COVID-19 Survey of Federal and State Price Gouging Laws

COVID-19 Survey of Federal and State Price Gouging Laws

COVID-19 Survey of Federal and State Price Gouging Laws


In response to the ongoing COVID-19 pandemic, the U.S. government, many states, and even some counties and municipalities have invoked emergency powers and issued a variety of executive-level orders to protect the public health. In many states, these orders have triggered “price gouging” laws that directly control the prices businesses may legally charge for essential goods and services. Other states have passed emergency legislation to address issues related to the coronavirus pandemic.  The survey below actively tracks the status of federal and state price gouging provisions and provides an overview of the applicable pricing limitations currently in effect.  

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Federal

PRICE-GOUGING STATUTE
The Defense Production Act of 1950, 50 U.S.C. § 4512, allows the President to designate materials as “scarce materials or materials the supply of which would be threatened by such accumulation” to prevent the hoarding of the materials “for the purpose of resale at prices in excess of prevailing market prices.”  50 U.S.C. § 4512

CURRENT STATUS
On March 23, 2020, the President issued Executive Order 13910, Preventing Hoarding of Health and Medical Resources To Respond to the Spread of COVID-19.  The Executive Order invoked 50 U.S.C. § 4512 and delegated to the Secretary of HHS:

“The authority of the President conferred by section 102 of the Act to prevent hoarding of health and medical resources necessary to respond to the spread of COVID-19 within the United States, including the authority to prescribe conditions with respect to the accumulation of such resources, and to designate any material as a scarce material, or as a material the supply of which would be threatened by persons accumulating the material either in excess of reasonable demands of business, personal, or home consumption, or for the purpose of resale at prices in excess of prevailing market prices.”

On March 25, 2020, HHS issued a Notice of Designation of Scarce Materials or Threatened Materials Subject to COVID-19 Hoarding Prevention Measures Under Executive Order 13910 and Section 102 of the Defense Production Act of 1950, identifying 15 items as Scarce Materials or Threatened Materials. 

On March 24, 2020 DOJ issued a Memo directing the immediate creation of a task force to address COVID-19-related market manipulation, hoarding, and price gouging (the “Covid-19 Hoarding and Price Gouging Task Force”) and requiring that “[e]ach United States Attorney’s Office, as well as relevant Department components, are directed to designate an experienced attorney to serve as a member of the task force.”  The Memo stated that:  “where appropriate, the Department will investigate and prosecute those who acquire vital medical supplies in excess of what they would reasonably use or for the purpose of charging exorbitant prices to the healthcare workers and hospitals who need them.”

March 25, 2020, four U.S. Senators led by A. Klobuchar (D-MN), introduced a bill that would directly prohibit price gouging. The Disaster and Emergency Pricing Abuse Prevention Act, would prohibit the selling, or offering for sale, essential goods and services at excessive prices during, or in anticipation of a natural disaster, pandemic, or state of emergency.  Similar bills have been introduced in the House as well as a competing one in the Senate.  

On April 8, 2020, Senators Grassley and Klobuchar issued a letter to Attorney General Barr concerning the enforcement of Executive Order 13910.

DOJ has filed criminal complaints in four cases in the Eastern and Southern Districts of New York bringing charges under the DPA for price gouging.

On May 28, 2020, the United States Attorney for the Southern District of Georgia announced that a Georgia man has been charged with attempting to fraudulently sell 50 million N-95 masks to a foreign government.  The prosecution is part of the DOJ’s national Covid-19 Hoarding and Price Gouging Task Force.   Press release

SCOPE/PRODUCTS
“[M]aterials which have been designated by the President as scarce materials or materials the supply of which would be threatened by such accumulation.”  50 U.S.C. § 4512.

Executive Order 13910 designates only “health and medical resources necessary to respond to the spread of COVID-19 within the United States” as the materials covered by the Order and designates to the Secretary of HHS the authority to identify those materials.

March 25, 2020 HHS Notice of Designation of Scarce Materials or Threatened Materials Subject to COVID-19 Hoarding Prevention Measures Under Executive Order 13910 and Section 102 of the Defense Production Act of 1950.  The Notice designates 15 items as materials covered by the Order:

  • N-95 Filtering Facepiece Respirators
  • Other Filtering Facepiece Respirators
  • Elastomeric, air-purifying respirators and appropriate particulate filters/cartridges
  • Powered Air Purifying Respirator (PAPR)
  • Portable Ventilators
  • Drug product with active ingredient chloroquine phosphate or hydroxychloroquine HCl
  • Sterilization services and sterilizers
  • Disinfecting devices intended to kill pathogens and other kinds of microorganisms by chemical means or physical means, and other sanitizing and disinfecting products suitable for use in a clinical setting
  • Medical gowns or apparel
  • Personal protective equipment (PPE) coveralls
  • PPE face masks
  • PPE surgical masks
  • PPE face shields
  • PPE gloves or surgical gloves
  • Ventilators, anesthesia gas machines modified for use as ventilators, positive pressure breathing devices modified for use as ventilators, ventilator tubing connectors, and ventilator accessories.

PROHIBITED CONDUCT
“In order to prevent hoarding, no person shall accumulate (1) in excess of the reasonable demands of business, personal, or home consumption, or (2) for the purpose of resale at prices in excess of prevailing market prices, materials which have been designated by the President as scarce materials or materials the supply of which would be threatened by such accumulation.”  50 U.S.C. § 4512

EXCEPTIONS OR DEFENSES
“In making such designations the President may prescribe such conditions with respect to the accumulation of materials in excess of the reasonable demands of business, personal, or home consumption as he deems necessary to carry out the objectives of this chapter.”  50 U.S.C. § 4512. 

Executive Order 13910 designates only “health and medical resources necessary to respond to the spread of COVID-19 within the United States” as the materials covered by the Order.

TRIGGERING REQUIREMENT
Designation by the President of materials as either scarce materials or “materials the supply of which would be threatened by such accumulation.” 

“The President shall order published in the Federal Register, and in such other manner as he may deem appropriate, every designation of materials the accumulation of which is unlawful and any withdrawal of such designation.”  50 U.S.C. § 4512

AG AUTHORITY/ PENALTIES
“Any person who willfully performs any act prohibited, or willfully fails to perform any act required, by the provisions of this subchapter or any rule, regulation, or order thereunder, shall, upon conviction, be fined not more than $10,000 or imprisoned for not more than one year, or both.” 50 U.S. Code § 4513.

In one case so far DOJ has charged defendants with Conspiracy to Violate the DPA under 18 U.S.C. § 371, which states:  “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”  The maximum fine under 18 U.S.C. § 3571 is $250,000.

PRIVATE RIGHT OF ACTION 
Not addressed by the Statute. 

ALABAMA

PRICE-GOUGING STATUTE
Yes
Alabama Unconscionable Pricing Act, ALA. CODE § 8-31-1, et seq.

CURRENT STATUS 
The Governor declared a state of emergency on March 13, 2020.

The price gouging statute will remain in effect for the duration of the declared emergency. 

On March 19, 2020, the Attorney General issued a press release regarding the price gouging statute and instructing consumers to report instances of suspected price gouging to the AG’s office.

On April 22, the Attorney General announced the creation of a state-federal task force to investigate financial crimes related to COVID-19, including price gouging, hoarding, and fraudulent/criminal behavior associated with the pandemic.

SCOPE/PRODUCTS
Any commodity or rental facility.  

  • Commodity includes “any goods, services, materials, merchandise, supplies, equipment, resources, or other articles of commerce, and includes, without limitation, all services offered or provided or work performed or offered to be performed as an occupation or business to consumers and food, water, ice, chemicals, petroleum products, and lumber necessary for consumption or use as a direct result of the emergency.” ALA. CODE § 8-31-2(1)
  • Rental facility is defined as including but not limited to “any hotel, motel, boarding house, dwelling house, and self-storage facility offered for rent or lease.”  ALA. CODE § 8-31-2(3).

PROHIBITED CONDUCT
Prohibits “unconscionable prices.” ALA. CODE § 8-31-3.

  • It is prima facie evidence that a price is unconscionable if it exceeds by 25% or more the average price of in the affected area during the 30 days immediately prior to the state of emergency.  ALA. CODE § 8-31-4.

EXCEPTIONS OR DEFENSES
A price is not unconscionable if  the increase in the price charged is attributable to reasonable costs incurred in connection with product or rental.  ALA. CODE § 8-31-4.

TRIGGERING REQUIREMENT
Applies during a declared state of emergency.  ALA. CODE § 8-31-3.

AG AUTHORITY/ PENALTIES
A civil penalty of up to $1,000 per violation, not to exceed a total of $25,000 for any 24-hour period.  ALA. CODE § 8-31-5(a).

For “continuous and willful violations,” potential suspension or revocation of license to engage in business in the state or an injunction prohibiting the defendant from engaging in business in the state. ALA. CODE § 8-31-5(c).

PRIVATE RIGHT OF ACTION
No.  ALA. CODE § 8-31-6.

ALASKA

PRICE-GOUGING STATUTE 
Yes (effective April 10, 2020)
SB 241, Section 26.  

CURRENT STATUS 
The Governor declared a public health emergency on March 11, 2020, and the emergency coronavirus legislation went into effect on April 10, 2020.  

The Alaska Legislature passed emergency coronavirus legislation specifying that price gouging during the COVID-19 emergency is an “unfair or deceptive trade practice.” The legislation went into effect on April 10, 2020.

Even prior to the enactment of the now legislation, the Alaska Attorney General invoked the unfair and deceptive trade practices act in connection with price gouging allegations relating to the sale of respirator masks.  On April 1, 2020, the Attorney General filed suit against an individual who purchased hundreds of boxes of N95 masks at an average of $20 per box and sold them for $90 on Amazon alleging that the defendant’s actions constitute an unfair and deceptive trade practice and seeking the maximum penalty of $25,000 per sale.

The U.S. Attorney for the District of Alaska has also announced efforts to prosecute hoarding and price gouging of medical supplies based on the executive order issued by President Trump on March 23, 2020.

SCOPE/PRODUCTS
Applies to “supplies”, defined to include: food, medicine, medical equipment, fuel, sanitation products, hygiene products, essential household supplies, and other essential goods.  The price gouging provision applies regardless of whether a person was engaged in the business of selling supplies before March 11, 2020. 

PROHIBITED CONDUCT 
Prohibits charging prices of more than 10% of the price charged in the state in the “normal course of business” before the start of the COVID-19 public health emergency.

EXCEPTIONS OR DEFENSES
Price increases of more than 10% are permissible if attributable to an “increased cost for the seller to purchase the supplies.”

For fuel suppliers,  price increases are permitted if “caused by normal fluctuations in the market for fuel based on supply and demand.”

TRIGGERING REQUIREMENT
The provision is limited to the COVID-19 public health disaster emergency declared by the Governor on March 11, 2020.    

AG AUTHORITY/ PENALTIES
The AG may seek injunctive relief or  penalties ranging between $1,000 and $25,000 for each violation.  ALASKA STAT. ANN. §§ 45.50.501, 45.50.551.

PRIVATE RIGHT OF ACTION 
Yes.  ALASKA STAT. ANN. § 45.50.531

ARIZONA

PRICE-GOUGING STATUTE
No

CURRENT STATUS
On March 11, 2020, the Governor issued an executive order regarding proactive measures to protect against COVID-19, which specifically directed the Attorney General to “investigate and vigorously prosecute complaints of consumer fraud in relation to COVID-19 diagnosis and treatment-related services under the consumer protection laws.”

Following the issuance of the Executive Order, the Attorney General’s Office has indicated that it does not have the authority to prosecute COVID-19 price gouging under the existing consumer protection laws.   

ARKANSAS

PRICE-GOUGING STATUTE 
Yes
Deceptive Trade Practices Act, ARK. CODE ANN. § 4-88-301, et seq.

CURRENT STATUS 
The governor declared a state of emergency related to COVID-19 on March 11, 2020.

The Attorney General issued a press release on March 11, 2020 reminding consumers to be aware of potential price gouging and provided free webcast training for consumers regarding price gouging on March 19, 2020. 

As of April 8, 2020, the Attorney General has received more than 1,200 complaints and issued 29 civil investigative demand letters, 28 warning letters, and 57 warnings to online sellers.

SCOPE/PRODUCTS
“Essential goods and services,” defined as “consumer food items or goods, goods or services used for emergency cleanup, emergency supplies, medical supplies, home heating oil, building materials, housing, transportation, freight, and storage services, or gasoline or other motor fuels.” ARK. CODE ANN. § 44-88-303(a)(1).

Some of these terms are further defined. See ARK. CODE ANN. § 4-88-302.

There is also a provision covering “repair or reconstruction services or any services used in an emergency cleanup” if an emergency is the result of a tornado, earthquake, flood, fire, riot, or storm. ARK. CODE ANN. § 44-88-303(b)(1).

PROHIBITED CONDUCT 
Prohibits selling or offering to sell essential goods and services for more than 10% above the pre-emergency price. ARK. CODE ANN. § 4-88-303(a)(1).

A business offering an item for sale at a reduced price immediately prior to the proclamation of the emergency may use the price at which it usually sells the item to calculate the price permitted under the statute. ARK. CODE ANN. § 4-88-303(d).

EXCEPTIONS OR DEFENSES
A price increase is allowed if “directly attributable to additional costs” that are “imposed on it by the supplier of the good” or that are “for labor or materials used to provide the services.”

  • But, the new price must be no more than 10% above the total of the cost to the seller plus the markup customarily applied by that seller for that good or service in the usual course of business immediately before the emergency. ARK. CODE ANN. § 44-88-303(a)(2), (b)(2). 

TRIGGERING REQUIREMENT
Triggered upon the declaration of a state of emergency by the federal, state, or local governments.

Also triggered during periods in which a “red condition” under the Homeland Security Advisory System is declared by Homeland Security or the state Emergency Management department.

The price gouging provision applies for 30 days after the declaration (or as long as a “red condition” is in effect).

A local governing body or the General Assembly can extend these provisions for additional thirty-day periods if deemed necessary.  ARK. CODE ANN. § 4-88-303(c).

AG AUTHORITY/ PENALTIES
Price gouging is an “unfair or deceptive act or practice” and a class A misdemeanor.  ARK. CODE ANN. § 4-88-304(a)(1), (b).

The attorney general can bring an action seeking  injunctive relief, restitution, and a civil penalty of up to $10,000 per violation. ARK. CODE ANN. §§  44-88-104; 4-88-113(d)(1).

PRIVATE RIGHT OF ACTION 
Yes. ARK. CODE ANN. § 4-88-113 (f)(1)(B).

CALIFORNIA

PRICE-GOUGING STATUTE 
Yes
CAL. PENAL CODE § 396

CURRENT STATUS 
The Governor declared a state of emergency on March 4, 2020. The declaration specified that the price gouging prohibition  will remain in effect until September 4, 2020 with regard to emergency supplies and medical supplies.

On March 4 ,2020, the Attorney General issued a price gouging alert reminding all Californians that price gouging is illegal during the declared state of emergency.”

On March 27, 2020, the Attorney General issued a statement reminding businesses that California's law prohibiting price gouging during a time of emergency applies to all sellers, including retailers, wholesalers, and manufacturers.

In April, California lawmakers introduced legislation (Senate Bill 1196) intended to tighten California’s existing price gouging law as it applies to new sellers. The Public Safety Committee voted 5-0 in favor of the bill, so it is continuing to progress through the legislature.

SCOPE/PRODUCTS
Applies to consumer food items or goods, goods or services used for emergency cleanup, emergency supplies, medical supplies, home heating oil, building materials, housing, transportation, freight, and storage services, or gasoline or other motor fuels.” CAL. PENAL CODE § 396(b).

  • “Emergency supplies” includes, but is not limited to, water, flashlights, radios, batteries, candles, blankets, soaps, diapers, temporary shelters, tape, toiletries, plywood, nails, and hammers. CAL. PENAL CODE § 396(j)(5).
  • “Medical supplies” includes, but is not limited to, prescription and nonprescription medications, bandages, gauze, isopropyl alcohol, and antibacterial products. CAL. PENAL CODE § 396(j)(6).

The price gouging provision also applies to repair or construction services or services used in emergency cleanup, hotel or motel rates, and rental prices. CAL. PENAL CODE §  § 396(c)-(e).

PROHIBITED CONDUCT 
Prohibits selling or offering to sell the covered items or services “for a price of more than 10 percent greater than the price charged by that person for those goods or services immediately prior to the proclamation or declaration of emergency.” CAL. PENAL CODE § 396(b).

EXCEPTIONS OR DEFENSES
Price increases are permissible if the increase was directly attributable to additional costs imposed by the supplier or for labor or materials used to provide the service. CAL. PENAL CODE § 396(b).

A business offering an item for sale at a reduced price immediately before the emergency may use the price at which it usually sells the item to calculate the limit on price increases. CAL. PENAL CODE § 396(l).

Hotel or motel rates may be increased if directly attributable to “seasonal adjustments in rates that are regularly scheduled, or to previously contracted rates.” CAL. PENAL CODE § 396(d).

Finally, rental prices may be increased if due to additional costs for “repairs or additions beyond normal maintenance that were amortized over the rental term.” CAL. PENAL CODE § 396(e). 

TRIGGERING REQUIREMENT
The proclamation of a state of emergency by the President or the Governor, or the declaration of a local emergency by city or county authorities. CAL. PENAL CODE § 396(b).

The price gouging provision generally applies for 30 days after an emergency,  but a 180-day period applies for reconstruction, repair, and emergency cleanup services. CAL. PENAL CODE § 396.

The statute may be extended for additional 30-day periods by the governor or legislature as needed if deemed necessary to protect the lives, property, or welfare of citizens. Id. § 396(g). 

AG AUTHORITY/ PENALTIES
Violations are a misdemeanor and individuals may be subject to fines of up to $10,000 and/or imprisonment of no more than one year. CAL. PENAL CODE §§ 396(b)-(h).

