Fair Credit Reporting Act; Preemption of State Laws

<RULE> CONSUMER FINANCIAL PROTECTION BUREAU <CFR>12 CFR Part 1022</CFR> <SUBJECT>Fair Credit Reporting Act; Preemption of State Laws</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Consumer Financial Protection Bureau. <HD SOURCE="HED">ACTION:</HD> Interpretive rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Consumer Financial Protection Bureau (Bureau) is issuing this interpretive rule to clarify that the Fair Credit Reporting Act (FCRA) generally preempts State laws that touch on broad areas of credit reporting, consistent with Congress's intent to create national standards for the credit reporting system. This interpretive rule replaces a July 2022 interpretive rule that the Bureau withdrew in May 2025. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This interpretive rule is applicable on October 28, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Dave Gettler, Paralegal Specialist, Office of Regulations, at 202-435-7700. If you require this document in an alternative electronic format, please contact <E T="03">CFPB_Accessibility@cfpb.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> The Fair Credit Reporting Act (FCRA)—which was enacted in 1970 and has been amended several times since—sets forth certain requirements “concerning the creation and use of consumer reports.”  <SU>1</SU> <FTREF/> The FCRA has always preempted State law, but the scope of that preemption has changed over time. Since its inception, the FCRA has preempted State laws “to the extent that those laws are inconsistent with any provision of” the FCRA. <SU>2</SU> <FTREF/> But in 1996, Congress emphasized that FCRA standards were national by adding a provision that further preempted any State regulation related to specifically enumerated subjects already regulated by the FCRA. <SU>3</SU> <FTREF/> This was “a strong preemption provision” that was meant to “to avoid a patchwork system of conflicting regulations.”  <SU>4</SU> <FTREF/> This newly added subject matter preemption provision was originally designed to expire in 2004. But in 2003, Congress made it permanent, <SU>5</SU> <FTREF/> looking to preserve the FCRA's “national standards” in order to promote economic growth. <FTNT> <SU>1</SU>   <E T="03">Spokeo, Inc.</E> v. <E T="03">Robins,</E> 578 U.S. 330, 335 (2016). </FTNT> <FTNT> <SU>2</SU>  Public Law 91-508 sec. 601, 84 Stat. 1136 (later codified at 15 U.S.C. 1681t(a)). </FTNT> <FTNT> <SU>3</SU>  Public Law 104-208 sec. 2419, 110 Stat. 3009. </FTNT> <FTNT> <SU>4</SU>   <E T="03">Ross</E> v. <E T="03">FDIC,</E> 625 F.3d 808, 813 (4th Cir. 2010) (quotation marks and citation omitted). </FTNT> <FTNT> <SU>5</SU>  Public Law 108-159 sec. 711, 117 Stat. 2011. </FTNT> The main preemption provision of the FCRA, 15 U.S.C. 1681t(b)(1), uses carefully crafted language to preempt several areas of State law that it intended to be governed solely by Federal law. The lead paragraph states that “[n]o requirement or prohibition may be imposed under the laws of any State . . . with respect to any subject matter regulated under” each of the eleven subparagraphs. Each subparagraph then includes a provision of the FCRA followed by the phrase “relating to” and then a description of the subject matter of that provision. In full, section 1681t(b)(1) says that “[n]o requirement or prohibition may be imposed under the laws of any State with respect to any subject matter regulated under” certain sections or subsections of the FCRA: (a) Subsection (c) or (e) of section 1681b, relating to the prescreening of consumer reports; (b) Section 1681i, relating to the time by which a consumer reporting agency must take any action, including the provision of notification to a consumer or other person, in any procedure related to the disputed accuracy of information in a consumer's file, [with an exception for laws in effect on September 30, 1996]; (c) Subsections (a) and (b) of section 1681m, relating to the duties of a person who takes any adverse action with respect to a consumer; (d) Section 1681m(d), relating to the duties of persons who use a consumer report of a consumer in connection with any credit or insurance transaction that is not initiated by the consumer and that consists of a firm offer of credit or insurance; (e) Section 1681c, relating to information contained in consumer reports, [with an exception for laws in effect on September 30, 1996]; (f) Section 1681s-2, relating to the responsibilities of persons who furnish information to consumer reporting agencies [with exceptions for certain enumerated State laws]; (g) Section 1681g(e), relating to information available to victims under section 1681g(e); (h) Section 1681s-3, relating to the exchange and use of information to make a solicitation for marketing purposes; (i) Section 1681m(h), relating to the duties of users of consumer reports to provide notice with respect to terms in certain credit transactions; (j) Subsections (i) and (j) of section 1681c-1 relating to security freezes; or (k) Subsection (k) of section 1681c-1, relating to credit monitoring for active duty military consumers, as defined in that subsection. On July 11, 2022, the Bureau published an interpretive rule purporting to analyze section 1681t(b)(1), finding that it has “a narrow sweep,” which allows for substantial State regulation of consumer reports and consumer reporting agencies. <SU>6</SU> <FTREF/> The 2022 interpretive rule declared that “section 1681t(b)(1) does not preempt all State laws relating to the content or information contained in consumer reports.”  <SU>7</SU> <FTREF/> According to the interpretive rule, “[t]he `with respect to' phrase necessarily reaches a subset of laws narrower than those that merely relate to information contained in consumer reports.”  <SU>8</SU> <FTREF/> The interpretive rule thus concluded that unless a State law specifically concerned a requirement or obligation addressed in the enumerated FCRA provision, it was not preempted. <FTNT> <SU>6</SU>   <E T="03">The Fair Credit Reporting Act's Limited Preemption of State Laws,</E> 87 FR 41042 (July 11, 2022). </FTNT> <FTNT> <SU>7</SU>   <E T="03">Id.</E> at 41044. </FTNT> <FTNT> <SU>8</SU>   <E T="03">Id.</E> (internal quotation marks and citation omitted). </FTNT> For example, section 1681t(b)(1)(E) preempts State laws “with respect to any subject matter regulated under” section 1681c “relating to information contained in consumer reports.” Section 1681c states requirements on four topics relating to information contained in consumer reports: obsolescence, certain information about medical information furnishers, certain information about veterans' medical debt, and certain information that must be included in a consumer report. The interpretive rule reasoned that section 1681t(b)(1)(E) does not preempt State laws about subject matter regarding the content of or information on consumer reports beyond these topics. Applying this logic, the interpretive rule specifically identified a number of areas in which States could regulate consistent with the interpretive rule's view of the FCRA, including medical debt, rental information, and arrest records. <SU>9</SU> <FTREF/> <FTNT> <SU>9</SU>   <E T="03">Id.</E> at 41044-41046. </FTNT> The 2022 rule also examined 15 U.S.C. 1681t(b)(5), another preemption clause in the FCRA, and concluded that it too has a narrow scope. On May 12, 2025, the Bureau withdrew a substantial number of guidance documents, including the 2022 interpretive rule. <SU>10</SU> <FTREF/> Consistent with the May notice, the Bureau is now confirming the withdrawal of the 2022 interpretive rule. The Bureau is also clarifying that the FCRA generally preempts State laws that touch on broad areas of credit reporting, consistent with Congress's intent to create national standards for the credit reporting system. <FTNT> <SU>10</SU>   <E T="03">Interpretive Rules, Policy Statements, and Advisory Opinions; Withdrawal,</E> 90 FR 20084 (May 12, 2025). </FTNT> <HD SOURCE="HD1">II. Withdrawal of 2022 Interpretive Rule</HD> When the Bureau withdrew its guidance documents in May 2025, the Bureau explained that it is “committed to issuing guidance only where that guidance is necessary and would reduce compliance burdens rather than increase them.”  <SU>11</SU> <FTREF/> The Bureau has reviewed the 2022 interpretive rule that interprets sections 1681t(b)(1) and 1681t(b)(5) of the FCRA, and the Bureau now confirms the withdrawal of that rule. <FTNT> <SU>11</SU>   <E T="03">Id.</E> at 20085. </FTNT> The 2022 rule is neither necessary nor does it reduce compliance burdens. The Supreme Court has recently reaffirmed that courts are the ultimate arbiters of statutory meaning, <SU>12</SU> <FTREF/> and in particular “agencies have no special authority to pronounce on pre-emption absent delegation by Congress.”  <SU>13</SU> <FTREF/> It was unnecessary for the Bureau in 2022 to opine on the scope of preemption under the FCRA. The FCRA does not compel—or even authorize—the Bureau to provide its legally binding views on preemption. That stands in contrast to other statutes administered by the Bureau, which do delegate such authority to the Bureau. <SU>14</SU> <FTREF/> Nor did the 2022 rule ease compliance burdens. To the contrary (and as explained below), the 2022 rule sowed confusion into the credit reporting system by creating a patchwork quilt of federal and state laws competing to govern the marketplace. <FTNT> <SU>12</SU>   <E T="03">See Loper Bright Enters.</E> v. <E T="03">Raimondo,</E> 603 U.S. 369, 412-13 (2024). </FTNT> <FTNT> <SU>13</SU>   <E T="03">Wyeth</E> v. <E T="03">Levine,</E> 555 U. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 43k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━