SENATE AMENDED
PRIOR PRINTER'S NOS. 2771, 3234, 3310 PRINTER'S NO. 4582
No. 2001 Session of 2005
INTRODUCED BY BEYER, CIVERA, ALLEN, BAKER, BARRAR, BELARDI,
CALTAGIRONE, CAPPELLI, CAUSER, COHEN, CORNELL, DALLY, DeLUCA,
DeWEESE, J. EVANS, FAIRCHILD, FEESE, GODSHALL, GOOD, GOODMAN,
HARHART, HERMAN, HERSHEY, HESS, HICKERNELL, KENNEY,
MACKERETH, MAJOR, MARKOSEK, MARSICO, McILHATTAN, R. MILLER,
MUNDY, MUSTIO, O'NEILL, PALLONE, PAYNE, PETRARCA, PHILLIPS,
PICKETT, QUIGLEY, RAYMOND, READSHAW, REICHLEY, RUBLEY,
SANTONI, SATHER, SCAVELLO, SHANER, SIPTROTH, SOLOBAY,
R. STEVENSON, E. Z. TAYLOR, J. TAYLOR, TIGUE, TRUE, WATSON,
WILLIAMS, WILT, ZUG, B. SMITH, THOMAS, BLACKWELL, ROBERTS,
WANSACZ, SAINATO AND JAMES, OCTOBER 13, 2005
SENATOR TOMLINSON, CONSUMER PROTECTION AND PROFESSIONAL
LICENSURE, IN SENATE, AS AMENDED, SEPTEMBER 20, 2006
AN ACT
1 Prohibiting price gouging; providing for preemption of municipal <--
2 laws and ordinances; and imposing penalties.
3 PROHIBITING PRICE GOUGING; AND IMPOSING PENALTIES. <--
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Short title. <--
7 This act shall be known and may be cited as the Price Gouging
8 Act.
9 Section 2. Purpose.
10 The General Assembly finds and declares as follows:
11 (1) In an economic market, there are periods of
12 disruption of the market which cause an uneven flow of supply
13 of consumer goods. During these periods, consumer demand
1 outweighs supply, sometimes heavily.
2 (2) These periods of disruption result from many
3 factors, including extreme weather conditions, depletion of
4 stockpiles, labor strikes, civil disorder, natural or manmade
5 emergencies or disasters and military action.
6 (3) During these periods, some parties selling consumer
7 goods and services may take unfair advantage of consumers in
8 this Commonwealth by charging unconscionably excessive
9 prices, or price gouging.
10 (4) To prevent this, the General Assembly declares price
11 gouging illegal and imposes penalties on violators throughout
12 the entire chain of distribution.
13 Section 3. Definitions.
14 The following words and phrases when used in this act shall
15 have the meanings given to them in this section unless the
16 context clearly indicates otherwise:
17 "Additional costs." The term includes replacement costs,
18 taxes and transportation costs incurred by a person within a
19 chain of custody.
20 "Chain of distribution." All persons involved in the sale
21 and resale of consumer goods and services, including without
22 limitation any manufacturer, supplier, wholesaler, distributor
23 or retail seller.
24 "Consumer goods or services." Those items used, bought or
25 rendered primarily for personal, family or household purposes.
26 "Gross disparity." More than 15% greater than goods or
27 services of like grade and quality being offered by competing
28 sellers.
29 "Principally." Constituting more than 50% of an increased
30 price.
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1 "Replacement cost." The term includes acquisition costs,
2 costs that are a result of a contract where consumer goods or
3 services are priced on a formula that references published
4 market prices, or the actual or reasonably contemplated cost of
5 replacing goods or services being sold.
6 "Unconscionably excessive." A price is unconscionably
7 excessive if the following are true:
8 (1) The amount charged represents a gross disparity
9 between the price of the consumer goods or services when
10 compared to the highest price at which the goods or services
11 are sold or offered for sale by the seller in the usual
12 course of business during the seven days immediately prior to
13 a declaration of disaster emergency by the Governor.