The penalties for unfair competition and trade practices also apply and include injunctive relief and a civil penalty of up to $2,500 for each violation. CAL. BUS. AND PROFESSIONS CODE § 17206(a).

PRIVATE RIGHT OF ACTION 
Yes. CAL. BUS. AND PROFESSIONS CODE § 17204.

COLORADO

PRICE-GOUGING STATUTE
No

CURRENT STATUS
The Attorney General has indicated that price gouging falls within the scope of the state’s Consumer Protection Act. COLO. REV. STAT. § 6-1-101 et seq.

Colorado lawmakers returned to work on May 27 after an unplanned mid-session recess due to the COVID-19 pandemic. Some lawmakers have announced plans to introduce measures designed to increase the state’s authority to investigate and prosecute price gouging.

AG AUTHORITY/ PENALTIES
Remedies under the Consumer Protection Act include injunctive relief, restitution, and a civil penalty of up to $20,000 per violation.  COLO. REV. STAT. §§ 6-1-110, 6-1-112.

PRIVATE RIGHT OF ACTION 
Yes.  COLO. REV. STAT. § 6-1-113.

CONNECTICUT

PRICE-GOUGING STATUTE 
Yes
Connecticut has 2 price gouging provisions.

CONN. GEN. STAT. ANN. § 42-230 prohibits “profiteering” during declared states of emergency.

CONN. GEN. STAT. ANN. § 42-232 authorizes the Governor to declare supply emergencies.

CURRENT STATUS 
On March 10, 2020, the Governor declared public health and civil preparedness emergencies, which will remain in effect until September 9, 2020 unless terminated earlier.

On March 21, 2020, the Attorney General announced that five civil investigative demands had been issued to online retailers following an internal review by Amazon that flagged large price increases on items like masks, hand sanitizer, and antibacterial wipes.

SCOPE/PRODUCTS
Section 42-230:
Covers “any item” sold at retail.

Section 42-232
Applies to “any product or service which the Governor has designated to be in short supply or danger of becoming in short supply,” or energy resources if an energy emergency was declared.

PROHIBITED CONDUCT 
Section 42-230
Prohibits price increases. 

Section 42-232
Prohibits selling or offering to sell covered products at a price that exceeds the price offered in the usual course of business before the emergency.

EXCEPTIONS OR DEFENSES
Section 42-230
This provision does not prohibit “the fluctuation in the price of items sold at retail which occurs in the normal course of business.”

Section 42-232:
Price increases are allowed if attributable to “additional costs incurred by such person in connection with the acquisition, production, distribution, or sale of such product or service.”

A person “aggrieved” by a supply emergency order can apply for an exemption if unable to comply with the order without “suffering inordinate hardship beyond that hardship suffered by persons generally.”  CONN. GEN. STAT. ANN. § 42-233.

TRIGGERING REQUIREMENT
Section 42-230:
A disaster emergency declaration issued by the Governor under chapter 517 (civil preparedness); (2) any transportation emergency declaration issued by the governor pursuant to section 3-6b; or (3) any major disaster or emergency declaration issued by the President of the United States. The provision remains in effect until the emergency is declared at an end.

Section 42-232:
Applies during a supply or energy emergency as declared by the Governor under the applicable statutory provision.

AG AUTHORITY/ PENALTIES
Violations of Sections 42-230 and 42-232 constitute unfair or deceptive trade practices, so the Attorney General can seek injunctive relief, restitution, and impose a $5,000 penalty for each willful violation. CONN. GEN. STAT. ANN. §§ 42-110d, 42-110m.   

Section 42-230:
The maximum fine is $99 per violation. 

Section 42-232:
The maximum penalty for violations is a $1,000 fine and/or imprisonment up to one year for each offense. But, intentional violations or engaging in a pattern of repeat violations is a class D felony for each offense.

PRIVATE RIGHT OF ACTION 
Yes. CONN. GEN. STAT. ANN. § 42-110g.

DELAWARE

PRICE-GOUGING STATUTE 
No, but on March 12, 2020, the governor issued an emergency declaration prohibiting price gouging and providing that a violation of the price gouging provision of the order will constitute an unlawful practice under the Deceptive Trade Practices Act and consumer fraud.

CURRENT STATUS 
The state of emergency was declared on March 12, 2020.

SCOPE/PRODUCTS
The declaration applies to “goods or services.”  

PROHIBITED CONDUCT 
The declaration prohibits “an excessive price increase . . . beyond the sale price in the usual course of business immediately prior to the date of this state of emergency.”  

EXCEPTIONS OR DEFENSES
Increases are allowable if “attributable to additional costs imposed on the supplier” and  not more than a 10% increase from the cost customarily applied in the usual course of business prior to the state of emergency.”

AG AUTHORITY/ PENALTIES
For violations of the consumer fraud statute, the remedies include injunctive relief and restitution for victims. For willful violations, the AG can recover a civil penalty of up to $10,000.  For “substantial and willful” violations, the appointment of a receiver can be sought.  DEL. CODE ANN. Tit. 6 § 2522.

The Deceptive Trade Practices Act provides for injunctive relief and treble damages.  For willful violations, the AG can recover a civil penalty of up to $10,000 and attorneys’ fees and costs.  DEL. CODE ANN. Tit. 6 § 2533. 

PRIVATE RIGHT OF ACTION 
Yes.  DEL. CODE ANN. Tit. 6 §§ 2525, 2533.

DISTRICT OF COLUMBIA

PRICE-GOUGING STATUTE 
Yes
Natural Disaster Consumer Protection Law, D.C. CODE 28-4102.

The law was amended on March 17, 2020, by D.C. Act 23-247.  The information in this chart reflects the amended provisions. 

CURRENT STATUS 
The Mayor declared a public health emergency on March 11, 2020.

This order was extended on March 20 and is currently effective through April 24, 2020.

To extend the emergency beyond that date, the Mayor must go through the process of requesting the Council adopt an emergency act. D.C. Act 23-247.

The Attorney General has issued cease and desist letters to local stores and an online Amazon seller.

On April 15, 2020, the public health emergency was extended through May 15, 2020.

The Attorney General announced its first lawsuit for price gouging during the pandemic. The complaint alleges that the defendant, a convenience store, was selling 121-oz. bottles of Clorox Bleach for $12.99, 200% higher than prices at other retailers in the area.  After receiving an anonymous complaint in April and investigating, the Attorney General issued a cease and desist letter to the convenience store, but the convenience store failed to lower its prices. 

The Office of the Attorney General has issued 23 cease and desist letters regarding price gouging as of May 4, 2020.

The public health emergency was extended through June 8, 2020.

The Attorney General released a report on consumer complaints received during COVID-19.  The report showed consumer complaints in March and April were more than double the number of complaints received in January and February.  Reports of price gouging account for 36% of the complaints.

On May 27, 2020, the Mayor extended the public health emergency to July 24, 2020.

SCOPE/PRODUCTS
Applies to “any merchandise or service.” D.C. CODE § 28-4102.

PROHIBITED CONDUCT 
The statute prohibits charging more than the “normal average retail price.” D.C. CODE § 28-4102.

  • For services, normal average retail price is defined as “not more than 10% more than the price at which similar services were sold or offered” in the area in the 90 days preceding the emergency. Id § 28-4101.
  • For goods, it is the price “equal to the wholesale cost plus a retail mark-up that is the same percentage over wholesale cost as the retail mark-up for similar merchandise sold in the area in the 90 days before the emergency."

D.C.’s Natural Disaster Consumer Protection Law also prohibits “stockpiling,” so individuals who overpurchase goods necessary for first responders or for maintaining supply chains of commerce are also subject to penalties. D.C. CODE § 28-4102.01.

EXCEPTIONS OR DEFENSES
No

TRIGGERING REQUIREMENT
The provision applies during a public health emergency or during an emergency resulting from a natural disaster. D.C. CODE § 28-4102.

AG AUTHORITY/ PENALTIES
Violations are civil infractions and are subject to a fine of up to $1,000 and the revocation, suspension, or limitation of a business license, permit, or certificate of occupancy.  D.C. CODE § 28-4103(a), (b).

The Attorney General can bring a civil action and seek injunctive relief, restitution, economic damages, and a penalty of up to $5,000 per violation for a first violation and $10,000 for each subsequent violation.  D.C. CODE §§ 28-4103(c), 28-3909.

PRIVATE RIGHT OF ACTION 
No

FLORIDA

PRICE-GOUGING STATUTE
Yes
FLA. STAT. ANN. § 501.160.

CURRENT STATUS
On March 9, 2020, Governor DeSantis issued Executive Order 20-52.  The executive order will expire on May 8, 2020 unless extended. 

The Florida Attorney General has issued a statement that essential commodities covered under the state of emergency currently include protective masks, sanitizing and disinfecting supplies, all commercial cleaning supplies, personal protective equipment, COVID-19 test kits, swabs, and related consumable medical supplies used in administering tests.

The Florida Attorney General has assembled a Rapid Response Team to handle price gouging complaints.  As of March 31, 2020, the Attorney General has “issued dozens of subpoenas, deactivated more than 100 online posts, and secured thousands in direct refunds for consumers.” 

The state of Florida is investigating a Florida hospital for price gouging after learning the hospital was charging $150 for COVID-19 tests.

On May 8, 2020, the Governor issued an executive order extending the state of emergency for 60 days.

As of May 19, 2020, the Attorney General’s Office has announced that it has secured more than $503,000 in refunds, issued 73 subpoenas, and worked with online platforms to deactivate 189 online posts. 

SCOPE/PRODUCTS
Any essential commodity including, but not limited to, supplies, services, provisions, or equipment that is necessary for consumption or use as a direct result of the emergency. FLA. STAT. ANN. § 501.160(2).

Any dwelling unit or self-storage facility.  FLA. STAT. ANN. § 501.160(3).

Sales by growers, producers, or processors of raw or processed food products are exempt, but retail sales of such products to the ultimate consumer are still subject to the prohibitions in the statute.  FLA. STAT. ANN. § 501.160(5).

PROHIBITED CONDUCT 
Prohibits renting or selling at an “unconscionable price.” FLA. STAT. ANN. § 501.160(2)-(3). 

A price is prima facie unconscionable if:

  • There is a gross disparity between the price and the average price the seller charged in the usual course of business during the 30 days immediately prior to the state of emergency, or
  • The amount charged grossly exceeds the average price at which the same or similar commodity was readily obtainable in the trade area during the 30 days immediately prior to the state of emergency. FLA. STAT. ANN. § 501.160(1)(b).

Also prohibits any person who does not have a business tax id from offering goods and services for sale  to the public, but does not apply to religious, charitable, fraternal, civic, educational, or social organizations. FLA. STAT. ANN. § 501.160(9).

EXCEPTIONS OR DEFENSES
A price is not unconscionable if the price increase is attributable to additional costs incurred in connection with the rental or sale or market trends. FLA. STAT. ANN. § 501.160(1)(b).

If a price increase was approved by an appropriate government agency, there is no violation.  FLA. STAT. ANN. § 501.160(4).

TRIGGERING REQUIREMENT
Declaration of a state of emergency by the Governor.  FLA. STAT. ANN. § 501.160(2).

AG AUTHORITY/ PENALTIES
Declaratory judgment, injunction, actual damages, and other appropriate legal or equitable relief.  FLA. STAT. ANN. § 501.207(1), (3).

A civil penalty of not more than $10,000 for each willful violation.  FLA. STAT. ANN. § 501.2075.

PRIVATE RIGHT OF ACTION 
No.
FLA. STAT. ANN. § 501.160(7).

GEORGIA

PRICE-GOUGING STATUTE
Yes
GA. CODE ANN. § 10-1-393.4.

CURRENT STATUS
On March 14, 2020, the Governor issued Executive Order 03.14.20.01, declaring a state of emergency and stating that the price gouging statute is in effect. 

On March 14, 2020, the Attorney General announced that his office will not tolerate price gouging and will hold those who violate the price restrictions accountable and provided a link to an online complaint form.  The Consumer Protection Division is currently reviewing complaints, largely for food, toilet paper, water, hand sanitizer, and other disinfectants.  More recently, there has been an uptick in complaints about eggs, meat, and other commodities.  According to the Attorney General, his office looks into every complaint.

On March 27, 2020, the Attorney General stated that his office is working closely with federal enforcement powers in the U.S. Attorney’s Offices, as well as local and state officials, to monitor hoarding and hold accountable those who hoard or raise prices on crucial medical equipment.

On April 8, 2020, the Governor extended the public health state of emergency through May 13, 2020.

On April 30, 2020, the Governor extended the public health state of emergency through June 12, 2020.

On May 28, 2020, the Governor extended the public health state of emergency to July 12, 2020.

SCOPE/PRODUCTS
Applies to retail sales of any “goods or services identified by the Governor in the declaration of the state of emergency necessary to preserve, protect, or sustain the life, health, or safety of persons or their property.”  GA. CODE ANN. § 10-1-393.4(a).

The Governor’s declaration did not provide any further definition regarding goods and services that would fall within the scope of the statute.   

PROHIBITED CONDUCT 
Prohibits selling or offering to sell at a price higher than the price at which such goods were sold or offered for sale immediately prior to the declaration of the state of emergency.  GA. CODE ANN. § 10-1-393.4(a).

EXCEPTIONS OR DEFENSES
Retailers are permitted to increase prices to a price no greater than the retailer’s cost plus the retailer’s average markup percentage applied during the 10 days immediately prior to the declaration. of a state of emergency.  GA. CODE ANN. § 10-1-393.4(b).

TRIGGERING REQUIREMENT
Applicable when Governor declares state of emergency and identifies goods or services subject to the price gouging statute.  GA. CODE ANN. § 10-1-393.4(a).

AG AUTHORITY/ PENALTIES
The Attorney General may issue a cease and desist order, an order imposing a civil penalty up to $2,000 per violation, or an order requiring payment of restitution to consumers.  GA. CODE ANN. § 10-1-397(b)(1). 

The Attorney General may also bring a civil action seeking injunctive relief, or a civil penalty up to $5,000 per violation, declaratory judgment, restitution to consumers adversely affected, appointment of a receiver, auditor, or conservator, or other relief.  GA. CODE ANN. § 10-1-397(b)(2).

If the price gouging violation relates to goods or services for the salvage, repair, or rebuilding of a structure damaged as a result of a natural disaster, an additional civil penalty up to $10,000 for each transaction may be imposed.  GA. CODE ANN. § 10-1-438(b).

PRIVATE RIGHT OF ACTION 
Yes.  GA. CODE ANN. § 10-1-399(a).

HAWAII

PRICE-GOUGING STATUTE
Yes 
HAW. REV. STAT. ANN. § 127A-30.

CURRENT STATUS
On March 4, the Governor declared a state of emergency in response to COVID-19.  The Governor invoked Section 127A-30 for (1) food, water, and ice; (2) medical supplies, medical protective measures, medications, vitamins, and any other commodity intended to help the population stay well or recover from any illness; (3) personal hygiene, paper or disposable cleaning products including paper towels, napkins, toilette paper, hand sanitizer, alcohol, hydrogen peroxide, cleaning supplies of any kind, or any other commodity intended to help sanitize or clean individuals, items, or areas; and (4) any other commodity the seller knows or should know are intended for use to prepare for, respond to, or use because of the COVID-19 circumstances.

The initial emergency period extended through April 30, 2020. On April 25, 2020, the Governor extended the disaster emergency relief period through May 31, 2020.  On May 18, 2020, the Hawaii Governor issued his Eighth Supplementary Emergency Proclamation, extending the disaster emergency relief period through June 30, 2020.

In a March 16, 2020 Press Release, the Attorney General and Office of Consumer Protection (“OCP”) urged consumers to report potential price gouging.  OCP Executive Director Stephen Levins stated, “Price gouging will not be tolerated in the State of Hawaii.  All reports of price gouging are being fully investigated and anyone found to have engaged in the practice will be prosecuted.” 

As reported in a March 19, 2020 article, the Department of Commerce and Consumer Affairs said it had investigated 10 complaints about price gouging since the coronavirus pandemic began. None of the complaints were substantiated. 

The Hawaii Attorney General, on April 21, 2020, along with a coalition of other attorneys general, sent a letter urging 3M to make efforts to stop distributors and others from charging unconscionable prices for PPE.

SCOPE/PRODUCTS
Applies “any commodity.” HAW. REV. STAT. ANN. § 127A-30(a)(1).    Commodity means “any good or service necessary for the health, safety, and welfare of the people of Hawaii,” including, but not be limited to: “materials; merchandise; supplies; equipment; resources; and other articles of commerce that shall include food; water; ice; chemicals; petroleum products; construction materials; or residential dwellings.” HAW. REV. STAT. ANN. § 127A-30(f). 

PROHIBITED CONDUCT 
Prohibits “any increase in the selling price of any commodity, whether at the retail or wholesale level.” HAW. REV. STAT. ANN. § 127A-30(a)(1).

EXCEPTIONS OR DEFENSES
Any additional operating expenses incurred by the seller or landlord because of the emergency or disaster or the severe weather, and which can be documented, may be passed on to the consumer. HAW. REV. STAT. ANN. § 127A-30(b).

There is no violation if the defendant proves the following:

  • The violation of the price limitation was unintentional;
  • The defendant voluntarily rolled back prices to the appropriate level upon discovering that this section was or may have been violated; and
  • The defendant has instituted a restitution program for all consumers who may have paid excessive prices. HAW. REV. STAT. ANN. § 127A-30(d).

The state has issued guidance indicating that ending a sale on a commodity that was in place prior to the emergency declaration is not considered a price increase.   

TRIGGERING REQUIREMENT
Applies if:

  • The Governor declares state of emergency for the state or a portion of the state;
  • The Mayor declares a local state of emergency for the county or a portion of the county; or
  • The State or any portion of the state is the subject of a severe weather warning.  HAW. REV. STAT. ANN. § 127A-30(a).

