The Federal Trade Commission's proposed enforcement policy statement on personalized pricing runs eight pages, and its operative sentence is a disclosure duty. Where consumers reasonably expect that a listed price is the same for everyone, a business that personalizes a price should clearly disclose that the price is personalized, the basis for the personalization, and the types of data behind it. Failing to make those disclosures, the Commission wrote, is likely to violate Section 5 of the FTC Act.
The draft was published on Aug. 19. The comment window, extended once from Sept. 18, closed Sept. 25 with roughly 3,700 comments on the docket. The Commission has not said when it will finalize the statement.
What the Commission calls personalized pricing, and what consumer groups call surveillance pricing, is the use of personal data to set a price according to what a company believes an individual will pay. It is an old practice in airline seats and a new one in grocery aisles, where posted prices have conventionally been the same for every shopper at the same place and time.
The standard is disclosure because a ban is unavailable
The instrument matters as much as the content. An enforcement policy statement says how the Commission reads the law it already has; it creates no rule, and in any case it brings the agency still has to prove a violation of an existing statute.
Its content is a three-part test for businesses that personalize prices: say that the price is personalized, say what the personalization is based on, and say what data it used. The disclosures should be clear and conspicuous, and the full text notes that telling a consumer only that a price is personal, without the basis, tells him less than the whole truth. The accompanying release gives the intuition in Chairman Andrew Ferguson's words: consumers expect the listed price to be the one everyone sees, "not the retailer's estimate of how much they are willing to pay." The vote to publish the draft was 2-0.
The statement then records the limit on its own reach. It says Congress has not given the Commission authority to prohibit personalized pricing outright, which leaves Section 5 of the FTC Act, the prohibition on unfair or deceptive acts or practices, as the tool. A ban would take an act of Congress, and the draft does not pretend otherwise.
The examples run from funeral travel to a medical emergency
Section 5 has two prongs and the draft uses both. A practice is deceptive if it involves a material omission likely to mislead a reasonable consumer, and the theory here is that silence itself misleads: a shopper who does not know a price is personalized cannot mask the browsing session, compare at a retailer with static prices, or walk away. A practice is unfair if it causes substantial injury consumers cannot reasonably avoid, and the draft treats the higher price as exactly that, since a consumer who cannot see the personalization cannot dispute the data behind it.
The illustrations are pointed. A hotel charging more to a guest whose data suggests travel for a funeral. A rideshare charging more when the phone has no competitor's app installed. A retailer charging more for a security camera when court filings show the customer was recently a crime victim. The draft grounds the approach in older disclosure regimes, including the Fair Credit Reporting Act's adverse-action notice and state insurance rules on individualized decisions.
Two questions are left open. The Commission declines to take a position on whether personalized pricing can be unfair even when fully disclosed, which is the question that would decide whether disclosure is a floor or a ceiling. And it concedes the economic record is thin: the limited research suggests personalized pricing tends to raise profits, that gains for some consumers come with losses for others, and that the more sophisticated the practice, the less likely consumers come out ahead.
Industry read the definition and found its loyalty programs
The comment record, as The Center Square reported, shows both sides arguing about scope rather than about the practice. Trade groups including the National Retail Federation, the Retail Industry Leaders Association, FMI, NetChoice and the Software and Information Industry Association warned that a broad definition of personalized pricing would reach ordinary promotions, loyalty pricing and targeted discounts.
FMI, which represents food retailers, put the case in operational terms. Chief Public Policy Officer Stephanie Harris said targeted promotions help retailers compete for budget-conscious shoppers and cut food waste by "directing time-sensitive discounts to customers most likely to purchase perishable products." The Small Business and Entrepreneurship Council, in its own comment, said most small business owners expect a disclosure duty to add compliance work and warned that vague definitions would chill routine discounting.
NetChoice attacked the premise. Its policy director, Patrick Hedger, told The Center Square that "the FTC should withdraw the Statement" and finish the 6(b) study the agency opened on pricing intermediaries in 2024, so that any policy rests on evidence about what is happening in the market. NetChoice cited the Supreme Court's 2024 Loper Bright decision, which ended Chevron deference and left courts to decide whether an agency has claimed authority Congress gave it.
The objection is not that disclosure is impossible. It is that the definition does the work, and the draft's definition turns on personal data and individualized willingness to pay rather than on any distinction between a discount and a markup. A loyalty program that gives a member a lower price is, on the draft's terms, personalized pricing. So is a promotion aimed at shoppers likely to buy a perishable item before it spoils.
Consumer advocates say a label arrives too late to matter
The groups on the other side of the docket did not defend the practice. They argued the remedy is too small. EPIC, the Center for Digital Democracy, the Consumer Federation of America, Consumer Reports and others urged the Commission to treat the practice as unfair on its own terms and to move past disclosure toward a rulemaking under Section 18 that could prohibit it. EPIC's comment points to New York's 2025 disclosure law, where notices about algorithmic pricing are often placed below the checkout button.
