On Aug. 19, 2026, the Federal Trade Commission (FTC) announced that it is seeking public comment on a proposed enforcement policy statement regarding the use of consumer data to set individualized prices — a practice the FTC refers to as “personalized pricing” in its proposed policy statement. The public comment period will remain open for 30 days following publication of the proposed policy statement to the Federal Register.
The proposed policy statement addresses the FTC’s concern that, unbeknownst to consumers, personalized pricing is becoming more prevalent in product markets that historically have not varied prices based on consumers’ personal data.
“When consumers see a listed price, they expect it to be [the] same price that everyone else sees, not the retailer’s estimate of how much they are willing to pay based on their personal data,” FTC Chairman Andrew Ferguson said in a statement.
The proposed policy statement, if finalized, would not create a new rule prohibiting personalized pricing. Instead, it would provide guidance on the FTC’s current view — and potential enforcement posture — on personalized pricing.
What is Personalized Pricing?
The proposed policy statement describes personalized pricing as the use of personal data to set prices based on conclusions about a particular consumer, such as how much that consumer may be willing to pay or whether the consumer is likely to comparison shop.
The FTC distinguishes personalized pricing from routine price variation that consumers generally expect. For example, prices may change based on supply and demand, local market conditions, and taxes, among other factors. Likewise, individualized pricing has historically occurred in some markets, such as insurance and credit, where the characteristics of an individual purchaser may affect the risk associated with the transaction.
In contrast, the FTC’s discussion of personalized pricing focuses on markets in which consumers expect that the price displayed will not vary from one person to another due to personal information about the purchaser. In this context, the FTC explains, consumers may be unaware if a business uses personal information to determine an individualized price.
The FTC’s Proposed Section 5 Framework
The proposed policy statement identifies several ways personalized pricing may implicate Section 5 of the FTC Act.
The FTC notes that personalized pricing may constitute a deceptive practice under Section 5 where a business expressly or implicitly represents that a price is static or widely available when the price has actually been individualized. Similarly, if a consumer reasonably believes that a displayed price is generally available, the failure to disclose that the business used personal information to determine that consumer’s price may be considered a deceptive practice.
The FTC also asserts that businesses may violate Section 5 of the FTC Act by providing a misleading explanation about a personalized price. Consumers may, for example, believe that the price of a retail product reflects a favorable discount based on the consumer’s purchase history, when the business has actually increased the price based on information suggesting that the consumer has greater disposable income or is less likely to comparison shop.
The FTC further argues that concealed personalized pricing may qualify as an unfair practice under Section 5 in some instances. According to the proposed policy statement, paying a higher personalized price may constitute substantial consumer injury, and consumers may not reasonably be able to avoid that injury if they do not know that personalization is occurring or what information impacts the price they are shown. The proposed policy statement notes that, without that information, consumers may lack an opportunity to correct inaccurate data, change behavior that results in higher prices, prevent collection of the relevant information, or opt for a seller that does not personalize prices.
The FTC provides several examples of personalized pricing that “would raise Section 5 concerns” absent adequate disclosures:
- A food delivery company quoting a higher price to consumers because their personal data revealed they are less likely to leave their homes to purchase food;
- A grocery chain charging a delivery customer a higher price for milk based on data showing that several children live in the customer’s household;
- A hotel charging a higher price to consumers because their personal data revealed they may be traveling for a funeral or other “can’t-miss” personal business;
- A rideshare company charging a user more because the user’s personal data revealed that they have not installed any of the company’s competitors’ apps on their phone, or that the user is facing a life-threatening emergency or condition;
- A retailer charging a consumer more for a product sold on its website because the consumer’s personal data revealed the consumer is inside one of the retailer’s physical locations or parking lots while browsing on the retailer’s website.
These examples may suggest that the FTC is concerned with price variation based on data about a consumer’s health or other sensitive personal information.
Adequate Disclosures
Under the proposed policy statement, disclosure regarding personalized pricing should provide more than a general indication that a consumer received an individualized offer. The FTC reasoned that an effective disclosure should be clear and conspicuous and explain not only that the price is personalized, but also why it has been personalized, and what type of data a company used to set the price. The FTC explains, for example, that describing an offer as a “specially selected” price would likely be insufficient.
The proposed policy statement also addresses the collection and use of the underlying consumer information, noting that businesses may violate Section 5 when they collect, use, or disclose personal data for personalized pricing without adequate disclosures or consent.
Takeaways
The proposal policy statement does not purport to create a new rule prohibiting personalized pricing. Indeed, the FTC expressly acknowledges in the proposed policy statement that Congress has not authorized the agency to prohibit personalized pricing in all circumstances. Instead, the proposal provides an early indication of how the FTC may analyze personalized pricing practices under its Section 5 deception and unfairness authority.
The FTC’s proposal arrives amid broader scrutiny of personalized pricing at both the federal and state levels. Some regulators and lawmakers have examined whether businesses are leveraging consumer data, behavioral information, and online activity in ways that affect pricing outcomes without consumers’ knowledge.
Businesses that use consumer data for personalized pricing should consider reviewing consumer-facing disclosures about those practices — particularly where price variation turns on data about a consumer’s health or other sensitive personal information.
There are state-level considerations related to personalized pricing, which fall outside the scope of this GT Alert. GT is monitoring developments on such state laws.