AG AUTHORITY/ PENALTIES
Violations constitute unfair methods of competition and unfair and deceptive acts or practices and are subject to a civil penalty of $500 - $10,000 for each violation. HAW. REV. STAT. ANN. §§ 127A-30(e), 480-3.1.

PRIVATE RIGHT OF ACTION 
Yes. HAW. REV. STAT. ANN. § 480-2(d)-(e).

IDAHO

PRICE-GOUGING STATUTE
Yes
Consumer Protection Act, IDAHO CODE § 48-603(19).

CURRENT STATUS
On March 13, 2020, the Governor declared a state of emergency.  That same day, the President declared a national emergency.  

After the states of emergency were declared, the Attorney General alerted Idahoans that the price gouging statute was in effect and provided links to an online form and email address to submit price gouging complaints.

On March 25, 2020, the Governor issued an order declaring a state of “extreme emergency” in Idaho.

On April 22, 2020, the Governor extended the state of emergency for a period of 30 days.

On May 12, 2020, the Governor extended the state of public health emergency for 30 days.

SCOPE/PRODUCTS
Applies to consumer sales of fuel, food, pharmaceuticals, or water for human consumption.  IDAHO CODE § 48-603(19).

PROHIBITED CONDUCT 
Prohibits selling or offering to sell “at an exorbitant or excessive price.” 

Whether a price is “exorbitant or excessive” depends on several factors including, but not limited to:

  • Comparison with the price at which the alleged violator sold the same items immediately before and after the emergency period,
  • Additional costs of doing business incurred because of the disaster or emergency, and
  • The duration of the disaster or emergency declaration.  IDAHO CODE § 48-603(19).

EXCEPTIONS OR DEFENSES
Actions or transactions permitted under laws administered by the state public utility commission or other regulatory body or officer acting under statutory authority of this state or the United States are not subject to the price gouging statute. IDAHO CODE § 48-605(1). 

TRIGGERING REQUIREMENT
Disaster or emergency declared by the Governor or by the President of the United States.  IDAHO CODE § 48-603(19).

AG AUTHORITY/ PENALTIES
Declaratory judgment; injunctive relief; actual damages or restitution; specific performance; penalties up to $5,000 per violation. IDAHO CODE § 48-606(1). 

PRIVATE RIGHT OF ACTION 
No. IDAHO CODE § 48-603(19).

ILLINOIS

PRICE-GOUGING STATUTE
Yes

20 ILL. COMP. STAT. ANN. 3305/7(14) (granting the governor emergency powers).

14 Ill. CODE R. 465  (price gouging regulation under  the Consumer Fraud and Deceptive Business Practices Act, 815 ILL. COMP. STAT. ANN. 505)

CURRENT STATUS
On March 9, 2020, the Governor declared Illinois a disaster area.

On April 1, 2020, the Governor issued a  proclamation invoking his emergency powers and prohibiting price increases on “goods or services, including medical supplies, protective equipment, medications, and other commodities intended to assist in the prevention of treatment and recovery of COVID-19.”  

The original proclamation ran through April 30, 2020. 

On April 30, 2020, the Governor issued another proclamation declaring the state of Illinois a disaster area for 30 days, authorizing the exercise of the Governor’s emergency powers, and prohibiting increases in the price of goods or services intended to assist in COVID-19 prevention, treatment, and recovery.

The Attorney General has asked the Illinois Supreme Court to consider arguments challenging the Governor’s power to issue successive 30-day disaster proclamations for the same disaster. 

On May 29, 2020, the Governor issued another proclamation declaring the state of Illinois a disaster area.  The proclamation will be in effect for 30 days.

Consumer Protection Act
Although the Illinois  price gouging regulation applies specifically to petroleum products, the rule expressly states that it “shall not be construed to limit the ability of the Attorney General or the courts to determine that [other] acts and practices . . . are unfair or deceptive acts of price gouging. . .”  14 Ill. Code R. 465.10.

On March 17, 2020, the Attorney General’s Office announced efforts to combat price gouging on items tied to the epidemic under the Consumer Fraud and Deceptive Business Practices Act.  The Office of the Attorney General is currently reviewing consumer complaints about price gouging and prioritizing for enforcement those relating to essential medical supplies, such as protective gear. 

SCOPE/PRODUCTS
Emergency Powers
The Governor has the power to prohibit price increases for “goods and services.” 20 ILL. COMP. STAT. ANN. 3305/7(14).

Consumer Protection Act
The CPA regulation specifically applies to petroleum products (including, but not limited to, motor fuel and fuel oil used for heating or cooking). 14 Ill. CODE R. 465.20-465.30.

However, the Attorney General retains the ability to address price gouging relating to other products and services under the general provisions of the Consumer Protection Act. 

PROHIBITED CONDUCT 
Emergency Powers
The Governor has the power to prohibit any price increase. 20 ILL. COMP. STAT. ANN. 3305/7(14).

Consumer Protection Act
The regulation regarding petroleum products prohibits sales or offers to sell at an “unconscionably high price.”  A price is unconscionably high if there is (1) a gross disparity between the price and the price at which the same product was sold or offered for sale in the usual course of business immediately prior to the market emergency or (2) a gross disparity between the price and the price at which the same or similar petroleum product is readily obtainable by other buyers in the trade area.  The price is not unconscionable if the disparity is “substantially attributable to increased prices charged by the petroleum-related business suppliers or increased costs due to an abnormal market disruption.”  14 ILL. CODE R. 465.30(b) (LexisNexis 2020).

Under 20 Ill. Comp. Stat. Ann. 3305/7(14), the Governor can prohibit increases in the prices of goods and services as part of his emergency powers. 

EXCEPTIONS OR DEFENSES
Emergency Powers
None for Governor’s disaster proclamation.

Consumer Protection Act
The Consumer Fraud and Deceptive Business Practices Act does not apply to actions or transactions specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of Illinois or the United States.  815 ILL. COMP. STAT. ANN. 505/10b(1).

TRIGGERING REQUIREMENT
The Governor can exercise his power to prohibit price increases once he declares a disaster.  20 Ill. COMP. STAT. ANN. 3305/7(14).  

The Governor’s emergency powers may not be exercised for a period longer than 30 days. 20 Ill. COMP. STAT. ANN. 3305/7.

Consumer Protection Act
The regulation regarding petroleum products  applies during a “market emergency,” but there is no requirement for a market emergency for price gouging actions involving other products and services under the Consumer Fraud Act.  14 Ill. CODE R. 465.10

AG AUTHORITY/ PENALTIES
Consumer Protection Act
Under the Consumer Fraud Act, remedies include injunctive relief;  revocation; forfeiture or suspension of any license, charter, franchise, certificate, or other evidence of authority to do business in Illinois; appointment of a receiver; dissolution of domestic corporations or associations; suspension or termination of the right of foreign corporations or associations to do business in this state; and restitution.

In addition, the Attorney General may seek a civil penalty up to $50,000.  If there is an intent to defraud, a civil penalty up to $50,000 per violation may be imposed.  If the violation was committed against a person 65 years or older, an additional civil penalty up to $10,000 per violation may be imposed.  815 ILL. COMP. STAT. ANN. 505/7.

PRIVATE RIGHT OF ACTION 
Yes, under the Consumer Fraud and Deceptive Business Practices Act.  815 ILL. COMP. STAT. ANN. 505/10a (LexisNexis 2020).

INDIANA

PRICE-GOUGING STATUTE
Yes
Price Gouging in Declared Emergencies, IND. CODE §§ 4-6-9.1-1 through 4-6-9.2-7.

CURRENT STATUS
The governor declared a disaster emergency on March 3, 2020

On March 16, 2020, the governor issued Executive Order 20-04, which directs consumers who believe they have been subjected to excessive prices for consumer goods during the emergency to contact the Indiana Attorney General, Consumer Protection Division.

On March 18, 2020, the Attorney General issued a press release stating that “[w]hile specific price-gouging authority in Indiana law refers to fuel prices during a state of emergency, the Office of the Attorney General has authority to enforce the Deceptive Consumer Sales Act, which permits appropriate enforcement of any unfair, abusive, deceptive or unconscionable conduct.”

On April 3, 2020,  the Governor issued Executive Order 20-17 which extended the emergency through May 5, 2020.

On May 1, 2020, the Governor extended the public health disaster emergency through June 4, 2020.

SCOPE/PRODUCTS
Applies only to the sale of fuel.  IND. CODE § 4-6-9.1-2.

However, the Governor and the Attorney General have both referred to enforcement actions regarding price gouging on consumer goods under the general provisions of the Deceptive Consumer Sales Act.

PROHIBITED CONDUCT
Prohibits charging a consumer an unconscionable amount for fuel, which occurs if the amount charged grossly exceeds the average price at which fuel was readily obtainable within the retailer's trade area during the 7 days immediately before the declaration of emergency. IND. CODE § 4-6-9.1-2.

EXCEPTIONS OR DEFENSES
A price is not unconscionable if the increase is attributable to cost factors to the retailer, including replacement costs, taxes, and transportation costs incurred by the retailer.  IND. CODE § 4-6-9.1-2.

TRIGGERING REQUIREMENT
The fuel price gouging statute applies in the period during which a disaster emergency or an energy emergency is declared by the governor and 24 hours before the declaration.  IND. CODE § 4-6-9.1-1.

AG AUTHORITY/ PENALTIES
The Attorney General can seek injunctive relief, restitution for victims, and institute an action to levy and collect a civil penalty of up to $1,000 per transaction.  IND. CODE §§ 4-6-9.1-3, 4-6-9.1-5.

PRIVATE RIGHT OF ACTION 
No

IOWA

PRICE-GOUGING STATUTE
Yes.
Iowa Consumer Fraud Act, IOWA CODE § 714.16; IOWA ADMIN. CODE r. 61-31.1(714).

CURRENT STATUS
The Governor issued a Proclamation of Disaster Emergency through April 7, 2020. 

On April 2, 2020, the Governor extended the emergency through April 30, 2020. 

On April 27, 2020, the Governor extended the public health emergency through May 27, 2020.

On March 10, 2020, the Attorney General issued a press release stating that price gouging “is illegal and is something our office will pursue.”

The Attorney General has created a new form for consumers to report price gouging during the Covid-19 pandemic.   70 formal and 200 informal complaints about price gouging had been received as of March 30, 2020, most frequently involving medical masks, respirators, toilet paper, paper products, hand sanitizer, and cleaning products.

Iowa filed its first COVID-19 price gouging enforcement action on April 26, 2020.  After repeated warnings from the Office of the Attorney General, an Iowa eBay seller continued to charge excessive prices on more than 250 items, including toilet paper, paper towels, and disinfecting and sanitizing products.  The lawsuit seeks temporary and permanent injunctions, consumer restitution or disgorgement, and civil penalties.  The court issued a temporary injunction preventing the defendant from buying or selling toilet paper, paper towels, wipes, disinfecting and sanitizing products, masks, gloves, water, food, medical supplies, and other goods needed by victims during the pandemic on any online sales platform.  He is permitted to buy these items only for personal use.

On May 26, 2020, the Governor extended the state of public health disaster emergency to June 25, 2020.

SCOPE/PRODUCTS
Covers merchandise needed by victims of a disaster, including but not limited to water, food, medicines, sanitation supplies, utilities, building materials, and materials, goods, or services for cleanup or repair.  IOWA ADMIN. CODE r. 61-31.1(714).

PROHIBITED CONDUCT
Prohibits charging “excessive prices.”  IOWA ADMIN. CODE r. 61-31.1(714). 

  • An “excessive price” is one that is not justified by the seller's actual costs of acquiring, producing, selling, transporting, and delivering the actual product sold, plus a reasonable profit.
  • The existence of an excessive price shall be presumed from a substantial increase over the price at which the merchandise was sold in the usual course of business immediately prior to the onset of the emergency or from a substantial increase in the markup from cost if wholesale prices or costs have increased. Id.  

EXCEPTIONS OR DEFENSES
No

TRIGGERING REQUIREMENT
In effect during the period of any declaration of emergency and for the subsequent recovery period. 

The subsequent recovery period is the period when the disaster continues to cause market disruptions in the disaster area, but shall not exceed six months from the date of the declaration of emergency. IOWA ADMIN. CODE r. 61-31.1(714)

AG AUTHORITY/ PENALTIES
The Attorney General can seek a temporary restraining order, preliminary injunction, or permanent injunction; the appointment of a receiver in cases of substantial and willful violation of the statute; disgorgement of moneys or property acquired by the wrongdoer; penalties up to $40,000 per violation.  IOWA CODE §§ 714.16(7). 

PRIVATE RIGHT OF ACTION 
No

Kansas

PRICE-GOUGING STATUTE
Yes
KAN. STAT. ANN. § 50-6,106.

CURRENT STATUS
The governor issued an emergency declaration for the State of Kansas in response to Covid-19 on March 12, 2020. 

The President also issued a proclamation on declaring a national emergency on March 13, 2020 concerning the Covid-19 outbreak. 

On March 13, 2020, the attorney general announced that the Kansas price-gouging law was in effect. 

On March 27, 2020, the attorney general shared that his office had received over 100 complaints of price gouging related to Covid-19. 

On April 1, 2020, the attorney general and U.S. Attorney for the District of Kansas announced a federal-state partnership to investigate and prosecute scams and price gouging.  

The Attorney General has posted a price gouging and coronavirus scams investigative request form on his website. 

After complaints of higher gas prices in Crawford County compared to surrounding counties, it was announced on April 27, 2020 that the Attorney General sent warning letters to gas stations that might be profiting from COVID-19. 

On May 26, 2020, the governor signed another emergency proclamation.

SCOPE/PRODUCTS
Applies to “any necessary property or service for which consumer demand does, or is likely to, increase as a consequence of the disaster” and includes, but is not limited to, consumer food items or property; property or services for emergency cleanup; emergency supplies; communication supplies and services; medical supplies and services; home heating fuel; building materials and services; freight; storage services; housing; lodging; transportation; and motor fuels.  KAN. STAT. ANN. § 50-6, 106(b)(4). 

PROHIBITED CONDUCT
Prohibits any supplier from “profiteering,” which means unjustifiably increasing during a time of disaster the price at which any necessary property or service is offered for sale to consumers.  KAN. STAT. ANN. § 50-6, 106(b)(1). 

Whether a price increase is unjustified, depends on all relevant circumstances including, but not limited to:

  • Whether the price grossly exceeded the price charged for similar property or services on the business day before the disaster;
  • Whether the amount charged grossly exceeded the price at which the same or similar property or services were readily obtainable by other consumers in the trade area;
  • Whether the price increase was attributable to additional costs incurred by the supplier in connection with the sale of the product or service. KAN. STAT. ANN. § 50-6, 106(b)(1). 

An increase of more than 25% is prima facie evidence of gross excess. KAN. STAT. ANN. § 50-6, 106(b)(1). 

EXCEPTIONS OR DEFENSES
Proof the supplier incurred additional costs shall be prima facie evidence that the price increase was justified when such additional costs were actually incurred by the supplier during the period in which the substantially increased price was being charged.  KAN. STAT. ANN. § 50-6, 106(b)(1). 

TRIGGERING REQUIREMENT
Applies while a declaration of a state of emergency by the president or the governor is in effect, or 30 days after the occurrence of the event that constitutes the disaster, whichever is longer. KAN. STAT. ANN. §§ 50-6, 106(b)(2) and (3). 

AG AUTHORITY/ PENALTIES
Remedies include injunctive relief;  damages incurred by consumers; appointment of a receiver; revocation of any license or certificate authorizing that supplier to engage in business in the state; and a civil penalty of up to $10,000 per violation.  KAN. STAT. ANN. §§ 50-632, 50-636.

PRIVATE RIGHT OF ACTION 
Yes.  KAN. STAT. ANN. § 50-634. 

KENTUCKY

PRICE-GOUGING STATUTE
Yes
Sales and Rentals During State of Emergency, KY. REV. STAT. ANN. §§ 367.372 – 367.378.

CURRENT STATUS
The governor first issued an executive order to prohibit price gouging on March 7, 2020.  He issued a second executive order on March 21, 2020 to prohibit price gouging for an additional 15 days.  The provision was extended again on April 6, 2020.

The attorney general has created a price gouging hotline and online complaint form for consumers. 

On March 20, 2020, the attorney general announced the collection and distribution of medical supplies including hand sanitizer from a suspected price gouging scheme to law enforcement and first responders.  The attorney general said it was “actively investigating” the 260 complaints of suspected price gouging.  

On March 25, 2020, the Kentucky Coronavirus Fraud Task Force was announced.  The Task Force is a partnership between federal officials and the attorney general’s office and will target frauds and scams including price-gouging efforts and hoarding.    

On March 26, 2020, the attorney general announced the issuance of subpoenas and cease and desist orders to third-party sellers in Kentucky who used Amazon to engage in price gouging of essential emergency and medical supplies, including hand sanitizer and N95 respirator masks.

On April 24, the U.S. Attorney for the Western District of Kentucky sent a letter to hospital executives in his district asking them to report hoarding and price gouging of medical supplies. 

The Governor did not extend the price gouging statute to apply after April 21, 2020 when the April 6, 2020 order expired. 

On May 1, 2020, the Attorney General issued another warning about price gouging during the pandemic.  The attorney general’s office has reportedly received over 2,500 price gouging complaints, and that the office has worked with Amazon to identify price gougers selling on the site who are based in Kentucky.

On May 1, 2020, a trade association filed a lawsuit against the Attorney General arguing that it is unconstitutional to apply state price-gouging statutes to sellers on nationwide online marketplaces like Amazon.  The lawsuit seeks to block both investigations and prosecution of price gouging. 

On May 15, 2020, the attorney general signed a letter to Attorney General Barr requesting an investigation into anticompetitive practices by meat packers in the cattle industry resulting in higher prices for consumers.

