FTC Draft Personalized-pricing Policy Would Require More Than A “personalized Price” Disclosure

The proposal would treat undisclosed personalization as a likely Section 5 violation and would require firms to explain the basis for individualized prices and the types of data used.

The Federal Trade Commission (“FTC” or “Commission”) is seeking public comment on a draft enforcement policy statement (the “Draft Policy Statement”) that would treat undisclosed “personalized pricing”—the use of personal data and related inferences, including estimates of a consumer’s willingness to pay or likelihood of comparison shopping, to set that consumer’s price—as a likely Section 5 violation in markets where consumers reasonably expect the same contemporaneous price to be available to others. The Commission recognizes that it cannot prohibit personalized pricing in all circumstances, and it distinguishes individualized pricing from familiar price variations attributable to supply and demand, regional conditions, or risk-based products such as credit and insurance. But the draft signals aggressive enforcement against businesses that personalize prices without what the Commission considers adequate disclosure.¹

Comments are due September 18, 2026, and may be submitted electronically at Regulations.gov under Docket No. FTC-2026-1057.

The draft would require disclosure of the fact, basis, and data inputs used to personalize a price

The draft’s principal deception theory is that a retailer may mislead consumers by expressly or impliedly representing that a price is static or widely offered, or by failing to disclose personalization when consumers reasonably believe the price to be static or widely offered. According to the draft policy statement, a retailer may also deceive consumers by misdescribing the basis or effect of the personalization—for example, presenting a higher price based on disposable income as a discount based on the consumer’s purchase history with the retailer. The Commission would expect a clear and conspicuous disclosure that includes (i) the fact that the price is personalized; (ii) the basis for the personalization; and (iii) the types of data used. Merely describing a price as “specially selected” would likely be insufficient.

Personalized pricing may also be unfair, the draft states, when a higher price causes substantial injury that consumers cannot reasonably avoid—for example, because the retailer concealed the pricing practice or the data driving it—and that is not outweighed by countervailing benefits to consumers or competition. The proposal reaches beyond the price display: either (i) collecting, using, or disclosing personal data for personalized pricing without adequate disclosures or consent or (ii) basing a personalized price on personal data without adequately verifying that the consumer consented to the collection of those data for that purpose may independently violate Section 5. The Draft Policy Statement’s examples emphasize data suggesting constrained choice, urgency, or inferred price insensitivity, including a medical emergency, funeral travel, inability to leave home, the absence of competitors’ apps, a consumer’s presence at a retailer’s location, a grocery customer whose household includes several children, and a recent crime victim purchasing a home-security system. The Draft Policy Statement declines to decide whether fully disclosed personalized pricing may nevertheless be unfair.

The statement would be nonbinding, would create no private rights, and recognizes that the FTC must prove a violation of existing law in any enforcement action. Those qualifications matter, but they do not dilute the enforcement message the agency is sending.

Businesses should review pricing logic and data permissions before the comment period closes

Businesses using or testing personalized pricing should inventory every system that can vary a consumer-facing price or price-linked offer, identify the data and inferences used, trace the source and scope of consumer consent, and review all express and implied pricing representations. Businesses should assess now whether disclosures explain not merely that a price varies, but why it varies and what categories of personal data affect it—and whether they can substantiate the accuracy of those disclosures and the permissions on which the data use depends.

The Commission approved publication of the proposal by a 2-0 vote. The accompanying announcement identifies no discrete questions and invites comment on the draft as a whole. Businesses and trade associations may wish to address (i) when consumers reasonably expect uniform prices; (ii) how specifically a firm can describe the “basis” and “types of data” used by complex pricing systems; (iii) when consumers can reasonably avoid an asserted injury; (iv) the consumer and competitive benefits of personalization; and (v) how the proposed approach should interact with sector-specific regimes.

Comments are due September 18, 2026. 

If you are interested in commenting on the FTC’s Proposed Enforcement Policy Statement Regarding Personalized Pricing, please contact the author or your regular firm contact.

Footnote

1 Federal Trade Commission, Proposed Enforcement Policy Statement Regarding Personalized Pricing (Aug. 19, 2026); Federal Trade Commission, FTC Seeks Comment on Enforcement Policy Statement Regarding Personalized Pricing (Aug. 19, 2026) (announcing a 2-0 vote and a 30-day comment period beginning upon Federal Register publication).

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