The trade commission says Congress never gave it the power to ban personalised pricing, and then writes down seven versions of it that would draw an enforcement action

Start with what the document concedes. Congress, it says, has not given the Federal Trade Commission the authority to prohibit personalised pricing in all circumstances.

Everything else in the eight pages follows from that. Having said it cannot ban the practice, the Commission spends the rest of the statement setting out the conditions under which doing it would break a law that already exists. The proposed enforcement policy statement is dated 19 August. The Commission vote authorising the Federal Register notice was 2 to 0.

The rule it is actually asserting

Personalised pricing, as the document defines it, is the use of personal data to set a price according to what a business believes an individual consumer is willing to spend. The Commission's position is that in markets where consumers reasonably expect the price to be the same for everyone standing in the same place at the same time, a business that personalises the price should clearly and conspicuously disclose three things: that the price is personalised, the basis for the personalisation, and the types of data the personalisation runs on. Failing to disclose them, the statement says, is likely to be an unfair or deceptive act or practice in violation of Section 5 of the FTC Act.

The materiality argument is the load-bearing part. A consumer who does not know a price is personalised cannot do anything about it, and the document lists what such a consumer might otherwise do: use a virtual private network, browse privately, shop somewhere whose prices do not vary, or walk away.

Seven examples, and none of them names a company

Pages seven and eight carry a bulleted list the document calls non-exhaustive examples of scenarios that would raise Section 5 concerns. Every one describes a type of business rather than a business. They are worth reading in full, because they are more specific than policy documents usually are.

A food delivery company quoting a higher price to consumers whose personal data suggests they are less likely or unable to leave home to buy food. A grocery chain charging a delivery customer more for milk on data showing that several children live in the household. A hotel charging more on data leading it to believe the guest is travelling for a funeral or other business that cannot be missed. A rideshare company charging more because a user has not installed any competitor's app. The same company charging more for a trip to a medical facility on data suggesting a life-threatening emergency. A retailer charging more for a home security camera because court filings show the customer was recently the victim of a crime. And a retailer charging more on its website because the customer's data shows they are standing inside one of its shops or car parks while browsing.

The document also gives the other side of it. A clear and conspicuous disclosure that a price is personalised on an estimate of willingness to pay, derived from what the customer previously bought from that same retailer through that same login, would likely be enough, provided it is accurate and complete.

What it is not

A policy statement is not a rule and this one says so. It does not confer rights on anyone, it does not bind the Commission or the public, and in any enforcement action the Commission still has to prove that the conduct broke at least one statute or regulation that already exists. A footnote points at two of them, the Restore Online Shoppers' Confidence Act and the Rule Against Unfair or Deceptive Fees at 16 C.F.R. Part 464.

The comment period has not opened. The release says the public will have 30 days once the statement is published in the Federal Register, and a search of the Federal Register for documents on this subject published since 15 August returned nothing. The docket is open at regulations.gov as FTC-2026-1057.

Chairman Andrew Ferguson, in the Commission's own announcement, said that when consumers see a listed price they expect it to be the same price everyone else sees, and not the retailer's estimate of how much they are willing to pay.