On May 20, 2020, it was reported that the Attorney General is investigating price gouging of gasoline after his office received six complaints in the Louisville area in May. 

SCOPE/PRODUCTS
Applies to:

  • Consumer food items (for people or animals);
  • Goods or services used for emergency cleanup;
  • Emergency supplies (including but not limited to water, flashlights, radios, batteries, candles, blankets, soap, diapers, temporary shelters, tape, toiletries, plywood, nails, and hammers);
  • Medical supplies (including but not limited to prescription and nonprescription medications, bandages, gauze, isopropyl alcohol, and antibacterial products);
  • Home heating oil;
  • Building materials;
  • Housing (including hotel and motel housing and any rental housing);
  • Transportation, freight, and storage services;
  • Gasoline or other motor fuels; and/or
  • Any repair or reconstruction services resulting from the disaster or emergency. KY. REV. STAT. ANN. §§ 367.372 - 367.374. 

PROHIBITED CONDUCT
Prohibits sales or rentals for a price which is grossly in excess of the price prior to the declaration. KY. REV. STAT. ANN. § 367.374(1)(b).

Whether a price is “grossly in excess” is based on all relevant circumstances including the prevailing prices in the locality at that time. KY. REV. STAT. ANN. § 367.374(1)(d).  

EXCEPTIONS OR DEFENSES
A price does not violate the statute if the increased price is:

  • Related to an additional cost imposed by a supplier or other costs of providing the good or service, including an additional cost for labor or materials used to provide a service;
  • 10% or less above the price prior to the declaration;
  • 10% or less above the sum of the person's costs and normal markup for a good or service;
  • Generally consistent with fluctuations in applicable commodity, regional, national, or international markets, or seasonal fluctuations; or
  • A contract price, or the result of a price formula, established prior to the executive order implementing the statute.  KY. REV. STAT. ANN. § 367.374(1)(c).  

TRIGGERING REQUIREMENT
When a state of emergency has been proclaimed by the President of the United States or declared by the Governor and during the duration of a Condition Red as declared by the United States Department of Homeland Security under the Homeland Security Advisory System, the governor can implement the statute for a period of fifteen days by executive order.  KY. REV. STAT. ANN.  §§ 367.372 – 367.374. 

The statute can be extended for up to three additional fifteen-day periods by the governor.  KY. REV. STAT. ANN.  § 367.374(2). 

AG AUTHORITY/ PENALTIES
A willful violation of the statute is punishable by a civil monetary penalty of up to $5,000 for the first violation and up to ten thousand dollars $10,000 for each subsequent violation, with an aggregate total not to exceed $25,000 for any 24-hour period. KY. REV. STAT. ANN.  § 367.378(1).

PRIVATE RIGHT OF ACTION 
Yes.  KY. REV. STAT. ANN.  §§ 367.220, 367.378(2).

LOUISIANA

PRICE-GOUGING STATUTE
Yes
Louisiana Homeland Security and Emergency Assistance and Disaster Act, LA. STAT. ANN. § 29:732..

CURRENT STATUS
The Governor declared a public health emergency on March 11, 2020.  On April 2, 2020, the Governor extended the public health emergency through April 30, 2020. 

On April 29, 2020, it was reported that Republicans in Louisiana’s legislature are considering using their authority to rescind the governor’s declaration of emergency, which would also terminate the effect of the state’s anti-price gouging statute.  

On March 14, 2020, the attorney general requested that if people see price gouging, they report it to local police.

The US Attorney for the Western District of Louisiana launched a federal task force to identify, investigate, prosecute, and dismantle schemes trying to profit from Covid-19, including price gouging. 

The attorney general reported on April 1, 2020 that his office had reviewed hundreds of cases of price gouging in Louisiana.  He explained that price gouging in an epidemic creates a unique challenge compared to situations of natural disasters, because unlike a natural disaster, this emergency is not contained to one specific location, making price gouging harder to prove. 

On March 29, 2020, the governor appeared on Face the Nation and spoke about difficulty obtaining personal protective equipment (PPE) for health care workers, stating that he believes there is price gouging of PPE taking place, and is turning over suspected offenders to federal prosecutors.

On April 5, 2020, the Attorney General issued a consumer alert warning of price gouging and encouraging reporting of price gouging to the authorities. 

On April 14, 2020, the Attorney General released a public service announcement with New Orleans Pelicans player Zion Williamson warning the public of COVID-19-related fraud and price gouging.  The video encourages the public to report price gouging and potential pandemic-related scams to the Attorney General’s office. 

On May 20, 2020, the Speaker of the Louisiana House enrolled and signed a resolution “[t]o urge and request the attorney general …  to continue his efforts fighting scams and price gouging during the COVID-19 public health crisis and to urge his continued focus on these important effort.”

SCOPE/PRODUCTS
Applies to “goods and services.”  LA. STAT. ANN. § 29:732(A). 

PROHIBITED CONDUCT
Prohibits charging prices for goods and services that exceed the prices ordinarily charged for comparable goods and services in the same market area at or immediately before the state of emergency.  LA. STAT. ANN. § 29:732(A). 

The following constitute prima facie proof of a violation of the statute:

  • A gross disparity between the price of the goods or services and their value, measured by the price at which they were sold or offered for sale in the usual course of business immediately prior to the disruption of the market; or
  • The amount charged grossly exceeds the price at which the same or similar goods or services were readily obtainable by other consumers in the trade area.  LA. STAT. ANN. § 29:734(B).  

EXCEPTIONS OR DEFENSES
An increase in price is not a violation if the increase is attributable to:

  • Fluctuations in applicable commodity markets, fluctuations in applicable regional or national market trends, or
  • Reasonable expenses and charges and attendant business risk incurred in procuring or selling the goods or services during the state of emergency. LA. STAT. ANN. § 29:732(A).  

TRIGGERING REQUIREMENT
The statute is triggered by a declaration of a state of emergency by the governor or a parish president. LA. STAT. ANN. § 29:732(A). 

After a qualifying declaration, the statute is in effect for thirty days, and can be renewed with a subsequent proclamation.  LA. STAT. ANN. § 29:732(B). 

AG AUTHORITY/ PENALTIES
Remedies include injunctive relief, a civil penalty, and restitution to aggrieved consumers.  LA. STAT. ANN. § 29:734(A). 

Criminal penalties can also apply.  LA. STAT. ANN. § 29:734(C).  Willful violators can be fined up to $500 or imprisoned up to six months, or both. LA. STAT. ANN. § 14:329.7(A).

If a willful violation results in serious bodily injury or any property damage in excess of $5000, such offender shall be imprisoned at hard labor for not more than 5 years. LA. STAT. ANN. § 14:329.7(B).

If as a result of a willful violation the death of any person occurs, such offender shall be imprisoned at hard labor for not to exceed twenty-one years. LA. STAT. ANN. § 14:329.7(C).

PRIVATE RIGHT OF ACTION 
No.  LA. STAT. ANN. § 732(G). 

MAINE

PRICE-GOUGING STATUTE
Yes
Privateering in Necessities, ME. REV. STAT. ANN. tit. 10, § 1105..

CURRENT STATUS
The Governor issued a Proclamation Declaring Abnormal Market Disruption on March 17, 2020.  The declaration, which covers both retail and wholesale sales, specifies the necessities affected by the COVID-19 market disruption as:

  • Paper products;
  • Cleaning supplies;
  • Hand sanitizer;
  • Personal hygiene products;
  • Medicine and medical supplies;
  • Food; and
  • Water.

Media reports indicate that the Maine Attorney General’s Office is currently handling multiple investigations into alleged price gouging.  

On April 2, 2020, the Maine attorney general said that he had received 83 complaints about price gouging so far.  The attorney general said that “so far, all legitimate complaints have been addressed without legal action.”

Maine’s attorney general joined 19 other attorneys general in signing a letter asking 3M to help prevent price gouging of personal protective equipment. 

SCOPE/PRODUCTS
Applies to “necessities” specified in the Governor’s order.

Necessities include "food for human or animal consumption; potable water; pharmaceutical products, including prescription medications; wearing apparel; shoes; building materials; gas and electricity for light, heat and power; ice; fuel of all kinds; and fertilizer and fertilizer ingredients; together with tools, utensils, implements, machinery and equipment required for the actual production or manufacture of the same,” as well as any other vital or necessary goods or services that are not specifically exempt.  ME. REV. STAT. ANN. tit. 10, § 1105(1)(C). 

Note that Maine has a separate statute covering profiteering in rents.  ME. REV. STAT. ANN. tit. 10, § 1106

PROHIBITED CONDUCT
Prohibits selling or offering for sale “at an unconscionable price.”  ME. REV. STAT. ANN. tit. 10, § 1105(3). 

There is a rebuttable presumption that a price is unconscionable if it exceeds by more than 15% the sum of:

  • The price at which the person sold similar goods or services immediately prior to the market disruption); and
  • The increased cost calculated according to the method used by that person prior to the abnormal market disruption.  ME. REV. STAT. ANN. tit. 10, § 1105(1)(D).  

EXCEPTIONS OR DEFENSES
“Necessities” excludes goods and services:

  • Subject to continuous maximum price regulation under any state or federal law;
  • As to which the State's authority is preempted; or
  • Furnished or provided by insurers, or by nonprofit hospitals, medical service organizations or health maintenance organizations authorized to transact business within the State pursuant to Title 24 and Title 24-A. ME. REV. STAT. ANN. tit. 10, § 1105(1)(C).

TRIGGERING REQUIREMENT
Following consultation with the Attorney General, the Governor declares an abnormal market disruption. ME. REV. STAT. ANN. tit. 10, § 1105(2). 

The declaration expires when the Governor declares it expired or 60 days from the date of its issuance, whichever is sooner, and it may be modified by the Governor at any time.  ME. REV. STAT. ANN. tit. 10, § 1105(2)(B). 

AG AUTHORITY/ PENALTIES
The Attorney General can seek injunctive relief and restitution.

For intentional violations that are unfair and deceptive, the Attorney General may seek to recover civil penalties of up to $10,000 per violation. ME. REV. STAT. ANN. tit. 5, § 209.

PRIVATE RIGHT OF ACTION 
No.  ME. REV. STAT. ANN. tit. 10, § 1105(4). 

MARYLAND

PRICE-GOUGING STATUTE
No 
However, recent legislation granted the Governor the power to prohibit price increases during the COVID-19 Emergency.  2020 Md. Laws Chapters 13 and 14.

CURRENT STATUS
The Governor’s order was issued  on March 23, 2020.  It will remain in effect until the termination of the state of emergency and the rescission of the proclamation, but in all events no later than the end of April 30, 2021.

The Maryland AG has received hundreds of complaints and issued warnings to more than 100 businesses since the price gouging statute was enacted.  

The Attorney General’s Office has posted a question and answer guide on its website about price gouging and how to submit a price gouging complaint to his office.

As of April 2, 2019, the Attorney General had received more than 100 price gouging complaints, most of which involved food prices.  The attorney general’s office sent over 60 letters to businesses in response. 

As announced in a press release on April 21, 2020, the Maryland Attorney General joined nineteen other attorneys general in signing a letter asking 3M to help prevent price gouging of personal protective equipment. 

On April 30, 2020, the Attorney General’s office announced that it had received over 200 complaints about price gouging during the pandemic of essential items, including toilet paper, hand sanitizer, cleaners, and Lysol.  In response, the Attorney General’s office has sent out more than 100 warning letters for unlawful price increases.  The Attorney General has stated that many offenders are online retailers, convenience stores, and gas stations. 

SCOPE/PRODUCTS
The Order applies to the following:

  • Food;
  • Beverages;
  • Fuel;
  • Water;
  • Ice;
  • Medicine;
  • Hygiene and personal care products;
  • Medical supplies or equipment;
  • Cleaning products;
  • Pet food;
  • Veterinary care;
  • Motor vehicle parts and repairs;
  • Building supplies and equipment;
  • Home improvement and maintenance;
  • Storage space;
  • Delivery, including shipping and handling;
  • Computers and related electronic devices, or software programs;
  • Energy sources;
  • Batteries;
  • Internet, telephone, or telecommunications;
  • Video streaming;
  • Website hosting; and
  • Child care.

PROHIBITED CONDUCT
Prohibits retailers from increasing the sale or rental price of the goods and services listed in the Governor’s order to a price that increases the retailer’s value of profit by more than 10%. 

EXCEPTIONS OR DEFENSES
According to the Maryland AG, if the seller can prove that the increased price is directly attributable to increases in the cost of labor or materials needed to provide the good or service, the seller may not be liable under the statute.

TRIGGERING REQUIREMENT
The Governor initiates the prohibition and may publish a list of goods and services to which the prohibition applies.

AG AUTHORITY/ PENALTIES
A violation of the Governor’s order regarding price gouging constitutes a violation of the Consumer Protection Act, and remedies include injunctive relief, mandatory disgorgement and consumer restitution, and civil penalties of $10,000 per violation.  A violation is also subject to criminal prosecution as a misdemeanor.  MD. CODE. ANN. COMM. §§ 13-406, 13-410, 13-411.

PRIVATE RIGHT OF ACTION 
Yes. MD. CODE. ANN. COMM. § 13-408.

MASSACHUSETTS

PRICE-GOUGING STATUTE
Yes
MASS. GEN. LAWS ch. 93A, § 2; 940 MASS. CODE REGS. 3.18.

CURRENT STATUS
The Governor of Massachusetts declared a state of emergency on March 10, 2020.

The Attorney General is reported to have received hundreds of price gouging complaints, including 65 complaints from hospitals regarding price gouging on personal protective equipment. 

On April 10, 2020, the Attorney General announced that her office had received hundreds of price gouging complaints, and was looking into several complaints filed by UMass Memorial Health Care related to protective gear. 

On April 16, 2020, the Attorney General’s office said it had received more than 320 complaints for price gouging involving consumer products, like toilet paper and bottled water. 

On April 29, 2020, it was reported that the attorney general had received over 320 complaints about price gouging, including complaints about prices of paper towels, bottled water, and hand sanitizer. 

On April 28, 2020, the U.S. Attorney for the District of Massachusetts was quoted in an interview saying that his office had internally designated federal prosecutors to tackle COVID-19-related scams, including price gouging.  He said:  “People who are callous enough to attempt to exploit others in the midst of a crisis for their own personal gain, I find that appalling.”

In an article published May 5, 2020, it was reported that the Attorney General’s office had received 476 price gouging complaints since the beginning of the pandemic. 

On May 5, 2020, the Attorney General said her office is serious about investigating price gouging:  “Obviously, we understand supply and demand. There are some products there are less of and there’s scarcity so naturally the price may go up some. The problem for us is when we see things going up five times, ten times, one hundred times more than what the product usually sells for, it’s price gouging. . . . We’re taking this case by case and we certainly want to be clear we can and will pursue people for enforcement and fines.”  Most of the complaints her office has received involve hand sanitizer, masks, gloves, paper towels, bottled water, disinfectants, and toilet paper.

The state legislature is considering a bill (S 2652) with bipartisan support that would expand the existing state price gouging law from only covering petroleum products to applying to any good or service that’s needed for public health or safety.  One of the bill’s supporters, Senate Minority Leader Bruce Tarr, testified in support of the bill on May 13, 2020, and said expanded price gouging protection is needed as the state starts to reopen on May 18, 2020. 

As of May 22, 2020, the Attorney General’s office said it has received more than 650 price gouging complaints, many of which involve groceries, hand sanitizer, and PPE. 

SCOPE/PRODUCTS
Prior to March 20, 2020, this regulation applied only to petroleum products.

On March 20, 2020, Attorney General issued an emergency regulation, effective that day, amending the regulation so that it also applies to goods and services necessary for public health, including, but not limited to, personal protective equipment for medical professionals. 940 MASS. CODE REGS. 3.18(3).

PROHIBITED CONDUCT
Prohibits “any business at any point in the chain of manufacturing or distribution” from selling or offering to sell to a consumer or any other business at an “unconscionably high price.”  940 MASS. CODE REGS. 3.18(3).

A price is unconscionably high if there is a gross disparity between the price charged and:

  • The price at which the same good or service was sold or offered for sale by the business in the usual course of business immediately prior to the onset of the declared statewide or national emergency, or
  • The price at which the same or similar product is readily obtainable from other businesses.   940 MASS. CODE REGS. 3.18(4)(a).

EXCEPTIONS OR DEFENSES
A price is not unconscionably high if the disparity is substantially attributable to increased prices charged by the business’s suppliers or increased costs due to an abnormal market disruption.  940 MASS. CODE REGS. 3.18(4)(b).

TRIGGERING REQUIREMENT
During any declared state-wide or national emergency.  940 MASS. CODE REGS. 3.18(3).

AG AUTHORITY/ PENALTIES
Injunctive relief; restitution; for knowing violations, a civil penalty of not more than $5,000 for each violation. MASS. GEN. LAWS ch. 93A, § 4.

If the court finds habitual violations of injunctions, it may order the dissolution, or suspension or forfeiture of franchise of any corporation or the right of any individual or foreign corporation to do business in the commonwealth.  MASS. GEN. LAWS ch. 93A, § 8.

PRIVATE RIGHT OF ACTION 
Yes.  MASS. GEN. LAWS ch. 93A, § 11.

MICHIGAN

PRICE-GOUGING STATUTE
Yes
MICH. COMP. LAWS § 445.903(z).

CURRENT STATUS
On March 20, 2020, the Governor issued Executive Order 2020-18, which imposed enhanced restrictions related to price gouging.  The order is set to expire April 17, 2020. 

In a March 23, 2020 press release , the Attorney General announced that she has “assigned a team of special agents to assist her attorneys in gathering information related to the high number of price-gouging complaints the Attorney General’s office has been receiving during the coronavirus disease 2019 (COVID-19) pandemic.”

