The Price Is Right, Just Not the Same for Everyone: The FTC's Proposed Personalized Pricing Enforcement Policy

On August 19, 2026, the Federal Trade Commission proposed an enforcement policy statement on personalized pricing and opened a 30-day comment period. On page one, it concedes something agencies rarely volunteer: "Congress has not given the Commission the authority to prohibit personalized pricing in all circumstances."

Do not exhale yet. What the Commission cannot ban, it can still call deceptive.

We covered new state statutes on personalized pricing in “Making Sense of New Surveillance, Dynamic, and Algorithmic Pricing Laws,” and the Commission's earlier efforts in “The FTC Isn't Buying It at Any Price.

Today, we cover what this new FTC policy statement adds to the discussion.

3 Things to Say, and 1 Way to Say Them

The FTC expects that personalized pricing will be disclosed to the consumer, and it expects the disclosure to be clear and conspicuous, which means no burying it in the fine print, the terms, or the privacy policy. In the Commission's mind, a compliant disclosure states:

·      that the price is personalized;

  • the basis for that personalization; and

  • the types of data used.

Stating the basis for the personalization and the types of data used goes beyond any existing state disclosure requirements. New York requires only a fixed sentence: “THIS PRICE WAS SET BY AN ALGORITHM USING YOUR PERSONAL DATA.” N.Y. Gen. Bus. Law § 349-a(2). Connecticut takes a similar single-sentence approach (“THIS PRICE WAS INCREASED USING YOUR PERSONAL DATA.”), Conn. Pub. Act No. 26-130, § 11 (eff. July 1, 2027).

Personalization algorithms can use a lot of data.  Consumers may find it creepy to see that information and the basis, and type of data used may vary from product to product (or possibly person to person).  Describing all of it clearly and conspicuously, and in a non-alarming way, at the point of sale is a drafting problem that retailers may soon need to grapple with.

Note too that the Commission "declines at this time to take any position on whether some personalized pricing practices are unfair even when fully disclosed to consumers."  We know from the state laws that a compliance program cannot be built around disclosure alone, and with this statement, the Commission signals that its disclosure is not a safe harbor.

The Commission’s Enforcement Theories

1.        Material Omission/Unfairness

The Commission's premise is that, with only a few acknowledged exceptions such as insurance, shoppers reasonably expect "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." Therefore, saying nothing about personalization may be a material omission under Section 5 of the FTC Act, 15 U.S.C. § 45.  The theory is that the omission prevents the shopper from taking alternative actions.  The Commission asserts that the shopper is tricked into paying a higher price that she could have avoided, and cannot take steps to modify the behavior that triggers higher prices, dispute inaccurate data driving those prices, or avoid the collection in the first place.

2.        Fake Discounts

The Commission asserts that retailers may violate Section 5 by misleading consumers as to “the effect of that personalization." Telling a shopper only that he received a "specially selected" price could mislead him into believing it is a discount when in fact, it not a discount at all.  As you undoubtedly know by now, fake discounts have been an active area of litigation for over a decade.  It is the same theory in a new context.

3.        Lack of Consent to Data Collection

The proposed enforcement policy makes it clear that businesses may violate Section 5 by collecting, using, or disclosing personal data for personalized pricing without adequate disclosure or consent, or by pricing on data "without sufficiently verifying that consumers consented to the collection of those data for that purpose."

While you can control your own consent practices, this also means that the Commission expects you to verify that your data vendors obtained proper consent. Companies that mapped their data flows for state privacy compliance have a good head start at determining whether this is a risk.

4.        Other Statutory Violations

The statement also names two other potentially relevant enforcement theories: 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. The Commission notes that the personalized pricing practices it identifies may violate those requirements as well. For anyone selling subscriptions, event tickets, or short-term lodging, that means a personalized pricing problem may arrive as a ROSCA or Fees Rule problem instead.

The Commission’s Targets

1.        Clearly in the Crosshairs

The FTC provides seven non-exhaustive illustrations that reveal its likely priorities:  those who charge more when the data shows the consumer is more vulnerable, the consumer’s situation is urgent, or the consumer lacks the ability or tools to shop elsewhere.

2.        Possibly in the Crosshairs 

The disclosure outlined by the Commission provides no exception for personalized but lowered base prices, so retailers who are lowering base prices from an established regular prices may wish to submit comments seeking clarification of the enforcement policy on this front.

3.        Probably Not in the Crosshairs

Unlike some of the state laws, the Commission does not address discounts such as coupons, strike-through pricing, loyalty discounts, or similar incentives.

4 Things You Can Do Now

  1. Find out whether you personalize. Pricing, promotion, and personalization often sit with different teams and vendors, and the enterprise-level answer is frequently "partly." Ask whether any price, discount, or offer varies by attributes of the individual shopper.

  2. Trace each data input to a consent. Purchased and licensed data deserves the hardest look, because that is where the verification gap lives.

  3. Audit promotional language against what the algorithm does. Where an offer is described as a reward or a loyalty benefit, confirm the price actually moves down for the stated reason. A mismatch is the cleanest deception claim in the statement.

  4. Decide whether to comment. Comments are due by September 18, 2026.

No matter whether the Commission’s enforcement policy is adopted in its current form or not, this development is yet another clear indication that retailers need to know where their prices vary based on personal data, what effect on price (higher or lower) that personalization is having, where the data came from, and whether this use of the data is within the consent obtained from the consumer.

Originally published by InfoLawGroup LLP. If you would like to receive regular emails from us, in which we share updates and our take on current legal news, please subscribe to InfoLawGroup’s Insights HERE. This summary does not constitute legal advice.

Rosanne YangFTC, pricing, retail, privacy, advertising