On August 19, 2026, the Federal Trade Commission announced that it is seeking public comment on a proposed Enforcement Policy Statement (Statement) regarding “personalized pricing”—the practice of using consumers’ personal data (such as inferred income, household size and composition, etc.)[1] to tailor prices offered to consumers. The Statement adds to the calls by federal and state legislators, regulators, and enforcers to increase scrutiny of—and, in some cases, limit or ban outright—businesses’ use of personalized, dynamic, and surveillance pricing.[2] Companies—especially retailers and businesses supplying everyday necessities (like food, housing, transportation, health care)—should pay particularly close attention to developments in this area and weigh emerging risks in adopting and deploying pricing or revenue management tools and policies.
Summary of the Statement and Key Takeaways
The Statement focuses predominantly on how inadequate disclosures related to personalized pricing can constitute a “deceptive” or “unfair” practice under Section 5. Specifically, the Statement outlines three primary forms of conduct that potentially violate Section 5: (1) the failure to conspicuously disclose not just that a price is personalized, but also the basis for that personalization and the types of data on which the personalization is based; (2) misleading consumers by stating that a price is a “special price” while omitting that the displayed price is actually higher than it would otherwise be because it was set by relying on data such as the customer’s inferred willingness-to-pay; and (3) collecting, using, or disclosing personal data for personalized pricing without adequate disclosure or consent. Interestingly, regarding the latter scenario, the FTC explained that personalized pricing could implicate Section 5 based on data privacy grounds, noting that businesses face risk if they base personalized prices on data they obtained without securing the consumers’ consent or verifying that consumers provided such consent.
Generally speaking, the Statement is grounded in the FTC’s broad assertion that it is “consumers’ reasonable expectation[] that the price they see for a product or service is the same price that any other consumer at the same place and time would see.” While the FTC acknowledges that consumers may expect price variation in certain contexts—such as based on supply and demand, regional differences, or consumer risk—the Statement posits that many consumers do not understand the extent of data they generate that is available to companies or how the “rise of data-driven ‘personalized pricing’ has the potential to transform our history of relatively limited variation in pricing from one consumer to the next.” Against this backdrop, the FTC states that it “intends to enforce the law aggressively against any deceptive or unfair personalized pricing practices that violate Section 5 of the FTC Act or any other law enforced by the Commission.”
The Statement offers several key takeaways, including the following highlights:
- As a threshold point, the Statement emphasizes that the Commission does not have broad authority to ban personalized pricing: “Congress has not given the Commission the authority to prohibit personalized pricing in all circumstances.” FTC Chairman Andrew Ferguson reiterated this point in the Press Release regarding the Statement: “The FTC does not have the legal authority to ban personalized pricing in all circumstances . . . .”[3] Accordingly, the FTC (at least during this Administration) likely will not attempt to regulate personalized pricing through rulemaking authority but will rather use traditional enforcement tools (much like has occurred in the non-compete space).[4] It further indicates that the FTC’s actions with regard to personalized pricing will be an additional risk for companies to consider rather than potentially preemptive of the emerging patchwork of state laws governing personalized/dynamic pricing.
- While the Statement is focused on Section 5 of the FTC Act, the Statement repeatedly says that the Commission also will deploy “any other law enforced by the Commission” to address unlawful personalized pricing practices. The Commission identifies two other laws specifically that may be implicated in future enforcement actions: the Restore Online Shoppers’ Confidence Act, 15 U.S.C. §§ 8401-8405, and the Rule Against Unfair or Deceptive Fees, 16 C.F.R. Part 464.[5] But the Commission’s comment in the Statement that “personalized pricing without business competition would allow a monopolist to capture the entire consumer surplus by charging each consumer the highest amount he is willing to pay for a product or service” suggests that the Commission may be considering how to use its authority to enforce Section 2 of the Sherman Act with regard to personalized pricing. Indeed, in the seven examples of “scenarios in which personalized pricing without adequate disclosure would raise Section 5 concerns” (ranging from a “grocery chain charging . . . a higher price for milk based on data showing that several children live in the customer’s household” to a rideshare company charging more where the user has not installed competitor apps), each involved situations where competition is limited and demand is inelastic. It is possible that, down the line, the Commission will argue that the use of personalized pricing tools may constitute anticompetitive or exclusionary conduct when engaged in by a monopolist or business with substantial market power.
- The Statement highlights this Administration’s and Commission’s focus on eliminating “surprises or hidden charges” and addressing “issues that affect the cost of living for American families”—citing several consumer-focused industries like housing, food and grocery (and associated delivery services), and transportation. The Statement also repeatedly explains how “retailers” may violate Section 5 of the FTC Act by using personalized pricing. Taken together, this approach indicates that the FTC’s enforcement agenda will likely continue to prioritize companies that directly interface with consumers, especially when those companies sell essential goods or services.
What’s to Come
Once the FTC publishes the Statement in the Federal Register, the public will have 30 days to submit comments (unless the deadline is extended) before the Statement goes into effect. But as FTC Chairman Andrew Ferguson explained in the release regarding the Statement, “businesses engaged in or considering personalized pricing” should currently be “on notice that the Trump-Vance FTC will not hesitate to enforce the law in this space.” Companies—especially in high priority industries—should review their pricing and revenue management practices and policies, inventory what data are being collected and how they are being used in pricing or revenue tools, and evaluate the degree and viability of the current disclosures being made to the public about such practices.
FOOTNOTES
[1] Press Release: FTC Seeks Comment on Enforcement Policy Statement Regarding Personalized Pricing, FTC.gov (Aug. 19, 2026), https://www.ftc.gov/news-events/news/press-releases/2026/08/ftc-seeks-comment-enforcement-policy-statement-regarding-personalized-pricing; Federal Trade Commission’s Proposed Enforcement Policy Statement Regarding Personalized Pricing, FTC.gov (Aug. 19, 2026), https://www.ftc.gov/system/files/ftc_gov/pdf/p034101-ftc-enforcement-policy-statement-re-personalized-pricing-proposed-for-public-comment.pdf.
[2] Leo D. Caseria & Joy O. Siu, The Price Isn’t Right: Emerging Patchwork of State Surveillance Pricing Bans Creates Compliance Complications for Businesses, Sheppard (June 11, 2026), https://www.sheppard.com/insights/blogs/the-price-isnt-right-emerging-patchwork-of-state-surveillance-pricing-bans-creates-compliance-complications-for-businesses.
[3] Press Release, supra n.1.
[4] Stephen E. Fox, Ann M. O’Brien, Joy O. Siu, et al., Final Word on Final Rule? Texas District Court Eviscerates FTC’s Non-Compete Ban, Sheppard (Aug. 21, 2024), https://www.sheppard.com/insights/blogs/final-word-on-final-rule-texas-district-court-eviscerates-ftcs-non-compete-ban.
[5] Statement n.15, supra n.1.