Michigan Senate Bill No. 847, introduced March 17, 2020, is bipartisan legislation, supported by the Attorney General, to strengthen the state's anti-price-gouging laws.  It authorizes penalties of $10,000 per violation by individuals, and $1 million for a business, for raising prices on “building materials, consumer food items, goods, services, emergency supplies, or medical supplies” during an emergency by an “excessive” amount. Violations would be a misdemeanor, and the Attorney General would also be authorized to file class action lawsuits seeking triple damages. Senate Bills 846 and 848 apply the same restrictions and penalties to lodging and energy products, respectively.

On March 27, 2020, the Attorney General sent a cease and desist letter to a supplier of face masks. 

After receiving complaints about excessive prices for hand sanitizer, on March 30, 2020, the attorney general announced that her office is moving forward with an investigation into price gouging by an Ann Arbor business.

On April 7, 2020, the attorney general announced that her office sent cease and desist letters to four online sellers for price gouging of items like hand sanitizer, face masks, respirators, and disinfectant spray.  One of the sellers sold a product to a Michigan consumer at a grossly excessive price; the other three sellers are located in Michigan.  

On April 16, 2020, the attorney general announced an investigation into a Muskegon company for several potentially illegal activities including price-gouging.  

On April 22, 2020, the attorney general announced that she led a multi-state coalition asking Congress to temporarily regulate prices of medical supplies and equipment to respond to inflated prices for these goods. 

On April 28, 2020, the Attorney General released a video with state senators Jeremy Moss and Ruth Johnson about what they’re doing to address price-gouging in Michigan.  The senators introduced the three-bill package of anti-price gouging legislation in March. 

On April 29, 2020, the attorney general issued a press release saying her office is “on high-alert for online price gouging,” and that her office has sent cease and desist letters to three online sellers selling products like face masks and hand sanitizer.  In addition, a Michigan resident selling high-priced face masks on eBay reached an assurance of voluntary compliance agreement with the attorney general’s office. To date, her office has received 3,689 complaints about price gouging. 

On May 1, 2020, the Attorney General’s office said it had received price gouging complaints for prices of feminine hygiene products during the pandemic. 

On May 5, 2020, it was reported that the attorney general had received over 3,800 price gouging complaints, with 60% of the complaints reported by phone.  Most of the complaints are related to milk, toilet paper, and ground beef. 

On May 15, 2020, the governor extended the executive order that enhanced price gouging restrictions through June 12, 2020. 

On May 26, 2020, the Attorney General’s office issued a press release stating that it had received more than 4,200 price gouging complaints, although some of the complaints do not warrant further investigation or do not contain enough information to verify that the complaints are legitimate.  The Release also updated the status of investigations against A.M. Cleaning & Supplies for increased cost of hand sanitizer; against BioMed Wellness Center (who has entered into an assurance of voluntary compliance) for selling sanitizers, gloves, and face masks at increased prices; against Smokehouse Distribution for price gouging face masks, and against several online sellers on Amazon. 

SCOPE/PRODUCTS
The statute applies to property and services.

Executive Order 2020-18 applies to any good, material, or consumer food item with a fair market value of less than $1,000 or any emergency supply. 

PROHIBITED CONDUCT
Charging a consumer a price that is “grossly in excess of the price at which similar property or services are sold.”  MICH. COMP. LAWS § 445.903(z).

Executive Order 2020-18 specifies that:

  • If a person has acquired any product from a retailer, the person must not resell that product in this state at a price that is grossly in excess of the purchase price at which the person acquired the product, and
  • A person must not offer for sale or sell any product in this state at a price that is more than 20% higher than what the person offered or charged for that product as of March 9, 2020, unless the person demonstrates that the price increase is attributable to an increase in the cost of bringing the product to market or to an extraordinary discount in effect as of March 9, 2020.

EXCEPTIONS OR DEFENSES
No

TRIGGERING REQUIREMENT
Statutory provision is not limited to emergencies. 

AG AUTHORITY/ PENALTIES
For statutory violations, the Attorney General may seek include injunctive relief; and for persistent and knowing violations, a civil penalty of up to $25,000 per violation.  MICH. COMP. LAWS § 445.905(1).

A willful violation of Executive Order 2020-18 is a misdemeanor.

PRIVATE RIGHT OF ACTION 
Yes., under the Consumer Protection Act.  MICH. COMP. LAWS § 445.911.

MINNESOTA

PRICE-GOUGING STATUTE
No, but on March 20, 2020, the Governor issued Emergency Executive Order 20-10, which prohibits price gouging during the emergency. 

CURRENT STATUS
The Governor issued Emergency Executive Order 20-10 on March 20, 2020, and the price gouging prohibition went into effect on March 21, 2020 at 5 pm. 

On March 24, 2020, the Attorney General’s Office issued a press release stating that it has begun a statewide crackdown on people and businesses engaged in “pandemic profiteering” and announcing that it had entered into an Assurance of Discontinuance with one business and sent a warning letter to another. 

On April 6, 2020, the Attorney General and the United States Attorney for the District of Minnesota announced the formation of the Minnesota COVID-19 Action Team (MCAT), a coordinated effort focused on investigating and prosecuting unlawful activity associated with the COVID-19 pandemic, including price gouging. 

On March 24, 2020, the attorney general sent a warning letter regarding potential price-gouging violations related to cleaning supplies and facemasks.

On March 27, 2020, the attorney general announced that, after an investigation into price gouging of N95 masks, an online retailer had entered into an Assurance of Discontinuance.

On April 3, 2020, the Attorney General said that it had received more than 700 complaints of price gouging, had taken legal action against at least 2 businesses, and had sent resolution letters to 20 others that have agreed to bring pricing back in line. The Attorney General stated: “if you’re profiteering off the pandemic, my office and I are coming after you.” 

On April 23, 2020, the Attorney General announced that an online retailer had entered into a Discontinuance related to allegations of price gouging on a number of products including food, health care goods, pharmaceuticals, medical supplies, and personal hygiene, sanitation, and cleaning goods.

On April 29, 2020, the Attorney General announced the settlement of a price-gouging investigation into a Minnesota egg farm that raised egg prices 150% during the pandemic.  Under the settlement, the farm agreed it would limit egg prices to 20% above what it charged before the crisis. 

On May 5, 2020, the attorney general signed a letter with ten other attorney generals to U.S. Attorney General William Barr requesting that he investigate antitrust concerns involving meat packers within the cattle industry. 

Minnesota-based 3M filed fifteen lawsuits as of May 1, 2020 against businesses and individuals across the country for price gouging sales of its N95 masks, or for falsely claiming they had nonexistent supplies of 3M masks.  3M states it will donate any damages recovered in the lawsuits to COVID-19-related nonprofit organizations.  

3M won an injunction against a New Jersey company accused of illegally using 3M’s trademarks to sell N95 masks at up to five times the list price. 

On May 22, 2020, 3M announced that it had settled two Florida lawsuits in a series of suits it has filed during the pandemic to combat fraud, price gouging, and counterfeiting related to its products and brand.

SCOPE/PRODUCTS
Applies to “essential consumer goods or services,” which are defined as “goods or services vital and necessary for the health, safety, and welfare of the public, including without limitation: food, water, fuel, gasoline, housing, shelter, transportation, health care goods and services, pharmaceuticals, medical supplies, and personal hygiene, sanitation, and cleaning goods.”

PROHIBITED CONDUCT
Prohibits charging “an unconscionably excessive price,” which means:

  • A gross disparity between the price charged and the price at which it was sold or offered for sale in the usual course of business during the 30 days immediately prior to emergency declaration; or
  • More than 20% greater than the price at which it was sold or offered for sale in the usual course of business during the 30 days immediately prior the emergency declaration; or
  • The amount charged grossly exceeds the price at which it is readily obtainable by other purchasers in the trade area.

EXCEPTIONS OR DEFENSES
A price is not unconscionable excessive if the price disparity or increase is “substantially attributable to significant additional costs outside the control of the seller.”

TRIGGERING REQUIREMENT
The price gouging prohibition went into effect on March 21, 2020 at 5:00 pm and remains in effect for the duration of the COVID-19 emergency declared in Executive Order 20-01 or until Executive Order 20-10 is rescinded.

AG AUTHORITY/ PENALTIES
Violations of the Emergency Executive Order are punishable by a civil penalty of not more than $10,000 per sale or transaction.

The Emergency Executive Order provides that authority of the Attorney General to enforce the price gouging prohibition includes but is not limited to the authority the AG has to enforce the Unfair Trade Practices Act, the Consumer Fraud Act, and other laws. 

The Attorney General may additionally seek injunctive relief or the appointment of an administrator.  MINN. STAT. § 8.31.

PRIVATE RIGHT OF ACTION 
No.

MISSISSIPPI

PRICE-GOUGING STATUTE
Yes
MISS. CODE ANN. § 75-24-25.

CURRENT STATUS
The Governor declared a state of emergency in Mississippi on March 14, 2020.

The Attorney General’s website urges consumers who think they have identified an instance of price gouging to take a photo of the product or sign with the price, make sure the photo is date and time stamped, and submit it to the Attorney General’s office.  

Based on media reports, the Attorney General has received hundreds of complaints about price gouging and had begun sending cease and desist letters.  

The Attorney General’s Office and the FBI have announced that they are working together to combat coronavirus-related fraud in Mississippi, including prices gouging.  According to Attorney General Lynn Fitch and FBI Special Agent in Charge Michelle Sutphin, people are “selling products such as hand sanitizer, masks, toilet paper, and water for a marked price of 8,000-9,000 percent more than the original market value.”

SCOPE/PRODUCTS
All goods and services

PROHIBITED CONDUCT
Prohibits charging prices that exceed the prices ordinarily charged for comparable goods or services in the same market area at or immediately before the emergency declaration. MISS. CODE ANN. § 75-24-25(2).

EXCEPTIONS OR DEFENSES
Prices may include additional expenses and costs which are necessarily incurred during a state of emergency.

The prices ordinarily charged for comparable goods or services in the same market area do not include temporarily discounted goods or services.  MISS. CODE ANN. § 75-24-25(2).

TRIGGERING REQUIREMENT
When a state of emergency or a local emergency is declared to exist in this state.  MISS. CODE ANN. § 75-24-25(2).

AG AUTHORITY/ PENALTIES
Violations are subject to criminal penalties ranging from a misdemeanor (up to $1,000 and 6 months in jail) if the total received during a 24-hour period is less than $500.00 to a felony (1 to 5 yrs. in prison and/or fine of up to $5,000) when the total received during a 24-hour period is more than $500.00.  MISS. CODE ANN. § 75-24-25(3)-(6).

A knowing and willful violation of the price gouging statute is considered an unfair or deceptive trade practice, and the Attorney General can seek injunctive relief, appointment of a receiver, revocation of a license or certificate authorizing that person to engage in business in the state, and a civil penalty of up to $10,000 per violation.  MISS. CODE ANN. §§ 75-24-9; 75-24-11; 75-24-19.

PRIVATE RIGHT OF ACTION 
Yes.  MISS. CODE ANN. §75-24-15.

Missouri

PRICE-GOUGING STATUTE
Yes
MO. CODE REGS. tit. 15, § 60-8.030 (regulation deeming price gouging an unfair practice under the Missouri Merchandising Practices Act, Mo. Rev. Stat. § 407.020).

CURRENT STATUS
On March 13, 2020, the Governor issued  Executive Order 20-02 declaring a state of emergency in Missouri due to COVID-19.

The Missouri Attorney General’s website has a banner reading “REPORT PRICE GOUGING,” and links to a complaint form consumers can submit.

In a March 31, 2020 Press Release, the Attorney General, Governor, and Lt. Governor warned of price gouging. The Attorney General noted that his office had received over 400 price gouging complaints in the past two weeks.

On March 30, 2020, the Attorney General announced he had issued eight civil investigative demands to third-party Amazon sellers who have been charging 2 to 19 times the prices they charged prior to the pandemic on certain healthcare items like face masks and hand sanitizer. The Attorney General notes that Amazon is providing information and market analysis to assist the Attorney General in identifying price gouging.

In a March 27, 2020 Facebook post, the Attorney General shared a graphic indicating that the vast majority of price gouging complaints his office had received were related to food/drink or paper supplies.

On April 24, 2020, the Governor signed Executive Order 20-09 extending the state of emergency through June 15, 2020.

On April 10, 2020 the Attorney General confirmed his office is investigating 951 price gouging complaints related to COVID-19 (up from 404 on April 1st).

As of April 24, 2020, the Attorney General’s office has received 1,274 price gouging complaints and has issued 9 Civil Investigative Demands and 10 cease and desist letters related to price gouging.  

In a recent statement, a spokesman for Attorney General Eric Schmitt’s Office noted that Missouri’s price-gouging law is different than laws in some other states, which require a set percentage or price increase for the attorney general to take action.  He explained that enforcement is “essentially up to the attorney general’s office discretion on a case to case basis,” and that AG office staff has contacted, or will contact, each person who filed a complaint.  Further, an agreement with the Missouri Grocers Association, an industry group, will allow the AG’s office to better monitor price fluctuations and inquire of grocers.  “In terms of enforcement action,” he said, “we’re looking at the most egregious examples which typically come from third party sellers, i.e. someone who buys up a huge supply of masks or toilet paper and then turns around and sells them individually for a huge markup.”

On May 21, 2020, the Attorney General’s office announced the filing of a lawsuit against Tuning Element, LLC, for alleged price gouging and misrepresentations in connection with the sale of face masks and respirators.  The suit seeks restitution on behalf of consumers who purchased from the company and also seeks injunctive relief.

SCOPE/PRODUCTS
Applies to “any necessity”

PROHIBITED CONDUCT
Prohibits:

  • Charging within a disaster area “an excessive price”
  • Charging any person “an excessive price for a necessity . . . likely to be provided to consumers within a disaster area.” MO. CODE REGS., tit. 15, § 60-8.030(1)(B)-(C).

An “excessive price” is a price “that is not justified by the seller’s actual cost of acquiring, producing, selling, transporting, and delivering the actual product sold plus the seller’s usual and customary profit margin prior to the onset of the natural disaster.”  MO. CODE REGS., tit. 15, § 60-8.010(1)(D).

Also prohibits “tak[ing] advantage of a person’s physical or mental impairment or hardship caused by extreme temporary conditions, and charg[ing] a price substantially above the previous market price.”  MO. CODE REGS., tit. 15, § 60-8.030(1)(A).

EXCEPTIONS OR DEFENSES
An excessive price does not include any price “agreed to by buyer and seller prior to the declaration of the applicable disaster.” MO. CODE REGS., tit. 15, § 60-8.010(1)(D).

TRIGGERING REQUIREMENT
Applies when an area is “declared to be a disaster area by either state or federal authorities.” MO. CODE REGS., tit. 15, § 60-8.010(1)(B).

Prohibition on charging “a price substantially above the previous market price of the merchandise” is triggered by “a person’s physical or mental impairment or hardship caused by extreme temporary conditions.” MO. CODE REGS., tit. 15, § 60-8.030(1)(A).

AG AUTHORITY/ PENALTIES
The Attorney General can seek injunctive relief; restitution; and civil penalties of not more than $1,000 per violation. MO. REV. STAT. § 407.100.

A willful and knowing violation committed with the intent to defraud is a class D felony. MO. REV. STAT. § 407.020(3).

PRIVATE RIGHT OF ACTION 
Yes.  MO. REV. STAT. § 407.025.

MONTANA

PRICE-GOUGING STATUTE
No

CURRENT STATUS
However, the Attorney General stated in a press release issued on March 30, 2020, that price gouging falls within the scope of conduct prohibited by the state’s Consumer Protection Act.  MONT. CODE ANN. § 30-14-103.

On March 25, 2020 the Attorney General joined the Attorneys General of 32 other states in urging Amazon, Facebook, and other online platforms to monitor online sellers and prevent price gouging.

The U.S. Attorney for the District of Montana issued a press release on April 3, 2020 encouraging the public to report on potential stockpiling or price gouging of medical supplies.

On May 8, 2020, the Montana Better Business Bureau announced that the organization has experienced a 279% increase in price gouging complaints from January to April this year.  A spokesman encouraged businesses to post signs explaining any price increases.

SCOPE/PRODUCTS
n/a

PROHIBITED CONDUCT
n/a

EXCEPTIONS OR DEFENSES
n/a

TRIGGERING REQUIREMENT
n/a

AG AUTHORITY/ PENALTIES
For willful violations of the Consumer Protection Act, the Attorney General may seek a civil fine of up to $10,000 for each violation.  MONT. CODE ANN. § 30-14-142. 

The Attorney General may also seek injunctive relief, restitution, the appointment of a receiver, or corporate dissolution.  MONT. CODE ANN. §§ 30-14-111, 30-14-131, 30-14-141.

PRIVATE RIGHT OF ACTION 
Yes. MONT. CODE ANN. § 30-14-133.

NEBRASKA

PRICE-GOUGING STATUTE
No

CURRENT STATUS
The Attorney General’s website encourages consumers to report “unreasonably high prices.”

On March 25, 2020, the Attorney General joined the Attorneys General of 32 other states in urging Amazon, Facebook, and other online platforms to monitor online sellers and prevent price gouging.

On May 18, 2020, the Lincoln City Council unanimously passed a proposal prohibiting price-gouging in the city during emergencies.  Under the new law, the Lincoln police can issue tickets to sellers suspected of unreasonably marking up food, water, building materials or cleaning supplies; and, the City Attorney can seek a court order blocking further sales and compelling compliance with the ordinance.  A violation is similar to a speeding ticket, and each day an item is for sale at an unreasonably marked up price is considered a separate offense. 

NEVADA

PRICE-GOUGING STATUTE
No

CURRENT STATUS
On March 20, 2020, the Attorney General issued a press release stating that his office is “monitoring and has the ability to review” complaints relating to “inflated consumer prices for cleaning, health supplies and water.”

