H. B. 4116


(By Mr. Speaker, Mr. Kiss, and Delegates Stemple,

Williams, Varner, Swartzmiller, Staton and Mezzatesta)


[Introduced January 22, 2002; referred to the

Committee on the Judiciary.]




A BILL to amend and reenact section one hundred two, article six, chapter forty-six-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said chapter by adding thereto a new article, designated article six-j, all relating to protecting consumers from price gouging and unfair pricing practices during and shortly after a natural or man-made disaster or other state of emergency; and providing remedies and penalties.

Be it enacted by the Legislature of West Virginia:
That section one hundred two, article six, chapter forty-six-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said chapter be further amended by adding thereto a new article, designated article six-j, all to read as follows:
ARTICLE 6. GENERAL CONSUMER PROTECTION.
§46A-6-102. Definitions.
When used in this article the following words, terms and phrases, and any variations thereof required by the context, shall have the meaning ascribed to them in this article, except where the context indicates a different meaning:
(a) "Advertisement" means the publication, dissemination or circulation of any matter, oral or written, including labeling, which tends to induce, directly or indirectly, any person to enter into any obligation, sign any contract or acquire any title or interest in any goods or services, and includes every word device to disguise any form of business solicitation by using such terms as "renewal," "invoice," "bill," "statement" or "reminder," to create an impression of existing obligation when there is none, or other language to mislead any person in relation to any sought- after commercial transaction.
(b) "Consumer" means a natural person to whom a sale or lease is made in a consumer transaction, and a "consumer transaction" means a sale or lease to a natural person or persons for a personal, family, household or agricultural purpose.
(c) "Merchantable" means, in addition to the qualities prescribed in section three hundred fourteen, article two, chapter forty-six of this code, that the goods conform in all material respects to applicable state and federal statutes and regulations establishing standards of quality and safety of goods and, in the case of goods with mechanical, electrical or thermal components, that the goods are in good working order and will operate properly in normal usage for a reasonable period of time.
(d) "Sale" includes any sale, offer for sale or attempt to sell any goods for cash or credit or any services or offer for services for cash or credit.
(e) "Trade" or "commerce" means the advertising, offering for sale, sale or distribution of any goods or services and shall include any trade or commerce, directly or indirectly, affecting the people of this state.
(f) "Unfair methods of competition and unfair or deceptive acts or practices" means and includes, but is not limited to, any one or more of the following:
(1) Passing off goods or services as those of another;
(2) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services;
(3) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by another;
(4) Using deceptive representations or designations of geographic origin in connection with goods or services;
(5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have, or that a person has a sponsorship, approval, status, affiliation or connection that he does not have;
(6) Representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand;
(7) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another;
(8) Disparaging the goods, services or business of another by false or misleading representation of fact;
(9) Advertising goods or services with intent not to sell them as advertised;
(10) Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
(11) Making false or misleading statements of fact concerning the reasons for, existence of or amounts of price reductions;
(12) Engaging in any other conduct which similarly creates a likelihood of confusion or of misunderstanding;
(13) The act, use or employment by any person of any deception, fraud, false pretense, false promise or misrepresentation, or the concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any goods or services, whether or not any person has in fact been misled, deceived or damaged thereby;
(14) Advertising, printing, displaying, publishing, distributing or broadcasting or causing to be advertised, printed, displayed, published, distributed or broadcast in any manner, any statement or representation with regard to the sale of goods or the extension of consumer credit including the rates, terms or conditions for the sale of such goods or the extension of such credit, which is false, misleading or deceptive or which omits to state material information which is necessary to make the statements therein not false, misleading or deceptive;
(15) Representing that any person has won a prize, one of a group of prizes or any other thing of value, if receipt of the prize or thing of value is contingent upon any payment of a service charge, mailing charge, handling charge or any other similar charge by the person or upon mandatory attendance by the person at a promotion or sales presentation at the seller's place of business or any other location: Provided, That a person may be offered one item or the choice of several items conditioned on the person listening to a sales promotion or entering a consumer transaction if the true retail value and an accurate description of the item or items are clearly and conspicuously disclosed along with the person's obligations upon accepting the item or items; such description and disclosure shall be typewritten or printed in at least eight point regular type, in upper or lower case, where appropriate; or
(16) Violating any provision or requirement of article six-b of this chapter; or
(17) Violating any provision or requirement of article six-j of this chapter.
(g) "Warranty" means express and implied warranties described and defined in sections three hundred thirteen, three hundred fourteen and three hundred fifteen, article two, chapter forty-six of this code and expressions or actions of a merchant which assure the consumer that the goods have described qualities or will perform in a described manner.
ARTICLE 6J. PROTECTION OF CONSUMERS FROM PRICE GOUGING AND UNFAIR PRICING PRACTICES DURING AND SHORTLY AFTER A STATE OF EMERGENCY.

