Second Sweep: FTC Eyes Surveillance Pricing, Again

In this post for Bryan Cave authors David B. Schwartz, Merrit M. Jones, Goli Mahdavi & Darren E. Ray (BCLP) discuss the FTC’s proposed enforcement policy statement on personalized or “surveillance” pricing and its implications for businesses. They note that the proposal comes amid growing state and federal scrutiny but does not reference the FTC’s earlier work on the issue, including subpoenas and preliminary staff reports. The authors also highlight the FTC’s renewed use of public comment periods under its current leadership.

The proposed statement primarily focuses on deception, particularly where consumers are not told that prices have been personalized or are misled about why they are receiving a particular price. The FTC appears especially concerned about consumers mistakenly believing they are receiving a discount when, in reality, their price has been increased based on information such as income or shopping behavior. The agency also briefly raises potential privacy, unfairness, and competition concerns, while leaving important questions unresolved, including whether fully disclosed personalized pricing could itself constitute an unfair practice.

The authors identify disclosure as the clearest practical guidance for businesses. According to the FTC, companies should clearly and conspicuously disclose that a price is personalized, explain the basis for personalization, and identify the types of consumer data used to determine the price. Businesses using personalized pricing should therefore review their existing disclosures to ensure consumers receive sufficient and accurate information about how prices are determined.

Finally, the authors emphasize that the FTC proposal is part of a broader regulatory trend. California, Maryland, New York, Connecticut, New Jersey, and other states are pursuing restrictions or transparency requirements concerning personalized pricing, while a 2026 Senate hearing on “Predatory AI Surveillance Pricing” signals continuing federal interest. Businesses using personalized pricing directly or through third-party providers should therefore monitor these developments and consult counsel to assess their potential regulatory and enforcement exposure…

CONTINUE READING…