II 

117TH CONGRESS 

2D SESSION S. 4214 

To make price gouging unlawful, to expand the ability of the Federal Trade 

Commission to seek permanent injunctions and equitable relief, and for 

other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 12, 2022 

Ms. WARREN (for herself, Ms. BALDWIN, Mr. CASEY, Mr. WHITEHOUSE, Mr. 

SANDERS, Mr. MARKEY, Mr. MERKLEY, Mr. BLUMENTHAL, Ms. 

DUCKWORTH, and Mrs. FEINSTEIN) introduced the following bill; which 

was read twice and referred to the Committee on Commerce, Science, and 

Transportation 

A BILL 

To make price gouging unlawful, to expand the ability of 

the Federal Trade Commission to seek permanent injunctions and equitable relief, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Price Gouging Prevention Act of 2022’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 


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Sec. 2. Definitions. 

Sec. 3. Prevention of price gouging. 

Sec. 4. Disclosures in SEC filings. 

Sec. 5. Funding. 

1 SEC. 2. DEFINITIONS. 

2 In this Act: 

3 (1) COMMISSION.—The term ‘‘Commission’’ 

4 means the Federal Trade Commission. 

5 (2) CRITICAL TRADING PARTNER.—The term 

6 ‘‘critical trading partner’’ means a person that has 

7 the ability to restrict, impede, or foreclose access to 

8 its inputs, customers, partners, goods, services, tech9 nology, platform, facilities, or tools in a way that 

10 harms competition or limits the ability of the cus11 tomers or suppliers of the person to carry out busi12 ness effectively. 

13 (3) EXCEPTIONAL MARKET SHOCK.—The term 

14 ‘‘exceptional market shock’’ means any change or 

15 imminently threatened (as determined under guid16 ance issued by the Commission) change in the mar17 ket for a good or service resulting from a natural 

18 disaster, failure or shortage of electric power or 

19 other source of energy, strike, civil disorder, war, 

20 military action, national or local emergency, public21 health emergency, or any other cause of an atypical 

22 disruption in such market. 


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1 (4) GOOD OR SERVICE.—The term ‘‘good or 

2 service’’ means any good or service offered in com3 merce. 

4 (5) STATE.—The term ‘‘State’’ means each of 

5 the several States, the District of Columbia, each 

6 commonwealth, territory, or possession of the United 

7 States, and each federally recognized Indian Tribe. 

8 (6) ULTIMATE PARENT ENTITY.—The term ‘‘ul9 timate parent entity’’ has the meaning given the 

10 term in section 801.1 of title 16, Code of Federal 

11 Regulations (or any successor regulation). 

12 SEC. 3. PREVENTION OF PRICE GOUGING. 

13 (a) IN GENERAL.—It shall be unlawful for a person 

14 to sell or offer for sale a good or service at an unconscion15 ably excessive price during an exceptional market shock, 

16 regardless of the person’s position in a supply chain or 

17 distribution network. 

18 (b) AFFIRMATIVE DEFENSE.— 

19 (1) IN GENERAL.—Subsection (a) shall not 

20 apply to the sale, or offering for sale, of a good or 

21 service by a person if— 

22 (A) the person’s ultimate parent entity 

23 earned less than $100,000,000 in gross United 

24 States revenue during the preceding 12-month 

25 period; and 


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1 (B) the person demonstrates by a prepon2 derance of the evidence that the increase in the 

3 price of the good or service involved is directly 

4 attributable to additional costs that are not 

5 within the control of the person and are in6 curred by the person in procuring, acquiring, 

7 distributing, or providing the good or service. 

8 (2) INFLATION ADJUSTMENT.—Starting in cal9 endar year 2023, the Commission shall annually ad10 just the amount specified in paragraph (1)(A) to re11 flect the change in the consumer price index for all 

12 urban consumers published by the Bureau of Labor 

13 Statistics. 

14 (c) PRESUMPTIVE VIOLATIONS.—A person shall be 

15 presumed to be in violation of subsection (a) if, during 

16 an exceptional market shock, it is shown by a preponder17 ance of the evidence that the person— 

18 (1)(A) has unfair leverage; or 

19 (B) is using the effects or circumstances related 

20 to the exceptional market shock as a pretext to in21 crease prices; and 

22 (2) regardless of the person’s position in a sup23 ply chain or distribution network, sells or offers for 

24 sale a good or service at an excessive price compared 

25 to— 


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1 (A) the average price at which the good or 

2 service was sold or offered for sale by all com3 peting sellers in the market during the 120-day 

4 period preceding such exceptional market shock; 

5 or 

6 (B) the average price at which the good or 

7 service was sold or offered for sale by the per8 son in the market during the 120-day period 

9 preceding such exceptional market shock. 

10 (d) REBUTTAL.—A person may rebut a presumption 

11 under subsection (c) if the person demonstrates by clear 

12 and convincing evidence that the increase in the price of 

13 the good or service involved is directly attributable to addi14 tional costs that are not within the control of the person 

15 and are incurred by the person in procuring, acquiring, 

16 distributing, or providing the good or service. 

