Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates

FTC Proposes Enforcement Policy Statement on Personalized Pricing

Skadden Publication / Antitrust/Competition Update

Karen M. Lent Boris Bershteyn Margaret E. Krawiec Meredith C. Slawe Julia K. York Michael H. Menitove Evan R. Kreiner Sammuel Auld Todd D. Kelly Adam G. Kochman Anna E. Drootin

Executive Summary

  • What’s new: On August 19, 2026, the FTC issued a proposed enforcement policy statement outlining its intent to enforce Section 5 of the FTC Act against personalized pricing practices that the agency deems deceptive or unfair.
  • Why it matters: The FTC’s statement, if adopted, signals that businesses engaging in personalized pricing without adequate disclosures could risk enforcement action by the FTC under Section 5. Also, the text of any final statement the FTC ultimately adopts may provide guidance to interpret what constitutes an unfair or deceptive practice under state consumer protection statutes.
  • What to do next: Companies that use or are considering using personalized pricing will want to evaluate their disclosure practices, assess the types of consumer data feeding into pricing algorithms and monitor FTC guidance (including the text of any final statement the FTC ultimately adopts) and state legislation. Companies that may be impacted by the proposed statement should consider whether to submit comments within the 30-day public comment period.

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Background

On August 19, 2026, the Federal Trade Commission (FTC) issued a proposed enforcement policy statement outlining its intent to enforce Section 5 of the FTC Act against personalized pricing practices the agency deems deceptive or unfair. The proposed policy statement addresses the growing use of personalized pricing, sometimes referred to as “surveillance pricing,” which entails setting individualized prices for consumers based on analysis of their personal data (such as browsing history, purchasing behavior, location, demographics and inferred willingness to pay). The FTC’s proposed statement is another example of federal and state regulators’ heightened focus on personalized pricing, and is the FTC’s most significant action on the topic since the agency conducted a 2024 study evaluating the use of surveillance pricing.

Absent any extension, the proposed statement is subject to a 30-day public comment period.

Key Provisions

The draft policy statement includes the following key provisions:

Disclosure requirements. Pursuant to the FTC’s proposed statement, a business “should clearly and conspicuously disclose” that it is engaged in personalized pricing when consumers would otherwise reasonably expect that prices for a product or service will not vary based on their personal data. According to the FTC, failure to make such a disclosure could potentially constitute a deceptive or unfair act or practice in violation of Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices in or affecting commerce. The proposed statement further provides that failure to adequately disclose the use of personalized pricing could violate (i) the Restore Online Shoppers’ Confidence Act, 15 U.S.C. §§ 8401–8405, and (ii) the FTC Rule Against Unfair or Deceptive Fees.

If a retailer engages in personalized pricing, the FTC statement lists examples of three criteria that would ensure adequate disclosure under Section 5:

  • The fact that the price is personalized.
  • The basis for that personalization.
  • The types of data on which the personalization is based.

The FTC statement explains that a sufficient disclosure “clearly and conspicuously disclose[s]” that a retailer is using a personalized price based on a consumer’s “estimated willingness to pay derived from data about that consumer’s previous purchases from the same retailer through the same login account.” On the other hand, disclosing that a consumer is being offered a “specially selected” price could be deemed misleading according to the FTC, because that disclosure does not include the nature and basis of the use of personalized pricing.

Deception under Section 5. The FTC statement identifies several ways retailers could conceivably be viewed as violating Section 5:

  • Representing, expressly or by implication, that a price is static or widely offered when it is in fact personalized.
  • Failing to disclose that a price is personalized when a consumer reasonably believes the price is static or widely offered.
  • Misleading consumers regarding the basis for the personalization or the effect of that personalization (e.g., consumers reasonably believe a personalized price is a loyalty discount when it is actually a higher price based on data about their disposable income or shopping habits).

Unfairness under Section 5. The FTC statement provides that some personalized pricing practices may also be deemed unfair under Section 5.

Data practices. The FTC statement emphasizes that data practices associated with personalized pricing may also implicate Section 5.

  • Businesses that collect, use or disclose consumers’ personal data for personalized pricing without adequate notice may violate Section 5.
  • Additionally, businesses that base personalized prices on individuals’ “data without sufficiently verifying that consumers consented to the collection of [their] data for that purpose” may also face enforcement risk.

Existing Regulatory Framework and State-Level Developments

As we highlighted recently, the FTC’s proposed policy statement arrives in the context of a rapidly evolving multistate regulatory landscape targeting certain pricing practices, including the following:

  • New York enacted the Algorithmic Pricing Disclosure Act, effective November 2025, requiring companies to disclose when prices are set using an algorithm based on consumers’ personal data. A separate bill banning surveillance pricing outright is awaiting the governor’s signature.
  • Maryland passed the Protection From Predatory Pricing Act on April 28, 2026, prohibiting food retailers and third-party delivery services from using surveillance pricing to set higher food prices for consumers using their personal data, effective October 1, 2026.
  • New Jersey enacted the Fair Price Protection Act on July 23, 2026, that prohibits personalized pricing in the sale of groceries and other foodstuffs and is the first state statute to give consumers a private right of action for personalized pricing violations, effective August 1, 2027.
  • Connecticut passed a law on May 27, 2026, that prohibits all retailers and third-party delivery services from engaging in personalized pricing and imposes a mandatory point-of-sale disclosure requirement on other businesses that use surveillance pricing, effective July 1, 2027.

More than 50 surveillance pricing bills are pending across 26 states, and several federal bills — including the Stop AI Price Gouging and Wage Fixing Act and the One Fair Price Act — have been introduced in Congress. Many of these bills may be overbroad, may not effectively address the specific activities they are intended to combat and may not take into account the reality of consumer expectations and the current commercial landscape. The proposed FTC statement acknowledges that the FTC does not have authority to regulate surveillance pricing, which might give momentum to potential federal legislation.

The FTC’s proposed statement may have ripple effects related to state consumer protection statutes, under which consumers generally have a private right of action. Many state consumer protection statutes point to Section 5 to determine what constitutes an unfair or deceptive practice, and the text of any final statement the FTC ultimately adopts may provide interpretive guidance.

Key Considerations for Retailers

Retailers can take the following steps:

Evaluate disclosure practices. Companies using or considering personalized pricing will want to assess their current disclosure practices.

Audit data inputs. Companies need to map the consumer data feeding into pricing algorithms to determine whether and how personal data is being used to set or adjust prices.

Monitor the regulatory patchwork. The FTC’s proposed statement is one piece of a multistate and federal enforcement landscape. As the legal and legislative landscape evolves across jurisdictions, companies that use or are considering using personalized pricing will need to evaluate their pricing practices and monitor new requirements (including the text of any final statement the FTC ultimately issues after the comment period), enforcement actions and developing case law related to the use of surveillance pricing.

Consider submitting comments. Companies that may be impacted by the proposed statement should consider whether to submit a comment within the 30-day public comment period.

This memorandum is provided by Skadden, Arps, Slate, Meagher & Flom LLP and its affiliates for educational and informational purposes only and is not intended and should not be construed as legal advice. This memorandum is considered advertising under applicable state laws.

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