Prevent Emergency and Disaster Profiteering Act of 2020

II 116TH CONGRESS 2D SESSION S. 3647 To prohibit price gouging for necessary products during federally declared national emergencies or disasters. 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Prevent Emergency 4 and Disaster Profiteering Act of 2020’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 (1) ADMINISTRATOR.—The term ‘‘Adminis- 8 trator’’ means the Administrator of the Federal 9 Emergency Management Agency. 10 VerDate Sep 11 2014 22:01 May 14, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3647.IS S3647 jbell on DSKJLSW7X2PROD with BILLS 2 •S 3647 IS (2) COMMISSION.—The term ‘‘Commission’’ 1 means the Federal Trade Commission. 2 (3) EMERGENCY PERIOD; EMERGENCY AREA.— 3 An ‘‘emergency period’’ is the period during which, 4 and an ‘‘emergency area’’ is a geographical area in 5 which, there exists— 6 (A) a major disaster declared by the Presi- 7 dent under section 401 of the Robert T. Staf- 8 ford Disaster Relief and Emergency Assistance 9 Act (42 U.S.C. 5170); 10 (B) an emergency declared by the Presi- 11 dent under section 501 of such Act (42 U.S.C. 12 5191); or 13 (C) a public health emergency declared by 14 the Secretary pursuant to section 319 of the 15 Public Health Service Act (42 U.S.C. 247d). 16 (4) PRICE GOUGING.—The term ‘‘price 17 gouging’’ means the sale of a good or service at an 18 unconscionably excessive price by a person during an 19 emergency period and in an emergency area. 20 (5) SECRETARY.—The term ‘‘Secretary’’ means 21 the Secretary of Health and Human Services. 22 (6) UNCONSCIONABLY EXCESSIVE PRICE.— 23 (A) IN GENERAL.—The term ‘‘unconscion- 24 ably excessive price’’ means, with respect to a 25 VerDate Sep 11 2014 02:31 May 13, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3647.IS S3647 jbell on DSKJLSW7X2PROD with BILLS 3 •S 3647 IS good or service sold or offered for sale by a per- 1 son, a price that exceeds, by a margin that is 2 greater than the allowable margin determined 3 by the Administrator or the Secretary (as appli- 4 cable) for the good or service under section 3, 5 the average price at which the good or service 6 was sold by the person during the 90-day pe- 7 riod prior to the date on which an emergency 8 or disaster described in paragraph (2) is de- 9 clared. 10 (B) EXCEPTION.—Such term shall not in- 11 clude any price for a good or service that is in- 12 creased beyond the margin described in sub- 13 paragraph (A) if such increased price is directly 14 attributable to an appreciable increase in the 15 cost of acquiring, producing, selling, trans- 16 porting, or delivering the good or service, or is 17 otherwise justified by circumstances outside of 18 the control of the seller, as determined by the 19 Administrator or the Secretary (as applicable). 20 SEC. 3. PREVENTING PRICE GOUGING DURING FEDERALLY 21 DECLARED EMERGENCIES. 22 (a) IN GENERAL.—During an emergency period and 23 in an emergency area, it shall be unlawful for any person 24 to engage in price gouging with respect to a necessary 25 VerDate Sep 11 2014 02:31 May 13, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3647.IS S3647 jbell on DSKJLSW7X2PROD with BILLS 4 •S 3647 IS good or service covered by a list published by the Adminis- 1 trator under subsection (b)(1) or by the Secretary under 2 subsection (b)(2). 3 (b) NECESSARY GOODS AND SERVICES LISTS.— 4 (1) PRESIDENTIALLY DECLARED EMER- 5 GENCIES.—In the case of an emergency that is de- 6 scribed in subparagraph (A) or (B) of section 2(3): 7 (A) The Administrator, in consultation 8 with the Secretary, may publish on the internet 9 website of the Federal Emergency Management 10 Agency a list with respect to an emergency area 11 during an emergency period to designate the 12 goods and services to which the prohibition de- 13 scribed in subsection (a) shall apply. 14 (B) The Administrator, in consultation 15 with the Secretary, may update any list pub- 16 lished under subparagraph (A) to remove a 17 good or service from the list or add a good or 18 service to the list, but the prohibition described 19 in subsection (a) shall not apply to a good or 20 service before the date on which good or service 21 is added to the list. 22 (C) For any good or service included in a 23 list under this paragraph, the Administrator 24 shall specify the allowable margin by which the 25 VerDate Sep 11 2014 02:31 May 13, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3647.IS S3647 jbell on DSKJLSW7X2PROD with BILLS 5 •S 3647 IS price at which a person sells or offers for sale 1 such good or service may exceed the average 2 price at which the good or service was sold or 3 offered by the person during the 90-day period 4 prior to the date on which the emergency or 5 disaster involved was declared. 6 (2) PUBLIC HEALTH EMERGENCY.—In the case 7 of an emergency described in section 2(3)(C): 8 (A) The Secretary may publish on the 9 internet website of the Department of Health 10 and Human Services a list with respect to an 11 emergency area during an emergency period to 12 designate the goods and services to which the 13 prohibition described in subsection (a) shall 14 apply. 