[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 7390 Introduced in House (IH)]
<DOC>
118th CONGRESS
2d Session
H. R. 7390
To make price gouging unlawful, to expand the ability of the Federal
Trade Commission to seek permanent injunctions and equitable relief,
and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 15, 2024
Ms. Schakowsky (for herself, Mr. Nadler, Mr. Khanna, Ms. Porter, Ms.
Norton, Mr. Johnson of Georgia, Mr. Tonko, Ms. Scanlon, and Mr. Takano)
introduced the following bill; which was referred to the Committee on
Energy and Commerce, and in addition to the Committee on Financial
Services, for a period to be subsequently determined by the Speaker, in
each case for consideration of such provisions as fall within the
jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To make price gouging unlawful, to expand the ability of the Federal
Trade Commission to seek permanent injunctions and equitable relief,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Price Gouging
Prevention Act of 2024''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Prevention of price gouging.
Sec. 4. Disclosures in SEC filings.
Sec. 5. Funding.
SEC. 2. DEFINITIONS.
In this Act:
(1) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(2) Critical trading partner.--The term ``critical trading
partner'' means a person that has the ability to restrict,
impede, or foreclose access to the inputs, customers, partners,
goods, services, technology, platform, facilities, or tools of
such person in a way that harms competition or limits the
ability of the customers or suppliers of such person to carry
out business effectively.
(3) Exceptional market shock.--The term ``exceptional
market shock'' means any change or imminently threatened (as
determined under guidance issued by the Commission) change in
the market for a good or service resulting from a natural
disaster, failure or shortage of electric power or other source
of energy, concerted labor action, lockout, civil disorder,
war, military action, national or local emergency, public
health emergency, or any other cause of an atypical disruption
in such market.
(4) Good or service.--The term ``good or service'' means
any good or service offered in commerce.
(5) State.--The term ``State'' means each of the several
States, the District of Columbia, each commonwealth, territory,
or possession of the United States, and each federally
recognized Indian Tribe.
(6) Ultimate parent entity.--The term ``ultimate parent
entity'' has the meaning given such term in section 801.1 of
title 16, Code of Federal Regulations (or any successor
regulation).
SEC. 3. PREVENTION OF PRICE GOUGING.
(a) In General.--It shall be unlawful for a person to sell or offer
for sale a good or service at a grossly excessive price, regardless of
the person's position in a supply chain or distribution network.
(b) Affirmative Defense.--
(1) In general.--Subsection (a) shall not apply to the
sale, or offering for sale, of a good or service by a person
if--
(A) the person's ultimate parent entity earned less
than $100,000,000 in gross revenue from goods or
services provided in the United States during the 12-
month period preceding the sale or offer that allegedly
violates subsection (a); and
(B) the person demonstrates by a preponderance of
the evidence that the increase in the price of the good
or service involved is directly attributable to
additional costs that are--
(i) not within the control of the person;
and
(ii) incurred by the person in procuring,
acquiring, distributing, or providing the good
or service.
(2) Inflation adjustment.--Beginning on January 1, 2025,
the Commission shall annually adjust the amount specified in
paragraph (1)(A) by the percentage change in the consumer price
index for all urban consumers published by the Bureau of Labor
Statistics for the 12-month period ending on December 31 of the
previous year.
(c) Presumptive Violations.--A person shall be presumed to be in
violation of subsection (a) if, during an exceptional market shock, it
is shown by a preponderance of the evidence that the person--
(1)(A) has unfair leverage; or
(B) is using the effects or circumstances related to an
exceptional market shock as a pretext to increase prices; and
(2) regardless of the person's position in a supply chain
or distribution network, sells or offers for sale a good or
service at an excessive price compared to--
(A) the average price at which the good or service
was sold or offered for sale by all competing sellers
in the market during the 120-day period preceding such
exceptional market shock; or
(B) the average price at which the good or service
was sold or offered for sale by the person in the
market during the 120-day period preceding such
exceptional market shock.
