On October 28, 2026, the Federal Trade Commission voted 2-0 to issue Section 6(b) orders to nine large companies—including major airlines, ride-share and food-delivery platforms, and big-box retailers—seeking detailed information on how they use personal data to set individualized prices for consumers and compensation for workers (the “6(b) Orders”). The 6(b) Orders’ inclusion of labor issues signals an expansion of the FTC’s focus with respect to how companies use personalized data.
Scope of the 6(b) Investigation
Personalized pricing—sometimes called surveillance pricing or discussed as a form of dynamic pricing—refers to the practice of using consumer data (such as inferred income, household size and composition, and shopping behavior) to set targeted consumer-specific prices. The practice has come under intense scrutiny by federal and state lawmakers, regulators, and enforcers as Americans continue to grapple with rising prices and raise affordability concerns.
The FTC’s Recent Actions Regarding Personalized Pricing
In August, the FTC published a Proposed Enforcement Policy Statement regarding personalized pricing, the public comment period for which closed on September 25, 2026.[1] The FTC unanimously voted to issue these 6(b) Orders just a month later.
Under Section 6(b) of the FTC Act, the Commission is empowered to conduct wide-ranging studies that do not have a specific law enforcement purpose by requiring recipients to file “annual or special . . . reports or answers in writing to specific questions” about the recipient’s “organization, business, conduct, practices, management, and relation to other corporations.”[2] As with subpoenas and civil investigative demands, the recipient of a 6(b) order may file a petition to limit or quash. If a party fails to comply with a 6(b) order, the Commission may bring a lawsuit to enforce compliance and levy penalties for sustained noncompliance.
FTC Chairman Andrew Ferguson emphasized that the 6(b) Orders are intended to allow the FTC to probe how these new pricing practices are executed and impact the U.S. economy. Specifically, the 6(b) Orders will enable the FTC:
[T]o scrutinize the opaque methodology that some companies . . . may be using to determine how much consumers pay or how much gig workers are paid for the same product or service . . . . Consumers deserve to know whether companies use their web surfing habits or other personal data to estimate the highest price they can charge each consumer. Workers also deserve to know if their compensation is affected by how companies use their personal data.
This is the second set of FTC 6(b) orders in nearly as many years. The first set, unanimously issued by the FTC during the Biden Administration on July 23, 2024, was directed at eight “third-party intermediaries” that claimed to use advanced algorithms, artificial intelligence, and consumer data to set targeted prices.[3] In 2025, FTC staff published research summaries synthesized from the collected materials[4] and posited that “surveillance pricing opens new opportunities for unscrupulous pricing strategies” and “could create ripe opportunities for businesses to engage in deceptive advertising, illegal collusion, civil rights violations, or other harmful practices.”[5]
Momentum Beyond the FTC
The FTC is not alone in prioritizing personalized pricing. As discussed in a prior post, several states have enacted, passed, or proposed legislation banning or limiting the use of surveillance pricing tools and practices. And private litigation is also emerging against companies accused of using personal or browsing data to determine pricing or compensation, including putative class actions such as Phillips v. JetBlue Airways Corporation.[6]
Takeaways
Typically, 6(b) orders lead to 6(b) reports, which lead to investigations and litigation (often initiated by both government actors and the plaintiffs’ bar). For example, a flood of ongoing investigations and litigation flowed from the FTC’s 2022 6(b) orders investigating the role of pharmacy benefit managers in the healthcare and pharmaceutical industries.[7]
It is more important than ever that companies using personalized pricing tools, collecting data for potential use in such tools, or considering third-party tools that collect or use personalized data conduct appropriate diligence to ensure they are not assuming unforeseen risk. Among other factors, companies should consider:
- What data are used in the pricing tool and how models make pricing or compensation decisions;
- How companies offering pricing tools describe those tools to the market;
- What is disclosed to consumers and workers with respect to the collection or use of their data; and
- Whether consent mechanisms truly match the intended use of the data.
Businesses should also take note that personalized pricing tools can implicate both consumer-facing and labor-facing issues and adopt compliance policies accounting for both dimensions.
FOOTNOTES
[1] FTC Extends Public Comment on Proposed Policy Statement Regarding Personalized Pricing, FTC.gov (Sept. 3, 2026), https://www.ftc.gov/news-events/news/press-releases/2026/09/ftc-extends-public-comment-proposed-policy-statement-regarding-personalized-pricing.
[2] 15 U.S.C. Sec. 46(b).
[3] FTC Issues Orders to Eight Companies Seeking Information on Surveillance Pricing, FTC.gov (July 23, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/07/ftc-issues-orders-eight-companies-seeking-information-surveillance-pricing.
[4] FTC Surveillance Pricing 6(b) Study: Research Summaries A Staff Perspective, FTC.gov (Jan. 2025), https://www.ftc.gov/system/files/ftc_gov/pdf/p246202_surveillancepricing6bstudy_researchsummaries_redacted.pdf.
[5] Stephanie T. Nguyen & Samuel A.A. Levine, Surveillance Pricing Update & The Work Ahead, FTC.gov (Jan. 17, 2025), https://www.ftc.gov/policy/advocacy-research/tech-at-ftc/2025/01/surveillance-pricing-update-work-ahead.
[6] No. 1:26-cv-02405 (E.D.N.Y. filed Apr. 22, 2026).
[7] FTC Launches Inquiry Into Prescription Drug Middlemen Industry, FTC.gov (June 7, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/06/ftc-launches-inquiry-prescription-drug-middlemen-industry.