II 116th CONGRESS 2d Session S. 3647 IN THE SENATE OF THE UNITED STATES May 7, 2020 Mr. Booker introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To prohibit price gouging for necessary products during federally declared national emergencies or disasters.

1. Short title This Act may be cited as the Prevent Emergency and Disaster Profiteering Act of 2020 . 2. Definitions In this Act: (1) Administrator The term Administrator means the Administrator of the Federal Emergency Management Agency. (2) Commission The term Commission means the Federal Trade Commission. (3) Emergency period; emergency area An emergency period is the period during which, and an emergency area is a geographical area in which, there exists— (A) a major disaster declared by the President under section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act ( 42 U.S.C. 5170 ); (B) an emergency declared by the President under section 501 of such Act ( 42 U.S.C. 5191 ); or (C) a public health emergency declared by the Secretary pursuant to section 319 of the Public Health Service Act ( 42 U.S.C. 247d ). (4) Price gouging The term price gouging means the sale of a good or service at an unconscionably excessive price by a person during an emergency period and in an emergency area. (5) Secretary The term Secretary means the Secretary of Health and Human Services. (6) Unconscionably excessive price (A) In general The term unconscionably excessive price means, with respect to a good or service sold or offered for sale by a person, a price that exceeds, by a margin that is greater than the allowable margin determined by the Administrator or the Secretary (as applicable) for the good or service under section 3, the average price at which the good or service was sold by the person during the 90-day period prior to the date on which an emergency or disaster described in paragraph (2) is declared. (B) Exception Such term shall not include any price for a good or service that is increased beyond the margin described in subparagraph (A) if such increased price is directly attributable to an appreciable increase in the cost of acquiring, producing, selling, transporting, or delivering the good or service, or is otherwise justified by circumstances outside of the control of the seller, as determined by the Administrator or the Secretary (as applicable). 3. Preventing price gouging during federally declared emergencies (a) In general During an emergency period and in an emergency area, it shall be unlawful for any person to engage in price gouging with respect to a necessary good or service covered by a list published by the Administrator under subsection (b)(1) or by the Secretary under subsection (b)(2). (b) Necessary goods and services lists (1) Presidentially declared emergencies In the case of an emergency that is described in subparagraph (A) or (B) of section 2(3): (A) The Administrator, in consultation with the Secretary, may publish on the internet website of the Federal Emergency Management Agency a list with respect to an emergency area during an emergency period to designate the goods and services to which the prohibition described in subsection (a) shall apply. (B) The Administrator, in consultation with the Secretary, may update any list published under subparagraph (A) to remove a good or service from the list or add a good or service to the list, but the prohibition described in subsection (a) shall not apply to a good or service before the date on which good or service is added to the list. (C) For any good or service included in a list under this paragraph, the Administrator shall specify the allowable margin by which the price at which a person sells or offers for sale such good or service may exceed the average price at which the good or service was sold or offered by the person during the 90-day period prior to the date on which the emergency or disaster involved was declared. (2) Public health emergency In the case of an emergency described in section 2(3)(C): (A) The Secretary may publish on the internet website of the Department of Health and Human Services a list with respect to an emergency area during an emergency period to designate the goods and services to which the prohibition described in subsection (a) shall apply. (B) The Secretary may update any list published under subparagraph (A) to remove a good or service from the list or add a good or service to the list, but the prohibition described in subsection (a) shall not apply to a good or service before the date on which good or service is added to the list. (C) For any good or service included in a list under this paragraph, the Secretary shall specify the allowable margin by which the price at which a person sells or offers for sale such good or service may exceed the average price at which the good or service was sold or offered by the person during the 90-day period prior to the date on which the emergency or disaster involved was declared. (c) Duration of prohibition The prohibition described in subsection (a) shall apply to a good or service that is included on a list published by the Administrator or the Secretary (as applicable) under subsection (b)— (1) beginning with the first day that the good or service is included on such a list; and (2) ending with the earlier of— (A) the last day that the good or service is included on such a list; and (B) the last day of every emergency period relating to a list on which the good or service is included. 4. Enforcement (a) Enforcement by Federal Trade Commission (1) Unfair or deceptive acts or practices A violation of section 3 shall be treated as a violation of a regulation under section 18(a)(1)(B) of the Federal Trade Commission Act ( 15 U.S.C. 57a(a)(1)(B) ) regarding unfair or deceptive acts or practices. (2) Powers of Commission The Commission shall enforce section 3 in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act ( 15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act. Any person who violates such section shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act. (b) Effect on other laws Nothing in this Act shall be construed in any way to limit or affect the authority of the Commission under any other provision of law. (c) Enforcement by State attorneys general (1) In general If the chief law enforcement officer of a State, or an official or agency designated by a State, has reason to believe that any person has violated or is violating section 3, the attorney general, official, or agency of the State, in addition to any authority it may have to bring an action in State court under its consumer protection law, may bring a civil action in any appropriate United States district court or in any other court of competent jurisdiction, including a State court, to— (A) enjoin further such violation by such person; (B) enforce compliance with such section; (C) obtain civil penalties; and (D) obtain damages, restitution, or other compensation on behalf of residents of the State. (2) Notice and intervention by the FTC The attorney general of a State shall provide prior written notice of any action under paragraph (1) to the Commission and provide the Commission with a copy of the complaint in the action, except in any case in which such prior notice is not feasible, in which case the attorney general shall serve such notice immediately upon instituting such action. The Commission shall have the right— (A) to intervene in the action; (B) upon so intervening, to be heard on all matters arising therein; and (C) to file petitions for appeal. (3) Limitation on State action while Federal action is pending If the Commission has instituted a civil action for violation of this Act, no State attorney general, or official or agency of a State, may bring an action under this subsection during the pendency of that action against any defendant named in the complaint of the Commission for any violation of this Act alleged in the complaint. (4) Relationship with State-law claims If the attorney general of a State has authority to bring an action under State law directed at acts or practices that also violate this Act, the attorney general may assert the State-law claim and a claim under this Act in the same civil action. (d) Savings clause Nothing in this Act shall preempt or otherwise affect any State or local law.