Senate Bill No. 660
(By Senators Palumbo, Foster, Wells, McCabe, Jenkins, Kessler and
Stollings)
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[Introduced February 22, 2010; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §46A-6J-3 and §46A-6J-6 of the Code of
West Virginia, 1931, as amended, all relating generally to
protection from consumer price gouging as a result of a
declaration of a state of emergency; clarifying that commodity
market trends may impact an increase in price during a state
of emergency; and clarifying the preemption provisions.
Be it enacted by the Legislature of West Virginia:
That §46A-6J-3 and §46A-6J-6 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 6J. PROTECTION OF CONSUMERS FROM PRICE GOUGING AND UNFAIR
PRICING PRACTICES DURING AND SHORTLY AFTER A STATE
OF EMERGENCY.
§§46A-6J-3. Prohibited unfair pricing practices.
(a) Upon the declaration of a state of emergency,
which specifically invokes the provisions of this article and continuing
for the existence of the state of emergency or for thirty days
following the declaration, whichever period is longer, it is
unlawful for any person, contractor, business, or other entity to
sell or offer to sell to any person in the area subject to the
declaration any consumer food items, essential consumer items,
goods used for emergency cleanup, emergency supplies, medical
supplies, home heating oil, building materials, housing,
transportation, freight and storage services, or gasoline or other
motor fuels for a price greater than ten percent above the price
charged by that person for those goods or services on the tenth day
immediately preceding the declaration of emergency, unless the
increase in price:
was
(1) Is directly attributable to additional costs imposed on
the seller by the supplier of the goods or directly attributable to
additional costs for labor or materials used to provide the
services:
Provided, That in those situations where the increase in
price is attributable to additional costs imposed by the seller's
supplier or additional costs of providing the good or service
during the state of emergency, the price is no greater than ten
percent above the total of the cost to the seller plus the markup
customarily applied by the seller for that good or service in the
usual course of business on the tenth day immediately preceding the
declaration;
or
(2) Is attributable to or consistent with fluctuations in multistate, regional or national commodity markets.
(b) Upon the declaration of a state of emergency, and for a
period of one hundred eighty days following that declaration, it is
unlawful for any contractor to sell or offer to sell any repair or
reconstruction services or any services used in emergency cleanup
in the area subject to the declaration for a price greater than ten
percent above the price charged by that person for those services
on the tenth day immediately preceding the declaration, unless the
increase in price was directly attributable to additional costs
imposed on it by the supplier of the goods or directly attributable
to additional costs for labor or materials used to provide the
services:
Provided, That in those situations where the increase in
price is attributable to the additional costs imposed by the
contractor's supplier or additional costs of providing the service,
the price is no greater than ten percent above the total of the
cost to the contractor plus the markup customarily applied by the
contractor for that good or service in the usual course of business
on the tenth day immediately preceding to the declaration of the
state of emergency.
(c) Any business offering an item for sale at a reduced price
ten days immediately prior to the declaration of the state of
emergency may use the price at which it usually sells the item to
calculate the price pursuant to subsection (a) or (b) of this
section.
(d) The price restrictions imposed by this article may be limited or terminated by proclamation of the Governor.
§46A-6J-6. Preemption.
This article preempts any local ordinance prohibiting the same
or similar conduct.
NOTE: The purpose of this bill is to clarify the procedure for
consumer protection from price gouging during or shortly after the
declaration of a state of emergency and the preemptions provisions
of this article.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§46A-6J-6 has been substantially rewritten, therefore, strike-
throughs and underscoring have been omitted.
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