,,ii #aaith ,,congress #b;d ,session ,s4 #chib ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,february #ab1 #bjbf,mr4 ,lujn 7for himself1 ,mr4 ,merkley1 ,ms4 ,rosen1 ,mrs4 ,gillibrand1 and ,mr4 ,heinrich7 introduced the following bill2 which was read twice and referred to the ,committee on ,commerce1 ,science1 and ,transportation ,a ,,bill ,to prohibit retail food stores from price gouging and engaging in surveillance-based price setting practices1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,stop ,price ,gouging in ,grocery ,stores ,act of #bjbf4 #b4 ,prohibition on price gouging 7a7 ,prohibition ,an operator of a retail food store may not sell or offer for sale an item at a grossly excessive price4 7b7 ,affirmative defense ,an operator of a retail food store does not sell or offer for sale an item at a grossly excessive price in violation of subsection 7a7 if the retail food store demonstrates to the ,commission that the increase in the price of the item involved is directly attributable to additional costs that are-- 7#a7 not within the control of the retail food store2 and 7#b7 incurred by the retail food store in procuring1 acquiring1 distributing1 or providing the item4 7c7 ,required guidance ,not later than #ahj days after the date of the enactment of this ,act1 the ,commission shall promulgate1 pursuant to section #eec of title #e1 ,united ,states ,code1 regulations with respect to violations of subsection 7a7 that shall include guidelines on what constitutes 7for purposes of this ,act7-- 7#a7 a market2 7#b7 a grossly excessive price for an item2 and 7#c7 an excessive price for an item4 7d7 ,definition of grossly excessive price 7#a7 ,in general ,for purposes of subsection 7a7 and the guidelines required by subsection 7c71 the ,commission shall define the term grossly excessive price using any metric it deems appropriate4 7#b7 ,definition considerations ,in formulating the definition described in paragraph 7#a71 the ,commission shall consider whether to provide that such term shall include a price for an item that is an amount equal to or greater than #abj percent 7or a lesser percentage1 as determined appropriate by the ,commission7 of the average price for such item in the market during the #f-month period preceding the sale or offer for sale that allegedly violates subsection 7a74 #c4 ,prohibition on surveillance-based price setting 7a7 ,prohibition ,an operator of a retail food store may not engage in surveillance-based price setting1 including by-- 7#a7 adjusting the price of any item for a consumer 7directly or indirectly7 based on the personal information of the consumer1 including such personal information collected using facial recognition technology2 or 7#b7 using an electronic shelf label to change the price of an item for a consumer based on the personal information of such consumer4 7b7 ,general exceptions ,an operator of a retail food store does not engage in surveillance-based price setting in violation of subsection 7a7 if the retail food store demonstrates to the ,commission that each of the following conditions are met3 7#a7 ,a difference in the price of an item is based solely on reasonable costs associated with providing the item to different consumers4 7#b7 ,a discounted price of an item is offered to members of a particular group that relates to occupation1 age1 military service1 student status1 or other factors approved by the ,commission1 based on publicly disclosed eligibility criteria4 7#c7 ,any discount or reward with respect to an item is offered uniformly to all consumers who meet the disclosed eligibility criteria4 7#d7 ,any personal information is used solely to offer or administer the discount or reward and is not used for any other purpose1 including targeted advertising and surveillance-based price setting4 7c7 ,exceptions for use of biometric data ,notwithstanding subsection 7a71 an operator of a retail food store may use biometric data of an adult consumer if such consumer chooses to voluntarily verify the identity of such consumer by providing such biometric data1 if such retail food store-- 7#a7 informs the consumer or the legally authorized representative of the consumer in writing that such biometric data is being collected1 stored1 or used by such retail food store2 7#b7 informs the consumer or the legally authorized representative of the consumer in writing of the specific purpose and length of term for which such biometric data is being collected1 stored1 and used2 7#c7 informs the consumer or the legally authorized representative of the consumer in writing of the specific circumstances under which biometric data is shared with law enforcement2 7#d7 receives a written release executed by the consumer or the legally authorized representative of the consumer for the collection1 storage1 or use of such biometric data2 and 7#e7 does not sell such biometric data to1 or share such biometric data with1 any third party4 #d4 ,required disclosure of use of facial recognition technology 7a7 ,requirement ,a retail food store that uses facial recognition technology at such retail food store shall notify consumers of such retail food store1 in plain and simple language1 about such use and the intended purpose of such technology and use through clear and conspicuous signage placed at the main entrance to the retail food store4 7b7 ,limitation ,for purposes of this section1 the term retail food store does not include an online entity4 #e4 ,prohibition on electronic shelf labels 7a7 ,prohibition ,an operator of a retail food store larger than #aj1jjj square feet-- 7#a7 may not use an electronic shelf label or any digital shelf display technology