Price Gouging Under Brazilian Competition Law: Better Left Dormant?

Price gouging is a hot topic in the antitrust community as a result of COVID-19, and Brazil is no exception. In this article, we ask whether it is still worth having CADE open price gouging investigations, or should CADE adopt a policy of no longer pursuing price gouging claims. We argue that CADE should acknowledge the limited relevance of price gouging as a standalone theory of harm worth pursuing, which is largely the policy being adopted in the period after the enactment of Brazil’s current competition law and before the pandemic. We also point to other avenues in which we believe the many complex issues around price gouging might be more productively discussed and addressed in Brazil.

By Carlos Ragazzo¹ & João Marcelo Lima²

I. INTRODUCTION

Price gouging was, previously, a dormant theme in Brazilian competition policy and has now resurfaced in the midst of the COVID-19 pandemic (much like in other antitrust jurisdictions). Brazil’s Competition authority – the Administrative Council for Economic Defense (“CADE”) – has in the past pursued price gouging as a theory of harm in a number of cases (between 1994 and today, more than 60 cases where opened).³ At the time of writing, there are still a few price gouging investigations being conducted, out of which at least one (a preliminary procedure targeting a number of companies in the healthcare/pharma sectors) was opened in the context of COVID-19.⁴

CADE has however never convicted companies fo