Over a year ago, states of emergency were declared across the country. Such emergency declarations are often the trigger for state pricing restrictions.  Tracking the start and end of the emergency declarations is essential for interpreting the pricing restrictions they impose. For instance, in Oklahoma, the pricing restrictions remain in place throughout the duration of the emergency, and extend for 30 days after the state of emergency has terminated. Proskauer’s Price Gouging Coast to Coast Reference Guide has been updated to reflect new states of emergency dates and legislative changes.

Governors around the country continue to extend states of emergency. Emergency declarations continue to push out the expiration dates by increments of typically 30 to 60 days. But in some states, emergency declarations have expired.

In Alaska, California, and Oregon the full COVID-19 states of emergencies have expired. Yesterday, the Oregon Governor renewed the state of emergency, but lifted the executive order regarding price gouging, “because the days of hand sanitizer and, yes, toilet paper scarcity are far behind us.” She also signaled eventually lifting the COVID-related state of emergency entirely, but maintained flexibility depending on how the situation develops.

Similarly, the California Governor also took a nuanced approach and lifted the pricing restrictions for all but a few specific items. As we discussed in previous posts, price gouging restrictions are now limited to a smaller subset, including water, blankets, soaps, diapers, and toiletries. These restrictions are in place until September 4, 2021.

In Alaska, the state of emergency expired on February 14, 2021.  With its expiration, pricing restrictions have been relaxed.  However, the two year statute of limitations for bringing a case remains.  Accordingly, companies should continue to maintain records from the past year as cases alleging violations of the state price gouging prohibition potentially may be brought until February of 2023.

Most states continue to have price gouging restrictions in place. Governors are often extending states of emergency in 15, 21, 30, and 60 day increments. Currently, 13 states are set for emergency declarations to expire in May. For instance, on April 22, 2021, the South Carolina Governor extended the state of emergency for another 15 days.  Florida also extended its state of emergency an additional 60 days to June 26, 2021.

Other states have longer running emergency periods. In Missouri the state of emergency declaration is set to expire on August 31, 2021. In Texas’ emergency will remain in effect until June 14, 2021, unless rescinded or renewed.

As the COVID situation continues to evolve, Governors may issue additional extensions, or they may quietly allow the emergency declarations to expire.

Additionally, states are looking to amend their price gouging statutes.  As we previously noted, Idaho enacted new legislation. The legislation provides that only price increases are covered by the price gouging prohibition – not price decreases that are deemed insufficient.  Additionally, the new legislation requires that when analyzing whether the price increase is “exorbitant or excessive,” courts “shall not consider any increase in the margin earned.” This legislation came following headlines detailing a settlement by the Idaho Attorney General with three gasoline retailers, in which the Attorney General alleged the retailers’ margin was too high, despite the fact that gas prices dropped.

As the COVID price restrictions enter a second year, states will continue to evaluate the necessity for states of emergency and price gouging restrictions. Continue to follow developments at Proskauer on Price Gouging.

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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 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 Shannon D. McGowan Shannon D. McGowan

Shannon McGowan earned her J.D. from the University of Virginia School of Law, where she captained the school’s Philip C. Jessup International Law Moot Court team.

Prior to law school, Shannon served as a legislative assistant to state representatives at the Oklahoma State…

Shannon McGowan earned her J.D. from the University of Virginia School of Law, where she captained the school’s Philip C. Jessup International Law Moot Court team.

Prior to law school, Shannon served as a legislative assistant to state representatives at the Oklahoma State House of Representatives.