in such retail food store2 and 7#b7 shall use a non-digital presentation of the price of each item in such retail food store4 7b7 ,rule of construction ,nothing in this section may be construed to prohibit a retail food store from providing a consumer1 based on the purchase history of such consumer1 a discounted or promotional price in accordance with the conditions described in section #c7;b74 7c7 ,limitation ,for purposes of this section1 the term retail food store does not include an online entity4 #f4 ,enforcement 7a7 ,enforcement by ,federal ,trade ,commission 7#a7 ,unfair or deceptive acts or practices ,a violation of section #b7;a71 #c7;a71 #d7;a71 or #e7;a7 7or a regulation promulgated under such section7 shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section #ah7;a77#a77;,b7 of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #eg;a7a77#a77;,b77 and as a violation of section #e7;a7 of such ,act 7#ae ,u4,s4,c4 #de7;a77 regarding unfair methods of competition4 7#b7 ,powers of ,commission ,the ,commission shall enforce section #b7;a71 #c7;a71 #d7;a71 and #e7;a7 7and any regulations promulgated under such sections7 in the same manner1 by the same means1 and with the same jurisdiction1 powers1 and duties as though all applicable terms and provisions of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #da et seq47 were incorporated into and made a part of this ,act4 ,any retail food store that violates such sections 7or any regulations promulgated under such sections7 shall be subject to the penalties and entitled to the privileges and immunities provided in the ,federal ,trade ,commission ,act4 7#c7 ,authority preserved ,nothing in this ,act shall be construed to limit the authority of the ,commission under any other provision of law4 7#d7 ,regulations ,the ,commission may promulgate1 pursuant to section #eec of title #e1 ,united ,states ,code1 any regulations the ,commission determines necessary to carry out the provisions of this ,act4 7b7 ,actions by ,states 7#a7 ,in general ,in any case in which the attorney general of a ,state1 or an official or agency of a ,state1 has reason to believe that an interest of the residents of such ,state has been or is threatened or adversely affected by an act or practice in violation of section #b7;a71 #c7;a71 #d7;a71 or #e7;a7 7or a regulation promulgated under such section71 the ,state1 as parens patriae1 may bring a civil action on behalf of the residents of the ,state in an appropriate ,state court or an appropriate district court of the ,united ,states to-- 7,a7 enjoin such act or practice2 7,b7 enforce compliance with such section 7or such regulation72 7,c7 obtain1 for each such violation1 the greater of-- 7i7 the actual monetary damages incurred from the violation2 or 7ii7 #c1jjj2 or 7,d7 obtain any restitution1 penalties1 and other legal or equitable relief as the court may deem just and proper4 7#b7 ,rule of construction ,nothing in this subsection may be construed to prevent an attorney general1 official1 or agency of a ,state from exercising the powers conferred on the attorney general1 official1 or agency by the laws of the ,state to conduct investigations1 to administer oaths or affirmations1 or to compel the attendance of witnesses or the production of documentary or other evidence4 7c7 ,private right of action 7#a7 ,in general ,a consumer injured by an act or practice in violation of section #b7;a71 #c7;a71 #d7;a71 or #e7;a7 7or a regulation promulgated under such section7 may bring in an appropriate district court of the ,united ,states an action to-- 7,a7 enjoin the violation2 7,b7 subject to paragraph 7#b71 obtain1 for each such violation1 the greater of-- 7i7 the actual monetary damages incurred from the violation2 or 7ii7 #c1jjj2 or 7,c7 obtain any restitution1 penalties1 and other legal or equitable relief as the court may deem just and proper4 7#b7 ,willful or knowing violations ,if the court finds that the defendant acted willfully or knowingly in committing a violation described in paragraph 7#a71 the court shall increase the amount of the award to an amount that is #c times the amount available under paragraph 7#a77;,b74 7#c7 ,costs and attorney's fees ,the court shall award to a prevailing plaintiff in an action under this subsection the costs of such action and reasonable attorney's fees1 as determined by the court4 7#d7 ,limitation ,an action may be commenced under this subsection not later than #e years after the date on which a consumer first discovered or had a reasonable opportunity to discover the violation4 7#e7 ,nonexclusive remedy ,the remedy provided by this subsection shall be in addition to any other remedies available to the consumer4 7#f7 ,invalidity of pre-dispute arbitration and joint action waivers ,notwithstanding any other provision of law1 a pre-dispute arbitration agreement or pre-dispute joint action waiver between a retail food store and a consumer shall not be valid or enforceable for purposes of this subsection4 #g4 ,preemption of directly conflicting ,state laws 7a7 ,in general ,nothing in this ,act may be construed to preempt1 displace1 or supplant any ,state law1 except to the extent that a provision of ,state law conflicts with a provision of this ,act1 and then only to the extent of the conflict4 7b7 ,greater protection under ,state law ,for purposes of this section1 a provision of ,state law does not conflict with a provision of this ,act if such provision of ,state law provides additional protections to consumers protected under this ,act with respect to price gouging1 surveillance-based price setting1 collecting personal information1 or using facial recognition technology in retail