NRF in Washington: A look ahead for 2023

The National Retail Federation achieved several key policy priorities in the tightly divided 117th Congress. Over the past two years, the retail community helped drive the passage of a major infrastructure package, much-needed reforms to ocean shipping supply chains, long-overdue modernization of the U.S. Postal Service, a rail labor agreement that prevented a shutdown of the freight system, and increased transparency requirements for online marketplaces.

While these successes and accomplishments moved the retail industry forward, major priorities remain that NRF will look to advance as the new Congress begins.

The 118th Congress will be as tightly divided as the 117th was. The Senate remains in Democratic control with a 51-49 advantage. The House of Representatives was flipped by Republicans who now hold a 222-212 majority. The split Congress will limit the passage of legislation and will likely force the Biden administration to increase its use of executive orders and rulemaking proposals through federal agencies to advance its agenda.

A divided Congress, however, does not mean policy priorities can’t be advanced. NRF worked to build bipartisan support on a number of key issues during the past two years and will continue advocating to get them over the finish line.

Passing the Credit Card Competition Act

The U.S. credit card market is dominated by Visa and Mastercard, which control about 80 percent. The duopoly has led to exorbitant swipe fees that are paid by merchants and their customers. Swipe fees totaled $137.8 billion in 2021 and are now typically the second highest operating cost for retailers after labor.

Routing options for credit card transactions gained traction last Congress with the introduction of the Credit Card Competition Act by Reps. Peter Welch, D-Vt., and Lance Gooden, R-Texas, in the House and Sens. Dick Durbin, D-Ill., and Roger Marshall, R-Kan., in the Senate. The CCCA would require credit cards issued by the nation’s largest banks to be able to route transactions over at least two unaffiliated networks. Promoting competition in the payments space is estimated to save retailers and consumers approximately $11 billion in swipe fees, as well as promote innovation and enhanced security.

Continuing the fight against organized retail crime

The year-end omnibus package recently passed by Congress included the INFORM Consumers Act, which NRF strongly advocated for. The bill will require online marketplaces to verify the identities of high-volume third-party sellers, and its passage was a critical step in fighting rising organized retail crime. According to NRF’s 2022 National Retail Security Survey, retail shrink accounted for $94.5 billion in losses last year. Surveyed retailers also reported a 26.5% increase in ORC activity, on average.

That is why further action is needed to curb retail crime, which endangers retail workers and customers and can destroy businesses. NRF will continue to support the Combatting Organized Retail Crime Act, which was introduced last Congress by Reps. Ken Buck, R-Colo., Susie Lee, D-Nev., Dina Titus, D-Nev., and Ted Budd, R-N.C., in the House; and Sens. Chuck Grassley, R-Iowa, and Catherine Cortez Masto, D-Nev., in the Senate. The bill would increase federal coordination to fight crime by combining expertise from state and local law enforcement agencies and retail industry experts. New tools would also be created to assist in federal investigations and prosecutions of ORC and help recover lost goods and proceeds.

Providing permanent protections for Dreamers

NRF has consistently supported the DACA program, which provides work authorization and deportation protections for young immigrants who came to the United States as children. Negotiations around providing permanent protections for these individuals, known as “Dreamers,” took place toward the end of the previous Congress; however, a final deal never materialized.

NRF will continue to emphasize the importance of providing protections to Dreamers in light of the October ruling by the 5th U.S. Circuit Court of Appeals which declared the DACA program unlawful and thrust hundreds of thousands of Dreamers — and the communities and economy to which they contribute — into uncertainty. It is critical for the new Congress to give clarity and certainty to Dreamers and the businesses and industries they support.

Promoting a nationwide consumer-centric data privacy law

Retailers use personal data to better serve their customers and offer them the products, services, loyalty programs, value and convenience they expect when shopping online or in-store. Earning and maintaining customer trust depends on implementing policies and practices that prioritize privacy concerns.

Because the responsible use of customer data is both important to consumers and critical to successful retail operations, NRF strongly supports the establishment of a uniform, nationwide privacy law that protects consumer privacy across all industry sectors.

The federal privacy bill under consideration last year that did not pass Congress, the American Data Privacy and Protection Act, would have missed the mark of establishing a uniform law to protect consumers regardless of where they live and which business handles their data. NRF maintains that any federal privacy bill considered by Congress should establish a strong, uniform national privacy framework that preempts a patchwork of state privacy laws and holds all industry sectors accountable for responsible data privacy practices.

The bill should not (like the ADPPA) exempt businesses in certain industries — big tech, telecom and banks that handle the same consumer data as retailers — from these federal privacy requirements. Rather, these industry sectors should be held to the same standards to protect consumer data.

Finally, businesses should not be under the constant threat of meritless lawsuits by trial lawyers for alleged violations of privacy standards. Privacy is a complex area where mistake-free compliance is highly unlikely, and businesses should have an opportunity to work with federal and state government officials to get privacy compliance right.