Alabama Attorney General Steve Marshall announced Tuesday that the state of emergency declared earlier in the day by the governor for the approach of Hurricane Delta would extend the state’s price gouging law.

The Hurricane Delta state of emergency is the state’s third, coming on top of declared emergencies over COVID 19 and Hurricane Sally.

All three invoke the Alabama Unconscionable Pricing Act, which creates a “prohibition of unconscionable pricing during declared state of emergency.”

What is unconscionable, of course, may be in the eye of the beholder. The statue provides little language for determining at what threshold of price increase the state may decide to pursue a civil penalty. The statute does provide an example of prima facie evidence that a price is unconscionable: charging a price that “exceeds 25 percent the average price at which the same or similar commodity or rental facility was obtainable in the affected area during the last 30 days immediately prior to the declared state of emergency and the increase in the price charge does not attributable to reasonable costs incurred in connection with the rental or sale of the commodity.”=”

The language suggests that district attorneys and judges ought to distinguish between necessary price increases for sellers in difficult circumstances and predatory exploitation of a disaster to charge monopoly prices. It suggests as well that retailers facing a penalty could, as a defense, point to factors outside their control that affected the price.

The statute does not create a private right of action, but the Attorney General’s office is encouraging consumers and officials to report concerns to their Consumer Interests Division. According to Tuesday’s announcement, the office has received and is reviewing 52 complaints of price gouging after Hurricane Sally.