17 (e) UNFAIR LEVERAGE.— 

18 (1) IN GENERAL.—For purposes of subsection 

19 (c), a person has unfair leverage if the person— 

20 (A) earned at least $1,000,000,000 in 

21 gross United States revenue during the pre22 ceding 12-month period; 

23 (B) discriminates between otherwise equal 

24 trading partners in the same market by apply25 ing differential prices or conditions; 


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1 (C) is a critical trading partner; or 

2 (D) has a characteristic described in a rule 

3 promulgated by the Commission that further 

4 defines unfair leverage. 

5 (2) INFLATION ADJUSTMENT.—Starting in cal6 endar year 2023, the Commission shall annually ad7 just the amount specified in paragraph (1)(A) to re8 flect the change in the consumer price index for all 

9 urban consumers published by the Bureau of Labor 

10 Statistics. 

11 (f) ENFORCEMENT BY FTC.— 

12 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC13 TICES.—A violation of this section or a regulation 

14 promulgated under this section shall be treated as a 

15 violation of a rule defining an unfair or deceptive act 

16 or practice prescribed under section 18(a)(1)(B) of 

17 the Federal Trade Commission Act (15 U.S.C. 

18 57a(a)(1)(B)). 

19 (2) POWERS OF THE COMMISSION.—Except as 

20 otherwise provided, the Commission shall enforce 

21 this section in the same manner, by the same means, 

22 and with the same jurisdiction, powers, and duties 

23 as though all applicable terms and provisions of the 

24 Federal Trade Commission Act (15 U.S.C. 41 et 

25 seq.) were incorporated into and made a part of this 


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1 section. Any person who violates this section shall be 

2 subject to the penalties and entitled to the privileges 

3 and immunities provided in the Federal Trade Com4 mission Act. 

5 (3) INDEPENDENT LITIGATION AUTHORITY.—If 

6 the Commission has reason to believe that a person 

7 has violated this section, the Commission may bring 

8 a civil action in any appropriate United States dis9 trict court to— 

10 (A) enjoin any further such violation by 

11 such person; 

12 (B) enforce compliance with this section; 

13 (C) obtain a permanent, temporary, or pre14 liminary injunction; 

15 (D) obtain civil penalties; 

16 (E) obtain damages, restitution, or other 

17 compensation on behalf of aggrieved consumers; 

18 or 

19 (F) obtain any other appropriate equitable 

20 relief. 

21 (4) CIVIL PENALTIES.—In addition to any other 

22 penalties as may be prescribed by law, each violation 

23 of this section shall carry a civil penalty not to ex24 ceed— 


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1 (A) if the person who committed the viola2 tion does not have unfair leverage, the lesser 

3 of— 

4 (i) $25,000; or 

5 (ii) 5 percent of the revenues earned 

6 by the person’s ultimate parent entity dur7 ing the preceding 12-month period; or 

8 (B) if the person who committed the viola9 tion has unfair leverage, 5 percent of the reve10 nues earned by the person’s ultimate parent en11 tity during the preceding 12-month period. 

12 (5) RULEMAKING.— 

13 (A) IN GENERAL.—The Commission may 

14 promulgate in accordance with section 553 of 

15 title 5, United States Code, such rules as may 

16 be necessary to carry out this Act, including the 

17 guidance required under subparagraph (B), 

18 guidance regarding an exceptional market 

19 shock, or additional characteristics that dem20 onstrate unfair leverage. 

21 (B) REQUIRED GUIDANCE.—Not later than 

22 180 days after the date of enactment of this 

23 Act, the Commission shall promulgate regula24 tions regarding violations of this Act, which 

25 shall include guidelines on what constitutes a 


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1 market, an unconscionably excessive price for a 

2 good or service, and an excessive price for a 

3 good or service. 

4 (6) EFFECT ON OTHER LAWS.—Nothing in this 

5 section shall be construed in any way to limit the 

6 authority of the Commission under any other provi7 sion of law. 

8 (g) ENFORCEMENT BY STATE ATTORNEYS GEN9 ERAL.— 

10 (1) IN GENERAL.—If the attorney general of a 

11 State, or another official or agency designated by a 

12 State, has reason to believe that any person has vio13 lated or is violating this section, the attorney gen14 eral, official, or agency of the State, in addition to 

15 any authority it may have to bring an action in 

16 State court under its laws, may bring a civil action 

17 in any appropriate United States district court or in 

18 any other court of competent jurisdiction, including 

19 a State court, to— 

20 (A) enjoin any further such violation by 

21 such person; 

22 (B) enforce compliance with this section; 

23 (C) obtain a permanent, temporary, or pre24 liminary injunction; 

25 (D) obtain civil penalties; 


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1 (E) obtain damages, restitution, or other 

2 compensation on behalf of residents of the 

3 State; or 

4 (F) obtain any other appropriate equitable 

5 relief. 

6 (2) NOTICE.—Before filing an action under 

7 paragraph (1), the attorney general, official, or 

8 agency of the State involved shall provide to the 

9 Commission a written notice of such action and a 

10 copy of the complaint for such action. If the attor11 ney general, official, or agency determines that it is 

12 not feasible to provide the notice described in this 

13 paragraph before the filing of the action, the attor14 ney general, official, or agency shall provide written 

15 notice of the action and a copy of the complaint to 

16 the Commission immediately upon the filing of the 

17 action. 