As quoted in the media, it is the position of the Attorney General’s office that:  “Though Nevada does not have a price gouging statute, we’re able to look into reports of coordinated price increases, increased consumer prices, making false representations, and the use of intimidation tactics during a transaction through a general fraud and antitrust lens.”

On March 25, 2020, the Attorney General joined the Attorneys General of 32 other states in urging Amazon, Facebook, and other online platforms to monitor online sellers and prevent price gouging. 

The Attorney General has encouraged consumers to keep an eye out for unusually high prices and asked anyone who sees price gouging to call the state attorney general’s office or to report it online.

NEW HAMPSHIRE

PRICE-GOUGING STATUTE
No

CURRENT STATUS
The Attorney General’s office has stated that: “New Hampshire does not have a specific anti-price gouging statute; however, state law does prohibit unfair and deceptive conduct and the Attorney General's Office vigorously enforces New Hampshire consumer protection laws.”

On March 25, 2020 the Attorney General joined the Attorneys General of 32 other states in urging Amazon, Facebook, and other online platforms to monitor online sellers and prevent price gouging.

New Jersey

PRICE-GOUGING STATUTE
Yes
N.J. STAT. ANN. § 56:8-109.

CURRENT STATUS
The price gouging statute was triggered on March 9, 2020, when the Governor declared a state of emergency.

The price increase restrictions remain in effect for the duration of the emergency and for 30 days afterwards. N.J. STAT. ANN. § 56:8-109.

On March 30, 2020, the U.S. Attorney for District of New Jersey and the New Jersey Attorney General announced a federal-state COVID-19 Fraud Task Force to address unlawful hoarding of medical supplies and price-gouging.

On April 24, 2020, the Division of Consumer Affairs issued a press release stated that the office would “aggressively enforce New Jersey's consumer protection laws during this state of emergency,” and “encourage(d) consumers to remain vigilant and report price gouging and other attempts to take advantage of consumers using our online complaint form, where you can submit photos and screenshots of suspect activity.”

As of May 29, 2020, the New Jersey Division of Consumer Affairs has logged a total of 5,033 COVID-related complaints against 2,630 locations. More than 84 percent of those complaints allege unlawful price hikes on essential items like food, bottled water, cleaning products, and personal protective equipment such as masks, disinfectants and sanitizers.  The Division has issued 105 subpoenas and approximately 1,486 cease-and-desist letters warning retailers about the penalties for violating New Jersey’s price-gouging law and the Consumer Fraud Act’s protections from price gouging.  

SCOPE/PRODUCTS
Applies to “merchandise which is consumed or used as a direct result of an emergency or which is consumed or used to preserve, protect, or sustain the life, health, safety or comfort of persons or their property.” N.J. STAT. ANN. § 56:8-109.

PROHIBITED CONDUCT
Prohibits an “excessive price increase,” which means a price that is excessive as compared to the price at which the consumer good or service was sold or offered for sale by the seller in the usual course of business immediately prior to the state of emergency.

Price increases of more than 10% shall be deemed excessive.  N.J. STAT. ANN. § 56:8-108.

EXCEPTIONS OR DEFENSES
Price increases of more than 10% are allowed if the increase is attributable to the seller’s increased costs, and in such cases any increase of more than 10% to the usual mark-up is prohibited. N.J. STAT. ANN. § 56:8-108.

TRIGGERING REQUIREMENT
The statute applies  when a state of emergency is declared by either the President, Governor, or “a municipal emergency management coordinator.” N.J. STAT. ANN. § 56:8-108.

AG AUTHORITY/ PENALTIES
The Attorney General is authorized to seek injunctive relief (including with respect to officers of a business), restitution (including up to twice the amount for senior citizen victims), and penalties of up to $10,000 for a first offense and up to $20,000 for second and subsequent offenses.  N.J. STAT. ANN. § 56:8-8, 56:8-11, 56:8-13, 56:8-14.

PRIVATE RIGHT OF ACTION 
Yes.  N.J. STAT. ANN. § 56:8-19.

New Mexico

PRICE-GOUGING STATUTE
No

CURRENT STATUS
However, the Attorney General has issued a consumer advisory warning regarding possible price gouging relating to the coronavirus outbreak, indicating that the existing Unfair Practices Act -  N.M. STAT. § 57-12-3 et seq.- will be to address price gouging.  The Attorney General stated, “Increasing prices on necessities like medical supplies, hand sanitizer, masks, and other items because our citizens are in fear of the coronavirus is simply unconscionable. Anyone increasing prices in order to illegally profit from this emergency will be prosecuted."

On March 25, 2020 the Attorney General joined the Attorneys General of 32 other states in urging Amazon, Facebook, and other online platforms to monitor online sellers and prevent price gouging.

On April 2, 2020 the Attorney General confirmed that his office had received over 150 price gouging complaints from consumers.  He stated that price gouging investigations were ongoing, and that numerous cease and desist orders had been sent out.  

According to a recent media report, as of May 12, 2020, the Attorney General’s office has received 254 complaints of price gouging during this state of emergency.

PROHIBITED CONDUCT
In a press release, the Attorney General stated that the Unfair Practices Act prohibits “price gouging,” which is defined as  “unreasonably increasing the price of goods or services from its regular and usual price.”

AG AUTHORITY/ PENALTIES
Remedies under the Unfair Trade Practices Act include temporary or permanent injunctive relief, and restitution.  Willful violations are punishable by a civil penalty of up to $5,000 per violation.  N.M. STAT. §§ 57-12-8, 57-12-11.

PRIVATE RIGHT OF ACTION 
Yes.  N.M. Stat. § 57-12-10.

New York

PRICE-GOUGING STATUTE
Yes
N.Y. GEN. BUS. LAW § 396-r.

CURRENT STATUS
On March 7, 2020, the Governor declared a state of emergency. The Governor’s press release regarding the emergency declaration specifically provided that the New York State Department Division of Consumer Protection had created an online form for consumers to report suspected price gouging. 

New York Attorney General Letitia James issued a press release on March 10, 2020 warning that price gouging will not be tolerated, and she posted a form on the Attorney General website for consumers to report incidents of price gouging related to the COVID-19 pandemic. 

On May 27, 2020, the New York State Senate and Assembly passed a bill (S.8189/A.10270) that will expand price gouging protections beyond consumer goods to include any products or services that are vital or necessary to the health, safety, and welfare of consumers or the general public. The law will amend N.Y. Gen. Bus. Law § 396-r to encompass a broader scope of products and services, including medical supplies and equipment, like ventilators. Significantly, the law will protect not only consumer purchasers, but small businesses, hospitals and other healthcare providers, and even the State of New York, as they purchase products or services for the public’s benefit.

The Attorney General applauded the bill as a measure that will enable her office to better protect against price gouging, noting that her office had received over 5,500 price gouging complaints in the last three months. Though the bill has passed both chambers, as of June 1, 2020, it had not yet been delivered to the Governor for signature.

Also on May 27, 2020, the Attorney General filed a lawsuit against a wholesale grocery distributor for illegally increasing wholesale prices for the sale of Lysol disinfectant products to New York grocery and discount stores. The lawsuit alleges that the company’s cost to obtain Lysol products from its suppliers remained flat throughout the pandemic, but it has gradually increased the price to more than double the pre-pandemic price—an increase retailers passed on to consumers. The lawsuit seeks a permanent injunction, restitution, a civil penalty, and disgorgement of profits from the allegedly illegal practices.

SCOPE/PRODUCTS
Applies to “consumer goods and services,” which means “those used, bought or rendered primarily for personal, family or household purposes.”  N.Y. GEN. BUS. LAW § 396-r(2).

Applies to “all parties within the chain of distribution.”  N.Y. GEN. BUS. LAW § 396-r(2).

Note that there is also a separate price gouging statute that applies specifically to milk.  N.Y. GEN. BUS. LAW § 396-rr.

PROHIBITED CONDUCT
Prohibits selling or offering to sell “for an amount which represents an unconscionably excessive price.” N.Y. GEN. BUS. LAW § 396-r(2).

It is prima facie proof of a violation if:

  • The amount charged represents a gross disparity between the price of the goods or services and their value measured by the price at which such consumer goods or services were sold or offered for sale by the defendant in the usual course of business immediately prior to the market disruption; or
  • The amount charged grossly exceeded the price at which the same or similar goods or services were readily obtainable by other consumers in the trade area. N.Y. GEN. BUS. LAW § 396-r(3).

EXCEPTIONS OR DEFENSES
A defendant may rebut a prima facie case with evidence that additional costs not within the control of the defendant were imposed on the defendant for the goods or services. N.Y. GEN. BUS. LAW § 396-r(3).

TRIGGERING REQUIREMENT
Applicable when there is an “abnormal disruption of the market,” meaning any market change resulting from weather, a “convulsion of nature,” a power failure or shortage, a strike, a civil disorder, war, military action, a national or local emergency, or any other cause that “results in the declaration of a state of emergency by the governor.” N.Y. GEN. BUS. LAW § 396-r(2)..

AG AUTHORITY/ PENALTIES
The Attorney General can seek an injunction, restitution, and a civil penalty of up to $25,000. N.Y. GEN. BUS. LAW § 396-r(4).

PRIVATE RIGHT OF ACTION 
No.  Americana Petroleum Corp. v. Northville Indus. Corp., 200 A.D.2d 646, 648, 606 N.Y.S.2d 906, 908 (N.Y. App. Div. 1994).

North Carolina

PRICE-GOUGING STATUTE
Yes
N.C. GEN. STAT. § 75-38. .

CURRENT STATUS
The Governor declared a state of emergency on March 10, 2020. 

The North Carolina Attorney General offers a price gouging complaint form on the Department of Justice (DOJ) website. 

On March 20, 2020, the Attorney General announced that his office had already received 136 complaints of price gouging, with many of the complaints involving toilet paper. 

As of April 28, 2020, that number had risen to over 1,600 complaints of price gouging, related to groceries, masks, hand sanitizer, and cleaning supplies.

On March 27, 2020, the Attorney General and the DOJ announced they are working with Amazon to investigate nine North Carolina businesses and sellers over price gouging concerns. 

On May 5, 2020, the Attorney General filed his first price-gouging lawsuit of the pandemic. The lawsuit accuses a towing company of improperly booting and towing trucks delivering necessary supplies like food and water, and forcing the drivers to pay exorbitant fees—up to $4,400—for release of the trucks. A Wake County Judge issued a temporary restraining order that prohibits the company from engaging in towing business until a May 13 court hearing.

SCOPE/PRODUCTS
Applies to the sale or rental of “any goods or services which are consumed or used as a direct result of an emergency or which are consumed or used to preserve, protect, or sustain life, health, safety, or economic well-being of persons or their property.  N.C. GEN. STAT. § 75-38(a).

The statute applies to all parties in the chain of distribution, including, but not limited to, a manufacturer, supplier, wholesaler, distributor, or retail seller of goods or services.  Id.

PROHIBITED CONDUCT
Prohibits charging a price that is “unreasonably excessive under the circumstances.”

Factors in determining if a price is unreasonably excessive include whether:

  • The price is attributable to additional costs imposed by the seller's supplier or other costs of providing the good or service during the triggering event.
  • The price charged by the seller exceeds the seller's average price in the 60 days before the triggering event. If the seller did not sell or rent the goods or service in question prior to the triggering event, the price at which the goods or service was generally available in the trade area shall be used.
  • The price charged by the seller is attributable to fluctuations in applicable commodity markets; fluctuations in applicable regional, national, or international market trends; or to reasonable expenses and charges for attendant business risk incurred in procuring or selling the goods or services.  N.C. GEN. STAT. § 75-38(a).

EXCEPTIONS OR DEFENSES
No

TRIGGERING REQUIREMENT
The statute is triggered by either the declaration of a state of emergency by the Governor or the finding of an abnormal market disruption.  N.C. GEN. STAT. § 75-38(c)-(e). 

The statute is in effect until either 45 days after the declaration of emergency or finding of market disruption, or the expiration of the declaration or finding, whichever is earlier, although the Governor can specifically extend the application period of the statute.  N.C. GEN. STAT. § 75-38(c).

AG AUTHORITY/ PENALTIES
The Attorney General can seek injunctive relief, restitution, and civil penalties of up to $5,000 per violation.  N.C. GEN. STAT. §§ 75-14, 75-15, 75-15.1, and 75-15.2

PRIVATE RIGHT OF ACTION 
Yes.  N.C. GEN. STAT. § 75-16.

NORTH DAKOTA

PRICE-GOUGING STATUTE
No

CURRENT STATUS
The Attorney General’s website states with regard to price gouging: “There is no state law restricting the amount of profit a retailer can set for gasoline or any other retail product; therefore, a retailer can charge any price he wants over wholesale.  Because there is no state law restricting or limiting retail prices, the Attorney General cannot take a complaint.”  

OHIO

PRICE-GOUGING STATUTE
No

CURRENT STATUS
However, the Attorney General has indicated that Ohio’s unconscionable sales practices statute, OHIO REV. CODE ANN. § 1345.03, makes price gouging during the COVID-19 crisis illegal. 

On March 19, 2020, the Attorney General announced that price gouging activities “could be considered unconscionable if the business knew at the time of the sale that the price was substantially higher than normal or if the business dramatically increased the price of in-stock products based solely in response to current events.”  The Attorney General also opined that price gouging could violate the Valentine Act, Ohio’s antitrust law.

On March 31, 2020, the Attorney General stated that his office had received 410 price gouging complaints in March alone related to COVID-19.  By April 9, the number had risen to over 600.

In response to complaints of price gouging, the Attorney General said he was working on legislation to address price gouging and hoarding of products like toilet paper, surgical masks, and gasoline.  This legislation, sponsored by two state senators, was introduced as Senate Bill 301. The bill would expand the Attorney General’s authority under the Consumer Sales Practices Act to investigate grossly excessive price increases after an emergency is declared. Senate Bill 301 was referred to committee on May 6, 2020. On May 13, 2020, the Senate Judiciary Committee held its second hearing on the bill, and Senate President Larry Obhof said the next week’s general session would focus on legislation addressing pandemic-related issues, including the bill that would prohibit price gouging,

Meanwhile, the Ohio House of Representatives introduced HB 590 on March 24, 2020, which would prohibit price gouging after a declaration of an emergency and make.   price gouging  an unconscionable act or practice under Ohio Rev. Code Ann. § 1345.03. On May 5, 2020, House Bill 590 was referred to committee.

The Attorney General’s website includes information about price gouging during the COVID-19 crisis, and encourages consumers to report any business “charging unfair prices.” 

On April 14, 2020, the Attorney General filed a lawsuit against an Ohio man who was hoarding N95 masks and selling them on eBay for nearly 18 times the retail price. The lawsuit alleges violations of Ohio’s antitrust laws and the Consumer Sales Practices Act. The case was settled on April 23, with the defendant agreeing to refund over $15,000 to purchasers and reimburse the state $1,500 for investigative costs.

 

SCOPE/PRODUCTS
The unconscionable sales practices statute applies to consumer transactions. 

PROHIBITED CONDUCT
Prohibits unconscionable acts or practices.

In determining whether an act is unconscionable, a number of facts will be taken into account, including whether the supplier knew at the time the consumer transaction was entered into that the price was substantially in excess of the price at which similar property or services were readily obtainable in similar consumer transactions by like consumers.  OHIO REV. CODE ANN. § 1345.03(B).

AG AUTHORITY/ PENALTIES
The Attorney General can seek injunctive relief, the appointment of a receiver, the sequestration of assets, reimbursement to consumers, and civil penalties of up to $25,000. OHIO REV. CODE ANN. §§ 1345.07 1345.11.

PRIVATE RIGHT OF ACTION 
Yes.  OHIO REV. CODE ANN. § 1345.09.

OKLAHOMA

PRICE-GOUGING STATUTE
Yes
Emergency Price Stabilization Act (EPSA), OKLA. STAT. ANN. tit. 15, §§ 777.1-777.5.

CURRENT STATUS
On March 13, 2020, the President issued a proclamation on declaring a national emergency. 

On March 13, 2020, the Attorney General announced that the state’s price gouging statute was in effect state wide and warned Oklahomans not to pay inflated prices for things like hand sanitizer, paper towels, and other products that “are becoming sparse.”  He also encouraged the public to report price gouging to his office, “where we will not hesitate to prosecute in order to shut these operations down to protect our citizens.” 

On March 27, 2020, the Attorney General said he had been “inundated with calls about price gouging” and that his office had received 208 complaints since March 13, 2020, most of which have been about price gouging. 

On April 4, 2020, the Governor declared a state of emergency. 

SCOPE/PRODUCTS
Applies to all goods, services, dwelling units, or storage space for the first 30 days after an emergency declaration.  OKLA. STAT. ANN. tit. 15, § 777.4(A). 

Between 30 days through 180 days after the declaration, the EPSA applies to the rent or lease of any dwelling unit or storage space and the sale of goods for use within the emergency area to repair, restore, remodel, or construct any dwelling unit.  OKLA. STAT. ANN. tit. 15, § 777.4(B). 

The EPSA does not apply to growers, producers, or processors of raw or processed food products, except for retail sales of such products to a consumer.  OKLA. STAT. ANN. tit. 15, § 777.4(D). 

There is a separate statute, the Oklahoma Disaster Relief Materials Price Stabilization Act (ODRMPSA), that applies to building materials.  OKLA. STAT. ANN. tit. 62, §§ 2201-2203.6.

PROHIBITED CONDUCT
Prohibits prices of more than 10% above the rate or price charged by the person for the same or similar goods or services immediately prior to the declaration of emergency. OKLA. STAT. ANN. tit. 15, § 777.4(A).

EXCEPTIONS OR DEFENSES
A price increase is not prohibited if it is attributable:

  • To price increases in applicable regional, national or international petroleum commodity markets; or
  • Only to factors unrelated to the emergency and does not include any increase in profit to the seller or owner. OKLA. STAT. ANN. tit. 15, § 777.4(A).

