This is going to be long. As a career accountant that has done and undone a lot of merchant processing deals I know more here than I care to admit.
The way I read that article nothing has really changed though. The law changed a few years ago to allow for a cash or a credit price with the rule being that the "menu" price had to reflect a difference. The article says this:
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A merchant is now allowed to show you at least two prices: what it costs with a credit card, and what it costs with a cash or debit card payment.
Think about how the gas station advertises a different price for cash v credit. So for Taco Casa to comply with the law they would have to tell you that a taco is $2.08 credit and $2 cash like the gas stations do for regular unleaded. A fee tacked on top of the menu price isn't a separate menu price for using a card. In fact the article says this:
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A merchant who lures you in with a low cash price through advertising and then upsells you with a surcharge might have a problem.
That says that luring you in with "Tacos for $2" then charging you $2 plus 3.75% for a card isn't legal.
Of course it also says this:
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The surcharge must reflect what the actual swipe fee is. The maximum allowed is 4 percent. If a merchant charges more, file a complaint with the Texas AG's office.
I'm close to 100% certain that their weighted average processing costs are not 3.75% because in all my years of hiring and firing merchant processing companies I've never seen a company incur that kind of fee on average. Sure you can see it for any given transaction but not overall. I have terminated processing agreements for getting over 2.8% in a setting where I should have been at 2.6%. Doesn't sound like a lot but on $10M in volume it adds up. Most likely their costs are closer to 3% and could be less if they'd work a bit at it. Of course this kind of set up gives them no incentive to work at it. Right now I'd guess that Taco Casa is making .5% on ever CC transaction and that's illegal according to this article. It cannot be a profit center.
Here's what this is going to lead to. Either all merchants will go this route which will lead to fee creep and increased profit for Visa or it will become a means of differentiating between merchants and who does or does not want my business. In other words if all taco places do it I don't have much choice. I like Taco Casa but not so much that I'm willing to ignore that they aren't doing things the right way. I've already told my closest cleaners that I won't bring laundry there because they have a minimum credit transaction which is also not allowed. Nobody is forcing you to take cards but if you're going to take them do it the right way. Accepting cards comes with a contract, abide by its terms or don't take them. It's not really that complicated.
According to that article apparently 42 states allow these charges so Texas is a bit late to the party which tells me this isn't really going to go away. I get that they are expensive and they have to be for me to get 2% cash back from Citi on everything I purchase. I do like that merchants have the freedom to openly pass those fees along if they so choose as long as they choose to do it the right way. The idea that they couldn't do so before because of the First Amendment (that's the argument the winning side presented according to the article) is just absurd. I'm disappointed a judge fell for something so stupid. Nothing ever kept you from saying that cards are expensive and we'd appreciate it if you used cash or debit. Nothing ever stopped you from saying that cards are expensive and we don't want to take them. This is just business owners wanting it both ways and the consumer being told to suck it up.
Bottom line here is that according to that article in order for Taco Casa to do this the right way the menu has to show two difference prices for cash and credit. A flat percent added to the ticket still isn't legal. Do with that information what you will.