The FTC’s proposed personalized-pricing statement: what online sellers need to know

The Federal Trade Commission proposed an enforcement policy statement on personalized pricing on 19 August 2026 and, on 3 September, extended the public comment deadline by seven days, from 18 September to 25 September 2026¹. The statement defines the practice as using personal data to set prices based on how much a company believes a particular consumer will pay¹. It is not a rule, and the FTC voted 2 to 0 to authorise the Federal Register notice³. Our analysis is that most small online sellers are not doing what the statement describes, but anyone who uses customer data to vary prices, coupons or offers, including through an app or a marketing platform, should read it.

What does the statement say?

Crowell & Moring defines personalized pricing as using consumers' personal data to set individualised prices, discounts, coupons or other incentives, and notes that loyalty programmes are an example². The firm reports that the statement is not a binding legal requirement and creates no new obligations, but works as an enforcement warning under Section 5 of the FTC Act, and may signal future rulemaking². The FTC does not need to finalise it to bring a Section 5 case, according to the same alert².

The alert sets out three theories of liability².

• Deception. A business may break Section 5 if it presents a personalised price as the same for everyone, or lets a consumer reasonably believe a price is static or widely offered without disclosing that it is personalised. Misleading consumers about the basis for the price, such as presenting a surcharge as a purchase-history discount, can also be deceptive.
• Unfairness. Hidden personalised pricing that leaves consumers paying more, with no reasonable way to know or avoid it, may be an unfair practice.
• Data practices. Collecting or using personal data for pricing without adequate disclosure or consent may separately violate Section 5.

What disclosure does it expect?

According to Crowell & Moring, disclosures must be clear and conspicuous and must state that the price is personalised, the basis for the personalisation and the types of data used; vague language such as a "specially selected" price would likely be treated as misleading². Hunton Andrews Kurth reports that the FTC lacks authority to ban personalized pricing in all circumstances, so the statement centres on disclosure, and that it notes informed consumers might use a VPN, private browsing or avoid certain retailers³.

Does it cover ordinary repricing?

The sources define the subject as pricing based on personal data about the consumer. They do not discuss tools that adjust prices based on competitor prices, stock levels or time of day, and none of the examples they report involve such tools^2,3. Our reading is that a repricer that responds to the market, and shows every visitor the same price, is not personalised pricing in this sense. That is our interpretation, not the FTC's, and it is a question to put to a lawyer if your tools use customer data.

The examples in the Crowell alert show the kind of conduct that raises concern: a food delivery company charging more to consumers whose data suggests they are less likely to leave home, a grocery chain charging more for delivery based on the number of children in a household, a hotel charging more when data indicates a funeral trip, and a rideshare company charging more based on data showing no competitor apps installed². These all use personal circumstances against the customer.

What is happening in the states?

Hunton Andrews Kurth reports that Maryland and New Jersey have restricted surveillance pricing in grocery sales, Connecticut has added disclosure requirements and bans, New York has passed a surveillance pricing bill, and California's attorney general has launched an investigative sweep; Colorado and Illinois have considered similar legislation³. Crowell & Moring adds that some state laws aim to ban or limit personalized pricing even when it lowers prices or yields discounts, which goes beyond the FTC's disclosure focus². A seller who complies with the federal approach could still fall foul of a stricter state law.

What should online sellers check?

These are our recommendations.

1. List every place your store uses customer data to change what someone pays. Discount codes triggered by browsing history, abandoned-cart offers, loyalty tiers and app-only prices all qualify for review.
2. Check your marketing and pricing apps. Ask each vendor whether it varies prices by individual and what data it uses.
3. Make sure the checkout price is the price you advertised. Any difference that depends on the shopper should be explained.
4. Keep a record. If you do offer personalised discounts, write down what data is used and how it is disclosed.
5. Consider commenting. The docket is FTC-2026-1057, and the deadline is 25 September 2026¹.

What is still unknown?

We have not read the statement itself, only the FTC's extension notice and two law-firm summaries^1,2,3. The summaries differ slightly on the comment deadline because it depends on Federal Register publication, so the FTC's notice is the reliable date¹. Neither alert says how the FTC will treat discounts or loyalty offers that are disclosed but systematically favour some customers, beyond noting a possible unfairness theory for loyalty programmes that steer consumers toward higher effective prices².