Any price approved by the appropriate government agency is not a violation of the EPSA. OKLA. STAT. ANN. tit. 15, § 777.4(C).

The EPSA also does not apply to sales, rentals, or leases of  goods from a catalog when the catalog is made available in the normal course of business both prior to and after the declaration of emergency to all persons regardless of location in the emergency area, or to advertised rates and prices which are subject to a published expiration date within or immediately prior to the declaration of emergency. OKLA. STAT. ANN. tit. 15, § 777.4(E) and (F).

TRIGGERING REQUIREMENT
The EPSA is triggered after the Governor or President declares a state of emergency.  OKLA. STAT. ANN. tit. 15, § 777.4(A).

AG AUTHORITY/ PENALTIES
The Attorney General or a district attorney may seek a declaratory judgment, injunction, damages, and civil penalties of $10,000 civil penalty per violation, the appointment of a receiver, the revocation of a license or certificate authorizing the person to engage in business in Oklahoma, or an injunction preventing the person from doing business in Oklahoma.  OKLA. STAT. ANN. tit. 15, §§ 756.1, 761.1. 

Violations of the EPSA can also be subject to criminal penalties. For a first offense, a violation is a misdemeanor punishable by up to a $1,000 fine, imprisonment for up to one year, or both.  OKLA. STAT. ANN. tit. 15, § 761.1(E).  For items over $500 or if the offense is the person’s second or more violation of the Consumer Protection Act, the violation is a felony punishable by up to a $5,000 fine, imprisonment for up to ten years, or both.  Id.

PRIVATE RIGHT OF ACTION 
Yes.  OKLA. STAT. ANN. tit. 15, § 761.1. 

Oregon

PRICE-GOUGING STATUTE
Yes
The Abnormal Disruption of Market statute, OR. REV. STAT. §§ 401.960-401.970.

CURRENT STATUS
On March 17, 2020, the Governor declared an abnormal disruption to the market due to Covid-19.  The declaration states that the abnormal disruption began at 12:00 am on January 30, 2020 in all Oregon counties. 

The Oregon Department of Justice DOJ has a consumer alert on its webpage warning of Covid-19 Scams and Price Gouging and providing a phone number for a price gouging hotline.

On April 1, 2020, a spokesperson for the DOJ reported that they had received 100 written complaints and 185 calls on the price gouging hotline since the pandemic began, many involving complaints about prices for toilet paper and disinfectant wipes.  She detailed that the DOJ contacts the company or place of business after receiving a complaint and sends a cease and desist letter if the office is not satisfied with a company’s response. 

On April 2, 2020, the Attorney General stated that her office had received 200 calls complaining about price gouging in stores and online and had sent out 17 cease and desist letters.  

SCOPE/PRODUCTS
Applies to essential consumer goods or services, defined as goods or services that:

  • Are or may be bought or acquired primarily for personal, family or household purposes, including but not limited to residential construction materials or labor, shelter for payment such as a hotel room, food, water and petroleum products such as gasoline or diesel fuel; and
  • Are necessary for the health, safety or welfare of consumers.  OR. REV. STAT. § 401.960(2).

PROHIBITED CONDUCT
Prohibits a merchant or wholesaler from selling at “unconscionably excessive” price.

It is prima facie proof that a price is unconscionably excessive if:

  • The amount charged exceeds by 15% or more the price at which the goods or services were sold or offered for sale in the usual course of business immediately prior to or during a declaration of an abnormal disruption of the market; or
  • The amount charged exceeds by 15% or more the price at which the same or similar consumer goods or services were readily obtainable by other consumers in or near the area.  OR. REV. STAT. § 401.965(3) and (4).

EXCEPTIONS OR DEFENSES
Increased prices do not violate the statute if the amount charged is:

  • Attributable to additional costs imposed by the merchant's or wholesaler's suppliers or necessarily incurred in procuring the essential consumer goods or services immediately prior to or during the declaration of an abnormal disruption of the market; or
  • Is the result of increased internal costs or expenses related to the declaration of an abnormal disruption of the market or the result of increased costs unrelated to the declaration of an abnormal disruption of the market.  OR. REV. STAT. § 401.965(4). 

TRIGGERING REQUIREMENT
The statute is in effect once the Governor declares an abnormal disruption of the market, which can be made either separately or as part of a declaration of a state of emergency.  OR. REV. STAT. § 401.965(5).

The declaration can specify a date of commencement of the abnormal disruption that is before the date the declaration is made. OR. REV. STAT. § 401.965(6).  

The declaration terminates automatically 30 days after the date of the declaration, although the Governor or legislative assembly can terminate the declaration sooner. OR. REV. STAT. § 401.965(7). 

The Governor can extend the declaration by subsequent 30-day periods with declarations that the abnormal disruption of the market still exists.  OR. REV. STAT. § 401.965(7).

AG AUTHORITY/ PENALTIES
Violation of the statute constitutes an unlawful trade practice, and remedies include injunctive relief  restitution and a $25,000 civil penalty per violation.  OR. REV. STAT. § 646.632.  OR. REV. STAT. § 646.636.

PRIVATE RIGHT OF ACTION 
Yes.  OR. REV. STAT. § 646.638.

Pennsylvania

PRICE-GOUGING STATUTE
Yes
73 PA. STAT. § 232.1 et seq.

CURRENT STATUS
On March 6 2020, the Pennsylvania Attorney General alerted  consumers and businesses to the fact that the price gouging statute has gone into effect.  The Attorney General created a dedicated email address for consumers to use to report price gouging.

On March 17, 2020 the Attorney General’s office announced that it had received more than 1,000 tips reporting alleged price gouging.

On March 19, 2020, the Attorney General and the United States Attorney for the Western District of Pennsylvania announced the formation of a joint federal and state Western Pennsylvania COVID-19 Fraud Task Force to investigate and prosecute coronavirus-related fraud, including price gouging. 

On April 2, 2020, the Attorney General announced that it had investigated over 3,000 complaints of price gouging, and had sent 170 cease-and-desist letters to businesses that had significantly increased prices on hand sanitizer, toilet paper, and certain food items. As of May 7, 2020, the number of complaints had risen to 4,660, with 416 cease-and-desist letters.

On May 7, 2020, the Attorney General reported that his office had entered into a settlement with a convenience store that requires it to cease price gouging and pay restitution to victims. The investigation began with a tip that the store was selling Lysol cleaning wipes for $25

On May 21, 2020, the Attorney General announced that he had entered into an Assurance of Voluntary Compliance (AVC) with an EZ Dollar Plus store to stop price gouging on face masks and hand sanitizer. The AVC requires the store to pay $600 in civil penalties and approximately $150 in restitution.

On May 27, 2020, the Attorney General announced that his office had entered into another AVC, this time with a convenience store which had been charging $20 per 500 mL bottle of hand sanitizer. The AVC requires the store to pay $500 in civil penalties and $840 in restitution.

SCOPE/PRODUCTS
Applies to  “consumer goods or services,” which is defined as “those items used, bought or rendered primarily for personal, family or household purposes.” 73 PA. STAT. §§ 232.3, 232.4.

Also applies to “any party within the chain of distribution,” including any manufacturer, supplier, wholesaler, distributor or retail seller.  73 PA. STAT. §§ 232.3, 232.4.

PROHIBITED CONDUCT
Prohibits selling or offering to sell for “an amount which represents an unconscionably excessive price.”  73 PA. STAT. § 232.4.

  • A price is unconscionably excessive if there is a gross disparity between the price charged and the price at which the consumer goods or services were sold or offered for sale in the usual course of business seven days immediately prior to the state of disaster emergency. 73 PA. STAT. § 232.3.
  • A price increase of 20% or more over the average price at which the same or similar consumer goods or services were obtainable in the affected area during the last seven days immediately prior to the declared state of emergency is prima facie evidence that a price is unconscionably  excessive.  73 PA. STAT. § 232.4.

EXCEPTIONS OR DEFENSES
The prohibition does not apply:

  • If the increase in price is substantially attributable to additional costs that arose within the chain of distribution, including replacement costs, credit card costs, taxes and transportation costs; or
  • To the sale of goods or services sold by a person pursuant to a tariff or rate approved by a Federal or Commonwealth agency with power and authority over sales of such goods or services. 73 PA. STAT. § 232.4(c).

TRIGGERING REQUIREMENT
Applies “[d]uring and within 30 days of the termination of a state of disaster emergency declared by the Governor.”  73 PA. STAT. § 232.4.

AG AUTHORITY/ PENALTIES
The Attorney General may seek a civil penalty up to $10,000 for each violation and injunctive relief, restitution and costs. 73 PA. STAT. § 232.5.

PRIVATE RIGHT OF ACTION 
No

Rhode Island

PRICE-GOUGING STATUTE
Yes
R.I. GEN. LAWS § 6-13-21.

CURRENT STATUS
The Governor declared a state of emergency over COVID-19 on March 9, 2020.

The Attorney General has warned consumers about potential price gouging and urged consumers to report suspected instances.

On March 30, 2020, it was reported that the Attorney General had received 85 complaints of price gouging and had issued cease-and-desist letters to Rhode Island businesses.

On May 6, the Governor issued an Executive Order extending the state of emergency “until at least June 5, 2020.”

SCOPE/PRODUCTS
Applies to “essential commodities,” which are defined as “any goods, services, materials, merchandise, supplies, equipment, resources, or other article of commerce, and include[], without limitation, home heating fuels, motor fuels, food, water, ice, chemicals, petroleum products, and lumber necessary for consumption or use as a direct result of the market emergency.” R.I. GEN. LAWS § 6-13-21(a), (b)(3).

PROHIBITED CONDUCT
Prohibits individuals and retailers from engaging in “price gouging,” which is defined as “making sales, or offering to sell . . . essential commodities to consumers for an amount that represents an unconscionably high price.”  R.I. GEN. LAWS § 6-13-21(a).

  • A price is unconscionably high when “the amount charged represents a gross disparity between the average prices at which the same or similar commodity was readily available and sold or offered for sale within the local trade area in the usual course of business during the thirty (30) days immediately before the declaration of the market emergency.” R.I. GEN. LAWS § 6-13-21(b)(1).
  • The 30-day average price calculation during shall not include discounted prices set and offered as a result of bona fide manufacturer's or supplier's limited discounts or rebates. R.I. GEN. LAWS § 6-13-21(b)(1).

EXCEPTIONS OR DEFENSES
A price is not unconscionably high if the additional charges are substantially attributable to increased cost to retailers, imposed by their suppliers.”  R.I. GEN. LAWS § 6-13-21(b)(1).

The statute does “not prohibit the fluctuation in price of essential commodities that occur during the normal course of business.”  R.I. GEN. LAWS § 6-13-21(c).

TRIGGERING REQUIREMENT
The statute applies if there is “a declaration of a state of emergency by the governor, or federal disaster declaration by the president.”  R.I. GEN. LAWS § 6-13-21(a).

AG AUTHORITY/ PENALTIES
Remedies include a fine of up to $1,000 per violation (not to exceed $25,000 total for a 24-hour period); disgorgement of profits; and any other relief deemed appropriate.  R.I. GEN. LAWS § 6-13-21(e).

The Attorney General can also seek injunctive relief, restitution, the appointment of a receiver, or corporate dissolution. R.I. GEN. LAWS §§ 6-13-21(e), 6-13.1-5, 6-13-5.1, 6-13-9.

Violation of the Governor’s order is punishable by a fine of $500.  R.I. GEN. LAWS §§ 6-13-21(e), 30-15-9(e)(12).

PRIVATE RIGHT OF ACTION 
Yes, but only to “enjoin or restrain” a violation.  R.I. GEN. LAWS § 6-13-6.

SOUTH CAROLINA

PRICE-GOUGING STATUTE
Yes
S.C. CODE ANN. § 39-5-145..

CURRENT STATUS
The Governor declared a state of emergency throughout the state on March 13, 2020.

The Attorney General issued a press release stating that the price gouging statute was in effect but noted: “We wish to emphasize, as we have seen in the past, that price gouging under the current law is difficult to prove, even substantial price increases. What might seem large to the public may not be illegal in court.”

On April 15, 2020, the Attorney General’s Office announced that it had received more than 650 complaints since the Governor declared a state of emergency and assigned potential price gouging cases to local solicitors around the state so their offices can review them and assign them to local law enforcement for investigation and potential prosecution.   

On May 13, 2020, the governor extended the state of emergency for 15 days.

SCOPE/PRODUCTS
A commodity, which is defined as “goods, services, materials, merchandise, supplies, equipment, resources, or other articles of commerce, and includes, without limitation, food, water, ice, chemicals, petroleum products, and lumber essential for consumption or use as a direct result of a declared state of emergency.” S.C. CODE ANN. § 39-5-145(A)(2), (B), (C), (D).

The provision “does not apply to sales by growers, producers, or processors of raw or processed food products, except for retail sales of those products to the ultimate consumer within the area of [a] declared state of emergency or disaster.”  S.C. CODE ANN. § 39-5-145(I).

Also applies to the rental or lease of a dwelling unit, including a motel or hotel unit, or other temporary lodging, or self-storage facility. S.C. CODE ANN. § 39-5-145(B), (C), (D).

PROHIBITED CONDUCT
Prohibits renting or selling (or offering to rent or sell) for an “unconscionable price.”  S.C. CODE ANN. §§ 39-5-145(B)-(D).

“Unconscionable price" means an amount charged which:

  • Represents a gross disparity from the average price in the usual course of business during the 30 days immediately before a declaration of a state of emergency; or
  • Grossly exceeds the average price at which the product was readily obtainable in the trade area during the 30 days immediately before a declaration of a state of emergency.  S.C. CODE ANN. §§ 39-5-145(A)(5)(a).

EXCEPTIONS OR DEFENSES
The following price increases are not prohibited:

  • An increase in the amount charged that is attributable to additional costs incurred or regional, national, or international market trends. S.C. CODE ANN. §§ 39-5-145(A)(5)(a).
  • A price increase “approved by an appropriate government agency.” S.C. CODE ANN. § 39-5-145(G).
  • A price increase that “reflects the usual and customary seasonal fluctuation in the price.” S.C. CODE ANN. § 39-5-145(H).

TRIGGERING REQUIREMENT
Applicable if:

  • The Governor declares a state of emergency;
  • The President declares a state of disaster for an area that includes part of South Carolina; or
  • The South Carolina Attorney General gives notice of an abnormal disruption of the market. S.C. CODE ANN. §§ 39-5-145(B)-(D).

For a declared state of emergency, the prohibition remains in effect until the declaration expires or is terminated.

AG AUTHORITY/ PENALTIES
The Attorney General can seek injunctive relief, restitution, revocation of a license or certificate authorizing a person to engage in business in the State, and (for willful violation) a civil penalty of up to $5,000 per violation. S.C. CODE ANN. §§ 39-5-50, 39-5-110.

A knowing and willful violation of the price gouging statute is a misdemeanor criminal offense, punishable by a fine of up to $1,000 and/or jail time of up to 30 days.  S.C. CODE ANN. § 39-5-145(K); S.C. CODE ANN. § 16-7-10. 

PRIVATE RIGHT OF ACTION 
Yes.  S.C. CODE ANN. § 39-5-140.

South Dakota

PRICE-GOUGING STATUTE
No

CURRENT STATUS
On March 30, 2020, the United States Attorney for the District of South Dakota urged the public to report suspected COVID-19 fraud or price gouging to the National Center for Disaster Fraud.

Tennessee

PRICE-GOUGING STATUTE
Yes
TENN. CODE ANN. §47-18-5103.

CURRENT STATUS
The Governor issued an executive order declaring an abnormal economic disruption on March 12, 2020.  The Order invoked the price gouging statute with regard to emergency supplies and medical supplies.  

On March 14, 2020, the Attorney General’s Office announced that it was investigating allegations of price gouging and had issued cease and desist orders.

On April 3, 2020, the Governor issued another order extending the declaration of abnormal economic disruption through April 18, 2020.  The Order invoked the price gouging statute with regard to emergency supplies, medical supplies, and consumer food items.

On April 17, 2020, the Governor extended the abnormal market disruption for an additional 15 days; it was extended again on May 1, 2020. 

On April 21, 2020, 2 individuals who were accused of hoarding over 17,000 bottles of hand sanitizer reached a settlement with the Attorney General, who began investigating them in mid-March.  The individuals avoided prosecution by agreeing to donate the supplies.  Amazon and other online retailers previously banned them from selling the supplies online.

Amazon is working with Tennessee and other states in connection with price gouging investigations, including investigations of nearly a dozen sellers from Tennessee.

Application of the state’s Price Gouging Act expired on May 17, 2020.

SCOPE/PRODUCTS
Applies to the following categories of goods and services:

  • Consumer food items;
  • Repair or construction services;
  • Emergency supplies, which includes, but is not limited to: water, flashlights, radios, batteries, candles, blankets, soap, diapers, temporary shelters, tape, toiletries, plywood, nails, and hammers;
  • Medical supplies, which includes, but is not limited to: prescription and nonprescription medications, bandages, gauze, isopropyl alcohol, and antibacterial products;
  • Building materials;
  •  Gasoline;
  • Transportation, freight, and storage services; or
  • Housing. TENN. CODE ANN. § 47-18-5103(a)(1).

The Governor may specify that only certain of these goods or services are covered by the prohibition. TENN. CODE ANN. § 47-18-5103(a)(2). 

PROHIBITED CONDUCT
Prohibits any person from charging a price that is “grossly in excess of the price generally charged for the same or similar goods or services in the usual course of business.”  TENN. CODE ANN. §§ 47-18-5103(a)(1).

