FTC Proposes Policy Statement On Personalized Pricing

On August 19, 2026, the Federal Trade Commission announced that it is accepting public comment on a proposed policy statement addressing data-driven personalized pricing. The proposal is the latest development in an area that has quickly become a focus of regulators, lawmakers, and private plaintiffs.

As we have previously discussed (see here, here, here, and here), scrutiny of personalized pricing has steadily intensified, beginning with the FTC’s surveillance pricing study and report, followed by an assortment of state legislative and enforcement activity and, more recently, a growing wave of class actions challenging the use of consumer data to set or adjust prices. The proposed policy statement brings the FTC back into the conversation and offers the clearest indication yet of how the Commission may apply Section 5 of the FTC Act to personalized pricing practices.

The proposed policy statement identifies four practices that may violate Section 5: (1) suggesting, expressly or implicitly, that a personalized price is generally available; (2) failing to disclose that a price has been personalized where consumers may reasonably expect uniform pricing; (3) misrepresenting the basis for the personalization; or (4) obscuring the data used to personalize prices. Personalized pricing regulation to date has generally fallen into two camps: procedural regimes focused on transparency and disclosure, and substantive regimes that restrict particular uses of consumer data. The FTC appears to favor the former, but contemplates more than simply telling consumers that a price has been personalized. The proposal suggests businesses should also clearly disclose the basis for the personalization and the types of data used.

As with other personalized pricing regulation, much turns on what falls outside the rule. The FTC identifies only a limited set of pricing variations as generally uncontroversial, including differences based on supply and demand, regional market conditions, and products that have traditionally involved individualized pricing, such as insurance and credit. Conspicuously absent is any similar treatment of bona fide discounts or promotional pricing, which are expressly carved out under a number of proposed state laws.

Attention at the state level has also focused on personalized price increases. Interestingly, the FTC’s proposed policy statement is broader, addressing personalized pricing regardless of whether it results in a higher or lower price for the consumer.

One passing but notable statement may also have implications for in-store pricing. The Commission says that consumers in a retail store “reasonably expect the price on the shelf to be the same price offered to any other consumer shopping at the same store at the same time.” That leaves little room for individualized in-store pricing, at least without prominent disclosure, and tracks similarly restrictive approaches beginning to emerge at the state level. [Vermont link].

The proposal’s hypotheticals also offer some useful clues about the practices likely to draw the FTC’s attention. Several focus not simply on data consumers provide, but on conclusions businesses draw from that data, such as whether children are present in a household, whether a consumer is likely to comparison shop, whether a competitor’s app is installed, whether a consumer was recently the victim of a crime, or whether a consumer may have a medical condition.

Echoing concerns raised in the FTC’s earlier surveillance pricing work, the proposal repeatedly points to health information, precise location data, family circumstances, and other highly personal information or life events. The examples suggest particular concern when pricing decisions rely on information consumers would not ordinarily expect to affect the prices they receive.

Several hypotheticals also involve information collected outside the immediate transaction, including court records, household composition information, and competitor app installations. Notably, the proposal says relatively little about how the business obtained that information. Its focus instead appears to be on what the business does with the information and whether consumers understand that it is affecting the price they see.

For now, businesses using consumer data to inform pricing should understand what data feeds into their pricing decisions, what inferences are being drawn from that data, whether consumers would reasonably expect the data to be used that way, and whether they can clearly explain why different consumers may see different prices.

Once the statement is published in the Federal Register, the public will have 30 days to submit comments electronically. So there is still some distance between this proposal and a final FTC policy.