Energy & Electric Utilities: State Laws and Regulations: Price Gouging

Energy and Electric Utilities

State Laws and Regulations: Price Gouging

As of October 8, 2004

Alabama Arkansas California Connecticut District of Columbia

Florida Georgia Hawaii Idaho Indiana

Iowa Kansas Kentucky Louisiana Maine

Masschusetts Michigan Mississippi Missouri New Jersey

New York North Carolina Northern Mariana Islands Oklahoma South Carolina

Tennessee Texas Virginia West Virginia

State

Covered

Authority

Triggering Event/Prohibited Acts

Civil Penalties

Criminal Penalties

Enforced by:

Alabama Sale or rental of any commodity or rental facility UDAP Statute Ala. Code § 8-31-3
Upon proclamation of a state of emergency, no seller may sell for an amount which represents an unconscionably reasonable price.

$1,000 per violation, not to exceed $25,000 per 24 hour period
None State Attorney General or District Attorney

Arkansas Vital and necessary goods or services, including housing, transportation UDAP Statute A.C.A. 4-88-301 et seq.
Upon proclamation of a state of emergency by the President, Governor or local official, no price may be raised more than 10% above the price charged immediately prior to the proclamation unless directly attributable to increased costs. Any period of time during which a red condition under the Homeland Security Advisory System has been declared by either the U.S. Department of Homeland Security or the AR Department of Emergency Services.
A per se UDAP violation A per se UDAP violation. Criminal penalties are available. State Attorney General and/or Private Individual

California
Goods and services vital and necessary for the health, safety, and welfare of consumers
Cal. Penal Code § 396
Upon proclamation of a state of emergency by President, Governor, or County or City Executive Officer, no price may be raised more than 10% above the price charged immediately prior to the proclamation unless directly attributable to increased costs. (30 days for goods). Similar prohibition for repair and reconstruction services. (180 days for repairs).
$2,500 per violation when brought by district attorneys or city prosecutors, plus injunction and restitution. Misdemeanor - up to one year in jail or $10,000 or both. State Attorney General, District Attorney, City Attorney, or City Prosecutors. Private Privates can get injunctions and restitution, but no civil penalties.

Connecticut
Goods and Services Petroleum Products
Conn. Gen. Stat. 42-230 Regulation
Conn. Agencies Reg. 42-110b-29
In the course of an abnormal market disruption, no seller may sell for an amount which represents an unconscionably excessive price.
Up to $5,000 per violation. Violation of statute is a violation of UDAP. None State Attorney General

District of Columbia Any merchandise or service sold during a state of emergency D.C. Code. Ann. § 28-4101 to 4103
After the mayor declares a state of emergency, it is unlawful to charge more than the normal average retail price (10%) for any merchandise or service sold during the emergency.
Maximum fine of $1,000 revocation of license or permit. None DC Attorney General

Florida
Rental or Sale of Essential Commodities
UDAP Statute Fla. Stat. Ann. 501.160 During a declared state of emergency, prohibition of unconscionable prices.
$1,000 per violation, up to $25,000 for multiple violations within 24 house period.
None
State Attorney General, local state attorney, Department of Agriculture and Consumer Services

Georgia
Goods or Services Necessary to Preserve, Protect, or Sustain the Life, Health, or Safety or Persons or Property.

Sale or offer for sale of supplies for use in the salvage, repair, or rebuilding of a structure damaged as a result of a natural disaster
OCGA 10-1-393.4.
OCGA 10-1-438 Upon declaration of a state of emergency by the Governor, it is an unlawful, unfair, and deceptive trade practice for any person, firm, or corp to sell or offer for sale any goods or services necessary to preserve, protect, or sustain the life, health or safety of persons or property at a price higher than the price at which the goods were sold or offered for sale immediately prior to the declaration of emergency.
$5,000 per violation, except when the price gouging involves salvage, repair, or rebuilding of a structure damaged as a result of a natural disaster, when damages go up to a total of $15,000 per violation.
None Governor's Office of Consumer Affairs

Hawaii
Rental or Sale of essential Commodities
HRS 209-9
When the Governor declares a state of disaster, or when the state is the subject of a "severe weather warning."

