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Advertising alert www.Venable.com January 2011 To learn more about Enable's Advertising and Marketing group, please visit our website or contact the authors below. Are You Ready? New Record keeping

According to the Electronic Gift Cards Association (EGA), the changes set to be enacted by New Jersey's Division of Consumer Affairs require gift card issuers to update all current gift card sales records and to retain electronic copies of cardholder records “for at least one year.” The legislation requires gift card issuers to retain electronic, readable versions of cardholder sales records (in electronic format) for one year. In addition, New Jersey has mandated that each gift card issuer maintain an “electronic record keeping system” and a “consumer advisory register” to “document” all changes in cardholder accounts, transactions, or other records in the consumer advisory register, for a period of one year from the date of the last change. The regulations also apply to retailers who conduct transactions solely on behalf of gift card issuers. The legislation exempts merchants that sell gift cards from the new requirements, and exempts them from having to maintain cardholder records. The New Jersey Department of Banking has indicated that gift card providers will soon be able to register with its “electronic record keeping system.” If a gift card provider has a New Jersey customer, they will need to ensure that they maintain a consumer advisory register of current credit card balances and fees for at least 12 months past the date that the new bill will pass. As many as 90 percent of consumer card issuers may be affected by the change. Some large New Jersey card issuers, including American Express, Citibank, Discover America, JCB, and Bank of America, have expressed a desire to avoid the regulations. In addition, some national card issuers — such as American Express, Citibank, Visa, and Discover North America — have stated that gift card issuance is not affected by the new requirements and that they will “continue to issue gift cards to customers and maintain existing gift card inventories in a manner consistent with the law.” Withholding Customer Funds for Refunds Many cardholders continue to withhold funds from their gift cards as a way to avoid incurring large financial penalties during the refund process. If a cardholder fails to pay a refund for a gift card that they bought after September 22, 2010, the issuer may still issue an electronic receipt for that sale. However, customers are not liable for the entire amount of the charge on the refunding card. Instead, the cardholder is liable only for the amount that the cardholder is credited through the transaction.

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