As Introduced
135th General Assembly
Regular Session S. B. No. 328
2023-2024
Senator Blessing
A BILL
To amend sections 1331.01, 1331.04, and 1331.16 and 1
to enact sections 1331.05 and 1331.50 of the 2
Revised Code to regulate the use of pricing 3
algorithms. 4
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1331.01, 1331.04, and 1331.16 be 5
amended and sections 1331.05 and 1331.50 of the Revised Code be 6
enacted to read as follows: 7
Sec. 1331.01. As used in sections 1331.01 to 1331.14 and 8
1331.50 of the Revised Code: 9
(A) "Commercial terms" means any of the following: 10
(1) Level of service; 11
(2) Availability; 12
(3) Output, including quantities of products produced or 13
distributed or the amount or level of service provided; 14
(4) Rebates or discounts made available. 15
(B) "Distribute," "distribution," and "distributing" 16
include selling, licensing, providing access to, or otherwise 17
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making available by any means, including through a subscription 18
or the sale of a service. 19
(C) "Nonpublic competitor data" means nonpublic data that 20
is derived from or otherwise provided by another person that 21
competes in the same market as a person, or a related market. 22
"Nonpublic competitor data" does not include information 23
distributed, reported, or otherwise communicated in a way that 24
does not reveal any underlying data from a competitor, such as 25
narrative industry reports, news reports, business commentaries, 26
or generalized industry survey results. 27
(D) "Nonpublic data" means information that is not widely 28
available or easily accessible to the public, including 29
information about price, commercial terms, and related products 30
or services, regardless of whether the data is attributable to a 31
specific competitor or anonymized. 32
(E) "Person" includes corporations, partnerships, and 33
associations existing under or authorized by any state or 34
territory of the United States, and solely for the purpose of 35
the definition of division (C) (H) of this section, a foreign 36
governmental entity. 37
(B) (F) "Pricing algorithm" means any computational 38
process, including a computational process derived from machine 39
learning or other artificial intelligence techniques, that 40
processes data to recommend or set a price or commercial term 41
that is in or affecting commerce in this state. 42
(G) "Public office" means any state agency, public 43
institution, political subdivision, or other organized body, 44
office, agency, institution, or entity established by the laws 45
of this state for the exercise of any function of government. 46
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"Public office" does not include the nonprofit corporation 47
formed under section 187.01 of the Revised Code. 48
(C)(1) (H)(1) "Trust" is a combination of capital, skill, 49
or acts by two or more persons for any of the following 50
purposes: 51
(a) To create or carry out restrictions in trade or 52
commerce; 53
(b) To limit or reduce the production, or increase or 54
reduce the price of merchandise or a commodity; 55
(c) To prevent competition in manufacturing, making, 56
transportation, sale, or purchase of merchandise, produce, or a 57
commodity; 58
(d) To fix at a standard or figure, whereby its price to 59
the public or consumer is in any manner controlled or 60
established, an article or commodity of merchandise, produce, or 61
commerce intended for sale, barter, use, or consumption in this 62
state; 63
(e) To make, enter into, execute, or carry out contracts, 64
obligations, or agreements of any kind by which they bind or 65
have bound themselves not to sell, dispose of, or transport an 66
article or commodity, or an article of trade, use, merchandise, 67
commerce, or consumption below a common standard figure or fixed 68
value, or by which they agree in any manner to keep the price of 69
such article, commodity, or transportation at a fixed or 70
graduated figure, or by which they shall in any manner establish 71
or settle the price of an article, commodity, or transportation 72
between them or themselves and others, so as directly or 73
indirectly to preclude a free and unrestricted competition among 74
themselves, purchasers, or consumers in the sale or 75
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As Introduced
transportation of such article or commodity, or by which they 76
agree to pool, combine, or directly or indirectly unite any 77
interests which they have connected with the sale or 78
transportation of such article or commodity, that its price 79
might in any manner be affected; 80
(f) To refuse to buy from, sell to, or trade with any 81
person because such person appears on a blacklist issued by, or 82
is being boycotted by, any foreign corporate or governmental 83
entity. 84
(2) "Trust" also means a combination of capital, skill, or 85
acts by two or more bidders or potential bidders, or one or more 86
bidders or potential bidders and any person affiliated with a 87
public office, to restrain or prevent competition in the letting 88
or awarding of any public contract in derogation of any statute, 89
ordinance, or rule requiring the use of competitive bidding or 90
selection in the letting or awarding of the public contract. 91
(3) "Trust," as defined in this section, does not include 92
bargaining by a labor organization in negotiating or effecting 93
contracts with an employer or employer group with reference to 94
minimum payment to any member of the labor organization for any 95
motor vehicles owned, driven, and used exclusively by such 96
member in the performance of the member's duties of employment 97
pursuant to a collective bargaining agreement between the labor 98
organization and the employer or employer group. 99
(4) A trust as defined in this division is unlawful and 100
void. 101
Sec. 1331.04. Every combination, contract, or agreement in 102
the form of a trust, including any violation of section 1331.05 103
of the Revised Code, is declared to be a conspiracy against 104
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trade and illegal. No person shall engage in such conspiracy or 105
take part therein, or aid or advise in its commission, or, as 106
principal, manager, director, agent, servant, or employer, or in 107
any other capacity, knowingly carry out any of the stipulations, 108
