Tech and AI
United States trade regulator puts personalised pricing on notice and opens a draft enforcement policy statement for comment
By Staff Writer | 21 August 2026
The Federal Trade Commission voted on 19 August to seek public comment on a draft enforcement policy statement covering personalised pricing, which it defines as the use of personal data to set a price according to what a company believes an individual will pay. The draft position is that undisclosed collection or use of personal data for that purpose may breach the Act the Commission enforces. The vote was two to nil.
An enforcement policy statement is not a rule and creates no new obligation. It is the regulator setting out, in advance and in writing, how it reads existing law and what it intends to do about conduct that falls the wrong side of that reading. Businesses ignore one at their own cost, because it removes any argument later that the position was unforeseeable.
What the draft actually says
The Commission accepts in terms that it cannot prohibit personalised pricing in every circumstance. Its route in is disclosure. A retailer who represents or implies that a price is fixed, when in fact it varies by individual, risks misleading the customer, and the undisclosed collection or use of personal data to set that price is put forward as capable of amounting to an unfair or deceptive practice.
The reasoning turns on what a shopper is entitled to assume. Prices move with supply and demand and everyone understands that. The draft says the assumption does not extend to a price that moves with a person's browsing habits or purchase history, and it notes that an informed shopper might act on the difference, by using a private browsing session or a virtual private network, or by taking their custom somewhere that does not do it.
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.
Andrew N. Ferguson, Chairman, Federal Trade Commission
The procedure, and how long anyone has
The vote authorising the notice was two to nil, which is every sitting member: the published listing shows a Commission of two at present, the Chairman and one other member, against a full complement of five. Once the notice appears in the Federal Register the public has thirty days to comment electronically. No date has been given for that publication, so the clock has not started.
The pattern is worth noting for anyone tracking regulatory risk in automated pricing. The Commission has placed this alongside its work on hidden fees and surprise charges, which is a deliberate framing: the objection is not to the algorithm but to the gap between the price presented and the basis on which it was arrived at. That is a disclosure theory, and disclosure theories travel further and faster than prohibitions, because they need no new statute.
Why it reaches beyond retail
Personalised pricing is not confined to shopping baskets. Any business that prices from a model fed with data about the individual buyer, including quoting engines, subscription renewals, dynamic hire rates and insurance-adjacent products, is describing the same mechanism. Where the buyer is a business rather than a consumer the Act may not reach it, but the commercial exposure is similar: a customer who discovers afterwards that the number was set from a profile rather than from a rate card will treat it as a matter of good faith, whatever the law says.
For a firm using an automated pricing tool, the practical step is small and should be taken now. Establish whether the model uses anything personal to the buyer, and establish what the buyer is told. If the answer to the first is yes and to the second is nothing, that is precisely the position the draft is aimed at.