CG-10 Increased disclosure and cancellation of contracts without penalty (version 1)

Publication date: February 13, 2013
(Effective date: November 12, 2013)
Amended July 2016

Background

In April 2010, the Government of Canada introduced the new Code of Conduct for the Credit and Debit Card Industry in Canada (the Code), which was developed with the industry to promote greater transparency for merchants and Canadian consumers who use credit and debit cards, as well as to enhance fairness, clarity and choice within the credit and debit card industry. The Code applies to payment card network operators (PCNOs) that operate in Canada and their respective participants (e.g. card issuers and acquirers).

The Financial Consumer Agency of Canada (FCAC) has the mandate to monitor PCNOs’ adherence to the Code and does so through the supervisory work of its Supervision and Promotion Branch (SPB). This involves both proactive engagement with PCNOs to work with them to encourage a complete implementation of all elements of the Code, as well as the ongoing monitoring of complaints and concerns brought to FCAC by merchants and consumers.

Purpose

In monitoring compliance with the Code, FCAC has observed three issues within the payment card industry which it believes are not in line with the key principles set out in Elements 1 and 3 of the Code. The following Guidance sets out these issues and the principles that should be adhered to by PCNOs and their participants, including independent sales organizations (ISOs) and other service providers (e.g. processing, terminal leasing) (“service providers”). FCAC expects PCNOs and their participants to take measures to promptly address these issues to ensure that merchants are able to benefit fully from the key principles set out in the Code.^{Footnote 1}  The FCAC will conduct ongoing monitoring to determine compliance.

Relevant elements of the Code:

Element 1 – Payment card network rules will increase transparency and disclosure by payment card networks and acquirers to merchants

The payment card networks and their participants will work with merchants, either directly or through merchant associations, to ensure that merchant-acquirer agreements and monthly statements include a sufficient level of detail and are easy to understand. Payment card networks will make all applicable interchange rates easily available on their websites.

In addition, payment card networks will post any upcoming changes to these fees once they have been provided to acquirers.

Payment card network rules will ensure that merchant statements include the following information:

This information must be presented in a manner that is clear, simple and not misleading.

Element 3 – Payment card network rules will ensure that following notification of a fee increase or the introduction of a new fee, merchants will be allowed to cancel their contracts without penalty.

By signing a contract with an acquirer, a merchant will have the right to cost certainty over the course of their contract. As a result, in the event of a fee increase or the introduction of a new fee, merchants will be allowed to opt out of their contracts, without facing any form of penalty, within 90 days of receiving notice of the fee increase or the introduction of a new fee.

Merchants may not cancel their contracts in relation to fee increases made in accordance with pre-determined fee schedules, such as those based on merchant sales volume, provided that the schedules are included in the merchant’s contract.

Issue #1: Sales and business practices

FCAC has received a number of complaints related to sales practices that did not promote increased transparency and as such are not in accordance with Element 1 of the Code. These practices created greater confusion and less transparency, and often misled merchants regarding the terms of the merchant-acquirer agreement. Examples of the types of practices include, without limitation, the following:

• failing to provide merchants with complete copies of the agreed upon merchant-acquirer agreement or terms incorporated therein by reference in a timely manner (e.g. not providing a copy of applicable transaction and processing fees and rates at the time the merchant enters into the agreement);
• unilaterally altering or modifying a merchant-acquirer agreement governing payment card transaction processing without providing advance notice (e.g. 30 days or more before the changes)^{Footnote 2} ;
• sales representatives advertising and promising rates and fees that participants are not able to honour;
• inconsistencies between the information disclosed in the merchant-acquirer agreement and the merchant’s monthly statements (i.e. different terminology used to describe fees and rates or different fees / rates in agreement and statements), and
• misrepresenting contractual terms.

In many cases, the sales practices resulted in merchants not being aware of all of the costs associated with the contract.

Sales or business practices that do not ensure the provision of information to merchants in a manner that is clear, simple and not misleading fail to comply with the Code.

Issue #2: Disclosure in multiple service provider agreements

FCAC’s oversight work on the Code has shown that merchants often find multiple service provider agreements^{Footnote 3}  opaque and difficult to understand in part because of the many different but interconnected payment services they require. As a result, it is often difficult for merchants to make reasonable and informed decisions about the payment card network services they choose to receive, whom they agree to receive them from, what their rights and obligations are in the context of those relationships, and whom they need to contact in the event that something goes wrong.

It is therefore incumbent on PCNOs and their participants to work together to ensure that merchants receive clear information about the services being offered in a multiple service provider context before the merchant enters into an agreement or agreements for those services. 

Issue #3: Multiple contract cancellation penalties, costs or fees

In monitoring compliance with the Code, FCAC has encountered situations where merchants have signed a merchant-acquirer agreement with a participant^{Footnote 4}, to later discover that in addition to the contract with the participant, they had actually entered into additional contracts for related services (“related service contracts”) that each contained different cancellation clauses and related penalties, fees or costs.

In such situations, when a merchant sought to cancel the merchant-acquirer agreement without penalty following a transaction fee increase or the introduction of a new fee, as permitted under Element 3 of the Code, the merchant was able to cancel the contract with the participant without penalty, but often faced additional costs or penalties to terminate related service contracts. In some cases, these penalties were enough to deter a merchant from invoking his or her right to cancel all contracts without penalty under Element 3 of the Code.

The Code does not prevent the practice of a service provider (e.g. ISO) acting on behalf of a participant and/or service provider when selling payment services to merchants. However, where merchants choose to cancel their contracts with a participant or service provider due to any new or increased fees, the exposure of merchants to cancellation costs or penalties contained in other related service contracts, where there is a business connection with the payment services being provided to the merchant by the service provider, undermines Element 3 of The Code.

Implementation and timing

FCAC expects that all PCNOs will publicly commit to this guideline and incorporate the required amendments into their operating rules within 90 days of the date of this guideline.

FCAC expects that all participants will comply with this guideline and will incorporate any required changes to improve documentation, processes or approaches within 180 days of the date that PCNO operating rules are amended.

Conclusion

This FCAC's guideline is complementary to, and should be read in conjunction with other FCAC's guideline:

• CG-3 Clear language and presentation principles and guidelines for the industry
• CG-7 Ninety days’ notice of any fee increases or the introduction of a new fee

Each PCNO is responsible for ensuring full compliance of participants with The Code. SPB may follow up with PCNOs to ensure that requirements have been met.

Appendix 1

Summary of key Items regarding your application and agreement for processing debit and credit transactions

Note: This Sample (Information) Summary Box is for illustration purposes only. It should be adapted as necessary by participants to ensure that disclosure of the key information set out in any package of contracts between merchants and participants and any related service providers is provided to merchants in a manner that is clear, simple and not misleading.

The Summary should clearly state that it is provided for the merchant’s information only and DOES NOT provide all information pertinent to the merchant’s Application and Agreement for Processing Debit and Credit Transactions. It should also advise merchants to thoroughly review their contract(s) and to contact their acquirer if they have questions.