II 116th CONGRESS 2d Session S. 3574 IN THE SENATE OF THE UNITED STATES March 24, 2020 Mr. Tillis introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To protect consumers from price-gouging during emergencies.

1. Short title This Act may be cited as the Ending Price-Gouging During Emergencies Act . 2. Prohibition of unconscionably excessive pricing of necessary goods and services during emergencies (a) Unconscionable pricing (1) In general It shall be unlawful for any person to sell, at wholesale or at retail in an emergency area and during an emergency period, any good or service covered by a proclamation issued by the Administrator of the Federal Emergency Management Agency (in this section referred to as the Administrator ) under paragraph (2) at a price that— (A) is unconscionably excessive; and (B) indicates the seller is taking unfair advantage of the circumstances related to the emergency to increase prices unreasonably. (2) Necessary goods and services proclamation (A) In general The Administrator may issue a proclamation with respect to an emergency area during an emergency period to designate the goods and services to which the prohibition described in paragraph (1) shall apply. (B) Content of proclamation A proclamation issued under this paragraph shall include the following: (i) The geographic area covered by the proclamation. (ii) The time period that such proclamation shall be in effect. (iii) The specific goods and services or categories of goods and services that are subject to the prohibition described in paragraph (1). (C) Duration The proclamation may not apply for a period of more than 30 consecutive days, but may be renewed for such consecutive periods, each not to exceed 30 days, as the Administrator determines appropriate. (D) Authority to issue multiple proclamations The Administrator may issue multiple proclamations under this paragraph with respect to an emergency area and an emergency period, as necessary. (3) Factors considered In determining whether a person has violated paragraph (1), there shall be taken into account, among other factors— (A) whether the amount charged by such person for the applicable good or service at a particular location in an area covered by a proclamation issued under paragraph (2) during the period such proclamation is in effect— (i) grossly exceeds the average price at which the applicable good or service was offered for sale by that person during the 30 days prior to such proclamation; (ii) grossly exceeds the price at which the same or similar good or service was readily obtainable in the same area from other competing sellers during the same period; (iii) reasonably reflected additional costs, not within the control of that person, that were paid, incurred, or reasonably anticipated by that person, or reflected additional risks taken by that person to produce, distribute, obtain, or sell such good or service under the circumstances; and (iv) was substantially attributable to local, regional, national, or international market conditions; and (B) whether the quantity of the good or service the person produced, distributed, or sold in an area covered by a proclamation issued under paragraph (2) during a 30-day period following the issuance of such proclamation increased over the quantity that such person produced, distributed, or sold during the 30 days prior to such proclamation, taking into account usual seasonal demand variations. (b) Definition of emergency area and period In this section, an emergency area is a geographical area in which, and an emergency period is the period during which, there exists an emergency or disaster declared by the President pursuant to the National Emergencies Act or the Robert T. Stafford Disaster Relief and Emergency Assistance Act. (c) Effective date This section shall take effect on the date of enactment of this Act and shall apply to any emergency or disaster declaration described in subsection (b) that is in effect on such date or made on or after such date. 3. Enforcement by the Federal Trade Commission (a) Enforcement by FTC A violation of section 2 shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act ( 15 U.S.C. 57a(a)(1)(B) ). The Federal Trade Commission shall enforce this Act in the same manner, by the same means, and with the same jurisdiction as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated into and made a part of this Act. In enforcing section 2 of this Act, the Commission shall give priority to enforcement actions involving instances of a good or service being sold at an unconscionably excessive price during an emergency period with the highest percentage increase in price over the price for such good or service as of the second week preceding such period. (b) Civil penalties (1) In general Notwithstanding the penalties set forth under the Federal Trade Commission Act, any person who violates section 2 with actual knowledge or knowledge fairly implied on the basis of objective circumstances shall be subject to— (A) a civil penalty of not more than 10 times the amount of profits gained by such person through such violation; or (B) a civil penalty of not more than $100,000,000. (2) Method The penalties provided by paragraph (1) shall be obtained in the same manner as civil penalties obtained under section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ). (3) Multiple offenses; mitigating factors In assessing the penalty provided by subsection (a)— (A) each day of a continuing violation shall be considered a separate violation; and (B) the court shall take into consideration, among other factors, the seriousness of the violation and the efforts of the person committing the violation to remedy the harm caused by the violation in a timely manner. 4. Criminal penalties (a) In general In addition to any penalty applicable under section 3, any person who violates section 2 shall be fined under title 18, United States Code, in an amount not to exceed $500,000,000. (b) Enforcement The criminal penalty provided by subsection (a) may be imposed only pursuant to a criminal action brought by the Attorney General or other officer of the Department of Justice. The Attorney General shall give priority to enforcement actions involving instances of a good or service being sold at an unconscionably excessive price during an emergency period with the highest percentage increase in price over the price for such good or service as of the second week preceding such period. 5. Enforcement at retail level by State attorneys general (a) In general A State, as parens patriae, may bring a civil action on behalf of its residents in an appropriate district court of the United States to enforce the provisions of section 2 of this Act, or to impose the civil penalties authorized by section 3(b)(1)(B), whenever the attorney general of the State has reason to believe that the interests of the residents of the State have been or are being threatened or adversely affected by a violation of this Act or a regulation under this Act, involving a retail sale. (b) Notice The State shall serve written notice to the Federal Trade Commission of any civil action under subsection (a) prior to initiating such civil action. The notice shall include a copy of the complaint to be filed to initiate such civil action, except that if it is not feasible for the State to provide such prior notice, the State shall provide such notice immediately upon instituting such civil action. (c) Authority To intervene Upon receiving the notice required by subsection (b), the Federal Trade Commission may intervene in such civil action and upon intervening— (1) be heard on all matters arising in such civil action; and (2) file petitions for appeal of a decision in such civil action. (d) Construction For purposes of bringing any civil action under subsection (a), nothing in this section shall prevent the attorney general of a State from exercising the powers conferred on the attorney general by the laws of such State to conduct investigations or to administer oaths or affirmations or to compel the attendance of witnesses or the production of documentary and other evidence. (e) Venue; service of process In a civil action brought under subsection (a)— (1) the venue shall be a judicial district in which— (A) the defendant operates; (B) the defendant was authorized to do business; or (C) the defendant in the civil action is found; (2) process may be served without regard to the territorial limits of the district or of the State in which the civil action is instituted; and (3) a person who participated with the defendant in an alleged violation that is being litigated in the civil action may be joined in the civil action without regard to the residence of the person. (f) Limitation on State action while Federal action is pending If the Federal Trade Commission has instituted a civil action or an administrative 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 Federal Trade Commission or the other agency for any violation of this Act alleged in the complaint. (g) Enforcement of State Law Nothing contained in this section shall prohibit an authorized State official from proceeding in State court to enforce a civil or criminal statute of such State. 6. Effect on other laws (a) Other authority of Federal Trade Commission Nothing in this Act shall be construed to limit or affect in any way the Federal Trade Commission’s authority to bring enforcement actions or take any other measure under the Federal Trade Commission Act ( 15 U.S.C. 41 et seq.) or any other provision of law. (b) State law Nothing in this Act preempts any State law.