[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3803 Introduced in Senate (IS)]

<DOC>






118th CONGRESS
  2d Session
                                S. 3803

 To make price gouging unlawful, to expand the ability of the Federal 
 Trade Commission to seek permanent injunctions and equitable relief, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 26, 2024

   Ms. Warren (for herself, Ms. Baldwin, Mr. Casey, Mr. Sanders, Mr. 
Merkley, Mr. Markey, Mr. Whitehouse, Mr. Blumenthal, and Mr. Fetterman) 
introduced the following bill; which was read twice and referred to the 
           Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
 To make price gouging unlawful, to expand the ability of the Federal 
 Trade Commission to seek permanent injunctions and equitable relief, 
                        and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Price Gouging 
Prevention Act of 2024''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Prevention of price gouging.
Sec. 4. Disclosures in SEC filings.
Sec. 5. Funding.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (2) Critical trading partner.--The term ``critical trading 
        partner'' means a person that has the ability to restrict, 
        impede, or foreclose access to the inputs, customers, partners, 
        goods, services, technology, platform, facilities, or tools of 
        such person in a way that harms competition or limits the 
        ability of the customers or suppliers of such person to carry 
        out business effectively.
            (3) Exceptional market shock.--The term ``exceptional 
        market shock'' means--
                    (A) any change or imminently threatened (as 
                determined under guidance issued by the Commission) 
                change in the market for a good or service resulting 
                from a natural disaster, failure or shortage of 
                electric power or other source of energy, concerted 
                labor action, lockout, civil disorder, war, military 
                action, national or local emergency, public health 
                emergency, or any other cause of an atypical disruption 
                in such market; or
                    (B) any period of time during which the President 
                has declared a major disaster or emergency under 
                section 401 or 502, respectively, of the Robert T. 
                Stafford Disaster Relief and Emergency Assistance Act 
                (42 U.S.C. 5170, 5191).
            (4) Good or service.--The term ``good or service'' means 
        any good or service offered in commerce.
            (5) State.--The term ``State'' means each of the several 
        States, the District of Columbia, each commonwealth, territory, 
        or possession of the United States, and each federally 
        recognized Indian Tribe.
            (6) Ultimate parent entity.--The term ``ultimate parent 
        entity'' has the meaning given such term in section 801.1 of 
        title 16, Code of Federal Regulations (or any successor 
        regulation).

SEC. 3. PREVENTION OF PRICE GOUGING.

