FTC seeks comment on proposed enforcement policy statement regarding personalized pricing

On August 19, 2026, the Federal Trade Commission (FTC) announced a proposed enforcement policy statement (Statement) and a request for public comment addressing personalized pricing. The FTC describes personalized pricing as the use of personal data to set prices at the amount that a company believes an individual consumer is willing to spend. It approved the proposal by a 2–0 vote.

Once the Statement is published in the Federal Register, the public will have until September 25, 2026, to submit comments electronically, according to an extension granted by the FTC on September 3, 2026.

This alert offers a brief summary of the Statement and places it in the context of related state legislation.

Summary

The Statement is limited in scope, as the FTC acknowledges that it does not have legal authority to ban personalized pricing in all circumstances. Therefore, the Statement focuses on sellers’ obligation to disclose when consumer data is used to offer differentiated prices. According to the FTC, consumers may expect prices to change based on supply and demand, not based on their personal habits or buying history, and a retailer that represents or implies a price is static when it is not may risk misleading consumers. The undisclosed collection or use of personal data for the purpose of personalized pricing could violate the FTC Act, which prohibits unfair or deceptive practices in the marketplace.

The FTC is proposing that companies engaging in personalized pricing must offer “clear and conspicuous” disclosure, including the type of data that was used to generate the price offered to the consumer. According to the Statement, the FTC will “deploy enforcement resources” against companies that do not follow its disclosure standards.

The FTC also indicates that personalized pricing could be unfair to consumers, noting that when consumers pay a higher price based on the undisclosed use of personal data, they suffer a “substantial injury,” and that “[t]he more sophisticated personalized pricing practices become, the less likely consumers are to benefit.” However, the FTC added a footnote stating that it is declining to take a position “on whether some personalizing practices are unfair even when fully disclosed to consumers.”

Related legislation

The Statement appears amid state-level legislation on related topics. New York began requiring companies to disclose the use of personalized pricing last year. New Jersey recently enacted two laws aimed at curbing data-driven pricing practices in residential housing and consumer retail markets. Maryland became the first state to restrict personalized, data-driven pricing in the grocery sector. In addition, the Maryland law aims to address the use of artificial intelligence (AI) algorithms to process consumer data collected from loyalty programs, browsing history, and purchasing behavior to tailor prices to individual shoppers.

While the FTC’s Statement refers to “personalized pricing,” state laws use multiple terms to refer to similar concepts, which could create overlapping and conflicting obligations. Maryland defines “dynamic pricing,” while California and Illinois use the term “surveillance pricing,” and New York uses “personalized algorithmic pricing.” This could create a scenario in which retailers may be subject to competing terminology across state lines that could result in practical challenges to implementing national compliance strategies.

Looking ahead

The FTC’s Statement signals that federal regulators are paying attention to the commercial practices of organizations engaged in personalized pricing and that they may act when such uses of personal data are not effectively disclosed to consumers.

DLA Piper’s Pricing Solutions and Litigation team is monitoring the progress of the Statement and is prepared to assist clients in evaluating its implications and developing a strategy for engaging in the comment process.

For more information, including if you would like to submit a comment on the FTC’s Statement or discuss how it or any related state laws may affect your business, please contact the authors or your DLA Piper relationship partner.