(d) Rebuttal.--A person may rebut a presumption under subsection
(c) if the person demonstrates by clear and convincing evidence that
the increase in the price of the good or service involved is directly
attributable to additional costs that are--
(1) not within the control of the person; and
(2) incurred by the person in procuring, acquiring,
distributing, or providing the good or service.
(e) Unfair Leverage.--
(1) In general.--
(A) Characteristics of unfair leverage.--For
purposes of subsection (c), a person has unfair
leverage if the person--
(i) earned at least $1,000,000,000 in gross
revenue from goods or services provided in the
United States during the 12-month period
preceding the sale or offer that allegedly
violates subsection (a);
(ii) discriminates between otherwise equal
trading partners in the same market by applying
differential prices or conditions;
(iii) is a critical trading partner;
(iv) engages in unfair, deceptive, or
abusive acts or practices;
(v) has a dominant position in--
(I) the conduct of any business,
trade or commerce;
(II) any labor market; or
(III) the furnishing of any
service; or
(vi) has a characteristic described in a
rule promulgated by the Commission that further
defines unfair leverage.
(B) Presumption of a dominant position.--For
purposes of subparagraph (A)(v), a person shall be
presumed to have a dominant position if--
(i) evidence shows that the person is not
constrained by meaningful competitive
pressures; or
(ii) the person--
(I) has a share of 40 percent or
greater of a relevant market as a
seller; or
(II) has a share of 30 percent or
greater of a relevant market as a
buyer.
(2) Inflation adjustment.--Beginning on January 1, 2025,
the Commission shall annually adjust the amount specified in
paragraph (1)(A)(i) by the percentage change in the consumer
price index for all urban consumers published by the Bureau of
Labor Statistics for the 12-month period ending on December 31
of the previous year.
(f) Enforcement by the Commission.--
(1) Unfair or deceptive acts or practices.--A violation of
this section or a regulation promulgated under this section
shall be treated as a violation of a rule defining an unfair or
deceptive act or practice prescribed under section 18(a)(1)(B)
of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
(2) Powers of the commission.--
(A) In general.--Except as provided by
subparagraphs (D) and (E), the Commission shall enforce
this section in the same manner, by the same means, and
with the same jurisdiction, powers, and duties as
though all applicable terms and provisions of the
Federal Trade Commission Act (15 U.S.C. 41 et seq.)
were incorporated into and made a part of this section.
(B) Privileges and immunities.--Any person who
violates this section or a regulation promulgated under
this section shall be subject to the penalties and
entitled to the privileges and immunities provided in
the Federal Trade Commission Act (15 U.S.C. 41 et
seq.).
(C) Authority preserved.--Nothing in this section
shall be construed to limit the authority of the
Commission under any other provision of law.
(D) Independent litigation authority.--If the
Commission has reason to believe that a person has
violated this section, the Commission may bring a civil
action in any appropriate United States district court
to--
(i) enjoin any further such violation by
such person;
(ii) enforce compliance with this section;
(iii) obtain a permanent, temporary, or
preliminary injunction;
(iv) obtain civil penalties;
(v) obtain damages, restitution, or other
compensation on behalf of aggrieved consumers;
or
(vi) obtain any other appropriate equitable
relief.
(E) Civil penalties.--In addition to any other
penalties as may be prescribed by law, each violation
of this section shall carry a civil penalty not to
exceed--
(i) if the person who committed the
violation does not have unfair leverage (as
described in subsection (e)), the lesser of--
(I) $25,000; or
(II) 5 percent of the revenues
earned by the person's ultimate parent
entity during the preceding 12-month
period; or
(ii) if the person who committed the
violation has unfair leverage, 5 percent of the
revenues earned by the person's ultimate parent
entity during the preceding 12-month period.