Violation is a UDAP subject to penalties of $500 - $10,000 per violation.
None Hawaii Office of Consumer Protection

Idaho
Water, Food, Fuel, or Pharmaceuticals
I.D.A.C. § 48-603(19)
After a declaration of an emergency by the Governor or President, a seller of the four items mentioned cannot charge exorbitant or excessive prices. (Comparison of the prices of goods immediately before and after the disaster.)
$5,000 per violation, restitution, and injunctive relief. None State Attorney General

Indiana
Sale of Fuel
IC 4.6-9.1
The period during which an emergency is declared and 24 hours before the declaration by the governor. Fuel charges cannot exceed the average price at which fuel was readily available during the 7 days immediately before the declaration of emergency.
Injunctive relief, restitution, and civil penalties of $1,000 per violation. None State Attorney General

Iowa Merchandise Needed by Disaster Victims
Regulation
I AC 63-31.1(714)
IC 714.16(2)a

During time of disaster and subsequent recovery period (60 day max.), in declared disaster zone, period declared to be disaster, charging unjustified prices.

$40,000 per violation, additional $5,000 on top of the $40,000 if elderly was defrauded, restitution, injunctive relief.
None State Attorney General

Kansas
Merchandise Needed by Disaster Victims
KSA 50-6,106
KSA 50-627
50-6,106 Declaration of a state of emergency by either the US President or Governor, during the time such state is in effect, or thirty days after the occurrence of the event that triggered the declaration. 50-627 does not require emergency but relates to market price at any time.
$10,000 per violation, additional $10,000 if elderly or disabled was defrauded, restitution, injunctive relief. None State Attorney General or District/County Attorney

Kentucky
Any repair or reconstruction service; consumer food items; emergency cleanup goods or services; emergency supplies; medical supplies; home heating oil; building materials; housing; transportation, freight and storage services; gasoline and motor fuels
Ky. Rev. Stat. 367-372 through 367-378 Trigger: Governor declares state of emergency or Condition Red declared by U.S. Department of Homeland Security. Prohibition on charging a price grossly in excess of price before triggering event and unrelated to increased cost to seller.
$5,000 for first offense; $10,000 for subsequent offenses; additional remedies under state UDAP statute such as injunctive relief and restitution.
None State Attorney General

Louisiana
Goods and Services

LSA-R.S. 29:732; LSA-R.S. 29:734;
LSA-R.S. 14:329.6 and 14:329.7

During state of emergency declared by Governor or Parish President, value for goods and services may not exceed prices ordinarily charged (w/ allowance for increased costs). Must prove a gross disparity between the price of the goods or services prior to the event or that the amount charged grossly exceed the price at which the same or similar goods or services were readily obtainable in the trade area.
Injunctive action, with possible civil penalties and restitution to aggrieved consumers. Violation of R.S. 29:732 is deemed a violation of R.S. 14:329.6
Violation which results in serious bodily injury or any property damage in excess of $5,000, such offender shall be imprisoned at hard for not more than 5 years. Violations resulting in death - imprisonment at hard labor to not exceed 21 years.
Attorney General, District Attorney, or Parish Attorney

Maine
Necessities of Life (food, clothing, building materials, fuel, ice, fertilizer, tools, machinery, equipment) under the profiteering statute. All goods or services under UTPA
10 M.R.S.A. § 1105 (profiteering)
5 MRSA § 207 (UTPA) No triggering event needed. Prohibits unjust or unreasonable profits in the sale, exchange or handling of necessities. Case law suggest a market disruption may be a prerequisite. $10,000 under UTPA $1,000 or 3 years imprisonment under profiteering statute. Maine Attorney General. Private enforcement available under the UTPA.

Massachusetts
Petroleum Products

Regulation
940 CMR 3.18

During any market emergency, it is unfair and deceptive to sell at an unconscionably high price (gross disparity not attributable to increased wholesale costs).
$5,000 per violation None State Attorney General, Private Enforcement Available.

Michigan
Property or Services

UDAP Statute
MCL 445.903(1)(z)

Not specifically targeted at disaster/gouging. Prohibits charging a price in gross excess of the price for which similar products or services are sold.
Up to $25,000 None State Attorney General

Mississippi
Any goods and services sold within the designated emergency area
MRS § 75-24-25 During course of disaster declared by the Governor, it is a crime (misdemeanor or felony) to price gouge.
Up to $10,000 per violation plus costs of investigation and prosecution

Misdemeanor; Up to $1,000 and 6 months

Felony: 1 to 5 years and up to $5,000
State Attorney General

Missouri
Any necessity including those likely to be provided w/in area
Regulation
15 CSR 60-8.010 et seq.
Within a disaster area declared by Governor, it is an unfair practice to take advantage of a person's impairment or hardship or charge an excessive price.
$1,000 per violation, injunctive relief, restitution. Knowing violation - Class D Felony
State Attorney General, Local Prosecutor, Private Cause of Action

