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The FTC has taken its most direct step toward regulating personalized pricing. On August 19, 2026, the FTC published its Proposed Enforcement Policy Statement Regarding Personalized Pricing (the “Policy”). If finalized in its current form, the Policy would require businesses that collect or use customer data to clearly and conspicuously disclose when and how they use customer data to generate personalized prices.
The Road to the FTC Policy
Personalized pricing – also referred to as “surveillance pricing” – refers to the practice of using consumer data, such as personal information, browsing history, location history or purchasing history, to determine a price for a specific consumer.
In 2024, the FTC issued orders to eight companies offering personalized pricing products, seeking information about the impact these practices have on privacy, competition, and consumer protection. Initial findings released in January 2025 indicated that some retailers were using data as granular as website mouse movements to set individualized prices.
States have also begun addressing personalized pricing through legislation. Earlier this year, Maryland and New Jersey enacted laws banning personalized pricing in the sale of groceries both in-store and via delivery. Meanwhile, New York adopted a disclosure-based approach requiring businesses to provide a notice proximate to any personalized pricing stating: “THIS PRICE WAS SET BY AN ALGORITHM USING YOUR PERSONAL DATA.”
The FTC’s Proposal
The Policy does not issue a blanket prohibition on any form of personalized pricing. Instead, it would require businesses to clearly and conspicuously disclose when customer data is being used to set personalized prices.
According to the Policy, consumers generally expect to be charged the same prices as other purchasers, and the failure to inform consumers otherwise constitutes a material omission under Section 5 of the FTC Act. The Policy identifies a non-exhaustive list of circumstances requiring disclosure, including when prices are adjusted based on geographical location, access to alternatives, or personal circumstances that may affect a consumer’s need or willingness to pay.
The proposal goes beyond New York’s disclosure requirements by requiring businesses to disclose, among other things:
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that a price is personalized;
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the basis of the personalization; and
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types of data used to generate the personalized price.
The FTC also provides examples of acceptable and insufficient disclosures. For example, describing a price as “specially selected” would not be sufficient, while a disclosure explaining that a price was based on a “consumer’s estimated willingness to pay derived from data about that consumer’s previous purchases from the same retailer through the same login account” would be sufficient if accurate and complete.
The Policy would also require disclosures when consumer data is being collected for the purpose of personalizing prices.
Once published in the Federal Registry, the Policy will be subject to a 30-day public period. Davis+Gilbert is happy to assist interested parties in submitting comments.
What comes next?
The proposal is the latest sign that regulators are paying increasing attention not only to personalized pricing itself, but also to the consumer data and algorithms used to support it. Whether the FTC ultimately adopts the Policy in its current form, the public comments may provide an early indication of how the debate over transparency and data-driven practices is likely to evolve.
The Bottom Line
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The FTC is signaling increased scrutiny of personalized pricing practicesand the consumer data used to support them.
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The Policy makes clear that the current FTC administration cares not only about whether a business is personalizing prices, but also how and what data they use to do.
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The Policy is likely to spark significant interest, and comments will likely reveal a rift between consumer advocates seeking greater transparency and businesses concerned about revealing proprietary pricing and decision-making processes.
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