Antitrust Implications of COVID Surcharges | The Legal Intelligencer

Carl W. Hittinger, left, and Ann O’Brien,right, of Baker Hostetler.

Businesses facing increased costs as a result of the historic COVID-19 pandemic have resorted to a number of seemingly justified solutions to ensure they can keep their doors open. Some, including restaurants, delivery service providers, and even some doctors’ offices, have added “COVID surcharges” to their bills in an effort to cover new or increased costs, or to recoup losses incurred as a result of restrictions or shutdowns. If these surcharges are tied to the pandemic and directly related to increased costs—either cleaning, sanitation, outfitting workers or patrons with personal protective equipment, or increased base costs as a result of the pandemic—the charges should not raise any legal concern. However, businesses should be aware that surcharges have, in the past, been used as pretext for anticompetitive behavior, and businesses imposing a COVID surcharge need to know how to avoid crossing that dangerous line.

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