§46A-6J-1. Emergencies and natural disasters - Taking unfair advantage of consumers.

The Legislature hereby finds that during emergencies and major disasters, including, but not limited to, tornadoes, earthquakes, fires, floods or civil disturbances, some merchants have taken unfair advantage of consumers by greatly increasing prices for essential consumer goods or services. While the pricing of consumer goods and services is generally best left to the marketplace under ordinary conditions, when a declared state of emergency results in abnormal disruptions of the market, the public interest requires that excessive and unjustified increases in the prices of essential consumer goods and services be prohibited. It is the intent of the Legislature in enacting this article to protect citizens from excessive and unjustified increases in the prices charged during or shortly after a declared state of emergency for goods and services that are vital and necessary for the health, safety and welfare of consumers. Further, it is the intent of the Legislature that this article be liberally construed so that its beneficial purposes may be served.
§46A-6J-2. Definitions.
(a) "State of emergency" means a natural or man-made disaster or emergency resulting from a tornado, earthquake, flood, fire, riot or storm for which a state of emergency has been declared by the president of the United States or the governor of West Virginia.
(b) "Local emergency" means a natural or man-made disaster or emergency resulting from a tornado, earthquake, flood, fire, riot or storm for which a local emergency has been declared by the executive officer or governing body of any city or county in West Virginia.
(c) "Consumer food item" means any article that is used or intended for use for food, drink, confection or condiment by a person or animal.
(d) "Repair or reconstruction services" means services performed by any person for repairs to residential or commercial property of any type that is damaged as a result of a disaster.
(e) "Emergency supplies" includes, but is not limited to, water, flashlights, radios, batteries, candles, blankets, soap, diapers, temporary shelters, tape, toiletries, plywood, nails and hammers.
(f) "Medical supplies" includes, but is not limited to, prescription and nonprescription medications, bandages, gauze, isopropyl alcohol and antibacterial products.
(g) "Building materials" means lumber, construction tools, windows and anything else used in the building or rebuilding of property.
(h) "Gasoline" means any fuel used to power any motor vehicle or power tool.
(i) "Transportation, freight and storage services" means any service that is performed by any company that contracts to move, store or transport personal or business property or rents equipment for those purposes.
(j) "Housing" means any rental housing leased on a month-to-month term.
(k) "Goods" means any tangible property, coupons, or certificates, whether bought or leased.
§46A-6J-3. Prohibited unfair pricing practices.
(a) (1) Upon the proclamation of a state of emergency resulting from a tornado, earthquake, flood, fire, riot, storm or natural or man-made disaster declared by the president of the United States or the governor, and upon the declaration of a local emergency resulting from a tornado, earthquake, flood, fire, riot, storm or natural or man-made disaster by the executive officer of any city or county and for a period of thirty days following that declaration, it is unlawful for any person, contractor, business, or other entity to sell or offer to sell any consumer food items or goods, goods or services 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 of more than ten percent above the price charged by that person for those goods or services immediately prior to the proclamation of emergency.
(2) A greater price increase is not unlawful if that person can prove that 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 additional costs imposed by the seller's supplier or additional costs of providing the good or service during the state of emergency, the price represents no more 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 immediately prior to the onset of the state of emergency.
(b)(1) Upon the proclamation of a state of emergency resulting from a tornado, earthquake, flood, fire, riot or storm declared by the president of the United States or the governor, or upon the declaration of a local emergency resulting from a tornado, earthquake, flood, fire, riot or storm by the executive officer of any city or county, 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 for a price of more than ten percent above the price charged by that person for those services immediately prior to the proclamation of emergency.
(2) A greater price increase is not unlawful if that person can prove that 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 during the state of emergency, the price represents no more 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 immediately prior to the onset of the state of emergency.
(c) The provisions of this section may be extended for additional thirty-day periods by a local governing body or the Legislature if considered necessary to protect the lives, property or welfare of the citizens.
(d) Any business offering an item for sale at a reduced price immediately prior to the proclamation of the 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.
§46A-6J-4. Penalties, remedies and enforcement.
(a) A violation of this article is an unfair or deceptive act or practice within the meaning of section one hundred two, article six of this chapter and is subject to the enforcement provisions and remedies provided by that article.
(b) Any person violating the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or confined in the county or regional jail not more that one year, or both fined and imprisoned.
(c) The remedies and penalties provided by this article are cumulative, and do not prohibit any other remedy or punishment available under the laws of this state.
§46A-6J-5. Preemption.
Nothing in this section preempts any local ordinance prohibiting the same or similar conduct or imposing a more severe penalty for the same conduct prohibited in this section.


Article six-j is new; therefore, strike-throughs and underscoring have been omitted.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.