18 (3) LIMITATION ON STATE ACTION WHILE FED19 ERAL ACTION IS PENDING.—If the Commission has 

20 instituted a civil action for a violation of this section, 

21 no State attorney general, or official or agency of a 

22 State, may bring an action under this paragraph 

23 during the pendency of that action against any de24 fendant named in the complaint of the Commission 


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1 for any violation of this section alleged in the com2 plaint. 

3 (4) RELATIONSHIP WITH STATE-LAW CLAIMS.— 

4 If the attorney general of a State has authority to 

5 bring an action under State law directed at acts or 

6 practices that also violate this section, the attorney 

7 general may assert the State-law claim and a claim 

8 under this section in the same civil action. 

9 (h) SAVINGS CLAUSE.—Nothing in this section shall 

10 preempt or otherwise affect any State or local law. 

11 SEC. 4. DISCLOSURES IN SEC FILINGS. 

12 (a) DEFINITIONS.—In this section: 

13 (1) COVERED ISSUER.—The term ‘‘covered 

14 issuer’’ means an issuer that— 

15 (A) has a covered quarter; and 

16 (B) in the quarter following the covered 

17 quarter described in subparagraph (A), is re18 quired to submit Form 10–Q or Form 10–K. 

19 (2) COVERED QUARTER.—The term ‘‘covered 

20 quarter’’ means a quarter during which there is an 

21 exceptional market shock. 

22 (3) FORM 10–K.—The term ‘‘Form 10–K’’ 

23 means the form described in section 249.310 of title 

24 17, Code of Federal Regulations, or any successor 

25 regulation. 


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1 (4) FORM 10–Q.—The term ‘‘Form 10–Q’’ 

2 means the form described in section 240.15d–13 of 

3 title 17, Code of Federal Regulations, or any suc4 cessor regulation. 

5 (5) ISSUER.—The term ‘‘issuer’’ has the mean6 ing given the term in section 3(a) of the Securities 

7 Exchange Act of 1934 (15 U.S.C. 78c(a)). 

8 (b) INCLUSION IN FILING.—Each covered issuer, in 

9 each Form 10–K or Form 10–Q that the covered issuer 

10 is required to file in a quarter following a covered quarter, 

11 shall include in the filing the following information with 

12 respect to that covered quarter, as compared with the 

13 quarter preceding that covered quarter: 

14 (1) The percentage change in the volume of 

15 goods or services sold, and the percentage change in 

16 the average sales price of those goods or services, 

17 which shall be broken down by material product cat18 egories, when relevant, and presented in a tabular 

19 format. 

20 (2) The gross margins of the covered issuer, 

21 which shall be broken down by material product cat22 egories, when relevant, and presented in a tabular 

23 format. 


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1 (3) Presented in tabular format, the share of 

2 the increase in revenue of the covered issuer that is 

3 attributable to— 

4 (A) a change in the cost of goods or serv5 ices sold by the covered issuer; and 

6 (B) a change in the volume of goods or 

7 services sold by the covered issuer. 

8 (4) The percentage change in the costs of the 

9 covered issuer, which shall be broken down by cat10 egory and presented in tabular format. 

11 (5) In dollars, the change in the costs of the 

12 covered issuer and the revenue of the covered issuer, 

13 which shall be presented in tabular format. 

14 (6) A detailed narrative disclosure of the pric15 ing strategy of the covered issuer, which shall in16 clude— 

17 (A) an explanation for any increase in the 

18 gross margins of material product categories, 

19 including all material causes for such an in20 crease, an explanation of how each such mate21 rial cause affected such an increase, and a de22 scription of the relative importance of each such 

23 material cause with respect to such an increase; 


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1 (B) an explanation for the decisions made 

2 by the covered issuer with respect to the prices 

3 of goods or services sold by the covered issuer; 

4 (C) if the covered issuer increased prices at 

5 a rate that was greater than the rate at which 

6 the costs incurred by the covered issuer in7 creased, the rationale and objectives for increas8 ing prices in such a manner; and 

9 (D) a description of conditions under 

10 which the covered issuer plans to modify pricing 

11 after the date on which the covered issuer sub12 mits the filing. 

13 (c) REGULATIONS.—Not later than 180 days after 

14 the date of enactment of this Act, the Securities and Ex15 change Commission shall issue final regulations, or amend 

16 existing regulations of the Commission, to carry out this 

17 section. 

18 (d) EFFECTIVE DATE.—This section shall take effect 

19 on the date on which the Securities and Exchange Com20 mission issues final regulations under subsection (c) or 

21 completes the amendments required under that sub22 section, as applicable. 

23 SEC. 5. FUNDING. 

24 In addition to amounts otherwise available, there is 

25 appropriated to the Commission for fiscal year 2023, out 


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1 of any money in the Treasury not otherwise appropriated, 

2 $1,000,000,000, to remain available until September 30, 

3 2032, for carrying out work of the Commission. 

Æ 


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