Senate Bill No. 192
(By Senators Jenkins, Kessler (Acting President), Barnes, Browning, Palumbo,
Stollings, Williams, Yost, Unger, Foster, Plymale, Minard and Klempa)
[Passed March 12, 2011; in effect ninety days from passage.]
AN ACT to amend and reenact §46A-6J-2, §46A-6J-3 and §46A-6J-6 of
the Code of West Virginia, 1931, as amended, all relating to
protection of consumers from price gouging and unfair pricing
practices; the sale of gasoline or other motor fuels during a
"state of emergency"; amending definition of "state of
emergency"; creating an alternative pricing formula for fuel
suppliers; and updating the preemption provisions.
Be it enacted by the Legislature of West Virginia:
That §46A-6J-2, §46A-6J-3 and §46A-6J-6 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
ARTICLE 6J. PROTECTION OF CONSUMERS FROM PRICE GOUGING AND UNFAIR
PRICING PRACTICES DURING AND SHORTLY AFTER A STATE
(a) "Building materials" means lumber, construction tools, windows and any other item used in the building or rebuilding of
(b) "Consumer food item" means any article that is used or
intended for use for food or drink by a person or animal.
(c) "Disaster" means the occurrence or imminent threat of
widespread or severe damage, injury, or loss of life or property
resulting from any natural or man-made cause, including fire,
flood, earthquake, wind, snow, storm, chemical or oil spill or
other water or soil contamination, epidemic, air contamination,
blight, drought, infestation or other public calamity requiring
(d) "Emergency supplies" includes, but is not limited to,
water, flashlights, radios, batteries, candles, blankets,
generators, heaters and temporary shelters.
(e) "Essential consumer item" means any article that is
necessary to the health, safety and welfare of consumers,
including, but not limited to, clothing, diapers, soap, cleaning
supplies and toiletries.
(f) "Gasoline" means any fuel used to power any motor vehicle
or power tool.
(g) "Housing" means any rental housing leased on a
month-to-month term or the sale of manufactured homes, as that term
is defined in section two, article nine, chapter twenty-one of this
(h) "Medical supplies" includes, but is not limited to, prescription and nonprescription medications, bandages, gauze,
isopropyl alcohol and antibacterial products.
(i) "Repair or reconstruction services" means any services
performed by any person for repairs to residential, commercial or
public property of any type that is damaged as a result of a
(j) "State of emergency" means the situation existing after
the occurrence of a disaster in which a state of emergency has been
declared by the Governor or by the Legislature pursuant to the
provisions of section six, article five, chapter fifteen of this
code or in which a major disaster declaration or emergency
declaration has been issued by the president of the United States
pursuant to the provisions of 42 U.S.C. §5122.
(k)"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
or storage space for those purposes.
§46A-6J-3. Prohibited unfair pricing practices.
(a) Upon the declaration of a state of emergency 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 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: Provided, however, That where a supplier
of gasoline or other motor fuels cannot determine their daily
costs, the supplier may sell gasoline or other motor fuels to
distributers on any day at a rate not to exceed the average of the
Oil Price Information Service's average wholesale rack price for
that product at the Montvale/Roanoke, Virginia, Fairfax, Virginia
and Pittsburgh, Pennsylvania wholesale racks for the previous day.
(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
(d) The price restrictions imposed by this article may be
limited or terminated by proclamation of the Governor.
This article preempts any local ordinance prohibiting the same
or similar conduct.