14 (2) The retail amount charged represents a gross
15 disparity between the price of the consumer goods or services
16 of like grade and quality when compared to the highest price
17 at which the goods and services are offered for sale by other
18 sellers in the same or adjacent county.
19 (3) The disparity is not principally attributable to the
20 additional costs to the person providing the consumer goods
21 or services.
22 Section 4. Price gouging prohibited.
23 During a state of disaster emergency declared by the Governor
24 pursuant to the provisions of 35 Pa.C.S. § 7301(c) (relating to
25 general authority of Governor), no person in the chain of
26 distribution of consumer goods or services shall sell or offer
27 to sell consumer goods or services, or both, at an
28 unconscionably excessive price within the geographic area
29 covered by the declaration of disaster emergency.
30 Section 5. Preemption.
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1 The provisions of this act shall preempt any local laws or
2 ordinances of any municipality.
3 Section 6. Applicability.
4 The provisions of this act shall not apply to a person who
5 sells goods or services subject to a tariff or rate approved by
6 a Federal or Commonwealth agency with power and authority over
7 sales of such goods or services.
8 Section 7. Investigation.
9 (a) Authority.--The Bureau of Consumer Protection in the
10 Office of Attorney General shall investigate complaints received
11 concerning violations of this act. If, after investigating any
12 complaint, the Attorney General finds that there has been a
13 violation of this act, the Attorney General may bring an action
14 to impose a civil penalty and to seek other relief, including
15 injunctive relief, under the act of December 17, 1968 (P.L.1224,
16 No.387), known as the Unfair Trade Practices and Consumer
17 Protection Law.
18 (b) Procedure.--Prior to the institution of a civil action,
19 the Attorney General is authorized to require the attendance and
20 testimony of witnesses and the production of documents. For this
21 purpose the Attorney General may issue subpoenas, examine
22 witnesses and receive evidence. If a person objects to or
23 otherwise fails to comply with a subpoena or request for
24 testimony, the Attorney General may file in Commonwealth Court
25 an action to enforce the subpoenas or request. Notice of hearing
26 of the action and a copy of all pleadings shall be served upon
27 the person who may appear in opposition.
28 (c) Confidentiality.--Any testimony taken or material
29 produced shall be kept confidential by the Attorney General
30 except to the extent he may use information in a judicial
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1 proceeding or if the disclosure is authorized by the court for
2 good cause shown or confidentiality is waived by the person
3 being investigated and by the person who has testified, answered
4 interrogatories or produced materials.
5 (d) Restitution.--The Attorney General, in addition to the
6 other remedies available under this act, may seek to recover,
7 for the benefit of each aggrieved consumer, either the actual
8 monetary loss from each violation, or up to $500 in damages for
9 each violation, whichever is greater, from any person in the
10 chain of distribution whose conduct violates the provisions of
11 this act.
12 (e) Period of limitations.--No action to enforce this act
13 may be brought more than two years after the date the alleged
14 violation occurred.
15 (f) Limitation on damages.--The total amount that may be
16 recovered from any person in the chain of distribution for a
17 violation of this act or any other law including the Unfair
18 Trade Practices and Consumer Protection Law, and whether in the
19 nature of a civil penalty or restitution, or both, shall be
20 $25,000 per day. The Attorney General has the sole right to
21 enforce any violations of this act.
22 Section 8. Notification.
23 A trade association, corporation, partnership, person or
24 other entity may register an agent for the purposes of being
25 notified when the Governor declares and ceases a state of
26 disaster emergency declaration. The Governor or his designee is
27 responsible for notifying the registered agents simultaneous to
28 the declaration and cessation of the state of disaster emergency
29 declaration.
30 Section 9. Effective date.
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1 This act shall take effect in 60 days.