food stores4 #h4 ,authorization of appropriations ,there is authorized to be appropriated for the fiscal year #bjbf #e1jjj1jjj 7to remain available until ,september #cj1 #bjcb7 to carry out this ,act4 #i4 ,definitions ,in this ,act3 7#a7 ,biometric data ,the term biometric data means data generated by automatic measurements1 including data gathered through the use of facial recognition technology1 or other representations of the biological characteristics of a consumer1 including-- 7,a7 fingerprints2 7,b7 voice prints2 7,c7 iris or retina scans2 7,d7 gait2 and 7,e7 other unique biological patterns4 7#b7 ,commission ,the term ,commission means the ,federal ,trade ,commission4 7#c7 ,electronic shelf label ,the term electronic shelf label means electronic and wireless paper 7,e-paper7 displays or digital price tags that present product and pricing information4 7#d7 ,electronic surveillance technology ,the term electronic surveillance technology means a technological method1 system1 or other tool of surveillance used to observe1 monitor1 or collect information related to an consumer1 including sensors1 cameras1 device tracking1 biometric monitoring1 facial recognition technology1 or other forms of observation or data collection that are capable of gathering personal information about a consumer4 7#e7 ,facial recognition technology ,the term facial recognition technology means technology that facilitates or otherwise enables an automated or semi-automated process that-- 7,a7 assists in identifying a consumer based on the physical characteristics of the face of such consumer2 or 7,b7 logs characteristics of the face1 head1 or body of a consumer to infer the emotion1 associations1 activities1 or location of such consumer4 7#f7 ,item ,the term item means a specific and distinct product1 good1 or commodity available for sale4 7#g7 ,non-digital presentation of price ,the term non-digital presentation of price means-- 7,a7 a sign that offers the unit price for #a or more brands or sizes of a given item2 7,b7 a sticker1 stamp1 sign1 label1 or tag affixed to the shelf upon which the item is displayed2 or 7,c7 a sticker1 stamp1 sign1 label1 or tag affixed to the item4 7#h7 ,personal information ,the term personal information means any quality1 feature1 attribute1 or trait of a consumer that is reasonably capable of being associated with1 or could be reasonably linked to1 directly or indirectly1 a particular consumer or a household of a particular consumer1 including-- 7,a7 any immutable characteristic1 including race1 ethnicity1 and eye color2 7,b7 any mutable characteristic1 including address1 weight1 citizenship1 and family or parental status2 7,c7 identifiers1 including a real name1 alias1 postal address1 unique personal identifier1 online identifier1 ,internet ,protocol address1 email address1 account name1 social security number1 driver's license number1 passport number1 and other similar identifiers2 7,d7 commercial information1 including records of personal property1 products or services purchased1 obtained1 or considered1 and other purchasing or consuming histories or tendencies2 7,e7 biometric data2 7,f7 internet or other electronic network activity information1 including browsing history1 search history1 and other information regarding interaction by such consumer with a website1 application1 or advertisement2 7,g7 geolocation data2 7,h7 audio1 electronic1 visual1 thermal1 olfactory1 and other similar information2 7,i7 professional or employment-related information2 7,j7 educational information1 including educational experience1 qualifications1 and affiliations2 7,k7 inferences drawn from any of the information described in this paragraph and used to create a profile about such consumer reflecting the preferences1 characteristics1 psychological trends1 predispositions1 behavior1 attitudes1 intelligence1 abilities1 and aptitudes of such consumer2 7,l7 interests1 including the political1 personal1 and professional affiliation of such consumer2 7,m7 financial circumstances1 including personal or household wealth1 income1 property1 debt1 and credit history2 and 7,n7 actions1 habits1 behaviors1 and attributes of such consumer1 whether in a physical or digital environment4 7#i7 ,pre-dispute arbitration agreement ,the term pre-dispute arbitration agreement means any agreement to arbitrate a dispute that has not yet arisen at the time of the making of the agreement4 7#aj7 ,pre-dispute joint action waiver ,the term pre-dispute joint action waiver means an agreement1 including as part of a pre-dispute arbitration agreement1 that would prohibit1 or waive the right of1 a party to the agreement from participating in a joint1 class1 or collective action in a judicial1 arbitral1 administrative1 or other forum1 concerning a dispute that has not yet arisen at the time of the making of the agreement4 7#aa7 ,price ,the term price means the amount charged to a consumer in relation to a transaction1 including any related cost1 fee1 and other material term of the transaction that has a direct bearing on the amount paid by the consumer for the item sold or offered for sale to the consumer4 7#ab7 ,retail food store ,the term retail food store has the same meaning given the term in section #c of the ,food and ,nutrition ,act of #bjjh 7#g ,u4,s4,c4 #bjab74 7#ac7 ,surveillance-based price setting ,the term surveillance-based price setting means offering1 setting1 or informing a customized price for an item for a specific consumer or group of consumers1 based1 in whole or in part1 on personal information collected through electronic surveillance technology1 including such information gathered1 purchased1 or otherwise acquired4