United States: Unclaimed Property Gift Card Legislation To Watch

Most states are well off to the races with their 2017 legislative sessions and several states have gift card legislation pending that would impact unclaimed property holders.

Oregon

On January 9, 2017, a bill (SB 113) was introduced in the Senate that would create a new unclaimed property reporting obligation for gift cards, which would apply to gift cards issued or sold after the effective date of the bill.

SB 113 would accomplish this by amending the state consumer protection law to provide that a cardholder may only redeem a gift card from "[t]he person that a gift card identifies as providing goods or services" and such person "shall transfer to the Department of State Lands, in accordance with [the Uniform Disposition of Unclaimed Property Act], any remaining balance from a gift card that a cardholder has not used within five years after the date of the last transaction that used the gift card for a purchase." Keeping consistent with the changes above, the bill would also amend the definition of "gift card" to strike the current reference to "issuer" and replace it with the "person identified in the record as providing goods or services in exchange for displaying or surrendering the record." Finally, the bill provides that "[a] transfer under this paragraph renders the promise to provide goods or services of which the gift card is evidence void and the cardholder may not redeem the remaining balance on the gift card for cash, goods or services after the date of the transfer."

The bill was referred to the Senate Committee on General Government and Accountability, where the sponsor (Senator Chuck Riley) sits as chair.

Practice Note

The prospect of gift cards becoming reportable prospectively in Oregon is troubling in itself, but the bill would go a step further and redefine who is the issuer in the gift card context by specifying that the retailer or other entity identified on the record as providing goods or services is the issuer and has the remittance obligation—not a third-party issuer (which many retailers currently use and most have historically understood to have the reporting obligation for unredeemed gift cards in states without an exemption). The bill leaves room for the Department of State Lands to establish an expedited process for transferring gift card balances by regulation, but it would still be the onus of the retailer to provide the unredeemed balances and would diminish the benefit of having a third-party gift card processor under Oregon law.

New Hampshire

On January 5, 2017, a bill (HB 473) was introduced in the House that would revise the definition of "gift certificate" by (1) removing the existing requirement that the promise be written; and (2) increasing the face value based exemption from $100 to $250. The bill also would increase the face value of a gift certificate that may have an expiration date under the state consumer protection law to $250. As introduced, these changes would take effect January 1, 2018.

HB 473 was referred to the House Commerce and Consumer Affairs Committee on January 17, 2017, and a public hearing was held January 25, 2017. The bill was not advanced out of committee, and several subcommittee work sessions have been scheduled since then.

Practice Note

Issuers of gift certificates with a face value of $250 or less (but over $100) should keep a close eye on HB 473, as it would exempt these gift certificates from a presumption of abandonment. While this is good for gift certificate issuers, removing the requirement that a gift certificate be "written" would likely expand the scope of "gift certificates" subject to the unclaimed property law to include electronic and virtual gift cards and gift certificates. The subcommittee work session may provide an opportunity for the drafters to clarify the intent of the bill. Stay tuned.

Unclaimed Property Gift Card Legislation To Watch

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