FTC Won't Ban Personalized Pricing—Just Disclose It

Read the headlines and you would think Washington outlawed price discrimination. Read the statement and you find something narrower and stranger: the price can still be personal. You just have to admit it.

Key Takeaways

• The FTC voted 2-0 on August 19, 2026 to seek comment on a proposed enforcement policy statement covering personalized pricing, docketed FTC-2026-1057 with a 30 day window from Federal Register publication.
• Chairman Andrew Ferguson stated the Commission lacks legal authority to ban personalized pricing in all circumstances, so the statement rests entirely on the Section 5 theories of deception and unfairness under the FTC Act.
• Businesses would need to clearly and conspicuously disclose three things: that the price is personalized, the basis for it, and the categories of data feeding it.
• The statement is not a rule and binds neither courts nor companies, but it tells you exactly what the next FTC complaint will allege.
• Maryland and Connecticut restrictions take effect October 1, 2026 and New Jersey's Fair Price Protection Act was signed July 23, 2026, so this federal disclosure floor sits underneath a patchwork of stricter state bans.

What Did the FTC Actually Propose?

A notice document, not a prohibition. The proposed enforcement policy statement groups problem conduct into four buckets: representing a price as static when it is personalized, disclosing the personalization inadequately, misrepresenting the reason for the price (calling a marked up figure a discount), and pricing from personal data without consent for that purpose.

The seven fact patterns the FTC flagged are not abstract: higher delivery fees for homebound shoppers, grocery prices adjusted by family size, premium fares for funeral travel, ride share surcharges for users whose phones have no competing app installed, medical transport markups, security products priced up for crime victims, and geographic differentiation. Source: Holland & Knight's client alert. Each one describes a moment of vulnerability converted into margin.

Why Won't the FTC Just Ban It?

Because Congress never gave it that power, and the Commission said so out loud. Ferguson's framing: the FTC lacks legal authority to ban personalized pricing in all circumstances, but businesses failing to tell consumers how their personal data sets a price may violate the FTC Act.

That concession is the most consequential sentence in the package. It converts a substantive question, whether a company may charge you more because it modeled you as desperate, into a procedural one, whether the company said so first. Paul, Weiss reads the statement as resting on both deception, where uniform pricing is implied but not delivered, and unfairness, where a concealed markup causes injury a shopper could not reasonably have avoided. Source: Paul, Weiss client memo.

Follow that logic to its end and you reach a conclusion the coverage skipped: a fully compliant surveillance pricing program is now possible. Post a banner, name your inputs, and the same algorithm behind those seven examples becomes lawful. Disclosure regimes legalize as much as they restrain.

What Would a Compliant Disclosure Have to Say?

Three elements, clearly and conspicuously, where the price appears: that pricing is personalized, the basis for the personalization, and the types of data used. The FTC also enumerates triggers for the duty, including prices adjusted by geographic location, by a shopper's access to alternatives, and by personal circumstances bearing on need or willingness to pay.

• Inventory your pricing inputs first. If a vendor supplies the model, you still owe the disclosure.
• Check whether your consent covers pricing. Consent to personalize recommendations is not consent to personalize the number on the tag.
• Keep the disclosure with the price, not in the privacy policy. Clear and conspicuous has a long FTC enforcement history, and a footer link has rarely satisfied it.
• File a comment before the window shuts. Wiley notes the statement arrives amid broader algorithmic pricing scrutiny, so the final text will shape more than one docket.

Which Data Actually Sets Your Price?

Far more granular data than most shoppers assume. The FTC's 6(b) study of pricing intermediaries, published January 17, 2025, found inputs including IP address, device type, browser and language settings, mouse movement, scroll depth, items abandoned in a cart, and whether a shopper sorted a product feed from low price to high. Source: FTC surveillance pricing 6(b) staff research summaries. Sorting cheapest first is a confession, and the intermediaries priced accordingly.

FTC staff also found those intermediaries worked with at least 250 clients selling goods and services ranging from grocery stores to apparel retailers. That is the gap the statement does not close: the disclosure obligation lands on the retailer, while the model and the willingness to pay score sit with a vendor the shopper will never see named.

What This Has to Do With Your Inbox

Marketing email is one of the cleanest behavioral signals a retailer owns, and it flows into the same customer profile a pricing model reads from. A tracking pixel records that you opened the message, roughly where you were, on what device, and how soon after it arrived. Click tracking records which product you cared about enough to tap. Neither is a purchase, but both are engagement, and engagement is a proxy for willingness to pay.

The statement does not address email specifically. It does not have to. If one enumerated trigger is pricing based on personal circumstances bearing on need, a profile assembled partly from open and click behavior falls inside the disclosure duty. Compliance teams should treat their email service provider's engagement tables as pricing inputs until they can prove otherwise, and enterprise retail platforms are where those tables live, as our breakdown of what Salesforce Marketing Cloud records on every open lays out.

For shoppers, the practical lever sits upstream of the price. Fewer behavioral signals leaving your inbox means a thinner profile, and a thinner profile is a worse input to a willingness to pay model. Data broker deletion works the same way, which is why Connecticut bundled a free industry wide deletion request into the bill that restricted surveillance pricing.

How Does This Differ From the State Laws?

The states are banning conduct; the FTC is regulating candor. Maryland's food retailer restriction and Connecticut's disclosure requirement both take effect October 1, 2026, and New York's One Fair Price Act has cleared the legislature. We covered the first wave in Maryland and Connecticut's surveillance pricing bans, and the deletion mechanism in Connecticut's SB4.

California is pushing further still: AB 2564 would be the strictest surveillance pricing ban in the country if enacted, because it prohibits rather than discloses. A national retailer thus faces the FTC's disclosure floor everywhere, a Maryland style ban in groceries, and a possible flat ban in its largest market. Compliance gets written to the strictest applicable rule, so the FTC statement is unlikely to be the operative constraint for anyone large.

Looking Ahead

This is the fourth beat of a slow federal build: 6(b) orders to eight pricing intermediaries in July 2024, staff findings in January 2025, advance notices of proposed rulemaking in April 2026, and now a notice of enforcement intent. The FTC will spend years on a data theory once it commits, as the four year Kochava location data case showed.

Watch two things. Whether a bipartisan federal bill materializes, since Senator Josh Hawley has said he intends to introduce surveillance pricing legislation alongside existing Democratic proposals, per reporting from ConsumerAffairs. And whether the first action under this statement charges deception or unfairness, because unfairness is the count that survives a well drafted banner.

Until then, the honest summary is short. The federal government has decided that being charged more for who you are is acceptable, so long as somebody tells you.