[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3803 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
2d Session
S. 3803
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
February 26, 2024
Ms. Warren (for herself, Ms. Baldwin, Mr. Casey, Mr. Sanders, Mr.
Merkley, Mr. Markey, Mr. Whitehouse, Mr. Blumenthal, and Mr. Fetterman)
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Price Gouging
Prevention Act of 2024''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Prevention of price gouging.
Sec. 4. Disclosures in SEC filings.
Sec. 5. Funding.
SEC. 2. DEFINITIONS.
In this Act:
(1) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(2) Critical trading partner.--The term ``critical trading
partner'' means a person that has the ability to restrict,
impede, or foreclose access to the inputs, customers, partners,
goods, services, technology, platform, facilities, or tools of
such person in a way that harms competition or limits the
ability of the customers or suppliers of such person to carry
out business effectively.
(3) Exceptional market shock.--The term ``exceptional
market shock'' means--
(A) any change or imminently threatened (as
determined under guidance issued by the Commission)
change in the market for a good or service resulting
from a natural disaster, failure or shortage of
electric power or other source of energy, concerted
labor action, lockout, civil disorder, war, military
action, national or local emergency, public health
emergency, or any other cause of an atypical disruption
in such market; or
(B) any period of time during which the President
has declared a major disaster or emergency under
section 401 or 502, respectively, of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act
(42 U.S.C. 5170, 5191).
(4) Good or service.--The term ``good or service'' means
any good or service offered in commerce.
(5) State.--The term ``State'' means each of the several
States, the District of Columbia, each commonwealth, territory,
or possession of the United States, and each federally
recognized Indian Tribe.
(6) Ultimate parent entity.--The term ``ultimate parent
entity'' has the meaning given such term in section 801.1 of
title 16, Code of Federal Regulations (or any successor
regulation).
SEC. 3. PREVENTION OF PRICE GOUGING.
(a) In General.--It shall be unlawful for a person to sell or offer
for sale a good or service at a grossly excessive price, regardless of
the person's position in a supply chain or distribution network.
(b) Affirmative Defense.--
(1) In general.--Subsection (a) shall not apply to the
sale, or offering for sale, of a good or service by a person
if--
(A) the person's ultimate parent entity earned less
than $100,000,000 in gross revenue from goods or
services provided in the United States during the 12-
month period preceding the sale or offer that allegedly
violates subsection (a); and
(B) the person demonstrates by a preponderance of
the evidence that the increase in the price of the good
or service involved is directly attributable to
additional costs that are--
(i) not within the control of the person;
and
(ii) incurred by the person in procuring,
acquiring, distributing, or providing the good
or service.
(2) Inflation adjustment.--Beginning on January 1, 2025,
the Commission shall annually adjust the amount specified in
paragraph (1)(A) by the percentage change in the consumer price
index for all urban consumers published by the Bureau of Labor
Statistics for the 12-month period ending on December 31 of the
previous year.
(c) Presumptive Violations.--A person shall be presumed to be in
violation of subsection (a) if, during an exceptional market shock, it
is shown by a preponderance of the evidence that the person--
(1)(A) has unfair leverage; or
(B) is using the effects or circumstances related to an
exceptional market shock as a pretext to increase prices; and
(2) regardless of the person's position in a supply chain
or distribution network, sells or offers for sale a good or
service at an excessive price compared to--
(A) the average price at which the good or service
was sold or offered for sale by the person in the
market during the 120-day period preceding such
exceptional market shock; or
(B) the price at which the good or service was sold
or offered for sale by competing sellers in the market
during the exceptional market shock.
(d) Rebuttal.--A person may rebut a presumption under subsection
(c) if the person demonstrates by clear and convincing evidence that
the increase in the price of the good or service involved is directly
attributable to additional costs that are--
(1) not within the control of the person; and
(2) incurred by the person in procuring, acquiring,
distributing, or providing the good or service.
(e) Unfair Leverage.--
(1) In general.--
(A) Characteristics of unfair leverage.--For
purposes of subsection (c), a person has unfair
leverage if the person--
(i) earned at least $1,000,000,000 in gross
revenue from goods or services provided in the
United States during the 12-month period
preceding the sale or offer that allegedly
violates subsection (a);
(ii) discriminates between otherwise equal
trading partners in the same market by applying
differential prices or conditions;
(iii) is a critical trading partner;
(iv) engages in unfair, deceptive, or
abusive acts or practices;
(v) has a dominant position in--
(I) the conduct of any business,
trade, or commerce;
(II) any labor market; or
(III) the furnishing of any
service; or
(vi) has a characteristic described in a
rule promulgated by the Commission that further
defines unfair leverage.
(B) Presumption of a dominant position.--For
purposes of subparagraph (A)(v), a person shall be
presumed to have a dominant position if--
(i) evidence shows that the person is not
constrained by meaningful competitive
pressures; or
(ii) the person--
(I) has a share of 40 percent or
greater of a relevant market as a
seller; or
(II) has a share of 30 percent or
greater of a relevant market as a
buyer.
