We continue to cover the patchwork of price gouging laws and enforcement actions brought under them, providing an overview of the current legal landscape. We are also following and will report on the application of price gouging restrictions outside the U.S. In this post, we provide an overview of price gouging restrictions applied by several jurisdictions that may be important to our readers.

European Union

While there are not price gouging specific laws in the EU, under EU competition law, companies can be sanctioned for using their market power to exploit consumers, including by price gouging. Article 102 of the Treaty on the Functioning of the European Union (TFEU) provides that an abuse by a “dominant” business may consist of “directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions[.]” Dominance has been defined as “the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumer.” This law applies to all goods and services. Dominant companies continue to be subject to excessive and discriminatory pricing restrictions, and authorities are likely to take an expansive approach when considering which companies are dominant, even if only as a result of the pandemic. Other rules may also be applied, like the EU unfair trade practices rules (see the May 11, 2005 Directive 2005/29/EC), which is implemented and enforced at the member state level, and several European jurisdictions have persuaded platforms such as Amazon and eBay to delist products advertised for sale at inflated prices where the seller is not a “trusted seller” on that platform.

UK

There are not price gouging specific laws in the UK. The UK’s Competition and Markets Authority (CMA), however, which “work[s] to promote competition for the benefit of consumers,” has launched a COVID-19 Taskforce to monitor price gouging and set up a form for consumers to report businesses that are perceived as behaving “unfairly.”

China

In China, price gouging is regulated by the Price Law, which generally requires “operators” to set prices based on, for example, fairness, the costs of manufacturing, and supply and demand. Other regulations may also apply to price increases, including antitrust and consumer protection rules.

South Africa

South Africa’s Competition Act, like Article 102 of the TFEU, prohibits excessive pricing by “dominant” businesses. South Africa, however, has relatively low thresholds for establishing dominance. Section 7 provides that a business with a market share above 45 per cent is irrebuttably presumed dominant, while one with a market share of above 35 per cent is rebuttably presumed dominant, unless it can demonstrate that it does not have “market power.” Companies with market shares of less than 35 per cent may also be dominant where they are found to possess “market power,” which the Act defines as the power to “control prices, to exclude competition, or to behave to an appreciable extent independently of its competitors, customers, or suppliers.”

U.S. Territories

American Samoa’s Commerce and Trade regulations prohibits price gouging “during states of disaster.” During an emergency, it is unlawful to “sell, rent or offer to sell or rent any consumer food items or goods, emergency supplies, medical supplies, building materials, housing, gasoline, or any other goods or services necessary in an emergency response for a price of more than ten percent (10%) above the price charged by that person, contractor, business or other entity for those goods or services immediately prior to the declaration of a state of emergency.”

Guam, under its deceptive trade practices act (Guam Code Ann. tit. 5, §32201), prohibits price gouging during disasters, with some exceptions. The Governor of Guam also passed a bill in March, 2020 Public Act 35-74, that permits short-term freezes on price increases on specified goods and services, beyond the addition of any “increased import” or “air freight” costs.

The Northern Mariana Islands’ Consumer Protection Act makes it unlawful for any business to engage in price gouging, which the Attorney General has defined as “when a business increases prices based on the shortage of goods caused by a natural disaster or any other emergency.”

We have noted elsewhere, during emergencies, Puerto Rico law prohibits “speculative, unwarranted, and abnormal increases in prices,” “excessive profits,” and “other disruptive practices resulting from abnormal market conditions and scarcity caused by the national emergency[.]”

The U.S. Virgin Islands allows the government to freeze price increases during states of emergency (V.I. Code Ann. tit. 23, §1005).

Navajo Nation

In response to the pandemic, the Navajo Nation approved the enactment of a law prohibiting excessive pricing during emergencies, which makes it unlawful “for any person to intentionally, knowingly or recklessly sell or rent any commodity or rental facility to any person at a price greater than ten percent (10%) above the average price of the same commodity or rental facility for the thirty days immediately preceding the declaration of a state of emergency.”

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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.

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Photo of Kelly Landers Hawthorne Kelly Landers Hawthorne

Kelly Landers Hawthorne is an associate in the Litigation Department and a member of the Antitrust and Product Liability groups. She represents clients in litigations and due diligence across a range of industries, including consumer products, life sciences, healthcare, education, hospitality, sports and…

Kelly Landers Hawthorne is an associate in the Litigation Department and a member of the Antitrust and Product Liability groups. She represents clients in litigations and due diligence across a range of industries, including consumer products, life sciences, healthcare, education, hospitality, sports and entertainment.

Kelly also maintains a diverse pro bono practice. She received Proskauer’s Golden Gavel Award for excellence in pro bono work in 2019.

She is a frequent contributor to Proskauer’s Minding Your Business blog, where she authors articles related to price gouging issues.

Kelly is also a member of the Proskauer Women’s Alliance Steering Committee, where she serves on subcommittees focused on highlighting and providing professional development opportunities for women at the firm.

Prior to her legal career, Kelly was a Teach For America corps member and taught middle school in Washington, DC.

While at Columbia Law School, Kelly served as an articles editor of the Columbia Journal of Law & the Arts and interned for the Honorable Sandra Townes of the U.S. District Court for the Eastern District of New York.

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 Antitrust Group and co-head of the Washington DC office. He represents clients in complex antitrust and consumer protection litigation, defends mergers and acquisitions before the U.S. antitrust agencies, represents companies involved in government investigations, and counsels…

Chris Ondeck is co-chair of the Firm’s Antitrust Group and co-head of the Washington DC office. He represents clients in complex antitrust and consumer protection litigation, defends mergers and acquisitions before the U.S. antitrust agencies, represents companies involved in government investigations, and counsels on antitrust compliance. Chris is also the founder and leader of the firm’s Price Gouging Practice, and is one of the key thought leaders in this space.

Chris handles antitrust matters for clients in a number of industries, including food and agriculture, financial services, media, telecom, technology, e-commerce, consumer products, natural resources, oil and gas, chemicals, and pharmaceuticals.  He also serves as outside counsel to a large number of industry groups, including trade associations and cooperatives.

Chris has been recognized as a leading antitrust practitioner by Chambers, noting that clients describe him as “our primary thought partner – he’s very good at explaining the complex issues and making them easy to understand” and praising “his strong advocacy skills”; by The National Law Review as a “Go To Thought Leader 2020”; by Acritas as a “Star” in multiple years; by Benchmark Litigation as a National Litigation Star 2021; and by The Legal 500 United States for Antitrust: Civil Litigation/Class Actions.