A Quiet Little Bill That Could Cost You at the Pump

Most bills that do real damage don't look like much. They don't run forty pages. They don't have press conferences. They show up as five pages of "definitional cleanup" in a statute nobody's read since the Eisenhower administration, and by the time anybody notices what moved, the Governor's already signed it.

SB 638, filed by Sen. Daniels, is exactly that kind of bill, and OCPA wants to make sure somebody notices before it moves.

The bill amends the definitions section of the Unfair Sales Act — Oklahoma's below-cost-selling statute, codified at 15 O.S. § 598.2. The Act exists for a simple reason: to prevent large retailers from deliberately pricing goods below their actual cost in order to drive smaller competitors out of business and then raise prices once the competition is gone. It's one of the oldest consumer-protection tools on the books, and for decades it has worked through a straightforward mechanism. When calculating a retailer's "cost" for enforcement purposes, the law presumes a 6% markup to cover the proportionate cost of doing business — things like overhead, labor, utilities, and the hundred other expenses that keep the lights on. If a retailer can prove their actual cost of doing business is lower than 6%, they're free to present that evidence. But the presumption sets the floor.

SB 638 strikes that floor entirely. It deletes the 6% markup presumption from the definition of "cost to the retailer," leaving only the raw invoice or replacement cost of the merchandise plus freight, cartage, and taxes. The rest of the bill is formatting — converting old-style lettered paragraphs to numbered ones, swapping "The term" for quotation-marked definitions. Window dressing around a single substantive change.

OCPA's concern is what happens next. Without the markup presumption, the practical cost of proving a below-cost-selling violation gets significantly harder. A prosecutor or plaintiff would need to reconstruct a retailer's actual cost of doing business from scratch — no presumptive baseline, no burden-shifting. That's a gift to any large chain with the legal resources to litigate the question into the ground and a problem for the independent retailers and small operators who depend on the Act's deterrent effect.

The most immediate impact would likely land at the gas pump. Motor fuel is the classic loss-leader product — big-box stores and large chains have long used below-cost fuel pricing to pull traffic into their parking lots, absorbing the loss on gas while making it up on groceries and general merchandise inside. Independent gas stations and convenience stores don't have that luxury. The 6% presumption has been the guardrail keeping that competition from tipping into outright predation.

We understand the argument on the other side. A mandatory markup presumption can look like a price floor, and price floors can look anti-consumer. But the Unfair Sales Act isn't about keeping prices high — it's about keeping markets competitive. When a Walmart or a Costco can sell gas at a loss indefinitely and the corner station cannot, the short-term savings for the consumer come at the long-term cost of the corner station's existence. And when the corner station is gone, the savings tend to go with it.

OCPA urges the Legislature to scrutinize this bill carefully. Five pages of definitional cleanup shouldn't be the vehicle for dismantling a seventy-year-old anti-predatory-pricing protection. If the 6% number needs updating, update it. Don't delete it.