(F) Rulemaking.--
(i) In general.--The Commission may
promulgate in accordance with section 553 of
title 5, United States Code, such rules as may
be necessary to carry out this section,
including guidelines regarding what constitutes
an exceptional market shock or that provide for
additional characteristics that demonstrate
that a person has unfair leverage.
(ii) Required guidance.--Not later than 180
days after the date of enactment of this Act,
the Commission shall promulgate regulations
regarding violations of this section, which
shall include guidelines on, for the purposes
of this Act, what constitutes a market, a
grossly excessive price for a good or service,
and an excessive price for a good or service.
(iii) Definition of grossly excessive
price.--
(I) In general.--For purposes of
subsection (a) and the guidance
described in clause (ii), the
Commission shall define the term
``grossly excessive price'', which
shall include--
(aa) subject to subclause
(II), a price for a good or
service that is equal to an
amount not less than 20 percent
greater than the average price
for such good or service in the
market during the 6-month
period preceding the sale or
offer that allegedly violates
subsection (a); and
(bb) any other metric
identified by the Commission.
(II) Discretion of the
commission.--For purposes of defining
``grossly excessive price'', the
Commission may reduce the percentage
described in matter (aa) at its
discretion.
(g) Enforcement by State Attorneys General.--
(1) In general.--If the attorney general of a State has
reason to believe that any person has violated or is violating
this section, the attorney general, in addition to any
authority it may have to bring an action in State court under
the laws of such State, may bring a civil action in any
appropriate United States district court or in any other court
of competent jurisdiction, including a State court, to--
(A) enjoin any further such violation by such
person;
(B) enforce compliance with this section;
(C) obtain a permanent, temporary, or preliminary
injunction;
(D) obtain civil penalties;
(E) obtain damages, restitution, or other
compensation on behalf of residents of the State; or
(F) obtain any other appropriate equitable relief.
(2) Rights of the commission.--
(A) Notice to the commission.--
(i) In general.--Except as provided in
clause (ii), before initiating a civil action
under paragraph (1), the attorney general of
the State involved shall provide to the
Commission a written notice of such action and
a copy of the complaint for such action.
(ii) Exception.--If the attorney general
determines that it is not feasible to provide
the notice described in clause (i) before
initiating a civil action under this
subsection, the attorney general shall provide
written notice of the action and a copy of the
complaint to the Commission immediately upon
initiating the civil action.
(B) Intervention.--The Commission may--
(i) intervene in any civil action brought
by the attorney general, official, or agency of
a State under this subsection; and
(ii) upon intervening--
(I) be heard on all matters arising
in the civil action; and
(II) file petitions for appeal of a
decision in the civil action.
(3) Investigatory powers.--Nothing in this subsection may
be construed to prevent the attorney general of a State from
exercising the powers conferred on the attorney general by the
laws of the State to conduct investigations, to administer
oaths or affirmations, or to compel the attendance of witnesses
or the production of documentary or other evidence.
(4) Limitation on state action while federal action is
pending.--If the Commission has instituted a civil action for a
violation of this section, no State attorney general may bring
an action under this subsection during the pendency of that
action against any defendant named in the complaint of the
Commission for any violation of this section alleged in the
complaint.
(5) Relationship with state-law claims.--If the attorney
general of a State has authority to bring an action under State
law directed at acts or practices that also violate this
section, the attorney general may assert a claim under State
law and a claim under this section in the same civil action.
(6) Venue; service of process.--
(A) Venue.--Any action brought under paragraph (1)
may be brought in--
(i) the district court of the United States
that meets applicable requirements relating to
venue under section 1391 of title 28, United
States Code; or
(ii) another court of competent
jurisdiction.
(B) Service of process.--In an action brought under
paragraph (1), process may be served in any district in
which--
(i) the defendant is an inhabitant, may be
found, or transacts business; or
(ii) venue is proper under section 1391 of
title 28, United States Code.