Lee Hepner of the American Economic Liberties Project, quoted in the same report, said the Commission is "squandering its authority to stop this practice" and leaving consumers to protect themselves. The practical version of that argument is the question the draft leaves open: if the harm is a higher price a shopper cannot see, a sentence on the page may not change what the shopper pays, and the consumer who most needs the notice is the one least positioned to act on it.
Both sides are describing the same gap, and neither has run the experiment. Industry groups are arguing about compliance cost and legal authority for the businesses they represent; advocates are arguing about an injury they say disclosure cannot reach. No jurisdiction has tested a disclosure regime at scale, which is why the paper record is thinner than the confidence on either side.
Maryland's ban takes effect Thursday, with the loyalty exemption at its center
Three states have not waited for the Commission. Maryland's Protection From Predatory Pricing Act, signed in April and effective Oct. 1, is the first ban in the country. It covers food retailers of at least 15,000 square feet and third-party delivery services, and it prohibits using a consumer's personal data to set an individual price. Enforcement runs through the Attorney General, with a 45-day cure period before penalties of up to $10,000 per violation, or $25,000 for repeat offenses. There is no private right of action.
Its exemptions read like the list the retail groups are defending. Cost differences, geography, supply, promotions, loyalty and rewards programs, subscriptions and pricing corrections are carved out. A Maryland grocer can still run a loyalty price and a manager's special on Thursday. What it cannot do is set two prices for two shoppers at the same shelf at the same time based on what the retailer knows about them.
New Jersey signed its Fair Price Protection Act in July. The main prohibition takes effect Aug. 1, 2027, and a one-year moratorium on new electronic shelf labels begins Feb. 1, 2027, aimed at the hardware that makes shelf-level price changes cheap. Its product scope is broader than Maryland's, and enforcement runs through the Consumer Fraud Act. Connecticut's ban takes effect July 1, 2027. New York passed a broader One Fair Price Act this year on top of its 2025 algorithm-disclosure law, and it awaits Gov. Kathy Hochul's decision. Colorado's legislature passed a version that Gov. Jared Polis vetoed as overly broad. In Congress, Sen. Josh Hawley raised the issue at an Aug. 5 Judiciary subcommittee hearing, and Sens. Jeff Merkley and Ben Ray Luján introduced the Stop Price Gouging in Grocery Stores Act.
Walmart's pledge shows which standard retailers think binds first
The private-sector answer arrived six days before the comment docket closed. Walmart CEO John Furner published a letter to customers on Sept. 25 pledging that the company will not set prices from personal data or use its AI shopping assistant to raise them. "We price the product, not the person," Furner wrote, adding that pricing off a shopper's income, history or urgency would violate the chain's every-day-low-price model.
The letter defended the company's rollout of digital shelf labels, which it says exist to keep shelf and register prices aligned, and made three commitments: no prices set by who the shopper is or the time of day, no use of the AI assistant to hide cheaper options, and continued pricing oversight by Walmart staff. The timing was not accidental. Digital labels are the infrastructure that makes per-shelf price changes practical, and the pledge is the commercial version of the distinction the FTC is drawing, between dynamic pricing that follows costs and personalized pricing that follows the person.
That is also a preview of how the compliance question gets answered first. For a national retailer, the binding rule this quarter is Maryland's, and the practical question is not whether to disclose personalization but whether a given promotion counts as personalized at all. The federal draft, if finalized as written, would require disclosure of conduct Maryland prohibits outright and New Jersey will prohibit next year, while exempting the loyalty programs industry says the federal definition would capture.
The Commission has reserved the question that would resolve the tension. A final statement leaving open whether disclosed personalized pricing can still be unfair would set a floor rather than a ceiling, and the first enforcement action is where the scope of the definition gets tested. For now the draft's own framing is the honest summary. An agency that says it cannot ban a practice has asked businesses to label it, and the argument has moved to what the label must cover.
Primary sources
- Federal Trade Commission, Proposed Enforcement Policy Statement Regarding Personalized Pricing, Aug. 19, 2026, and the accompanying press release and Sept. 2026 comment-extension notice.
- FTC Chairman Andrew Ferguson, statement in the Aug. 19, 2026 press release.
- The Center Square (Brett Rowland), "Industry, advocates split over FTC's personalized pricing proposal," Sept. 28, 2026 (KPVI syndicated copy used), including comments from FMI, NetChoice and the American Economic Liberties Project.
- EPIC, "EPIC and Consumer Groups Urge FTC to Treat Surveillance Pricing as an Unfair Practice," Sept. 2026; Small Business and Entrepreneurship Council, comments on the FTC's personalized pricing proposal, Sept. 25, 2026.
- Office of Gov. Wes Moore, signing release for Maryland HB 895, the Protection From Predatory Pricing Act, April 28, 2026.
- New Jersey Senate Democrats, "Cryan, Lagana's Fair Price Protection Act Now Law," July 23, 2026.
- Supermarket News, "Walmart CEO: No personal info used in pricing," Sept. 2026, reporting John Furner's Sept. 25, 2026 letter.