On August 19, 2026, the Federal Trade Commission (FTC) announced that it is seeking public comment on a proposed enforcement policy statement regarding personalized pricing. The proposed statement makes clear that the FTC intends to scrutinize personalized pricing practices under Section 5 of the FTC Act and marks the latest development in the FTC’s ongoing focus on how much consumers are being charged for goods and services.
Background
The FTC’s interest in personalized pricing builds on its earlier work in the area, which the prior FTC referred to as “surveillance pricing”, a term criticized by businesses, pricing experts, and current FTC Chair Andrew Ferguson. In 2024, former Chair Lina Khan issued 6(b) orders on a 5-0 vote to surveillance pricing intermediaries, which resulted in staff research summaries setting forth their initial finding about how companies use consumer data to set individualized prices. Although he supported the 6(b) study, Chair Furguson noted in a concurring statement that “calling the practice of personalized pricing ‘surveillance pricing’ … suggests something nefarious is afoot, which is precisely what we are issuing the 6(b) orders to discover.”
A full report on the results of the 6(b) study was expected, but has yet to be released and was not included in the proposed enforcement policy statement. Since the 6(b) study, a number of states have passed laws regulating or outright banning the practice in certain circumstances, including New York, Maryland, Connecticut, and New Jersey. Several members of Congress have also issued letters to various companies on the subject, with the Senate holding a hearing in August. The proposed policy statement marks the first public action by the FTC since the 6(b) staff reports were released.
The proposed statement follows a series of FTC actions under the Trump Administration focused on affordability and targeting hidden fees and surprise charges across a range of industries. Those efforts have included enforcement actions and rulemaking initiatives involving online food and grocery delivery services, live-event ticketing, rental housing fees, and auto dealer pricing.
What the Proposed Statement Says
The proposed enforcement policy statement focuses on several key themes:
- Disclosure Obligations: Where consumers reasonably expect that prices are static, and not based on their personal data, the proposed statement takes the position that businesses engaging in personalized pricing should clearly and conspicuously disclose (1) the fact that the price is personalized, (2) the basis for the personalization, and (3) the types of data on which the personalization is based. The failure to make these disclosures, the proposed statement warns, may constitute an unfair or deceptive act or practice in violation of Section 5.
- Deception Concerns: Retailers may deceive consumers when they represent that a price is static or widely offered when it is in fact personalized. Similarly, misleading consumers as to the basis for personalization (e.g., presenting a higher price as a loyalty “discount”) may also violate Section 5.
- Unfairness Concerns: The proposed statement notes that personalized pricing may also be unfair under Section 5 where consumers cannot reasonably avoid paying a higher price because the fact or nature of the personalization has been concealed. The FTC observes that any benefits of personalized pricing to consumers or competition may be realized without concealing the practice. Notably, the proposed statement includes in a footnote that the “Commission declines at this time to take any position on whether some personalized pricing practices are unfair even when fully disclosed to consumers,” leaving open the possibility that they could conclude that in the future,
- Data Practices: The proposed statement extends to the data collection practices underlying personalized pricing, warning that businesses that collect, use, or disclose consumers’ personal data for personalized pricing purposes without adequate disclosures or without obtaining consent may independently violate Section 5.
The proposed policy statement is not a ban. Notably, the FTC acknowledges that it does not have the legal authority to prohibit personalized pricing in all circumstances. Nor will the proposed policy statement, if ultimately approved, carry the weight of an FTC trade rule, which means the policy statement could not form the basis for the FTC recovering monetary relief. Instead, the approved statement would provide notice to the public of the FTC’s interpretation of Section 5, and is intended to promote adequate disclosure and prevent deceptive or unfair practices.
Illustrative Examples
The proposed statement includes several examples of personalized pricing scenarios that the FTC views as raising Section 5 concerns, including:
- A food delivery company quoting higher prices to consumers whose data suggests they are less likely or unable to leave their homes to purchase food.
- A grocery chain charging a delivery customer more for milk based on data showing that several children live in the customer’s household.
- A hotel charging more to a consumer whose data suggests is traveling for a funeral or other must-attend personal event.
- A rideshare company charging more based on data revealing the user has not installed any competing apps.
- A retailer charging more for a product based on data indicating the consumer is inside one of the retailer’s physical locations at the time of browsing the retailer’s website.
What Comes Next
The FTC authorized the proposed statement by a 2–0 vote. Once it is published in the Federal Register, the public will have 30 days to submit comments electronically.
What Businesses Should Do Now
Businesses engaged in or considering personalized pricing as well as those engaged in loyalty or discount programs should carefully assess their current pricing practices in light of this proposed statement. In particular, companies should evaluate whether their pricing practices involve the use of personal data to set individualized prices, including discounts, and if so, whether existing disclosures are adequate to inform consumers that prices are personalized, the basis for that personalization, and the types of data used. Companies should also review their data collection and sharing practices to ensure they are not collecting or using consumer data for personalized pricing without appropriate disclosures or consent.
The crux of FTC’s guidance is that context matters when determining the level of disclosure required to avoid deception and whether personalized pricing is in fact unfair. The proposed statement notes, for example, that “[c]onsumers who reasonably believe that a personalized price is a discount based on their purchase history with that retailer when it is in fact a higher price based on information about their disposable income or their shopping habits with other firms, for example, may be deceived into not taking action to avoid the personalized price. Tricked into forgoing alternative courses of action, misled consumers might suffer the injury of paying a higher price that they could have otherwise avoided.” And what constitutes personal data to set a personalized price is undefined. So a careful review of the way in which a company engages in varied pricing based on any personal data (including seemingly innocuous data that customers know companies collect such as transaction history) is important to ensure compliance with the broad proposed mandate. Some companies may want to file a comment requesting additional definitional guidance on how the FTC defines personal data and personalized pricing to confirm they are in compliance.
This proposed statement is the latest in a series of enforcement actions focused on surveillance pricing which we have previously covered, and businesses should monitor developments during the comment period and beyond. The Alston & Bird Privacy, Cyber & Data Strategy and Consumer Protection/FTC teams are available to help businesses assess the impact of the proposed statement on their operations and develop compliance strategies.
