The Rise of State Antitrust and Consumer Protection Enforcement

Key Points

• State attorneys general are enforcing state and federal antitrust and consumer protection laws independently of their federal counterparts, filling perceived gaps left by reduced federal oversight, while state legislatures are actively considering new antitrust and consumer protection legislation.
• This enforcement trend creates compliance challenges for companies operating in multiple states, as they must navigate different — and potentially conflicting — requirements across areas ranging from M&A activity to pricing practices.
• Companies should remain cognizant of enforcement priorities in states where they do business, and consider incorporating state AG engagement into M&A deal strategy and proactively assessing risk and exposure related to their pricing and other consumer-related practices.

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In 2026, state attorneys general (AGs) have been increasingly willing to enforce state and federal antitrust and consumer protection laws independently of their federal counterparts — a trend we expect to continue.

State AGs historically have collaborated with federal regulators, and that has continued this year. But many state AGs are breaking new ground by enhancing their enforcement efforts to fill perceived gaps left by reduced federal oversight.

Meanwhile, state legislatures are also actively considering — and in some cases have passed — antitrust and consumer protection legislation that would impact a broad swath of conduct, from M&A activity to pricing practices.

Antitrust Enforcement

State and federal antitrust enforcers continue to collaborate. Examples include:

• Five states joined the Federal Trade Commission (FTC) in a settlement reached in July 2026 in a “right-to-repair” case alleging that a farm equipment manufacturer imposed anticompetitive restraints on farmers’ and independent providers’ ability to repair farm equipment.
• Another group of five states joined the FTC in settling a challenge to a partnership between major property listing companies in August 2026.
• The Texas AG is investigating alongside the Department of Justice’s (DOJ’s) Antitrust Division whether four large meatpacking companies used their market position to decrease prices paid to cattle ranchers while driving up beef prices for consumers.

But state enforcers are increasingly willing to investigate and litigate both merger and conduct matters on their own. In merger enforcement, for example, multistate coalitions have pursued high-profile challenges to transactions the DOJ has already cleared, most recently Paramount Skydance’s proposed acquisition of Warner Bros. Discovery and Nexstar Media Group Inc.’s proposed merger with Tegna Inc.

These challenges follow a multistate intervention in the Tunney Act proceeding regarding Hewlett Packard Enterprise’s acquisition of Juniper Networks, in which the states unsuccessfully argued that the DOJ’s settlement with the parties was not in the public interest.

State AGs are also challenging nonmerger conduct. For example:

• A multistate coalition won a jury verdict in April 2026 against Live Nation in a monopolization lawsuit after the DOJ settled during trial.
• Another multistate coalition is litigating claims that institutional investors conspired to drive up coal prices.
• State AGs continue to litigate challenges to the use of pricing algorithms in rental housing.

In addition to multistate endeavors, individual states are taking action, from Michigan’s lawsuit alleging that major energy companies have conspired to delay the transition from fossil fuels to renewable energy, to New Jersey’s lawsuit challenging a multinational technology company’s delivery service partner programs, and Ohio’s and Michigan’s separate lawsuits challenging certain pharmacy benefit manager agreements.

Some state AGs have expressly attributed this uptick in enforcement to reduced federal oversight, and the expanded workload has led certain states to add more staff to their antitrust divisions. Legislatures are also enhancing their state AGs’ abilities to investigate mergers (through so-called “mini-HSR” legislation) and introducing new antitrust causes of action, for example California’s proposed COMPETE Act.

Consumer Protection Enforcement

States are also taking a more active role policing consumer protection issues, with a notable focus on retail pricing. State AGs have recently focused on algorithmic pricing, while also continuing to pursue conventional pricing issues like junk fees, negative options and price accuracy.

Surveillance pricing — the practice of using personal data to tailor prices to a specific customer — is a significant emerging area for state enforcement. Several states, including Connecticut, Maryland and New Jersey, have enacted legislation that restricts or bans surveillance pricing, and over 30 other state legislatures are considering legislation regulating surveillance pricing.

New York passed a law requiring companies to disclose when prices are set by an algorithm using consumers’ personal data, and a bill that would ban surveillance pricing is on the governor’s desk. Adding to the patchwork of regulation, in August 2026, the FTC issued a proposed policy statement signaling its intention to enforce Section 5 of the FTC Act against personalized pricing practices the agency deems deceptive or unfair, including failing to disclose that a price is personalized when consumers would otherwise reasonably expect that prices for a product or service will not vary based on their personal data.

Enforcement efforts are already underway: In January 2026, the New York AG launched an investigation into an online grocery delivery service, and the California AG initiated a broad investigation into whether companies’ use of consumer data complies with the California Consumer Privacy Act.

States also continue to be aggressive in more traditional consumer protection areas, such as negative option marketing and retail pricing accuracy. Enforcement actions related to “junk fees” (unexpected or misleading charges) and drip pricing (incremental costs that purportedly obscure the full price) have continued.

For example, Colorado, along with the FTC, sued a national rental property manager for allegedly misleading customers with low advertised rent prices and then adding mandatory fees, resulting in a $24 million settlement.

Food delivery services are also under scrutiny for their pricing practices, with investigations resulting, for example, in a $3.5 million settlement between the District of Columbia and a food delivery service over allegations that customers were charged hidden and misleading fees. State enforcement against junk fees has coincided with the FTC’s decision to issue a junk fee rule in 2024 that was a scaled-down version of the much broader proposed rule.

Negative option marketing — where a company treats a consumer’s silence or inaction as consent to ongoing charges, typically through subscriptions or automatic renewals — is another area of state AG activity:

• In 2025, California reached a $7.5 million settlement with an online meal kit service over allegations that the company made it difficult for customers to cancel their subscriptions.
• Pennsylvania obtained a $750,000 settlement in October 2025 with a collectibles company that was allegedly offering customers discounted items without disclosing that they also were being enrolled to a monthly subscription.

The states’ enforcement of negative option marketing coincides with a wave of new and updated state auto-renewal laws as well as the 2025 vacatur of the FTC’s amendments to its Negative Option Rule. The FTC did not appeal or attempt to reintroduce the amendments following the court ruling. After continued complaints regarding negative option marketing, the FTC issued a request for public comments on the need to amend the Negative Option Rule in March 2026 but has not announced any proposed changes.

Finally, states continue to focus on accuracy in retail pricing, seeking to ensure that consumers are charged the advertised price, whether on shelves, signage or online listings. The Pennsylvania AG recently obtained a $1.55 million settlement from a discount retailer after alleging that customers were routinely charged more at the register than the advertised shelf price across hundreds of stores.

Takeaways

State AGs’ antitrust and consumer protection enforcement illustrates that states are not merely filling gaps but creating their own compliance expectations. The enforcement of varying laws across states could create challenges for companies operating in multiple states, as they will have to navigate different, and potentially conflicting, requirements.

Given the increase in state AG antitrust and consumer protection enforcement activity, companies should consider remaining cognizant of enforcement priorities in states where they do business, including by monitoring the progress of state legislative initiatives. Companies contemplating M&A activity may want to incorporate state AG engagement into deal strategy and timelines from the earliest stages.

Finally, companies should consider proactively assessing risk and exposure related to their pricing and other consumer-related practices, including any use of pricing algorithms, customer data, subscription services and loyalty programs, cancellation flows and customer experiences.

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.