purchasing or using gift cards.

THE DIFFERENCE BETWEEN GIFT CARDS AND GIFT CERTIFICATES

Gift Cards

Gift cards, sometimes referred to as "smart cards," represent a stored value of money.  The card has information stored in a magnetic strip or a microprocessor chip.  It is similar to a debit card, except gift cards are not tied to a consumer's bank account.  The two broad categories of gift cards are merchant-issued gift cards or bank-issued gift cards. 

A consumer who purchases a merchant-issued gift card indicates how much they want to spend, and in return, the merchant should disclose any applicable fees, charges, expiration dates, and other restrictions.  The gift recipient may then use the gift card toward purchases at that merchant or other participating merchants.  Some merchants place restrictions on use of the card ? for instance, the card may only be used for online or in-store purchases.  Some gift cards have pins on the back of the card that should only be revealed by the purchaser or recipient at the time they would like to use the gift card to make a purchase. 

A gift card issued by a bank or other financial institution contains an identity symbol for a card network such as American Express, VISA, or MasterCard.  Usually these bank-issued cards can be used at any location accepting credit or debit cards from that network (ie. locations accepting VISA, American Express, and/or MasterCard).  The banks that issue these cards are required to provide consumers who purchase and receive their cards with disclosures related to fees, charges, expiration dates, and other restrictions.  The Office of the Comptroller of the Currency (OCC), which is responsible for regulating national banks, has gift card disclosure guidelines that national banks must follow.  The guidelines publication is available at http://www.occ.treas.gov/ftp/bulletin/2006-34.doc

Gift Certificates

A gift certificate represents the right of the person named on or holding it to present the certificate to the referenced merchant for goods or services.  The main difference between a gift card and a gift certificate is a gift certificate does not come with the "smart card" technology but, instead, is recorded on paper and sometimes resembles a check. 

MICHIGAN'S NEW RULES REGARDING GIFT CARDS

On November 1, 2008, new laws regarding the sale of gift cards in Michigan will take effect, just in time for the 2008 holiday shopping season.  Here are answers to frequently asked questions about Michigan's new gift card laws:

1.      Can the gift cards that I buy expire?

The answer to this question depends on the type of gift card that you purchase.  For example, many consumers purchase gift cards that are issued by merchants for a specified value.  Although there are exemptions, most gift cards issued by merchants cannot expire within five years of purchase.  That means a merchant that issues a gift card cannot refuse to accept a gift card "for personal, family, or household use" if you present the card within five years from the time it was purchased or value was added to a gift card.  But a merchant can refuse to accept a gift card that was issued more than five years ago, if the terms and conditions were clearly and conspicuously disclosed and one of those terms and conditions was an expiration date of at least five years from the date of issuance.

The big exemption to the general rule that gift cards cannot expire within five years of purchase are cards issued by banks or financial institutions.  That means that, under Michigan law, financial institutions that issue gift cards can put an expiration date on a gift card, and that gift card can expire in less than five years.  Keep in mind that many shopping malls in Michigan that sell gift cards for use at participating stores are actually selling gift cards issued by financial institutions.  Even if gift cards issued by financial institutions are exempt from some of Michigan's new gift card rules, issuers should still clearly and conspicuously disclose any expiration date or other terms and conditions.  And financial institutions may have to follow other state or federal rules regarding gift cards. 

The bottom line: Before you purchase a card, ask if it is issued by a financial institution, just so you know what type of card you will be dealing with.  Also, be sure to ask about expiration dates or other terms and conditions before purchasing any gift cards.  If expiration dates or other terms and conditions are not easy to spot, don't buy the card. 

2.   What should I look for when buying a gift card from a merchant?

Although the following list is not exhaustive, as of November 1, 2008, Michigan law now prohibits merchants from doing any of the following:

• refusing to accept a gift card or gift certificate for personal, family, or household use UNLESS the gift card has an expiration date that is more than five years from the date of purchase, and the gift card is presented after the expiration date;

• changing the terms and conditions of a gift card after the time of purchase;

• failing to disclose terms and conditions of a gift card; and

• refusing to apply the value of a gift card or gift certificate to the purchase price of goods or services, if the value of the gift card or gift certificate is less than the purchase price of the good or service.  For example, you see a watch that you would like to buy, but the watch costs $50 and you received a $25 gift card for your birthday.  The merchant must accept the $25 gift card (assuming you are complying with all other terms and conditions to use the card) and apply it towards your $50 watch purchase ? which means you still owe the merchant $25, plus tax. 

Also, starting November 1, 2008, a merchant cannot charge an inactivity or other service fee and deduct it from the value of the gift certificate.  However, merchants can charge a fee in connection with purchasing the card, but they can't deduct it from the value of the card.  For example, a merchant can charge you a $1 gift card purchase fee at the time you buy a $25 gift card, but they can't deduct this fee from the value of the card (ie. they can't give you a $25 gift card with only $24 on it).  If you buy a $25 gift card, $25 should remain on the card unless you use it to purchase something. 

