FTC Proposes Enforcement Policy on Personalized Pricing, Seeks Public Comment

The Federal Trade Commission recently proposed a new enforcement policy statement for businesses that use consumers’ personal data to set individualized prices. The proposal says businesses may violate Section 5 of the FTC Act if they do not clearly explain when a price is personalized, why it is personalized, and what data is used. Public comments are due by September 18, 2026.

On August 19, 2026, the Federal Trade Commission released a proposed enforcement policy statement (the Proposed Statement) concerning the use of consumers’ personal data to set personalized prices.

Where consumers reasonably expect prices not to vary based on personal data, the Proposed Statement asserts that businesses should clearly and conspicuously disclose that a price is personalized, the basis for the personalization, and the types of data used to determine pricing. The Proposed Statement cautions that failing to provide these disclosures is likely to constitute an unfair or deceptive act or practice under Section 5 of the FTC Act.

The FTC has opened Docket No. FTC-2026-1057 to receive public comments, which it will accept for 30 days, ending on September 18, 2026. Businesses that engage in or are considering personalized pricing, as well as companies that provide pricing, analytics, loyalty-program, or related technology services, should evaluate the Proposed Statement and consider whether to comment individually or through an industry association.

The FTC’s Proposed Statement follows a wave of state legislative activity targeting personalized and algorithmic pricing practices. Most recently, New Jersey enacted the Fair Price Protection Act, which prohibits the use of personal data to determine or vary prices for groceries and certain household goods.

These developments are contributing to an increasingly complex patchwork of state requirements that businesses should consider alongside the FTC’s emerging enforcement approach.

EMERGING ENFORCEMENT POSITION

The Proposed Statement follows the FTC’s ongoing examination of data-driven pricing, including its 2024 industry study into what it dubbed “surveillance pricing.” In July 2024, the Commission voted 5-0 to issue compulsory process orders as part of that industry study to eight companies concerning products and services that use consumer data, algorithms, and artificial intelligence to target prices or segment consumers.

In January 2025, the Commission published FTC staff’s preliminary findings that the companies in the review worked with at least 250 clients and that available tools could draw on location, demographics, browsing patterns, shopping history, mouse movements, and items left in an online cart. At the time, then-Commissioner Andrew Ferguson and Commissioner Melissa Holyoak dissented from the publication of the staff findings as premature and reflecting incomplete “early impressions.”

The timing of the latest Proposed Statement indicates sustained interest by the FTC in “surveillance pricing” and broader pricing practices, notwithstanding changes in administration and Commission leadership.

WHAT THE PROPOSED STATEMENT COVERS

The Proposed Statement focuses on the use of personal data to set a price based on conclusions about a particular consumer, such as an estimate of willingness to pay or likelihood of comparison shopping. It is not expressly limited to prices generated by algorithms or artificial intelligence; rather, it focuses on the broader question of whether personal data is used to personalize the price.

While the FTC acknowledges that personalized pricing is “a long-established norm” in markets where prices necessarily reflect consumer-specific risk (e.g., insurance and credit), it raises concerns with respect to personalized pricing in new markets and contexts, particularly where consumers may expect that “the price they see for a product or service is the same price that any other consumer at the same place and time would see.”

The Proposed Statement distinguishes that practice from price changes based on supply and demand, local market conditions, taxes, regulations, or other factors affecting consumers in the same market.

The Proposed Statement includes a nonexhaustive list of examples where personalized pricing may raise Section 5 concerns, including food delivery, grocery retail, hotels, rideshare services, and home-security products.

POTENTIAL SECTION 5 THEORIES OF HARM AND DISCLOSURE EXPECTATIONS

The Proposed Statement explains that a business may deceive consumers and potentially violate Section 5 of the FTC Act by representing expressly or by implication that a price is static or widely offered when it is, in fact, personalized to one particular consumer. An omission also may be deceptive where a consumer reasonably expects a common price and the business does not disclose that personal data affected it.

The Proposed Statement would also further identify potential deception where a business misstates the basis or effect of personalization, for example, presenting a personalized price as a loyalty discount when the consumer is actually charged more based on inferred disposable income or shopping activity with other businesses.

An effective disclosure, as set out in the Proposed Statement, should be clear and conspicuous and at a minimum identify the following:

• That the price is personalized
• The basis for the personalization
• The type or types of data used to determine pricing

The Proposed Statement acknowledges that a disclosure explaining that a personalized price reflects an estimate of willingness to pay derived from prior purchases from the same retailer through the same login account could be sufficient if accurate and complete.

DATA USE AND CONSENT

The Proposed Statement notes that data practices associated with personalized pricing may independently implicate Section 5. Collecting, using, or disclosing personal data for personalized pricing without adequate disclosure or consent to collection and use for personalized pricing purposes may be unlawful.

Businesses may need to separately assess data policies, consent language, and representations by data suppliers and other vendors, rather than focusing only on the final pricing interface.

PRACTICAL COMPLIANCE CONSIDERATIONS

If the Proposed Statement is adopted following the public comment period, businesses using or considering consumer-specific data in connection with prices, discounts, or other material transaction terms should consider what compliance steps may be appropriate, including the following:

• Reviewing where consumer-specific data or inferences actually affect the price a consumer sees or pays and distinguishing those practices from ordinary dynamic pricing based on broader market conditions
• Understanding what data pricing systems use, where that data comes from, and whether its use is consistent with applicable permissions, consents, and vendor arrangements
• Reviewing how prices, discounts, loyalty offers, and targeted promotions are described to consumers, including whether disclosures accurately explain when pricing is personalized and what information is being used
• Putting appropriate controls around pricing models, including review and approval processes, testing, complaint handling, recordkeeping, and responsibility for third-party tools
• Updating data collection policies and procedures and ensuring that appropriate consent is obtained from consumers where data is collected for the purpose of personalized pricing

Companies operating in multiple states should assess differences among state disclosure obligations and remedies and consider whether jurisdiction-specific controls are needed.

PUBLIC COMMENT PERIOD AND NEXT STEPS

A final policy statement, once adopted, would guide FTC investigations, enforcement priorities, and the agency’s assessment of business practices under existing law. The 30-day public comment period provides an opportunity for affected businesses and industry groups to consider whether to engage with the proposal before the FTC adopts a final position.

While an FTC policy statement is neither a rule nor a binding legal determination, as a practical reality a final FTC policy statement is intended as material guidance from the FTC concerning its expectations with respect to business conduct and conformity and has the potential to shape future FTC enforcement actions, which can result in injunctive relief orders impacting business practices and potential pursuit of civil penalties or consumer redress in a negotiated settlement or in the event of recidivist conduct.

As another practical reality, courts and state enforcers will also often view an FTC policy statement or guide as indicative or determinative of whether conduct is unfair or deceptive.

HOW WE CAN HELP

Our lawyers advise clients on emerging AI and algorithmic pricing regulation, state attorney general enforcement, consumer protection, and pricing and competition law. We are monitoring relevant developments and stand ready to assist businesses with related questions.