Republicans are used to controlling the conversation, but at a time of high costs of living and anxiety over the future, they have lost their grip on the national narrative. Suddenly, Republican politicians are scrambling to reposition themselves on fast-moving issues like AI data centers and Flock cameras. Another area where the right is playing catch-up is the practice of companies capturing personal data to set individualized prices, more commonly known as surveillance pricing.
On Wednesday, the Federal Trade Commission released a proposed enforcement policy statement on surveillance pricing, citing “growing public concern” over the activity. The Commission signaled that it would enforce the law against any personalized pricing practices deemed deceptive or unfair, offering examples of what would fall into that category. But if companies disclosed the use of personal data in price-setting, that would be sufficient, according to the policy statement. The FTC is seeking public comment on the matter.
The announcement could be seen as a departure from this FTC’s work on surveillance pricing. Under Lina Khan, the Commission had been engaged in a 6(b) investigation of the practice, issuing subpoenas to pricing consultants about the services they provide and the data they process. Only six months elapsed before the Trump administration took over the agency, leaving Khan’s team to release initial “research summaries” in January 2025. One key finding there was that eight pricing consultants were working with over 250 clients across the economy on a wide range of strategies.
But though new chair Andrew Ferguson supported the 6(b) study in 2024, it was never completed or released after those initial research summaries. In fact, Ferguson withdrew the public comment docket for surveillance pricing that was issued during Khan’s tenure. And the FTC had not mentioned the subject again until this week.
Wired reported that McDonald’s, whose app has more than 150 million users, keeps information files on customers that are as long as 515 pages.
In the interim, companies like Delta, Wendy’s, JetBlue, and more have been caught using personal data to set prices, triggering public outrage at both the data collection and pricing personalization. Wired reported that McDonald’s, whose app has more than 150 million users, keeps information files on customers that are as long as 515 pages, equivalent in size to the FBI file kept on John Lennon and Yoko Ono. A report on the data collection practices of home improvement giant Home Depot showed that it captured extensive information on a customer’s purchase history, occupation, household members, geolocation, financial status, educational attainment, and more. This data is generated through Home Depot’s own offerings as well as purchased from third-party data brokers.
A remarkable Senate Judiciary subcommittee hearing two weeks ago looked at surveillance pricing. It was chaired by Sen. Josh Hawley (R-MO), who after the hearing announced that he would submit legislation on the matter. There’s already a House bill to ban surveillance pricing, introduced last year by Rep. Greg Casar (D-TX).
Four of the five witnesses at the Senate hearing were surveillance pricing critics, including Groundwork Collaborative’s Lindsay Owens (a Prospect board member), Hillary Caron of the United Food and Commercial Workers union (which has been particularly vocal about the topic), and Lee Hepner of the American Economic Liberties Project. Hawley’s opening statement, condemning the AI industry and retailers’ desire to “scam consumers out of every last dollar they have in order to buy products that they need and rely on,” might have been rejected by Bernie Sanders for being too strident.
“AI surveillance pricing is the unholy trinity of everything Americans hate: spying on people, ripping them off, and taking away jobs,” Hawley said. There was no real difference between members of both parties at the hearing; they all appeared disturbed about the wealth of data that retailers and their pricing consultants collect and track, and were skeptical that this information would be deployed to consumers’ benefit. Republican Sen. Mike Lee (R-UT) also showed real curiosity about how to best tailor laws to protect consumers. Sen. Richard Blumenthal (D-CT) remarked on a “bipartisan feeling of urgency” on the issue.
Moreover, polling from Groundwork and Data for Progress shows that over three-quarters of Americans found surveillance pricing unfair, and the same number support banning companies from using customer data to set prices. A separate Data for Progress poll showed that banning surveillance pricing is one of the top issues for swing voters that would affect their vote.
The FTC announcement is best seen as a reaction to this pressure from lawmakers and the public. But it falls short of recommending the elimination of using personal data to set prices.
The policy statement does affirm that customers should have a reasonable expectation that they are paying the same amount, whether inside a retail store or browsing online, as everyone else. And it correctly lays out the explosion of personal data at retailers’ disposal. It adds, citing University of Chicago economists, that some pricing tactics could actually give customers with a reduced willingness to pay access at a lower price, but it concedes that “the more sophisticated personalized pricing practices become, the less likely consumers are to benefit.”
Overall, however, the FTC kind of throws up its hands, writing, “The extent to which businesses currently use personalized pricing is not well understood.” Of course, the agency effectively stopped the investigation into precisely that issue at the beginning of 2025.
The FTC “declines at this time to take any position on whether some personalized pricing practices are unfair even when fully disclosed to consumers.”
Without a congressional ban in place, the FTC can only enforce surveillance pricing as an unfair or deceptive practice under Section 5 of the FTC Act. The policy statement interprets this in the context of surveillance pricing as a company representing in some way that a price is static when it’s actually differentiated for individuals. In other words, the FTC would enforce based on disclosure. Enforcement would come into effect only when there’s been a failure to disclose that data collection informs price at all, or a failure to state what type of data goes into that calculation (such as disposable income or browser history rather than past purchases at the particular store).
While the statement does say that some data collection practices may violate consent policies, it mainly sticks to a disclosure regime, ducking the question of whether using personal medical, financial, geolocation, communication, or other data to differentiate prices is unfair or deceptive in and of itself. In fact, in a footnote, the FTC states that it “declines at this time to take any position on whether some personalized pricing practices are unfair even when fully disclosed to consumers.”
That’s despite the FTC presenting examples of surveillance pricing—companies raising food delivery prices on individuals they know can’t leave their homes, or increasing prices on milk for families with multiple children, or running up charges on travelers going to a funeral or a medical facility, or just charging more online for a product when a user has visited that retailer’s brick-and-mortar locations—that certainly sound unfair or deceptive to any reasonable reader.
In a statement on the FTC’s action, Owens picked up on this. “Chairman Ferguson makes it clear that he’ll let companies play semantics as long as they disclose what they’re doing,” she said. “It shouldn’t be on consumers to navigate the fine print and sniff out if they’re being played. A disclosed price can still be an unfair one.” Grace Gedye of Consumer Reports similarly criticized throwing the burden of avoiding artificially increased prices onto the consumer.
Ultimately, the expectation that Donald Trump’s regulators will care about retailer profit maximization that exploits the needs and even desperation of their customers should be low. Congress will have to weigh in.
