FTC Drafts Policy Targeting Personalized Pricing Under Section 5
The FTC has proposed an enforcement policy signaling that undisclosed data-driven individualized pricing may be deceptive or unfair, with broad disclosure and consent expectations across industries.
On August 19, 2026, the FTC voted to seek public comment on a draft Enforcement Policy Statement addressing personalized pricing—using consumer-specific data to estimate willingness to pay and set individualized prices. The proposal does not ban the practice but applies Section 5 deception and unfairness principles, requiring clear and conspicuous disclosure that a price is personalized, the basis for the personalization, and the data categories used. The FTC also suggests that concealed personalized pricing may be unfair because consumers cannot reasonably avoid monetary harm they do not know about, and that some practices could require affirmative consent beyond current privacy norms. Notable examples flag enforcement concern where data signals urgency, vulnerability, or lack of alternatives—medical need, travel for a funeral, inability to leave home, or geolocation inside a store. Sophisticated counsel should advise retail, travel, healthcare-adjacent, and adtech clients to map consumer-level price variation, audit pricing algorithms and vendor data flows, update privacy notices, and consider interim disclosures before the 30-day comment window closes. The statement is not binding, but it crystallizes the FTC's view of Section 5 risk in an area overlapping state algorithmic pricing laws and existing privacy statutes.