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NO. 210.  AN ACT RELATING TO PRICE GOUGING OF PETROLEUM PRODUCTS AND HEATING FUEL PRODUCTS, AND TO REQUIREMENTS FOR PRE-BUY CONTRACTS.

(S.228)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  PURPOSE

The purpose of 9 V.S.A. § 2461d of this act is to ensure that those entities involved in the sale or transfer of designated petroleum products do not take advantage of a purchaser during a market emergency.

Sec. 2.  9 V.S.A. §§ 2461d and 2461e are added to read:

§ 2461d.  PRICE GOUGING OF PETROLEUM PRODUCTS AND

                HEATING FUEL PRODUCTS

(a)  (Definitions)  For the purposes of this section:

(1)  A “market emergency” shall be declared by the governor.  The market emergency shall continue for 30 days or until terminated by the governor.  The governor may extend the market emergency for additional 30‑day periods.  “Market emergency” means any abnormal disruption of any market for petroleum products or heating fuel products, including any actual or threatened shortage in the supply of petroleum products or heating fuel products or any actual or threatened increase in the price of petroleum products or heating fuel products resulting from severe weather, convulsion of nature, supply manipulation, failure or shortage of electric power or other source of energy, strike, civil disorder, act of war, terrorist attack, national or local emergency, or other extraordinary adverse circumstances. 

(2)  “Petroleum or heating fuel product” means motor fuels, liquefied petroleum gas, fuel oil, kerosene, and wood pellets used for heating or cooking purposes.

(3)  “Petroleum or heating fuel-related business” means any producer, supplier, wholesaler, distributor, or retail seller of any petroleum or heating fuel product.

(b)  It is an unfair and deceptive act and practice in commerce and a violation of section 2453 of this title for any petroleum or heating fuel-related business during a market emergency or seven days prior thereto to sell or offer to sell any petroleum product or heating fuel product for an amount that represents an unconscionably high price.

(c)  A price is unconscionably high if:

(1)  the amount charged during the market emergency or seven days prior thereto represents a gross disparity between the price of the petroleum product or heating fuel product charged by the petroleum or heating fuel related business and:

(A)  the price at which the same product was sold or offered for sale by that business in the usual course of business immediately prior to the date of the declaration of the market emergency; or

(B)  the price at which the same or similar petroleum product or heating fuel product is readily obtainable by the buyer and other buyers in the trade area in which the petroleum- or heating-fuel‑related business markets the product; and

(2)  the disparity is not substantially attributable to increased prices charged by the petroleum product or heating fuel product suppliers or increased costs due to a market emergency.

§ 2461e.  REQUIREMENTS FOR GUARANTEED PRICE PLANS AND

                PREPAID CONTRACTS

(a)(1)  (Contract and solicitation requirements) A contract for the retail sale of home heating oil, kerosene, or liquefied petroleum gas that offers a guaranteed price plan, including a fixed price contract, a prepaid contract, and any other similar terms, shall be in writing, and the terms and conditions of such price plans shall be disclosed.  Such disclosure shall be in plain language and shall immediately follow the language concerning the price or service that could be affected and shall be printed in no less than 12‑point boldface type of uniform font.  A solicitation for the retail sale of home heating oil or liquefied petroleum gas that offers a guaranteed price plan that could become a contract upon a response from a consumer, including a fixed price contract, a prepaid contract, and any other similar terms, shall be in writing, and the terms and conditions of such offer shall be disclosed in plain language.

(2)  Subdivision (1) of this subsection does not preclude a first come, first served offering.

(b)(1)  (Security for prepaid contracts) No home heating oil, kerosene, or liquefied petroleum gas dealer shall enter into a prepaid contract to provide home heating oil, kerosene, or liquefied petroleum gas to a consumer unless that dealer has, within seven days of the acceptance of the contract, obtained and maintained any one of the following:

(A)  (Futures contract) heating oil, kerosene, or liquefied petroleum gas contracts or other similar commitments that allow the dealer to purchase, at a fixed price, heating oil, kerosene, or liquefied petroleum gas in an amount not less than 75 percent of the maximum number of gallons that the dealer is committed to deliver pursuant to all prepaid contracts entered into by the dealer;

(B)  (Surety bond) a surety bond in an amount not less than 50 percent of the total amount of funds paid to the dealer by consumers pursuant to prepaid heating oil, kerosene, or liquefied petroleum gas contracts; or

(C)  (Line of credit, letter of credit, cash) a line of credit from an FDIC‑insured institution, letter of credit from an FDIC‑insured institution, cash in an FDIC‑insured account or a functionally equivalent account, or combination thereof in an amount that represents 100 percent of the cost to the dealer of the maximum number of gallons that the dealer is committed to deliver pursuant to all prepaid contracts entered into by the dealer.  The cost shall be calculated at the time the contracts are entered into.

(2)  A dealer shall maintain the amount of futures contracts required by this subsection for the period of time for which the prepaid home heating oil, kerosene, or liquefied petroleum gas contracts are effective, except that the amount of the futures contracts may be reduced during such period of time to reflect any amount of home heating oil, kerosene, or liquefied petroleum gas already delivered to and paid for by the consumer.

(3)  Subdivision (b)(1) of this section shall not apply to budget plans under which consumers pay 1/12th of their yearly heating fuel cost each month.

(c)(1)  (Disclosure; Additional contract requirements) A prepaid home heating oil, kerosene, or liquefied petroleum gas contract shall indicate: 

(A)  the amount of funds paid by the consumer to the dealer under the contract;

(B)  the maximum number of gallons of home heating oil, kerosene, or liquefied petroleum gas committed by the dealer for delivery to the consumer pursuant to the contract; and

(C)  that the performance of the prepaid contract is secured by one of the three options described in subsection (b) of this section. 

(2)  (Reimbursement default provision) Any contract described in this subsection shall provide that the contract price of any undelivered home heating oil, kerosene, or liquefied petroleum gas owed to the consumer under the contract at the end date of the contract shall be reimbursed to the consumer not later than 30 days after the end date of the contract, unless the parties to the contract agree otherwise.

(d)  (Private right of action under consumer fraud act) In addition to the remedies set forth in sections 2458 and 2461 of this title, a home heating oil, kerosene, or liquefied petroleum gas dealer may bring an action against its heating oil, kerosene, or liquefied petroleum gas suppliers for failing to honor its contract with the home heating oil, kerosene, or liquefied petroleum gas dealer.  The home heating oil, kerosene, or liquefied petroleum gas dealer bringing the action may recover all remedies available to consumers under subsection 2461(b) of this title.

Approved:  May 29, 2006



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us