    (a) In General.--It shall be unlawful for a person to sell or offer 
for sale a good or service at a grossly excessive price, regardless of 
the person's position in a supply chain or distribution network.
    (b) Affirmative Defense.--
            (1) In general.--Subsection (a) shall not apply to the 
        sale, or offering for sale, of a good or service by a person 
        if--
                    (A) the person's ultimate parent entity earned less 
                than $100,000,000 in gross revenue from goods or 
                services provided in the United States during the 12-
                month period preceding the sale or offer that allegedly 
                violates subsection (a); and
                    (B) the person demonstrates by a preponderance of 
                the evidence that the increase in the price of the good 
                or service involved is directly attributable to 
                additional costs that are--
                            (i) not within the control of the person; 
                        and
                            (ii) incurred by the person in procuring, 
                        acquiring, distributing, or providing the good 
                        or service.
            (2) Inflation adjustment.--Beginning on January 1, 2025, 
        the Commission shall annually adjust the amount specified in 
        paragraph (1)(A) by the percentage change in the consumer price 
        index for all urban consumers published by the Bureau of Labor 
        Statistics for the 12-month period ending on December 31 of the 
        previous year.
    (c) Presumptive Violations.--A person shall be presumed to be in 
violation of subsection (a) if, during an exceptional market shock, it 
is shown by a preponderance of the evidence that the person--
            (1)(A) has unfair leverage; or
            (B) is using the effects or circumstances related to an 
        exceptional market shock as a pretext to increase prices; and
            (2) regardless of the person's position in a supply chain 
        or distribution network, sells or offers for sale a good or 
        service at an excessive price compared to--
                    (A) the average price at which the good or service 
                was sold or offered for sale by the person in the 
                market during the 120-day period preceding such 
                exceptional market shock; or
                    (B) the price at which the good or service was sold 
                or offered for sale by competing sellers in the market 
                during the exceptional market shock.
    (d) Rebuttal.--A person may rebut a presumption under subsection 
(c) if the person demonstrates by clear and convincing evidence that 
the increase in the price of the good or service involved is directly 
attributable to additional costs that are--
            (1) not within the control of the person; and
            (2) incurred by the person in procuring, acquiring, 
        distributing, or providing the good or service.
    (e) Unfair Leverage.--
            (1) In general.--
                    (A) Characteristics of unfair leverage.--For 
                purposes of subsection (c), a person has unfair 
                leverage if the person--
                            (i) earned at least $1,000,000,000 in gross 
                        revenue from goods or services provided in the 
                        United States during the 12-month period 
                        preceding the sale or offer that allegedly 
                        violates subsection (a);
                            (ii) discriminates between otherwise equal 
                        trading partners in the same market by applying 
                        differential prices or conditions;
                            (iii) is a critical trading partner;
                            (iv) engages in unfair, deceptive, or 
                        abusive acts or practices;
                            (v) has a dominant position in--
                                    (I) the conduct of any business, 
                                trade, or commerce;
                                    (II) any labor market; or
                                    (III) the furnishing of any 
                                service; or
                            (vi) has a characteristic described in a 
                        rule promulgated by the Commission that further 
                        defines unfair leverage.
                    (B) Presumption of a dominant position.--For 
                purposes of subparagraph (A)(v), a person shall be 
                presumed to have a dominant position if--
                            (i) evidence shows that the person is not 
                        constrained by meaningful competitive 
                        pressures; or
                            (ii) the person--
                                    (I) has a share of 40 percent or 
                                greater of a relevant market as a 
                                seller; or
                                    (II) has a share of 30 percent or 
                                greater of a relevant market as a 
                                buyer.
            (2) Inflation adjustment.--Beginning on January 1, 2025, 
        the Commission shall annually adjust the amount specified in 
        paragraph (1)(A)(i) by the percentage change in the consumer 
        price index for all urban consumers published by the Bureau of 
        Labor Statistics for the 12-month period ending on December 31 
        of the previous year.
    (f) Enforcement by the Commission.--
            (1) Unfair or deceptive acts or practices.--A violation of 
        this section or a regulation promulgated under this section 
        shall be treated as a violation of a rule defining an unfair or 
        deceptive act or practice prescribed under section 18(a)(1)(B) 
        of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
            (2) Powers of the commission.--
                    (A) In general.--Except as provided by 
                subparagraphs (D) and (E), the Commission shall enforce 
                this section in the same manner, by the same means, and 
                with the same jurisdiction, powers, and duties as 
                though all applicable terms and provisions of the 
                Federal Trade Commission Act (15 U.S.C. 41 et seq.) 
                were incorporated into and made a part of this section.
                    (B) Privileges and immunities.--Any person who 
                violates this section or a regulation promulgated under 
                this section shall be subject to the penalties and 
                entitled to the privileges and immunities provided in 
                the Federal Trade Commission Act (15 U.S.C. 41 et 
                seq.).
                    (C) Authority preserved.--Nothing in this section 
                shall be construed to limit the authority of the 
                Commission under any other provision of law.
                    (D) Independent litigation authority.--If the 
                Commission has reason to believe that a person has 
                violated this section, the Commission may bring a civil 
                action in any appropriate United States district court 
                to--
                            (i) enjoin any further such violation by 
                        such person;
                            (ii) enforce compliance with this section;
                            (iii) obtain a permanent, temporary, or 
                        preliminary injunction;
                            (iv) obtain civil penalties;
                            (v) obtain damages, restitution, or other 
                        compensation on behalf of aggrieved consumers; 
                        or
                            (vi) obtain any other appropriate equitable 
