What Happened: Federal Trade Commission (FTC) Chairman Andrew Ferguson announced plans for a new study of personalized pricing under Section 6(b) of the FTC Act. The announcement follows the Commission’s 2024 study and issuance of initial findings in January 2025 under the previous administration, and its August 2026 proposed enforcement policy statement addressing the use of consumers’ personal data to set individualized prices under the current administration.
The Bottom Line: Businesses that receive 6(b) orders should treat them like subpoenas and civil investigative demands (CIDs): recipients must respond or petition to limit or quash the orders. Companies should consider their response in light of the FTC’s continuing scrutiny of personalized pricing, the proposed policy statement, and new state laws addressing these practices.
The Full Story: The FTC’s planned inquiry marks another step in its examination of personalized pricing—the use of personal data to set prices based on what a company believes an individual consumer is willing to pay. Although FTC leadership has changed since it first began to study this issue, interest in how businesses use consumers’ data to determine prices has continued.
In 2024, the FTC unanimously authorized a Section 6(b) study examining personalized pricing, which the agency also described as “surveillance pricing.” On January 17, 2025, in the final days of the Biden administration, the FTC released initial findings in the form of staff research summaries. Those summaries reflected an ongoing inquiry, rather than a completed study or final report.
The FTC’s two Republican commissioners, then in the minority, dissented from the release. In a dissenting statement, Commissioner Andrew Ferguson, joined by Commissioner Melissa Holyoak, criticized the outgoing Democratic majority for publishing preliminary observations before staff had completed its fact gathering and analysis. Quoting the staff research summaries, the dissent emphasized that “there is much more work to do,” particularly to identify “more definitive impacts to prices or market participants.” That dissent did not reject the underlying inquiry. Instead, now-Chair Ferguson emphasized the importance of the FTC’s fact-finding responsibilities and called for a comprehensive, fact-based final report and therefore did not signal an end to the FTC’s interest in personalized pricing.
Subsequently, on August 19, 2026, the FTC issued a proposed enforcement policy statement and sought public comment. The proposal acknowledges that the FTC lacks authority to prohibit personalized pricing in all circumstances, but explains that practices associated with personalized pricing may violate Section 5 of the FTC Act’s prohibition on unfair or deceptive acts or practices. The proposed statement focuses on consumers’ reasonable expectations and businesses’ disclosures. Where consumers reasonably expect that prices will not vary based on their personal data, the proposal states that businesses engaging in personalized pricing should clearly and conspicuously disclose that the price is personalized, the basis for that personalization, and the types of data used. It also identifies potential concerns with undisclosed collection or use of personal data for personalized pricing.
The Commission initially set a September 18 deadline for comments, then extended the comment period to September 25, 2026. That period has now closed, with the FTC receiving over 3,700 comments. The comments may inform the scope and direction of the new 6(b) study, including the questions the Commission chooses to ask and the practices it examines. Whether and how the Commission will incorporate those comments remains to be seen.
The planned study gives the FTC another opportunity to gather information about personalized pricing through compulsory process. Section 6(b) empowers the Commission to require businesses to provide reports and specific answers to questions even when the agency is conducting a study without a specific law enforcement purpose. Receipt of an order does not itself establish wrongdoing, but responding can require substantial coordination across legal, business, pricing, and data teams.
Businesses that receive orders should promptly consult counsel regarding their scope, response obligations, and any grounds to seek limitations. Companies using or considering these pricing practices also should review their data practices and consumer disclosures against the FTC’s proposed approach and applicable state requirements. A study is a fact-finding exercise, but its findings may inform future policy initiatives or enforcement activity.
The Hunton team is well equipped to assist with any Section 6(b) inquiries involving personalized pricing. The team’s experience includes representing recipients of 6(b) orders in other studies, drafting comments to the FTC on the Proposed Policy Statement Regarding Personalized Pricing, preparing client responses to Congressional inquiries on alleged surveillance pricing practices, advocating policy positions for clients and testifying in Congressional and state hearings on bills impacting algorithmic pricing, loyalty plans, personalized discounts, and electronic shelf labels (ESLs), and helping clients comply with new state laws regulating personalized pricing, including those in New York, Maryland, Connecticut, and New Jersey.
