Antitrust Law Daily Wrap Up, CONSUMER PROTECTION NEWS : FTC seeks comment on enforcement policy statement regarding personalized pricing, (Aug 20, 2026)

By Donielle Tigay Stutland, J.D.

The proposed policy statement outlines legal concerns with the use of personal data to set prices and follows another Proposed Policy Statement revealing the agency’s AI concerns.

The Federal Trade Commission released a proposed enforcement policy statement regarding personalized pricing and also announced that it was seeking public comment on the statement. The FTC plans to publish its “Federal Trade Commission’s Proposed Enforcement Policy Statement Regarding Personalized Pricing, which addresses the practice of collecting and using personal data to set prices according to the amount that a company believes an individual consumer is willing to spend. The statement details that 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. Once the statement has been published in the Federal Register, the public will have 30 days to submit comments. This August 19 announcement follows the July announcement of another proposed policy statement by the FTC, this one addressing concerns that AI companies may be manipulating the behavior of their AI (artificial intelligence) systems contrary to reasonable consumer expectations for objectivity and accuracy.

“When consumers see a listed price, they expect it to be same price that everyone else sees, not the retailer’s estimate of how much they are willing to pay based on their personal data,” said FTC Chairman Andrew Ferguson. “The FTC does not have the legal authority to ban personalized pricing in all circumstances, but businesses that fail to tell consumers how their personal data is being used to set a price may be in violation of the FTC Act and other laws we enforce. We are seeking public input on this draft statement, which would put businesses engaged in or considering personalized pricing on notice that the Trump-Vance FTC will not hesitate to enforce the law in this space.”

Personalized Pricing Without Adequate Disclosures Likely Violates Section 5. The policy statement stresses that although Congress has not given the Commission the authority to prohibit personalized pricing outright, the Commission “intends to enforce aggressively against any practices associated with personalized pricing that violate Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices in or affecting commerce, or any other law enforced by the Commission.”

The policy statement details practices that may be likely to deceive consumers. It is likely to be deceptive under Section 5 to represent, expressly or by implication, that a price is static or widely offered when in fact it is personalized. Consumers may also be deceived when they reasonably believe that a price for a good or service is static or widely offered, and the merchant fails to disclose that the price is in fact personalized. The policy details that misrepresentations or omissions are likely to be material. Consumers who are unaware of personalized pricing cannot take steps to avoid the higher prices that may result from it, such as using a virtual private network or private browsing functionality, choosing a different retailer whose prices are static or widely offered, rather than personalized, or simply declining to complete the transaction.

Retailers may also be in violation Section 5 when they mislead consumers as to the basis for the personalization of a price or the effect of that personalization. Misled consumers might suffer the injury of paying a higher price that they could have otherwise avoided. Personalized pricing practices may also be unfair under Section 5, as the higher price paid by a consumer due to personalized pricing may be a substantial injury and consumers may not be able to avoid a higher price if the fact or nature of personalization of the price has been concealed by the retailer.

Disclosures can improves consumers’ ability to avoid substantial injury from higher prices that may be founded on incorrect data or behavior that consumers can change. Where consumers reasonably expect non-personalized pricing, in order to be effective, personalized pricing disclosures should be clear and conspicuous and include all relevant information, such as the fact that the price is personalized, the basis of that personalization, and the type of data used.

The Commission also notes that data practices involved in personalized pricing practices may also implicate Section 5. Section 5 has been applied to protect consumers’ data privacy. Businesses that collect, use, or disclose consumers’ personal data for the purpose of personalized pricing without adequate disclosures or without obtaining consent may violate Section 5. Further, businesses that base personalized prices on personal data of consumers without sufficiently verifying that consumers consented to the collection of those data for that purpose may violate Section 5.

Earlier proposed policy statement on AI concerns. As the proposed policy statement explains, the FTC Act prohibits businesses from engaging in “unfair or deceptive” conduct. The proposed statement goes on to describe how AI companies that distort their systems’ outputs to achieve undisclosed ideological objectives could be deceiving consumers in violation Section 5 of the FTC Act. Such conduct, it explains, may be at odds with explicit and implicit representations made to consumers about the effectiveness and suitability of AI systems for various tasks.

“The FTC wants to hear from businesses and consumers about their experiences and concerns regarding the subversion of AI systems for ideological ends,” said Chairman Andrew N. Ferguson. “This crucial input will help the Commission formulate a final policy that advances President Donald Trump’s goal of expanding America’s global dominance in artificial intelligence.”

Some state laws seek to impose their own patchwork of regulations on AI. Colorado’s Artificial Intelligence Act, for instance, appears to coerce companies into altering the output of their AI models to comply with and advance the state’s ideological objectives. The Commission’s proposed policy statement explains that such a law is “impliedly preempted to the extent it conflicts with a federal regulatory scheme.”

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