"(I Always Feel Like) Somebody's Watching Me"

In 1983, Rockwell (with a little help from Michael Jackson) sang that he was "just an average man with an average life," and all he wanted was "to be left alone in [his] average home," but questioned why he "always feel[s] like [he's] in The Twilight Zone?" Rockwell came around to his famous chorus: "I always feel like somebody's watchin' me; and I have no privacy." Forty-plus years later, the Federal Trade Commission (FTC) paid some lip service to Rockwell and his concerns. On August 19, 2026, the FTC issued a proposed enforcement policy statement addressing businesses' use of consumer data, such as purchasing and online browsing histories, to set individualized prices (the "Statement")—referred to by many as "surveillance pricing" and as "personalized pricing" by the current Commission. In its Statement, the FTC acknowledges that it does not have statutory authority to prohibit all forms of personalized pricing, but states that it will "aggressively" pursue personalized-pricing practices that are deceptive or unfair under Section 5 of the FTC Act and other laws within its jurisdiction. Personalized pricing (and deceptive pricing more generally) has been a subject of FTC interest for years, and issuance of the Statement follows a Rule 6(b) study of individualized pricing tactics that the Commission initiated two years ago.

The FTC's Core Position

The Statement focuses on settings in which consumers reasonably expect a listed price to be broadly available rather than tailored to the individual based on personal data. In those circumstances, the FTC says a business using personalized pricing should disclose, clearly and conspicuously:

1. that the price is personalized;
2. the basis for the personalization; and
3. the types of data used to generate it.

The FTC cautions that a generic statement, such as informing a consumer that a price is "specially selected," likely will be insufficient because it does not adequately explain the individualized pricing practice. The agency, instead, explains that a potentially adequate disclosure offers a complete and accurate explanation that a price reflects the consumer's estimated willingness to pay based on prior purchases made through the retailer's login account.

Principal Enforcement Theories

The Statement identifies two principal Section 5 risks:

• Deception. A retailer may mislead consumers by expressly or implicitly representing that a price is fixed or broadly offered when it is actually individualized. Omitting the fact of personalization (or misstating its basis or effect) may also be material if it prevents consumers from comparison shopping, modifying behavior, or declining the transaction altogether.
• Unfairness. The FTC suggests that an undisclosed personalized premium can cause substantial injury that consumers cannot reasonably avoid, particularly where consumers lack information or tools to identify, correct, or avoid data practices that drive higher prices.

At bottom, the agency emphasizes that the collection, use, or disclosure of personal data for individualized pricing, without adequate notice or consumer consent, may violate Section 5 and other laws the Commission enforces. Businesses relying on third-party data may face risk if they fail to sufficiently verify that consumers consented to collection of that data for this purpose.

Beyond The Statement

The proposed Statement was not issued in a vacuum. Businesses and marketers should be mindful that other stakeholders are keenly interested in personalized pricing conduct and want to see it regulated or outright prohibited. 

• The FTC is Not Alone. State legislatures are beginning to restrict the practice of surveillance pricing. Maryland passed the nation's first prohibitions against the practice in April 2026, while Connecticut, New Jersey, and New York have or are in the process of enacting laws restricting the practice in various forms and fashions. In addition, the ranking member on the House Energy and Commerce Committee has launched an inquiry directed at major companies' use of consumer data to individualize pricing, while the FTC's former Chief Technologist called on lawmakers to end the practice in a New York Times op-ed just last week. 
• Don't Forget ROSCA. The FTC's Statement portends vigorous enforcement against deceptive or unfair personalized pricing practices not only under Section 5, but under "any other law enforced by the Commission." The Statement cites the Restore Online Shoppers' Confidence Act (ROSCA) as one such example of a "relevant" law or regulation, and explains that ROSCA requires the clear and conspicuous disclosure of all material terms of a subscription transaction before collecting consumers' payment information. Thus, the FTC appears to be suggesting that not only the price of a subscription, but whether and how that subscription price is based on consumers' personal data, is a material fact that subscription offerors should clearly disclose in order to mitigate the risk of a ROSCA enforcement action. 

Practical Takeaways

The FTC has invited public comments on its Statement, which are due by September 18, 2026. (And we can assist if you are interested in submitting comments.) In light of the FTC's Statement, companies that use consumer data, algorithms, or third-party data sources as part of their pricing determinations should consider:

• mapping whether and how personal data affects a price, discount, offer, or eligibility determination;
• distinguishing personalized prices from conventional dynamic pricing based on supply, demand, location, or other market-wide conditions;
• reviewing consumer-facing disclosures for clarity, prominence, completeness, and consistency with actual pricing logic;
• assessing consent and notice practices for first- and third-party data used in pricing; and
• establishing governance, testing, and documentation around pricing models and data inputs.

The Statement, by its very terms, remains a "proposal;" it does not create private rights or bind the FTC or the public. Any enforcement case would require the FTC to establish a violation of an existing statutory or regulatory requirement. Nevertheless, the Statement is a clear signal that the FTC views opaque, data-driven individualized pricing as a developing consumer-protection enforcement priority.