EPIC and Consumer Groups Urge FTC to Treat Surveillance Pricing as an Unfair Practice

On September 25, EPIC, along with the Center for Digital Democracy, the Consumer Federation of America, Demand Progress, and the National Consumers League, filed a comment urging the Federal Trade Commission (FTC) to go further than disclosure in its Proposed Enforcement Policy Statement Regarding Personalized Pricing. The comments were prepared with assistance from the NYU Technology Law & Policy Clinic.

The Commission’s proposed Statement would require companies to tell consumers when a price has been set using their personal data, including the basis for personalization and the types of data used. While EPIC commends the FTC for acting on the issue, we argue that the Commission should do more. Surveillance pricing satisfies each element of the Section 5 unfairness test, and disclosure alone cannot cure the harm. The comments urge the Commission to withdraw its assertion that it lacks authority to prohibit personalized pricing and to consider using its Section 18 rulemaking authority to ban the practice.

The groups emphasized that “[d]isclosure does not solve any of these three elements because it does not lower the price charged, does not return the data collected, and does not give consumers a realistic path to act on the information once received.”

The comments also document how companies are complying with New York’s Algorithmic Pricing Disclosure Act, showing that required disclosures are often placed below the checkout button or behind information icons, where consumers can complete a purchase without ever seeing them.

EPIC has long advocated for strong protections against surveillance pricing, including a February 2026 letter with fourteen other consumer groups urging the FTC to act and testimony in several states considering banning the practice.