Federal Trade Commission proposes to treat undisclosed personalized pricing as likely unlawful under Section 5

The Federal Trade Commission is proposing to treat personalized pricing, the setting of a price according to what a seller knows about the individual buyer, as likely unlawful where it is not disclosed and consumers do not expect it. The public has until 25 September to say what it thinks of the idea.

The proposal is an eight-page draft enforcement policy statement titled "Federal Trade Commission's Proposed Enforcement Policy Statement Regarding Personalized Pricing", published on 19 August 2026. Comments were first due on 18 September. On or about that date the Commission extended the deadline by seven days, to 25 September, without giving a reason, naming anyone who asked for it, or reporting a vote on the extension.

A policy statement is not a rule and makes no law. This one says so on its own face: it "does not confer any rights on any person and does not operate to bind the FTC or the public." What it does is announce how the Commission reads Section 5 of the FTC Act, 15 U.S.C. § 45.

The theory, and the limit the Commission accepts

Personalized pricing, in the agency's own definition, is "the use of personal data to set prices according to the amount that a company believes an individual consumer is willing to spend." The statement begins by giving ground. "Congress has not given the Commission the authority to prohibit personalized pricing outright," section III says.

The theory turns instead on what a customer has been led to expect. Personalizing a price in markets where it is not the established norm "would therefore run contrary to longstanding practice and consumers' reasonable expectations that the price they see for a product or service is the same price that any other consumer at the same place and time would see."

When consumers see a listed price, they expect it to be same price that everyone else sees, not the retailer's estimate of how much they are willing to pay based on their personal data. — Andrew N. Ferguson, chairman, in the FTC announcement of 19 August 2026

From that hinge run two routes. On deception, retailers may deceive "when they represent, expressly or by implication, that a price is static or widely offered when in fact it is personalized," and may deceive by silence where a consumer reasonably believes a price is static "and the merchant fails to disclose that the price is in fact personalized." On unfairness, under the three-part test at 15 U.S.C. § 45(n), a higher price paid because of personalization "may be a substantial injury," one consumers "may not reasonably be able to avoid" where the personalization has been concealed.

What it would require instead is disclosure that is clear and conspicuous and includes "all relevant information, such as the fact that the price is personalized, the basis of that personalization, and the type of data used." Telling a shopper only that he has been shown a "specially selected" price "would likely be misleading because it omits important information." Ordinary price movement is held separate: supply and demand, rideshare surge, and insurance and credit pricing, which "necessarily turn on a consumer's individualized characteristics."

One question it put and then declined to answer. Footnote 20 says the Commission "declines at this time to take any position on whether some personalized pricing practices are unfair even when fully disclosed to consumers."

Seven scenarios, offered for discussion only

The document carries seven illustrations. Footnote 18 holds them at arm's length: they are not a comprehensive list, not "intended to be definitive statements of the Commission relating to the legality of the identified practices," and are "presented for discussion purposes only." No company is named in any of them.

• A food delivery company quoting more to consumers its data suggests cannot leave home to buy food
• A grocery chain charging a delivery customer more for milk on data showing several children in the household
• A hotel charging more where its data suggests the guest is travelling for a funeral or other can't-miss business
• A rideshare company charging a user more because the user has installed no competitor's app
• A rideshare company charging more for a trip to a medical facility where data suggests a life-threatening emergency
• A retailer charging more for a home-security camera system on court filings showing the customer was recently a crime victim
• A retailer charging more on its website where data shows the consumer is inside one of its stores while browsing

Against that vividness the Commission sets a plain admission. "The extent to which businesses currently use personalized pricing is not well understood, and the effects of personalized pricing on consumers are unclear," section II states.

Two Commissioners, 1,118 comments, no Federal Register notice

The vote to publish was 2-0. That is not a majority of the Commission. It is the whole of it. The agency is headed by statute by five Commissioners. As of 21 September two seats are filled, by Chairman Andrew N. Ferguson and Commissioner Mark R. Meador. The other three are vacant. Neither man attached a concurrence or a dissent, and nothing on the record says what a vote of that size means for the statement's durability.

The comment period ran on regulations.gov alone, under docket FTC-2026-1057. No Federal Register notice was published for it, confirmed by three queries of the Federal Register on 21 September. The FTC has not said why.

The docket held 1,118 comments on 21 September, most from members of the public under their own names. 790 carry a posted date of 31 August, which is the date the agency put them on the docket rather than the date they were written. 47 were posted in the seven days to 21 September. The Cato Institute, the Phoenix Center for Advanced Legal and Economic Public Policy Studies and the American Bar Association's Antitrust Law Section filed on 18 September, the last day of the original period. AARP, the Center for AI and Digital Policy, the Mercatus Center at George Mason University and six other named filers filed earlier in the month.

What those filings argue cannot be reported: the docket's attachment server refuses automated retrieval and none was read. The exception is the Cato Institute's own description of its submission: its authors' concern is that applying a reasonable-expectation standard here is a novel reading of Section 5 that would significantly expand the Commission's power.

Other things remain unknown. The Commission has not said why the deadline moved, whether or when it will adopt the statement, whether a final text would differ from the draft, or whether more comment will be taken. Its August announcement says it was updated on 31 August "to correct an earlier error," and does not say what the error was.