2 SECTION 1. SHORT TITLE. <--
3 THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE PRICE GOUGING
4 ACT.
5 SECTION 2. PURPOSE.
6 THE GENERAL ASSEMBLY FINDS AND DECLARES AS FOLLOWS:
7 (1) IN AN ECONOMIC MARKET, THERE ARE PERIODS OF
8 DISRUPTION OF THE MARKET WHICH CAUSE AN UNEVEN FLOW OF SUPPLY
9 OF CONSUMER GOODS. DURING THESE PERIODS, CONSUMER DEMAND
10 OUTWEIGHS SUPPLY, SOMETIMES HEAVILY.
11 (2) THESE PERIODS OF DISRUPTION RESULT FROM MANY
12 FACTORS, INCLUDING EXTREME WEATHER CONDITIONS, DEPLETION OF
13 STOCKPILES, LABOR STRIKES, CIVIL DISORDER, NATURAL OR MANMADE
14 EMERGENCIES OR DISASTERS AND MILITARY ACTION.
15 (3) DURING THESE PERIODS, PARTIES INVOLVED IN THE SALE
16 AND RESALE OF CONSUMER GOODS AND SERVICES SOMETIMES TAKE
17 UNFAIR ADVANTAGE OF CONSUMERS IN THIS COMMONWEALTH BY
18 CHARGING UNCONSCIONABLY EXCESSIVE PRICES, OR PRICE GOUGING.
19 (4) TO PREVENT THIS, THE GENERAL ASSEMBLY SHOULD
20 PROHIBIT PRICE GOUGING AND IMPOSE PENALTIES ON VIOLATORS.
21 SECTION 3. DEFINITIONS.
22 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS ACT SHALL
23 HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
24 CONTEXT CLEARLY INDICATES OTHERWISE:
25 "CHAIN OF DISTRIBUTION." ALL PARTIES INVOLVED IN THE SALE
26 AND RESALE OF CONSUMER GOODS AND SERVICES, INCLUDING ANY
27 MANUFACTURER, SUPPLIER, WHOLESALER, DISTRIBUTOR OR RETAIL
28 SELLER.
29 "CONSUMER GOODS OR SERVICES." THOSE ITEMS USED, BOUGHT OR
30 RENDERED PRIMARILY FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.
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1 "UNCONSCIONABLY EXCESSIVE." A PRICE IS UNCONSCIONABLY
2 EXCESSIVE WHEN THE AMOUNT CHARGED REPRESENTS A GROSS DISPARITY
3 BETWEEN THE PRICE OF THE CONSUMER GOODS OR SERVICES AND THE
4 PRICE AT WHICH THE CONSUMER GOODS OR SERVICES WERE SOLD OR
5 OFFERED FOR SALE WITHIN THE CHAIN OF DISTRIBUTION IN THE USUAL
6 COURSE OF BUSINESS SEVEN DAYS IMMEDIATELY PRIOR TO THE STATE OF
7 DISASTER EMERGENCY.
8 SECTION 4. PRICE GOUGING PROHIBITED.
9 (A) PROHIBITION.--DURING AND WITHIN 30 DAYS OF THE
10 TERMINATION OF A STATE OF DISASTER EMERGENCY DECLARED BY THE
11 GOVERNOR PURSUANT TO THE PROVISIONS OF 35 PA.C.S. § 7301(C)
12 (RELATING TO GENERAL AUTHORITY OF GOVERNOR), IT SHALL BE A
13 VIOLATION OF THIS ACT FOR ANY PARTY WITHIN THE CHAIN OF
14 DISTRIBUTION OF CONSUMER GOODS OR SERVICES OR BOTH TO SELL OR
15 OFFER TO SELL THE GOODS OR SERVICES FOR AN AMOUNT WHICH
16 REPRESENTS AN UNCONSCIONABLY EXCESSIVE PRICE.
17 (B) EVIDENCE OF UNCONSCIONABLY EXCESSIVE PRICE.--IT IS PRIMA
18 FACIE EVIDENCE THAT A PRICE IS UNCONSCIONABLY EXCESSIVE IF
19 DURING AND WITHIN 30 DAYS OF THE TERMINATION OF A STATE OF