Keep in mind that all of the prohibitions discussed in this FAQ do not apply to gift cards issued to financial institutions (among others).  But all fees or terms and conditions should still be clearly and conspicuously disclosed to you at the time of purchase.  If they are not, don't purchase the card.

3.   Are there exemptions to the new gift card laws?

Yes.  As mentioned above, gift cards or gift certificates issued by financial institutions are not required to comply with most of the new gift card laws.  Some of the other exemptions are:

• debit cards;

• pre-paid calling cards;

• cards linked to health savings accounts;

• pre-paid discount cards;

• payroll cards;

• gift cards sold below face value or at a volume discount to an

  employee, non-profit, charitable organization, or

educational institution "for fundraising purposes"; and

gift cards given to employees or consumers as part of an

"awards, rewards, loyalty, or promotional program"

as long as the consumer or employee is not required to

give consideration for the card.

4.   What can I do to make sure I am getting the best deal when I buy a gift card?

As with any other purchase, consumers should shop around before buying gift cards to make sure they are getting the best deal.  For example, if you would ordinarily purchase a gift card from a mall, and the gift card the mall sells is issued by a financial institution which charges fees and expires in a short time, ask yourself if all of those terms and conditions are really worth the relative ease of buying that card.  And why would you buy the card from the mall, if you can purchase a merchant-issued card from the recipient's favorite store in the mall without worrying about inactivity fees or short expiration dates?  Or why not give cash instead?

Merchants compete for your business, especially during the holiday shopping season.  Use this competition to your advantage ? always be a smart shopper, and do your homework before you buy.  For more tips on what to look for when shopping for gift cards, please see the gift card buying guidelines below. 

5.   What tips should I follow to protect myself when purchasing or receiving a gift card?

• Keep your eyes and ears wide open when purchasing a gift card.  Avoid purchasing a gift card from a merchant that is struggling to stay in business or has filed for bankruptcy.    

• Use a credit card when buying gift cards.  If the merchant closes before you have completely used the card, you can refuse to pay that charge and dispute the charge with the credit card issuer.  Disputes should be made in writing, within 30 days of the first credit card bill listing the disputed charge. 

• Use gift cards as soon as you can, even if there is no reason to suspect the merchant is having financial difficulties.

6.   What should I do if the merchant who issued my gift card files for bankruptcy?

You should contact the merchant to determine if it is still accepting gift cards.  This information may also be available on the retailer's website.  Even if the merchant is not currently accepting gift cards, it may resume doing so later, so you should check with them periodically.  The merchant's competitors may also be willing to honor the gift card.   

GIFT CARD / CERTIFICATE BUYING GUIDELINES

As with any purchase, be sure to read the fine print before buying.  Pay particular attention to the following considerations:

1.      Purchase or use restrictions.  Some merchants may only allow you to use the gift card at specific store locations.  Others may allow you to use the card at different merchants or online.  Some merchants have limited-use cards ? for example, cards that can only be used to buy gas at a gas station.  It is important to become familiar with these restrictions before you buy a gift card.  

2.      Expiration date.  Like location restrictions, expiration dates on gift cards can create an unwanted hassle.  Find out if a merchant or gift card issuer places expiration dates on their gift cards before you purchase.  If there is an expiration date, reconsider whether purchasing a gift card from this particular merchant is worth any future problems that may arise.  Even if there is no expiration date, encourage recipients to use the gift within three months of receipt.  After a few months, it is increasingly likely the certificate or card will be lost or forgotten!

3.      All fees.  Gift card issuers should clearly disclose any fees, but wise purchasers ask whether there are any fees that have not already been disclosed.  Like expiration dates on gift cards, think twice before purchasing from a merchant or other issuer who charges fees on purchasing or using gift cards. 

4.      Replacement policy for lost or stolen cards.  This is important information to know in the unfortunate event the card is lost or stolen. 

5.      Purchase from only reputable sources and inspect the card before you buy.  Although purchasing gift cards from online auction sites may be easy and inexpensive, you may be purchasing stolen or counterfeit gift cards.  Consider purchasing gift cards directly from the merchant or issuer, either online or at their brick-and-mortar locations.  Inspecting the card before you buy allows you to make sure protective stickers have not been removed, codes or PIN numbers remain hidden, and the card has not otherwise been altered.  If you purchase a card that you later discover has been altered, report it in writing to the issuer immediately.

6.      Ask for an extra receipt.  Keep the duplicate receipt and give the original to the gift recipient.  A receipt will be critical if the card is lost or stolen and important in case an error occurs and a merchant indicates that there is less value on the card than you anticipated (for example, if you use a gift card that should have $50 on it, but the merchant informs you that the card is empty).    

FILE A COMPLAINT

If you are confronted with a business that you feel may have violated Michigan's new gift card rules, or refuses to honor an expired gift certificate or card, please file a complaint with the Attorney General's Consumer Protection Division at:

Consumer Protection Division
P.O. Box 30213
Lansing, MI 48909

517-373-1140
Fax: 517-241-3771

Toll free: 877-765-8388

www.michigan.gov/ag (online complaint form)