purposes, prices, or rates, or furnish any information to assist 109
in carrying out such purposes, or orders thereunder, or in 110
pursuance thereof, or in any manner violate sections 1331.01 to 111
1331.14 of the Revised Code. Each day's violation of this 112
section is a separate offense. 113
Sec. 1331.05. (A) As used in this section, "price" means 114
the amount of money or other thing of value, whether tangible or 115
not, expected, required, or given in payment for any product or 116
service, including compensation paid to an employee or 117
independent contractor for services provided. 118
(B) No person shall use or distribute a pricing algorithm 119
that uses, incorporates, or is trained with nonpublic competitor 120
data. 121
(C) In any civil or criminal action or proceeding for a 122
violation of sections 1331.01 to 1331.14 of the Revised Code, 123
the court shall presume that the defendant entered into an 124
agreement, contract, combination, or conspiracy against trade if 125
the plaintiff establishes either or both of the following: 126
(1) That the defendant distributed the pricing algorithm 127
to two or more persons and either or both of the following 128
applies: 129
(a) The defendant intended the pricing algorithm to be 130
used to set or recommend a price or commercial term of a product 131
or service in the same market or a related market. 132
(b) Two or more persons used the pricing algorithm to set 133
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or recommend a price or commercial term of a product or service 134
in the same market or a related market. 135
(2) That both of the following apply: 136
(a) The defendant used the pricing algorithm to set or 137
recommend a price or commercial term of a product or service. 138
(b) The pricing algorithm was used by another person to 139
set or recommend a price or commercial term of a product or 140
service in the same market or a related market. 141
(D) The presumption described in division (C) of this 142
section does not apply to a defendant if the defendant did not 143
develop or distribute the pricing algorithm and demonstrates, by 144
clear and convincing evidence, that the defendant did not have 145
actual knowledge and could not have reasonably known that the 146
pricing algorithm used nonpublic competitor data. 147
(E) In a civil case in which the presumption described in 148
division (C) of this section applies, any person that 149
distributed the pricing algorithm and knew, or could reasonably 150
have known, that the pricing algorithm would use, incorporate, 151
or be trained with nonpublic competitor data is jointly and 152
severally liable for any violation of sections 1331.01 to 153
1331.14 of the Revised Code. 154
(F) Nothing in this section impairs or limits the 155
applicability of this chapter or any other state or federal 156
antitrust laws. 157
Sec. 1331.16. (A) As used in this section, "documentary 158
material" means the either of the following: 159
(1) The original or any copy of any writings, drawings, 160
graphs, charts, photographs, phonorecords, and other data 161
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compilation from which intelligence, relevant to any 162
investigation conducted to determine if any person is or has 163
been engaged in a violation of this chapter, can be perceived 164
with or without the use of detection devices; 165
(2) Information on the development or distribution of a 166
pricing algorithm, including information on the person 167
responsible for the development or distribution and how the 168
pricing algorithm works. 169
(B) Whenever the attorney general has reasonable cause to 170
believe that any person, as defined in section 1331.01 of the 171
Revised Code, may be in possession, custody, or control of any 172
documentary material or may have knowledge of any fact that is 173
relevant to any investigation conducted to determine if any 174
person is or has been engaged in a violation of this chapter, 175
the attorney general or the attorney general's designated 176
representative may issue in writing, and cause to be served upon 177
any person or the representative or agent of the person, an 178
investigative demand that requires the person to produce the 179
documentary material for inspection and copying or reproduction, 180
to answer under oath and in writing written interrogatories, or 181
to appear and testify under oath before the attorney general or 182
the attorney general's duly authorized representative, or that 183
requires the person to do any combination of the three demands. 184
(C) Each investigative demand shall: 185
(1) Describe the conduct under investigation and state the 186
provisions of law applicable thereto; 187
(2) If it is a demand for production of documentary 188
material: 189
(a) Describe with reasonable particularity the documentary 190
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material to be produced; 191
(b) Prescribe a return date that will provide a reasonable 192
period of time within which the material may be assembled and 193
made available for inspection and copying or reproduction; 194
(c) Identify the custodian to whom the material shall be 195
made available. 196
(3) If it is a demand for answers to written 197
interrogatories: 198
(a) Identify the representative of the attorney general to 199
whom the answers shall be made; 200
(b) Prescribe a date by which the answers shall be 201
presented. 202
(4) If it is a demand for the giving of oral testimony: 203
(a) Prescribe a date, time, and place at which oral 204
testimony shall be taken; 205
(b) Identify the representative of the attorney general 206
who shall conduct the oral examination. 207
(D) No investigative demand shall: 208
(1) Contain any requirement that would be unreasonable if 209
contained in a subpoena or a subpoena duces tecum issued by a 210
court in aid of a grand jury investigation; 211
(2) Except as provided in division (H) of this section, 212
require any answers to written interrogatories, the giving of 213
any oral testimony, or the production of any documentary 214
material that would be privileged from disclosure if demanded by 215
a subpoena or subpoena duces tecum issued by a court in aid of a 216
grand jury investigation. 217
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(E) Service of any investigative demand may be made and is 218
complete by doing either of the following: 219