20 DISASTER EMERGENCY PARTIES WITHIN THE CHAIN OF DISTRIBUTION
21 CHARGE A PRICE THAT EXCEEDS AN AMOUNT EQUAL TO OR IN EXCESS OF
22 20% OF THE AVERAGE PRICE AT WHICH THE SAME OR SIMILAR CONSUMER
23 GOODS OR SERVICES WERE OBTAINABLE IN THE AFFECTED AREA DURING
24 THE LAST SEVEN DAYS IMMEDIATELY PRIOR TO THE DECLARED STATE OF
25 EMERGENCY.
26 (C) NONAPPLICABILITY.--THE PROVISIONS OF THIS SECTION SHALL
27 NOT APPLY IF THE INCREASE IN PRICE IS DUE TO A DISPARITY THAT IS
28 SUBSTANTIALLY ATTRIBUTABLE TO ADDITIONAL COSTS THAT AROSE WITHIN
29 THE CHAIN OF DISTRIBUTION IN CONNECTION WITH THE SALE OF
30 CONSUMER GOODS OR SERVICES, INCLUDING REPLACEMENT COSTS, TAXES
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1 AND TRANSPORTATION COSTS.
2 SECTION 5. INVESTIGATION.
3 (A) AUTHORITY.--THE BUREAU OF CONSUMER PROTECTION IN THE
4 OFFICE OF ATTORNEY GENERAL SHALL INVESTIGATE ANY COMPLAINTS
5 RECEIVED CONCERNING VIOLATIONS OF THIS ACT. IF, AFTER
6 INVESTIGATING ANY COMPLAINT, THE ATTORNEY GENERAL FINDS THAT
7 THERE HAS BEEN A VIOLATION OF THIS ACT, THE ATTORNEY GENERAL MAY
8 BRING AN ACTION TO IMPOSE A CIVIL PENALTY UP TO $10,000 FOR EACH
9 VIOLATION AND TO SEEK OTHER RELIEF, INCLUDING INJUNCTIVE RELIEF,
10 RESTITUTION AND COSTS UNDER THE ACT OF DECEMBER 17, 1968
11 (P.L.1224, NO.387), KNOWN AS THE UNFAIR TRADE PRACTICES AND
12 CONSUMER PROTECTION LAW.
13 (B) PROCEDURE.--PRIOR TO THE INITIATION OF A CIVIL ACTION,
14 THE ATTORNEY GENERAL IS AUTHORIZED TO REQUIRE THE ATTENDANCE AND
15 TESTIMONY OF WITNESSES AND THE PRODUCTION OF DOCUMENTS. FOR THIS
16 PURPOSE THE ATTORNEY GENERAL MAY ISSUE SUBPOENAS, EXAMINE
17 WITNESSES AND RECEIVE EVIDENCE. IF A PERSON OBJECTS TO OR
18 OTHERWISE FAILS TO COMPLY WITH A SUBPOENA OR REQUEST FOR
19 TESTIMONY, THE ATTORNEY GENERAL MAY FILE IN COMMONWEALTH COURT
20 OR ANY COURT OF RECORD OF THE COMMONWEALTH AN ACTION TO ENFORCE
21 THE SUBPOENAS OR REQUEST. NOTICE OF HEARING OF THE ACTION AND A
22 COPY OF ALL PLEADINGS SHALL BE SERVED UPON THE PERSON WHO MAY
23 APPEAR IN OPPOSITION.
24 (C) CONFIDENTIALITY.--ANY TESTIMONY TAKEN OR MATERIAL
25 PRODUCED SHALL BE KEPT CONFIDENTIAL BY THE ATTORNEY GENERAL
26 EXCEPT TO THE EXTENT THAT SUCH INFORMATION MAY BE USED IN A
27 JUDICIAL PROCEEDING OR THE DISCLOSURE IS AUTHORIZED BY THE COURT
28 FOR GOOD CAUSE SHOWN OR CONFIDENTIALITY IS WAIVED BY THE PERSON
29 BEING INVESTIGATED AND BY THE PERSON WHO HAS TESTIFIED, ANSWERED
30 INTERROGATORIES OR PRODUCED MATERIALS.
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1 SECTION 6. EFFECTIVE DATE.
2 THIS ACT SHALL TAKE EFFECT IN 60 DAYS.
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