15 (B) The Secretary may update any list 16 published under subparagraph (A) to remove a 17 good or service from the list or add a good or 18 service to the list, but the prohibition described 19 in subsection (a) shall not apply to a good or 20 service before the date on which good or service 21 is added to the list. 22 (C) For any good or service included in a 23 list under this paragraph, the Secretary shall 24 specify the allowable margin by which the price 25 VerDate Sep 11 2014 02:31 May 13, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3647.IS S3647 jbell on DSKJLSW7X2PROD with BILLS 6 •S 3647 IS at which a person sells or offers for sale such 1 good or service may exceed the average price at 2 which the good or service was sold or offered by 3 the person during the 90-day period prior to 4 the date on which the emergency or disaster in- 5 volved was declared. 6 (c) DURATION OF PROHIBITION.—The prohibition 7 described in subsection (a) shall apply to a good or service 8 that is included on a list published by the Administrator 9 or the Secretary (as applicable) under subsection (b)— 10 (1) beginning with the first day that the good 11 or service is included on such a list; and 12 (2) ending with the earlier of— 13 (A) the last day that the good or service is 14 included on such a list; and 15 (B) the last day of every emergency period 16 relating to a list on which the good or service 17 is included. 18 SEC. 4. ENFORCEMENT. 19 (a) ENFORCEMENT BY FEDERAL TRADE COMMIS- 20 SION.— 21 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC- 22 TICES.—A violation of section 3 shall be treated as 23 a violation of a regulation under section 18(a)(1)(B) 24 of the Federal Trade Commission Act (15 U.S.C. 25 VerDate Sep 11 2014 02:31 May 13, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3647.IS S3647 jbell on DSKJLSW7X2PROD with BILLS 7 •S 3647 IS 57a(a)(1)(B)) regarding unfair or deceptive acts or 1 practices. 2 (2) POWERS OF COMMISSION.—The Commis- 3 sion shall enforce section 3 in the same manner, by 4 the same means, and with the same jurisdiction, 5 powers, and duties as though all applicable terms 6 and provisions of the Federal Trade Commission Act 7 (15 U.S.C. 41 et seq.) were incorporated into and 8 made a part of this Act. Any person who violates 9 such section shall be subject to the penalties and en- 10 titled to the privileges and immunities provided in 11 the Federal Trade Commission Act. 12 (b) EFFECT ON OTHER LAWS.—Nothing in this Act 13 shall be construed in any way to limit or affect the author- 14 ity of the Commission under any other provision of law. 15 (c) ENFORCEMENT BY STATE ATTORNEYS GEN- 16 ERAL.— 17 (1) IN GENERAL.—If the chief law enforcement 18 officer of a State, or an official or agency designated 19 by a State, has reason to believe that any person has 20 violated or is violating section 3, the attorney gen- 21 eral, official, or agency of the State, in addition to 22 any authority it may have to bring an action in 23 State court under its consumer protection law, may 24 bring a civil action in any appropriate United States 25 VerDate Sep 11 2014 02:31 May 13, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3647.IS S3647 jbell on DSKJLSW7X2PROD with BILLS 8 •S 3647 IS district court or in any other court of competent ju- 1 risdiction, including a State court, to— 2 (A) enjoin further such violation by such 3 person; 4 (B) enforce compliance with such section; 5 (C) obtain civil penalties; and 6 (D) obtain damages, restitution, or other 7 compensation on behalf of residents of the 8 State. 9 (2) NOTICE AND INTERVENTION BY THE 10 FTC.—The attorney general of a State shall provide 11 prior written notice of any action under paragraph 12 (1) to the Commission and provide the Commission 13 with a copy of the complaint in the action, except in 14 any case in which such prior notice is not feasible, 15 in which case the attorney general shall serve such 16 notice immediately upon instituting such action. The 17 Commission shall have the right— 18 (A) to intervene in the action; 19 (B) upon so intervening, to be heard on all 20 matters arising therein; and 21 (C) to file petitions for appeal. 22 (3) LIMITATION ON STATE ACTION WHILE FED- 23 ERAL ACTION IS PENDING.—If the Commission has 24 instituted a civil action for violation of this Act, no 25 VerDate Sep 11 2014 02:31 May 13, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3647.IS S3647 jbell on DSKJLSW7X2PROD with BILLS 9 •S 3647 IS State attorney general, or official or agency of a 1 State, may bring an action under this subsection 2 during the pendency of that action against any de- 3 fendant named in the complaint of the Commission 4 for any violation of this Act alleged in the complaint. 5 (4) RELATIONSHIP WITH STATE-LAW CLAIMS.— 6 If the attorney general of a State has authority to 7 bring an action under State law directed at acts or 8 practices that also violate this Act, the attorney gen- 9 eral may assert the State-law claim and a claim 10 under this Act in the same civil action. 11 (d) SAVINGS CLAUSE.—Nothing in this Act shall pre- 12 empt or otherwise affect any State or local law. 13 Æ VerDate Sep 11 2014 02:31 May 13, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\S3647.IS S3647 jbell on DSKJLSW7X2PROD with BILLS