New Jersey
Sales of any merchandise used or consumed as a direct result of emergency or used to preserve, protect or sustain life, health, safety or comfort
N.J.S.A. 56:8-107 to 8:109 An "excessive price increase" during or within 30 days of the termination of declared "state of emergency". Up to $10,000 for first violation; up to $20,000 for subsequent violations. None State Attorney General; Private Right of Action

New York
Consumer goods and services vital for health safety and welfare of consumers
Statute
NY Gen Bus 396-R During market disruptions, unconscionably excessive prices are prohibited. Up to $10,000.
Restitution None State Attorney General

North Carolina
Any merchandise 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 comfort of persons or their property
UDAP Statute; NCGS Section 75-36.1 Upon declaration of state of disaster in the area for which state of disaster has been declared, violation to charge a price that is unreasonably excessive. $5,000 per violation None State Attorney General and/or Private Individuals

Commonwealth of the Northern Mariana Islands Any Consumer Good 4 N. Mar. I. Code § 5105(y)
Increasing the price of goods, solely on the basis of a shortage of supply caused by natural disaster or any other emergency situation.

Violation of the price gouging statute is a UDAP violation. Injunctive relief and civil penalties are available.
Misdemeanor - up to one year imprisonment State Attorney General

Oklahoma
Goods, service dwelling or storage space
Statute
15 OK Code 777.1
During an emergency declared by the President or Governor, no sale lease or rental at more than 10% above the price charged immediately prior, unless increase in price is due to unrelated factors and does not increase seller's profit.
Up to $10,000 per violation plus reasonable costs
Misdemeanor: up to $1,000 and/or 1 year in jail

Felony: up to $5,000 and/or 10 years in jail
Attorney General or District Attorney as violation of the Consumer Protection Act (15 O.S. 751)

South Carolina
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 Declaration of state of emergency by the Governor, or declaration of disaster by the President concerning all or a portion of the state. May not sell at a price that is grossly disparate or grossly exceeds the average cost of the commodity during the 30-day period preceding the emergency.
Violation of § 39-5-145 is an unfair trade practice subject to civil penalties of $5,000 for each willful violation. If an injunction is issued under the unfair Trade Practices Act, a violator is subject to a fine of $15,000 for each violation of the injunction.
Misdemeanor with fine of $1,000, imprisonment up to 30 days, or both Local solicitor (district attorney) or Attorney General

Tennessee
Any consumer food item; repair or construction services; emergency supplies; medical supplies; building materials; gasoline; transportation; freight and storage; or housing
TCA 47-18-5101 et seq. Upon the proclamation of a state of emergency it is unlawful to charge any other person a price that is grossly in excess of the price charged for the same or similar goods or services in the usual course of business immediately prior to the events giving rise to the state of emergency. Violation of the Consumer Protection Act. $1,000 per violation. None State Attorney General

Texas
Food, Fuel, Medicine, or other Necessities

Statute
Tex. Bus & Com. Code
Ann. 17.46(b)(27)
In event of disaster declared by Governor, it is a UDAP violation to charge exorbitant or excessive prices. Up to $20,000 per violation.
Not per se; however, price gouging is arguably a violation of Texas Penal Code Deceptive Business Practice provisions
State Attorney General, District Attorney, or County Attorney

Virginia
Sale, lease or license of necessary goods or services
Va. Code §§ 59.1-525 et seq
Upon declaration of state of emergency, no supplier can sell, lease or license necessary goods or services at an unconscionable price. The basic test for determining whether price is unconscionable is whether the post-disaster price charged for same or similar goods during the ten (10) days immediately prior to the disaster.
$2,500 per willful violation. Violation of Virginia Consumer Protection Act. None State Attorney General, Commonwealth's Attorneys, City, Town, and County Attorneys

West Virginia
Goods or Services that are vital and necessary for the health, safety, and welfare of consumers
W.V. Code 46A-6J-1 State of Emergency declared, it is unlawful to sell items at a 10% increase over the price 10 days before the declaration of a state of emergency.
Violation of the price gouging statute is a UDAP violation. Injunctive relief and civil penalties are available.
Misdemeanor - up to one year imprisonment State Attorney General

Source: NCSL, 2005.

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