(2) Inflation adjustment.--Beginning on January 1, 2025,
the Commission shall annually adjust the amount specified in
paragraph (1)(A)(i) by the percentage change in the consumer
price index for all urban consumers published by the Bureau of
Labor Statistics for the 12-month period ending on December 31
of the previous year.
(f) Enforcement by the Commission.--
(1) Unfair or deceptive acts or practices.--A violation of
this section or a regulation promulgated under this section
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)).
(2) Powers of the commission.--
(A) In general.--Except as provided by
subparagraphs (D) and (E), the Commission shall enforce
this section 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 section.
(B) Privileges and immunities.--Any person who
violates this section or a regulation promulgated under
this section shall be subject to the penalties and
entitled to the privileges and immunities provided in
the Federal Trade Commission Act (15 U.S.C. 41 et
seq.).
(C) Authority preserved.--Nothing in this section
shall be construed to limit the authority of the
Commission under any other provision of law.
(D) Independent litigation authority.--If the
Commission has reason to believe that a person has
violated this section, the Commission may bring a civil
action in any appropriate United States district court
to--
(i) enjoin any further such violation by
such person;
(ii) enforce compliance with this section;
(iii) obtain a permanent, temporary, or
preliminary injunction;
(iv) obtain civil penalties;
(v) obtain damages, restitution, or other
compensation on behalf of aggrieved consumers;
or
(vi) obtain any other appropriate equitable
relief.
(E) Civil penalties.--In addition to any other
penalties as may be prescribed by law, each violation
of this section shall carry a civil penalty not to
exceed--
(i) if the person who committed the
violation does not have unfair leverage (as
described in subsection (e)), the lesser of--
(I) $25,000; or
(II) 5 percent of the revenues
earned by the person's ultimate parent
entity during the preceding 12-month
period; or
(ii) if the person who committed the
violation has unfair leverage, 5 percent of the
revenues earned by the person's ultimate parent
entity during the preceding 12-month period.
(F) Rulemaking.--
(i) In general.--The Commission may
promulgate in accordance with section 553 of
title 5, United States Code, such rules as may
be necessary to carry out this section,
including guidelines regarding what
circumstances constitute an exceptional market
shock or guidelines that provide for additional
characteristics that demonstrate that a person
has unfair leverage.
(ii) Required guidance.--Not later than 180
days after the date of enactment of this Act,
the Commission shall promulgate regulations
regarding violations of this section, which
shall include guidelines on, for the purposes
of this Act, what constitutes a market, a
grossly excessive price for a good or service,
and an excessive price for a good or service.
(iii) Definition of grossly excessive
price.--
(I) In general.--For purposes of
subsection (a) and the guidelines on
what constitutes a grossly excessive
price described in clause (ii), the
Commission shall define the term
``grossly excessive price'' using any
metric it deems appropriate.
(II) Definition considerations.--In
formulating the definition in subclause
(I), the Commission shall consider
whether to provide that such term shall
include a price for a good or service
that is an amount equal to or greater
than 120 percent (or a lesser
percentage, as determined appropriate
by the Commission) of the average price
for such good or service in the market
during the 6-month period preceding the
sale or offer that allegedly violates
subsection (a).
(g) Enforcement by State Attorneys General.--
(1) In general.--If the attorney general of a State has
reason to believe that any person has violated or is violating
this section, the attorney general, in addition to any
authority it may have to bring an action in State court under
the laws of such State, 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 any further such violation by such
person;
(B) enforce compliance with this section;
(C) obtain a permanent, temporary, or preliminary
injunction;
(D) obtain civil penalties;
(E) obtain damages, restitution, or other
compensation on behalf of residents of the State; or
(F) obtain any other appropriate equitable relief.
(2) Rights of the commission.--
(A) Notice to the commission.--
(i) In general.--Except as provided in
clause (ii), before initiating a civil action
under paragraph (1), the attorney general of
the State involved shall provide to the
Commission a written notice of such action and
a copy of the complaint for such action.
(ii) Exception.--If the attorney general
determines that it is not feasible to provide
the notice described in clause (i) before
initiating a civil action under this
subsection, the attorney general shall provide
written notice of the action and a copy of the
complaint to the Commission immediately upon
initiating the civil action.
(iii) Jurisdiction not affected.--An
attorney general failing to provide notice
under clause (i) shall not prevent the attorney
general or the Commission from having
jurisdiction over a civil action brought under
paragraph (1) or imperil such civil action in
any way.
(B) Intervention.--The Commission may--
(i) intervene in any civil action brought
by the attorney general, official, or agency of
a State under this subsection; and
(ii) upon intervening--
(I) be heard on all matters arising
in the civil action; and
(II) file petitions for appeal of a
decision in the civil action.
(3) Investigatory powers.--Nothing in this subsection may
be construed to prevent the attorney general of a State from
exercising the powers conferred on the attorney general by the
laws of the State to conduct investigations, to administer
oaths or affirmations, or to compel the attendance of witnesses
or the production of documentary or other evidence.
(4) Limitation on state action while federal action is
pending.--If the Commission has instituted a civil action for a
violation of this section, no State attorney general may,
without the approval of the Commission, 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 section alleged in the complaint.
(5) 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
section, the attorney general may assert a claim under State
l