The pandemic has demonstrated that price gouging laws are not only written in an ambiguous manner, but are ambiguous as to whether they are in effect or not. A recurring problem faced by businesses is that some states are not widely circulating information about whether their price gouging laws are still active, when they expire, or whether they’ve already expired. As a result, law abiding businesses may find it difficult to find accurate, publicly available information about price gouging law end dates.

Some commentators have categorically stated – potentially incorrectly – that certain price gouging laws have expired. For example, some say that Kentucky’s price gouging law expired on April 21, 2020. By statute, Kentucky’s price gouging law is in effect for fifteen days after notification of the price gouging law going into effect. After the fifteen days expire, the Governor may renew the provisions up to “three additional fifteen (15) day periods [] if necessary to protect the lives, property, or welfare of the citizens”.  Ky. Rev. Stat. §367.374(1)(b). Despite what the statute says, the Governor continued to extend the price gouging law, and on May 21, 2020, issued an executive order stating that the price gouging laws shall remain in effect for the duration of Kentucky’s state of emergency. However, it is unclear whether the Governor has the authority to extend price gouging laws beyond the length laid out by statute. Other state Governors, who have extended price gouging laws beyond the scope of the respective state statute, may also find the legality of the extensions questioned.

Further, while it appears Tennessee’s price gouging law may have expired – as some have indicated – the Tennessee’s Office of the Attorney General, Division of Consumer Affairs has not provided clarity on the question. In early June, the Division said the statute is still in effect. In early July, the Division stated that while they’re happy to take any consumer complaints, they are unable to answer whether the price gouging statute is still in effect.

Also noteworthy, when the Wisconsin Bureau of Consumer Protection was recently asked whether there is still an abnormal market disruption, the Bureau stated that they are still accepting price gouging complaints, but have “no idea” when the abnormal market disruption will end. One day later the Wisconsin Department of Agriculture, Trade and Consumer Protection released a statement stating “Governor Tony Evers approved ending the declared period of abnormal economic disruption, allowing sellers to resume sale of consumer goods and services without the restrictions outlined in Wisconsin’s price gouging statutes.”

Businesses making efforts to comply with the law need to know the law in order to comply. The lack of clarity is not only poor policy, but it is bad government. A state’s consumer protection agency should be able to give businesses a simple yes or no answer as to whether a price gouging law remains in effect.

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Visit Proskauer on Price Gouging for antitrust insights on Covid-19.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

Photo of Kelly Landers Hawthorne Kelly Landers Hawthorne

Kelly Landers Hawthorne is an associate in the Litigation Department.

While at Columbia, she served as an articles editor of the Columbia Journal of Law & the Arts and was involved with the Lawyering in the Digital Age Clinic.  She also worked as…

Kelly Landers Hawthorne is an associate in the Litigation Department.

While at Columbia, she served as an articles editor of the Columbia Journal of Law & the Arts and was involved with the Lawyering in the Digital Age Clinic.  She also worked as a judicial intern for the Honorable Sandra Townes of the United States District Court for the Eastern District of New York.

Kelly is a Teach For America alumnus and taught middle school special education and math in Washington, D.C. prior to law school.

Photo of John R. Ingrassia John R. Ingrassia

John is a partner at the Firm, advising on the full range of foreign investment and antitrust matters across industries, including chemicals, pharmaceutical, medical devices, telecommunications, financial services consumer goods and health care. He is the first call clients make in matters relating…

John is a partner at the Firm, advising on the full range of foreign investment and antitrust matters across industries, including chemicals, pharmaceutical, medical devices, telecommunications, financial services consumer goods and health care. He is the first call clients make in matters relating to competition and antitrust, CFIUS or foreign investment issues.

For more than 25 years, John has counselled businesses facing the most challenging antitrust issues and helped them stay out of the crosshairs — whether its distribution, pricing, channel management, mergers, acquisitions, joint ventures, or price gouging compliance.

John’s practice focuses on the analysis and resolution of CFIUS and antitrust issues related to mergers, acquisitions, and joint ventures, and the analysis and assessment of pre-merger CFIUS and HSR notification requirements. He advises clients on issues related to CFIUS national security reviews, and on CFIUS submissions when non-U.S. buyers seek to acquire U.S. businesses that have national security sensitivities.  He also regularly advises clients on international antitrust issues arising in proposed acquisitions and joint ventures, including reportability under the EC Merger Regulation and numerous other foreign merger control regimes.

His knowledge, reputation and extensive experience with the legal, practical, and technical requirements of merger clearance make him a recognized authority on Hart-Scott-Rodino antitrust merger review. John is regularly invited to participate in Federal Trade Commission and bar association meetings and takes on the issues of the day.

Photo of Christopher E. Ondeck Christopher E. Ondeck

Chris Ondeck is co-chair of the Firm’s nationwide Antitrust Group. He represents clients in civil and criminal antitrust litigation, defending mergers and acquisitions before the U.S. antitrust agencies, defending companies involved in government investigations, and providing antitrust counseling.

Chris has handled antitrust matters…

Chris Ondeck is co-chair of the Firm’s nationwide Antitrust Group. He represents clients in civil and criminal antitrust litigation, defending mergers and acquisitions before the U.S. antitrust agencies, defending companies involved in government investigations, and providing antitrust counseling.

Chris has handled antitrust matters for clients in a number of industries, including advertising, aerospace, alcoholic beverages, appliances, building materials, consumer products, defense, franchise, medical devices, metals, mining, natural resources, oil and gas, packaging, pharmaceuticals, software and telecommunications. He also has developed substantial experience advising clients regarding the application of the antitrust laws to the pharmaceutical industry, the agriculture industry, trade associations and the energy industry.