In some ways, it feels like the country is moving into another phase of how we experience the COVID-19 pandemic. With two vaccines in distribution, and more vaccine approvals possible, the pandemic could very well be effectively managed much sooner than experts initially feared. Given the light the end of the tunnel, it is worth renewing talk of how long state and federal price gouging restrictions could remain in place. Emergency declarations and their attendant price restrictions could continue longer than some might hope. In this post, we unpack a few of the strongest indications that these restrictions could endure until the end of the calendar year or beyond.

Appeal of Long Term Emergency Powers. An emergency declaration can—and often does—last indefinitely. States had many good reasons for issuing emergency declarations as part of their response to the pandemic. Having unlocked sweeping powers to respond to the COVID-19 virus, however, it remains to be seen how quickly states will be ready to scale back. When it comes to price gouging, many local actors may have a hard time foregoing enforcement actions and practices that, just weeks or months earlier, they had advocated for as necessary to protect their constituents. It is entirely possible that, rather than scaling those powers back as soon as possible, states may be more interested in maintaining some crisis powers to respond to potential resurgences of the virus, prepare for future emergencies, or keep them on hand as part of a necessary “new normal.”

The COVID-19 pandemic was declared a national emergency on March 13, 2020. That declaration expires after one year unless renewed by the President, though it may also be terminated at any time by the President or by joint resolution of Congress.  At this time, it appears likely that it will be renewed for another year. While Congress could rescind a renewed executive emergency declaration through a simple majority vote, that seems unlikely.

Vaccination Pacing Suggests a Longer Timeline. It is impossible to predict when a critical amount of the population will be willing and able to get vaccinated.  We do know that vaccinations have rolled out more slowly than some had hoped, with about one-third of the anticipated 20 million doses actually distributed by January 1. Recent reported estimates indicate that a return to some form of “normalcy” is not expected before the fall. It is not yet clear whether mutations could, to any extent, delay that process or curb the effectiveness of the two currently-approved vaccines.  In the meantime, it is unlikely that most emergency declarations—and their accompanying pricing restrictions—would be allowed to expire.

Even After the Pandemic Abates, Other Disasters May Persist. Dozens of states of emergencies are ongoing, including but not limited to those related to the COVID-19 pandemic. At the federal level, according to an October 2020 Congressional Research Service report, there are currently 37 national emergencies in effect, including one dating back to the Carter era.  At the local level, in addition to the pandemic-related states of emergencies in effect in nearly all states, there may be concurrent and overlapping states of emergencies. States have emergency declarations in place that respond to a variety of ongoing challenges, ranging from social issues like the opioid epidemic to natural disasters like hurricanes and wildfires. Even after states allow their pandemic emergency declarations to expire, at least some of these other emergencies will likely persist.  Since the specifics of goods and services covered varies widely, any price gouging restrictions that could remain in place due to other emergencies may apply to more limited goods or services.  Still, many businesses could continue to find their products subject to price restrictions, albeit with different baseline dates and prices.

Time will tell whether this somewhat pessimistic perspective on the long horizon for price gouging restrictions will be proven true. Stay tuned – next week, we will discuss why these restrictions could potentially be turned off sooner than the some predict.

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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.

Photo of John R. Ingrassia John R. Ingrassia

When competition or antitrust questions arise, John Ingrassia is sought out for his knowledge, reputation and credentials.

John is a recognized authority on Hart-Scott-Rodino antitrust merger review, and for more than 20 years has counselled businesses facing the most challenging antitrust issues and…

When competition or antitrust questions arise, John Ingrassia is sought out for his knowledge, reputation and credentials.

John is a recognized authority on Hart-Scott-Rodino antitrust merger review, and for more than 20 years 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 or joint ventures.

John is a senior counsel at the Firm, advising on the full range of antitrust matters in diverse industries, including chemicals, pharmaceutical, medical devices, telecommunications, financial services and health care, among others.  His practice focuses on the analysis and resolution of antitrust issues related to mergers, acquisitions, and joint ventures, and the analysis and assessment of pre-merger notification requirements. John has extensive experience with the legal, practical, and technical requirements of merger clearance and is regularly invited to participate in Federal Trade Commission and bar association meetings regarding Hart-Scott-Rodino practice issues.

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 Jennifer Tarr Jennifer Tarr

Jennifer E. Tarr is a senior associate in the Litigation Department, and a member of Proskauer’s Sports Law and Antitrust Groups. She regularly litigates on behalf of sports leagues and counsels clients active in the sports industry on a variety of matters, including…

Jennifer E. Tarr is a senior associate in the Litigation Department, and a member of Proskauer’s Sports Law and Antitrust Groups. She regularly litigates on behalf of sports leagues and counsels clients active in the sports industry on a variety of matters, including issues pertaining to antitrust, team relocation, league governance, contract disputes, sponsorship and fan-league relationships.

In addition to sports antitrust work, Jennifer also has experience counseling and defending clients on issues related to mergers and acquisitions, claims related to unlawful conspiracy and anticompetitive agreements, monopolization claims, and price fixing claims. Jennifer is also a member of the firm’s price gouging team.

In 2019, she was a panelist on the Environmental Law Institute’s Managing Private Sector Environmental Initiatives panel, where she spoke about the Antitrust Implications of Corporate Environmental Collaborations.

Jennifer maintains an active pro bono practice and is a member of the Firm’s Pro Bono Committee. She received Proskauer’s Golden Gavel Award for excellence in pro bono work in 2018 and 2019.

Prior to joining Proskauer, Jennifer clerked for the Honorable Lorna G. Schofield on the United States District Court for the Southern District of New York. She also was a Staff Attorney at the Environmental Law & Policy Center, where she represented clients as lead counsel in litigation before multiple federal district and appellate courts and in federal mediation.

While in law school, Jennifer was a member of the Harvard Legal Aid Bureau, one of three honors societies at the law school and the nation’s oldest student-run legal services center. In that capacity, she argued and won a case of first impression before the Massachusetts Supreme Judicial Court. She also argued over 20 motions in state trial court and successfully represented clients in federal mediation and before federal administrative tribunals.