(7) Actions by other state officials.--
(A) In general.--In addition to civil actions
brought by an attorney general under paragraph (1), any
other officer of a State who is authorized by the State
to do so may bring a civil action under paragraph (1),
subject to the same requirements and limitations that
apply under this subsection to civil actions brought by
attorneys general.
(B) Savings provision.--Nothing in this subsection
may be construed to prohibit an authorized official of
a State from initiating or continuing any proceeding in
a court of the State for a violation of any civil or
criminal law of the State.
(8) Effect on state laws.--Nothing in this section shall
preempt or otherwise affect any State or local law.
SEC. 4. DISCLOSURES IN SEC FILINGS.
(a) Definitions.--In this section:
(1) Covered issuer.--The term ``covered issuer'' means an
issuer that--
(A) has a covered quarter; and
(B) in the quarter following the covered quarter
described in subparagraph (A), is required to submit
Form 10-Q or Form 10-K.
(2) Covered quarter.--The term ``covered quarter'' means a
quarter during which there is an exceptional market shock.
(3) Form 10-k.--The term ``Form 10-K'' means the form
described in section 249.310 of title 17, Code of Federal
Regulations, or any successor regulation.
(4) Form 10-q.--The term ``Form 10-Q'' means the form
described in section 240.15d-13 of title 17, Code of Federal
Regulations, or any successor regulation.
(5) Issuer.--The term ``issuer'' has the meaning given the
term in section 3(a) of the Securities Exchange Act of 1934 (15
U.S.C. 78c(a)).
(b) Inclusion in Filing.--Each covered issuer, in each Form 10-K or
Form 10-Q that the covered issuer is required to file in a quarter
following a covered quarter, shall include in the filing the following
information with respect to that covered quarter, as compared with the
quarter preceding that covered quarter:
(1) The percentage change in the volume of goods or
services sold, and the percentage change in the average sales
price of those goods or services, which shall be broken down by
material product categories, when relevant, and presented in a
tabular format.
(2) The gross margins of the covered issuer, which shall be
broken down by material product categories, when relevant, and
presented in a tabular format.
(3) Presented in tabular format, the share of the increase
in revenue of the covered issuer that is attributable to--
(A) a change in the cost of goods or services sold
by the covered issuer; and
(B) a change in the volume of goods or services
sold by the covered issuer.
(4) The percentage change in the costs of the covered
issuer, which shall be broken down by category and presented in
tabular format.
(5) In dollars, the change in the costs of the covered
issuer and the revenue of the covered issuer, which shall be
presented in tabular format.
(6) A detailed narrative disclosure of the pricing strategy
of the covered issuer, which shall include--
(A) an explanation for any increase in the gross
margins of material product categories, including all
material causes for such an increase, an explanation of
how each such material cause affected such an increase,
and a description of the relative importance of each
such material cause with respect to such an increase;
(B) an explanation for the decisions made by the
covered issuer with respect to the prices of goods or
services sold by the covered issuer;
(C) if the covered issuer increased prices at a
rate that was greater than the rate at which the costs
incurred by the covered issuer increased, the rationale
and objectives for increasing prices in such a manner;
and
(D) a description of conditions under which the
covered issuer plans to modify pricing after the date
on which the covered issuer submits the filing.
(c) Regulations.--Not later than 180 days after the date of
enactment of this Act, the Securities and Exchange Commission shall
issue final regulations, or amend existing regulations of the
Commission, to carry out this section.
(d) Effective Date.--This section shall take effect on the date on
which the Securities and Exchange Commission issues final regulations
under subsection (c) or completes the amendments required under that
subsection, as applicable.
SEC. 5. FUNDING.
In addition to amounts otherwise available, there is appropriated
to the Commission for fiscal year 2024, out of any money in the
Treasury not otherwise appropriated, $1,000,000,000, to remain
available until September 30, 2032, for carrying out work of the
Commission.
<all>