Due to the unprecedented length of the current COVID-19 emergency, price gouging laws that once focused solely on retail prices, now are being applied to participants throughout the entire supply chain. At the beginning of the COVID-19 emergency, state enforcers focused on increases in retail prices to consumers. However, enforcers now are opening investigations and taking enforcement actions throughout the upstream supply chain for covered products and services. Several state Governors also recently have issued Executive Orders that have expanded the scope of their state’s price gouging laws to national producers and distributors. All entities in the supply chain need to consider a nationwide compliance strategy – to comply with the price gouging laws of approximately 34 states and territories that have widely varying requirements. Best practices can include conducting an internal assessment with the help of in-house or outside counsel (i) to determine their scope of possible covered products, (ii) to assess which state’s laws that may be implicated, (iii) to document baseline pricing, pricing movements and the bases for those movements, and (iv) to put measures in place to provide business managers with the knowledge they need to stay compliant. The article discusses these and related issues that arise for sellers at all levels of the supply chain during the COVID-19 state of emergency.
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