EXCEPTIONS OR DEFENSES
Does not prohibit pricing that is directly attributable to:

  • Price increases in applicable regional, national, or international commodity markets;
  • Pricing set forth in any pre-existing agreement, including stored and in-transit inventory;
  • Additional costs imposed on the person by the supplier of the goods or services; or
  • Additional costs for labor, services, or materials used to provide the goods or services, including costs of replacement inventory, additional costs to transport goods or services, and additional labor charges. TENN. CODE ANN. § 47-18-5103(b).

TRIGGERING REQUIREMENT
The statute applies where the Governor makes a “declaration of an abnormal economic disruption,” based on “a disruption or anticipated disruption to usual business conditions caused by a natural or man-made disaster or emergency resulting from a terrorist attack, war, strike, civil disturbance, tornado, earthquake, fire, flood, or any other natural disaster or man-made disaster.” TENN. CODE ANN. §§ 47-18-5103(a)(1); 47-18-5102(1).

AG AUTHORITY/ PENALTIES
The Attorney General may bring an action under the Consumer Protection Statute for injunctive relief, restitution, or a civil penalty of up to $1,000 per violation.  TENN. CODE ANN. §§ 47-18-5104(a); 47-18-108.

PRIVATE RIGHT OF ACTION 
Yes. TENN. CODE ANN. §§ 47-18-5104(a), 47-18-109(a).

Texas

PRICE-GOUGING STATUTE
Yes
TEX. BUS. & COMM. CODE ANN. §§ 17.46(b)(27);17.4625.

CURRENT STATUS
The Texas Governor issued a declaration of disaster on March 13, 2020.

On March 13, 2020, the Attorney General issued a press release announcing that the price gouging statute is in effect and that the Attorney General’s Office “stands ready to prosecute any price-gouger who takes advantage of those taking precautions and looking for safety and supplies.”

On March 21, 2020, the Attorney General’s Office issued a press release warning to retail suppliers, including those who supply grocery stores and pharmacies, that they are subject to the price gouging statute.

On March 26, 2020, the Attorney General filed a lawsuit against an online seller auctioning over 750,000 facemasks with prices as high as $180 for a package of 16 N95 respirator masks.

On May 12, the Governor issued a Proclamation extending the disaster declaration.

SCOPE/PRODUCTS
Applies to:

  • Fuel,
  • Food,
  • Medicine,
  • Lodging,
  • Building materials,
  • Construction tools, or
  • Another necessity. TEX. BUS. & COMM. CODE ANN. § 17.46(b)(27).

PROHIBITED CONDUCT
Prohibits selling or leasing “at an exorbitant or excessive price” or “demanding an exorbitant or excessive price.” TEX. BUS. & COMM. CODE ANN. § 17.46(b)(27).

EXCEPTIONS OR DEFENSES
No

TRIGGERING REQUIREMENT
Applies during a “designated disaster period,” which runs from the date of the disaster declaration of disaster by the Texas Governor or by the President of the United States.  TEX. BUS. & COMM. CODE ANN. § 17.4625.

The designated disaster period ends on the 30th day after the date the disaster declaration expires or is terminated.  TEX. BUS. & COMM. CODE ANN. § 17.4625.

AG AUTHORITY/ PENALTIES
The Attorney General may seek injunctive relief, restitution, or civil penalties of up to $10,000 per violation. TEX. BUS. & COMM. CODE ANN. § 17.47(a), (c), (d).

PRIVATE RIGHT OF ACTION 
Yes. TEX. BUS. & COMM. CODE ANN. § 17.50.

Utah

PRICE-GOUGING STATUTE
Yes
UTAH CODE ANN. § 13-41-101, et seq.

CURRENT STATUS
The Utah Governor declared a state of emergency on March 6, 2020.

On March 16, 2020, the Attorney General’s Office issued an alert to merchants and consumers that the price gouging statute is in effect and stating that it is investigating allegations of price gouging.   

The Utah Division of Consumer Protection has resolved a price gouging case it had asserted against a Nevada company that sold personal protective equipment to Utah police.  The company agreed to comply with the law and provided the Attorney General with additional information demonstrating it was not price gouging. Three other price gouging citations have been issued against: (1) a resident who allegedly sold N95 masks for $20 each and refused to cooperate with investigators; (2) a hardware company that allegedly charged excessive prices for toilet paper; and (3) a car dealer who allegedly sold masks and mask filters at high prices.

A nonprofit, watchdog group called Alliance for a Better Utah filed a price gouging complaint against a company for allegedly selling 20,000 units of antimalarial drugs for $800,000 to the state of Utah.  The group claims the company increased the price of the drug during the pandemic.

SCOPE/PRODUCTS
Applies to goods or services sold or provided at retail (i.e., “the level of distribution where a good or service is typically sold directly, or otherwise provided, to a member of the public who is an end user and does not resell the good or service”).  UTAH CODE ANN. §§ 13-41-201(1), 13-41-102(6).

PROHIBITED CONDUCT
Prohibits charging an “excessive price.”

A price is excessive if exceeds the average price charged by that person within 30-day period immediately preceding the state of emergency by 10% or more.  UTAH CODE ANN. §§ 13-41-102(4), 13-41-201.

EXCEPTIONS OR DEFENSES
A price is permissible if:

    • The seller’s cost of obtaining the good or providing the service exceeds the average cost of obtaining the good or providing the service in the 30-day period immediately preceding the declaration; and
    • The price charged does not exceed the sum of:
      • 10% above the total cost to that person of obtaining the good or providing the service; and
      • the person's customary markup. UTAH CODE ANN. 13-41-201(2).

If a good or service has not been sold by a person during the 30-day period immediately preceding the emergency declaration, a price is not excessive if it does not exceed 30% above the person's total cost of obtaining the good or providing the service.  UTAH CODE ANN. §§ 13-41-201(4).

TRIGGERING REQUIREMENT
Applies if the Utah Governor declares a state of emergency or if the President declares a state of emergency or a major disaster. UTAH CODE ANN. §§ 13-41-201(1), 13-41-102(8).

AG AUTHORITY/ PENALTIES
Remedies include a cease and desist order and a fine of up to $1,000 per violation (not to exceed $10,000 per day).  UTAH CODE ANN. §§ 13-41-102(2); 13-41-202(1).

PRIVATE RIGHT OF ACTION 
No.  UTAH CODE ANN. § 13-41-202.

VERMONT

PRICE-GOUGING STATUTE
Yes
VT. STAT. ANN. tit. 9 § 2461d (prohibiting price gouging on petroleum and heating fuel products).

CURRENT STATUS
Although the Vermont price gouging statute applies only to petroleum and heating fuel products, the Attorney General’s Office has stated that price gouging is illegal in Vermont under the general provisions of the Consumer Protection Act, VT. STAT. ANN. tit. 9 § 2453.  

On April 14, 2020, the Attorney General filed a lawsuit and motion for preliminary injunction alleging violations of the Vermont Consumer Protection Act in connection with a price gouging scheme involving surgical masks. 

SCOPE/PRODUCTS
Section 2461d applies to "petroleum or heating fuel products," defined as “motor fuels, liquefied petroleum gas, fuel oil, kerosene, and wood pellets used for heating or cooking purposes.” VT. STAT. ANN. tit. 9 § 2461d(a).

PROHIBITED CONDUCT
Section 2461d prohibits “any petroleum or heating fuel-related business” from selling a petroleum product or heating fuel product during a market emergency for an “unconscionably high price.”  VT. STAT. ANN. tit. 9 § 2461d(b).

A price is unconscionably high if there is a “gross disparity” between the price charged and either:

  • The price at which the same product was sold or offered for sale by that business in the usual course of business immediately prior to the market emergency
  • The price at which the same or similar petroleum product or heating fuel product is readily obtainable in the trade area. VT. STAT. ANN. tit. 9 § 2461d(c).

EXCEPTIONS OR DEFENSES
A price is not unconscionably high if the disparity is substantially attributable to increased prices charged by the petroleum product or heating fuel product suppliers or increased costs due to the market emergency.  VT. STAT. ANN. tit. 9 § 2461d(c).

TRIGGERING REQUIREMENT
The petroleum and heating fuel price gouging statute applies during a market emergency declared by the Governor.  VT. STAT. ANN. tit. 9 § 2461d(a).

AG AUTHORITY/ PENALTIES
Under the Consumer Protection Act, the Attorney General can seek a temporary or permanent injunction, the dissolution of a domestic corporation, the revocation of the certificate of authority granted a foreign corporation, restitution, or a civil penalty of not more than $10,000 for each unfair or deceptive act or practice (up to $100,000 for an individual or $1,000,000 for any other person).  VT. STAT. ANN. tit. 9 § 2458.

PRIVATE RIGHT OF ACTION 
Yes.  VT. STAT. ANN. tit. 9 § 2461(b).

Virginia

PRICE-GOUGING STATUTE
Yes
Virginia Post-Disaster Anti-Price Gouging Act, VA. CODE ANN. § 59.1-525 et seq

CURRENT STATUS
On March 12, 2020, the Governor declared a state of emergency and the Attorney General announced that the price gouging statute was in effect. 

On March 31, 2020, the Attorney General’s Office announced that it had sent cease and desist letters to 42 businesses regarding price gouging complaints.

SCOPE/PRODUCTS
Applies to “necessary goods and services,” defined as a good or service “for which consumer demand does, or is likely to, increase as a consequence of the disaster, and includes, but is not limited to, water, ice, consumer food items or supplies, property or services for emergency cleanup, emergency supplies, communication supplies and services, medical supplies and services, home heating fuel, building materials and services, tree removal supplies and services, freight, storage services, housing, lodging, transportation, and motor fuels.”  VA. CODE ANN. § 59.1-526.

PROHIBITED CONDUCT
Prohibits selling, leasing, offering, or licensing “at an unconscionable price.”

Determining if a price increase is unconscionable, depends on:

  • Whether the price charged grossly exceeded the price the seller charged for the same or similar goods or services during the 10 days immediately prior to the disaster, but if a good or service was offered at a reduced price immediately prior to the time of disaster, the price at which the supplier usually offers the good or service shall be used as the benchmark for these purposes; and
  • Whether the price charged grossly exceeded the price at which the same or similar goods or services were readily obtainable by consumers in the trade area during the 10 days immediately prior to the time of disaster. VA. CODE ANN. § 59.1-527(1), (2).

EXCEPTIONS OR DEFENSES
A price is not unconscionable if:

  • The increase in the amount charged was attributable solely to additional costs incurred by the supplier in connection with the sale of the goods or services, including additional costs imposed by the supplier's source; or
  • If the increase was attributable solely to a regular seasonal or holiday adjustment in the price charged for the good or service. VA. CODE ANN. § 59.1-527(3), (4).

TRIGGERING REQUIREMENT
Applies during a time of disaster that leads to the declaration of a state of emergency by the Governor or the President of the United States. VA. CODE ANN. §§ 59.1-526, 59.1-527.

AG AUTHORITY/ PENALTIES
Remedies available include injunctive relief, restitution, and civil penalties of up to $2,500 per violation.  VA. CODE ANN. §§ 59.1-529, 59.1-203, 205, 206.

PRIVATE RIGHT OF ACTION 
No. VA. CODE ANN. §§ 59.1-529.

WASHINGTON

PRICE-GOUGING STATUTE
No
However, the Attorney General is taking action with regard to price gouging under the general terms of the Consumer Protection Act, RCW 19.86.010 et seq., and legislation has been introduced that would specifically prohibit price gouging. 

CURRENT STATUS
On March 4, 2020, the Attorney General issued a press release stating that formal investigations have been initiated with regard to price gouging during the COVID-19 emergency. 

On March 6, 2020, Senate Bill  6699 was introduced. The proposed legislation would prohibit price gouging at the time of disaster.

On March 30, the Attorney General sent cease and desist letters to five Washington-based independent sellers on Amazon who significantly raised prices on coronavirus-related items.

On April 7, 2020, the Attorney General launched an awareness campaign encouraging Washingtonians to report price gouging in three easy steps: “See It, Snap It, Send It.

AG AUTHORITY/ PENALTIES
Under the Consumer Protection Act, remedies include injunctive relief, restitution, a civil penalty of not more than $2,000 for each violation.  RCW 19.86.080; RCW 19.86.140.

PRIVATE RIGHT OF ACTION 
Yes.  RCW 19.86.090.

West Virginia

PRICE-GOUGING STATUTE
Yes
Consumer and Credit Protection Act., W. VA. CODE § 46A-6J-1, et seq.

CURRENT STATUS
On March 16, 2020, the Governor declared a state of emergency.

The Attorney General’s Office has posted information about the price gouging statute on its website and asked consumer to report instances of suspected price gouging via an online complaint submission form.

SCOPE/PRODUCTS
May apply to:

  • Any consumer food items, essential consumer items, goods used for emergency cleanup, emergency supplies, medical supplies, home heating oil, building materials, housing, transportation, freight and storage services, or gasoline or other motor fuels, and
  • Repair or reconstruction services or any services used in emergency cleanup.  W. VA. CODE § 46A-6J-3.

During a state of preparedness, the price gouging statute only apply to those items or services specifically set forth in the proclamation.  W. VA. CODE § 46A-6J-3(d).

PROHIBITED CONDUCT
Prohibits charging more than 10% above the price charged on the tenth day immediately preceding the declaration of emergency.  W. VA. CODE § 46A-6J-3(a)-(b).

EXCEPTIONS OR DEFENSES
A price increase of more than 10% is not prohibited if:

  • The increase in price is directly attributable to additional costs imposed on the seller by the supplier or additional costs for labor or materials used to provide the services, and
  • The price is no greater than 10% above the total of the cost to the seller plus the markup customarily applied by the seller for that good or service prior to the emergency. W. VA. CODE §§ 46A-6J-3(a)-(b). 

Any business offering an item for sale at a reduced price ten days immediately prior to the declaration of the state of emergency or state of preparedness may use the price at which it usually sells the item to calculate the allowable price.  W. VA. CODE § 46A-6J-3(c). 

Note that there is a specific calculation provision for gasoline and motor fuel suppliers.  W. VA. CODE §§ 46A-6J-3(a).

TRIGGERING REQUIREMENT
Price gouging laws go into effect upon:

  • The declaration of a state of emergency by the Governor, the Legislature, or the President, or
  • The declaration of a state of preparedness by the Governor or the Legislature. W. VA. CODE § 46A-6J-3.

For consumer goods, the price gouging provision will remain in effect during the state of emergency or state of preparedness or for thirty days following the declaration, whichever is longer, unless the Governor shortens or extends the time period.  W. VA. CODE § 46A-6J-3(a), (d).

For repair or reconstruction services, the provision will remain in effect for 180 days following the declaration,  unless the Governor shortens or extends the time period.  W. VA. CODE § 46A-6J-3(b), (d). 

AG AUTHORITY/ PENALTIES
The Attorney General may seek injunctive relief or a civil penalty.  For repeated and willful violations, a civil penalty of up to $5,000 per violation may be imposed.  W. VA. CODE §§ 46A-7-108, 46A-7-109, 46A-6J-111(2).

A violation is also a misdemeanor, subject to a  fine of up to $1,000, up to one year in jail, or both.  See W. VA. CODE § 46A-6J-5(b).

PRIVATE RIGHT OF ACTION 
Yes.  W. VA. CODE §§ 46A-6J-5(a); § 46A-6-106.

Wisconsin

PRICE-GOUGING STATUTE
Yes
WIS. STAT. § 100.305; Wis. ADMIN. CODE ch. ATCP 106. 

CURRENT STATUS
The Governor certified an emergency on March 12, 2020.

The Attorney General has issued multiple press releases encouraging consumers to  report suspected price gouging, and is reported to have issued cease and desist letters to 16 companies as of March 24, 2020.   

The Department of Agriculture, Trade and Consumer Protection has provided on its website guidance for consumers and retailers regarding the state’s price gouging laws.

SCOPE/PRODUCTS
Applies to consumer goods and services.

  • Defined as “goods or services that are used primarily for personal, family, or household purposes.” WIS. STAT. § 100.305(1)(a).
  • Does not include parts or raw materials sold or distributed for subsequent manufacture of a consumer good. WIS. ADMIN. CODE ATCP § 106.01(2).

Applies to wholesale and retail sales.  WIS. STAT. § 100.305(2).

PROHIBITED CONDUCT
Prohibits selling goods or services at unreasonably excessive prices.” WIS. STAT. § 100.305(2).

The regulations specifically prohibit a price that is more than 15% above the highest price during the 60-day period immediately preceding the emergency declaration. WIS. AMIN. CODE ATCP § 106.02(1).

EXCEPTIONS OR DEFENSES
The prohibition does not apply if, at the time of sale, the seller possesses and relies upon accurate information that demonstrates any of the following:

  • The selling price does not exceed the seller's cost plus normal markup;
  • The selling price is required by law; or
  • The emergency declaration directly or impliedly exempted the sale. WIS. ADMIN. CODE ATCP § 106.02(2)

TRIGGERING REQUIREMENT
Applies if the Governor, by executive order, has certified that the state or a part of the state is in a period of abnormal economic disruption. WIS. STAT. § 100.305(2).

AG AUTHORITY/ PENALTIES
Remedies include injunctive relief and a civil forfeiture of up to $10,000 or both. WIS. STAT. § 100.305(4m).

PRIVATE RIGHT OF ACTION 
No

Wyoming

PRICE-GOUGING STATUTE
No

CURRENT STATUS
On March 30, 2020, the United States Attorney for the District of Wyoming issued a press release stating:  “I have been in contact with Wyoming Attorney General Bridget Hill to discuss the situation.  Our offices will be cooperating to address any reports of fraud or price gouging occurring in Wyoming.”

On April 7, 2020, the Attorney General issued a press release stating that the Consumer Protection Unit “is actively monitoring Wyoming’s marketplace for unlawful attempts to exploit the COVID-19 public health emergency.  Typically we do not identify the targets of our investigations or recipients of our demand letters. But rest assured, we are taking formal action to address unlawful business practices related to COVID-19, including unfair price increases of essential goods . . . .”