The FTC’s Proposed Enforcement Policy Statement

On August 19, 2026, the FTC published for public comment a proposed Enforcement Policy Statement regarding the use of consumer data to charge different prices to different consumers for the same product or service, a practice the policy statement refers to as “personalized pricing,” but has also been referred to as “surveillance pricing.”¹ The public has 30 days following the publication of the policy statement in the Federal Register to submit comments, after which the FTC will review the comments received and determine whether to finalize, revise, or withdraw the policy statement.²

The FTC’s policy statement focuses on personalized pricing that occurs where “consumers reasonably expect that prices for a product or service will not vary based on their personal data.”³ Failure to adequately disclose such pricing, according to the policy statement, can constitute a deceptive or unfair practice in violation of Section 5 of the Federal Trade Commission Act (15 U.S.C. § 45).⁴ The policy statement makes clear that the FTC views personalized pricing as an enforcement priority under Section 5, stating multiple times that the FTC plans to enforce against such practices “aggressively.” FTC Chairman Andrew Ferguson stated the draft statement “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.”⁵

Key Disclosure Requirements

The FTC’s policy statement identifies three specific disclosures that businesses should provide whenever consumers reasonably expect prices will not vary based on their personal data, but personalized pricing will be used:

Importantly, the policy statement directs that these disclosures should be “clear and conspicuous,” meaning they must be prominent and understandable to consumers at or before the point of purchase. The FTC has emphasized that buried disclosures in lengthy terms of service or privacy policies are unlikely to satisfy this standard. According to this statement, failure to sufficiently disclose the practice of personalized pricing is likely to constitute an unfair or deceptive act or practice in violation of Section 5 of the FTC Act.⁶

Regulatory Landscape 

The FTC’s policy statement is the latest in a series of actions by the Commission, Congress, and states to address data-driven pricing practices. The following developments provide important context for the policy statement.

FTC Preliminary Report. In 2024, the FTC reviewed and subsequently issued a preliminary report in January 2025 on surveillance pricing based on a market study it conducted. It found that companies were using algorithms to set prices based on personal data. The report warned that these algorithms could potentially set higher prices for vulnerable individuals predicted to spend more based on personal information—such as a new parent shopping for baby formula. The August 2026 policy statement builds directly on these findings, this time even outlining examples of scenarios that would raise Section 5 concerns from the FTC’s perspective.⁷

Congressional Investigations and Legislative Efforts. Congress has also taken an interest in surveillance pricing, especially as affordability has become a central issue for both parties at home with their constituents and heading into the midterm elections this fall. Key recent congressional developments on both sides of the aisle include the following examples:

State Legislative and Enforcement Activity. Several states have introduced or advanced surveillance pricing legislation, and state attorneys general are pursuing related enforcement actions, as discussed in greater detail in our prior client alert.¹⁵ At this point, at least California, New York, Maryland, Connecticut, and New Jersey have all passed laws limiting, or even banning, certain types of surveillance pricing. Affordability is a key issue at the state level as well and we expect to continue to see increased activity in this area by state legislatures (policy) and attorneys general (enforcement).

Implications

The FTC’s policy statement is significant because it articulates, for the first time, a specific enforcement framework federal authorities may use to address personalized pricing under existing law. The policy statement declares the FTC’s view that inadequately disclosed personalized pricing can be a deceptive and/or unfair practice that is actionable under Section 5 of the FTC Act.

The statement also flags that the FTC believes data practices associated with personalized pricing—such as collecting, using, or disclosing consumers’ personal data for the purpose of personalized pricing without adequate disclosures or without obtaining consent—may also implicate Section 5. The policy statement signals that the FTC may pursue enforcement actions against companies that use location data, browsing history, demographic information, purchase history, loyalty program data, or other consumer data to set individualized prices without adequate transparency. Companies that rely on algorithmic or AI-driven pricing tools may risk enforcement action if those tools adjust prices based on personal data without corresponding consumer disclosures.

The FTC’s policy statement reflects growing attention to surveillance pricing at both the federal and state levels. Businesses should not wait for the final policy (post-comment period) to assess their practices in this environment, particularly as the FTC’s statement of enforcement intent is itself a strong indicator of where future federal enforcement actions will be directed.