AAI Tells FTC That Disclosure, Without Competition, Is Not Enough to Protect Consumers from Personalized Pricing

On September 25, 2026, AAI filed public comments in response to the Federal Trade Commission’s Proposed Enforcement Policy Statement Regarding Personalized Pricing (Matter No. P034101).

The Commission’s Proposed Statement addresses businesses’ growing use of consumers’ personal data to set individualized prices. The Statement concludes that where consumers reasonably expect prices not to vary based on their personal data, businesses should clearly and conspicuously disclose that a price is personalized, the basis for the personalization, and the types of data used, and that failing to do so is likely to be an unfair or deceptive act or practice under Section 5 of the FTC Act. The Commission expressly declined to take a position on whether some personalized pricing practices are unfair even when fully disclosed.

AAI’s comments commend the Commission for confronting personalized pricing but argue that the Statement risks ignoring the practice’s other potential consumer harms by relying solely on disclosure instead of an in-depth examination of the role of competitive conditions. Whether personalization lowers prices or extracts consumer surplus depends on the competition a seller faces. Disclosure can correct an information gap, but it cannot give a consumer an alternative she does not have. In several of the Statement’s own examples, such as the rideshare customer headed to an emergency room, disclosure lets the consumer see the higher price without giving her any way to avoid it.

AAI’s comments make the following recommendations:

Competitive Conditions in the Section 5 Analysis

• The Commission should acknowledge that personalized pricing may be unfair even when fully disclosed, particularly where consumers lack practical alternatives.
• The Commission should make competitive conditions an explicit part of its unfairness analysis, rather than assuming that competition disciplines personalized prices.
• The Commission should recognize that a higher personalized price is not reasonably avoidable when the consumer has no practical alternative, especially where the seller has identified that absence and priced on it.
• The Commission should assess claimed countervailing benefits against the market as it actually exists, not an idealized competitive one.
• The Commission should recognize that sustained personalized pricing may be evidence of market power.

Preserving the Commission’s Competition Authorities

• The Commission should make clear that disclosure is not a safe harbor under Section 5 or any other law the Commission enforces, including the Sherman and Clayton Acts.
• The Commission should treat a firm’s disclosures about its pricing as evidence in competition enforcement, not as a defense.
• The Commission should apply its exclusionary-conduct standards with targeted pricing in view and scrutinize exclusive arrangements over the consumer data that personalization requires.
• The Commission should assess how mergers, including acquisitions of data assets and personalization vendors, affect personalized pricing capability and the consumers who lose their closest alternative.

Algorithmic Pricing and Coordination

• The Commission should recognize that personalized pricing vendors serving competing sellers raise the same coordination concerns as other algorithmic pricing intermediaries, whether through pooled data or through shared or correlated pricing models.
• The Commission should treat evidence that a firm chose a pricing model because its rivals use it as probative of coordination under Section 1 of the Sherman Act and of an unfair method of competition under Section 5.

Designing Disclosure with Competition in Mind

• The Commission should recognize that disclosure serves competition as well as consumer protection, because concealment prevents the price comparisons that discipline personalized pricing.
• The Commission should confirm that disclosures are for consumers, not a channel for sharing competitively sensitive pricing information among rivals, and that the Statement provides no immunity for information exchange among competitors.

Further Study and Enforcement

• The Commission should use its Section 6(b) and compulsory process authority to examine whether personalization vendors pool data or supply correlated models to competing clients, whether exclusive data arrangements facilitate exclusionary conduct, and whether mergers create asymmetric access to consumer data.
• The Commission should build a demand-side record of which firms actually deploy personalized pricing and its effect on prices and issue a comprehensive final report.

These comments build on AAI’s recent work on algorithmic pricing, including its comments on revised competitor collaboration guidelines, its comments on the DOJ’s RealPage settlement, and its amicus briefs in Cornish-Adebiyi v. Caesars Entertainment and Gibson v. Cendyn. The comments were written by Kathleen Bradish, AAI VP and Director of Legal Advocacy, and Beryl Emmerich, AAI Research Fellow, with assistance from Randy Stutz, AAI President, and David Fisher, AAI Senior Counsel.

Read the complete comments here: AAI Comments on FTC Proposed Enforcement Policy Statement Regarding Personalized Pricing