                        relief.
                    (E) Civil penalties.--In addition to any other 
                penalties as may be prescribed by law, each violation 
                of this section shall carry a civil penalty not to 
                exceed--
                            (i) if the person who committed the 
                        violation does not have unfair leverage (as 
                        described in subsection (e)), the lesser of--
                                    (I) $25,000; or
                                    (II) 5 percent of the revenues 
                                earned by the person's ultimate parent 
                                entity during the preceding 12-month 
                                period; or
                            (ii) if the person who committed the 
                        violation has unfair leverage, 5 percent of the 
                        revenues earned by the person's ultimate parent 
                        entity during the preceding 12-month period.
                    (F) Rulemaking.--
                            (i) In general.--The Commission may 
                        promulgate in accordance with section 553 of 
                        title 5, United States Code, such rules as may 
                        be necessary to carry out this section, 
                        including guidelines regarding what 
                        circumstances constitute an exceptional market 
                        shock or guidelines that provide for additional 
                        characteristics that demonstrate that a person 
                        has unfair leverage.
                            (ii) Required guidance.--Not later than 180 
                        days after the date of enactment of this Act, 
                        the Commission shall promulgate regulations 
                        regarding violations of this section, which 
                        shall include guidelines on, for the purposes 
                        of this Act, what constitutes a market, a 
                        grossly excessive price for a good or service, 
                        and an excessive price for a good or service.
                            (iii) Definition of grossly excessive 
                        price.--
                                    (I) In general.--For purposes of 
                                subsection (a) and the guidelines on 
                                what constitutes a grossly excessive 
                                price described in clause (ii), the 
                                Commission shall define the term 
                                ``grossly excessive price'' using any 
                                metric it deems appropriate.
                                    (II) Definition considerations.--In 
                                formulating the definition in subclause 
                                (I), the Commission shall consider 
                                whether to provide that such term shall 
                                include a price for a good or service 
                                that is an amount equal to or greater 
                                than 120 percent (or a lesser 
                                percentage, as determined appropriate 
                                by the Commission) of the average price 
                                for such good or service in the market 
                                during the 6-month period preceding the 
                                sale or offer that allegedly violates 
                                subsection (a).
    (g) Enforcement by State Attorneys General.--
            (1) In general.--If the attorney general of a State has 
        reason to believe that any person has violated or is violating 
        this section, the attorney general, in addition to any 
        authority it may have to bring an action in State court under 
        the laws of such State, may bring a civil action in any 
        appropriate United States district court or in any other court 
        of competent jurisdiction, including a State court, to--
                    (A) enjoin any further such violation by such 
                person;
                    (B) enforce compliance with this section;
                    (C) obtain a permanent, temporary, or preliminary 
                injunction;
                    (D) obtain civil penalties;
                    (E) obtain damages, restitution, or other 
                compensation on behalf of residents of the State; or
                    (F) obtain any other appropriate equitable relief.
            (2) Rights of the commission.--
                    (A) Notice to the commission.--
                            (i) In general.--Except as provided in 
                        clause (ii), before initiating a civil action 
                        under paragraph (1), the attorney general of 
                        the State involved shall provide to the 
                        Commission a written notice of such action and 
                        a copy of the complaint for such action.
                            (ii) Exception.--If the attorney general 
                        determines that it is not feasible to provide 
                        the notice described in clause (i) before 
                        initiating a civil action under this 
                        subsection, the attorney general shall provide 
                        written notice of the action and a copy of the 
                        complaint to the Commission immediately upon 
                        initiating the civil action.
                            (iii) Jurisdiction not affected.--An 
                        attorney general failing to provide notice 
                        under clause (i) shall not prevent the attorney 
                        general or the Commission from having 
                        jurisdiction over a civil action brought under 
                        paragraph (1) or imperil such civil action in 
                        any way.
                    (B) Intervention.--The Commission may--
                            (i) intervene in any civil action brought 
                        by the attorney general, official, or agency of 
                        a State under this subsection; and
                            (ii) upon intervening--
                                    (I) be heard on all matters arising 
                                in the civil action; and
                                    (II) file petitions for appeal of a 
                                decision in the civil action.
            (3) Investigatory powers.--Nothing in this subsection may 
        be construed to prevent the attorney general of a State from 
        exercising the powers conferred on the attorney general by the 
        laws of the State to conduct investigations, to administer 
        oaths or affirmations, or to compel the attendance of witnesses 
        or the production of documentary or other evidence.
            (4) Limitation on state action while federal action is 
        pending.--If the Commission has instituted a civil action for a 
        violation of this section, no State attorney general may, 
        without the approval of the Commission, bring an action under 
        this subsection during the pendency of that action against any 
        defendant named in the complaint of the Commission for any 
        violation of this section alleged in the complaint.
            (5) Relationship with state-law claims.--If the attorney 
        general of a State has authority to bring an action under State 
        law directed at acts or practices that also violate this 
        section, the attorney general may assert a claim under State 
        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>