CFJ Comments to the FTC on the Proposed Personalized Pricing Policy Statement
FEDERAL TRADE COMMISSION
OFFICE OF THE SECRETARY
600 PENNSYLVANIA AVENUE NW
WASHINGTON, DC 20580
Re: Request for Comments: Proposed Enforcement Policy Statement Regarding Personalized Pricing
DOCKET ID: FTC-2026-1057
SUBMITTED: SEPTEMBER 25, 2026
JEFFREY DEPP
SENIOR COUNSEL, LAW & POLICY
THE COMMITTEE FOR JUSTICE
ASHLEY BAKER
EXECUTIVE DIRECTOR
THE COMMITTEE FOR JUSTICE
The Committee for Justice (“CFJ”) respectfully submits these comments on the Federal Trade Commission’s proposed Enforcement Policy Statement Regarding Personalized Pricing (Proposed Statement).1
Introduction & Interest Statement
Founded in 2002, CFJ is a nonprofit legal and policy organization dedicated to the rule of law, the separation of powers, constitutionally limited government, and the protection of individual rights—including the fundamental natural right to private property. Our work spans the judiciary, Congress, the executive branch, and the public square, with a particular focus on administrative law, innovation policy, and antitrust.
CFJ has filed comments and briefs on competition policy and the proper limits of administrative power. The FTC’s proposal implicates both concerns. A broad presumption against individualized pricing could deter targeted discounts and market experimentation without establishing deception or injury under Section 5.
Executive Summary
Personalized pricing is not a single business practice with a single welfare effect. It is a family of efforts to discover mutually acceptable terms in markets populated by consumers with different preferences, circumstances, and willingness to pay. Its economic logic is familiar from coupons, loyalty offers, student and senior discounts, retention offers, negotiated prices, and targeted promotions. Modern data analytics can make that process more precise, but they do not change its economic character.
The Proposed Statement acknowledges that Congress has not authorized the Commission to prohibit personalized pricing categorically, that the practice’s prevalence is not well understood, and that the available evidence does not establish a uniform effect on consumers.2 Those concessions should determine the Commission’s approach. Section 5 authorizes the Commission to pursue proven deception and unfairness. It does not authorize the Commission to presume that a price is wrongful because another buyer might have received a different one, or to create through an enforcement statement a general duty to explain the inputs into every price.
The Proposed Statement is nevertheless built around that broader premise. It states that, whenever consumers reasonably expect a uniform price, sellers should disclose both the fact of personalization and the “basis” for it, including the “types” of data used to determine it. It further suggests that the failure to make those disclosures will likely be deceptive and potentially unfair. That approach risks converting untested assumptions about consumer expectations into a general disclosure duty. It also risks discouraging the very price differentiation that permits firms to extend discounts to price-sensitive consumers without reducing the return on every transaction.
An applied Austrian perspective identifies the central error. Prices are not objective quantities that an agency can validate against a neutral benchmark. They emerge from exchange among people who possess different, dispersed, and frequently tacit knowledge. Sellers test offers, observe responses, and revise their plans; buyers compare offers and decide whether to buy. The resulting price is not a bureaucratically reproducible fact about a product. It is a term of a particular exchange at a particular time.
This insight does not excuse fraud, unlawful discrimination, or broken privacy promises. A seller that falsely advertises a universal price, fabricates a discount, misstates why a price changed, or obtains personal information through deception may violate existing law. But the Commission must prove the elements of the violation in the circumstances of the transaction. It should not presume that silence about price formation conveys a false representation, or that the difference between one person’s price and another person’s price is, by itself, cognizable injury.
Public Choice analysis supplies a complementary institutional warning. Regulators also face institutional incentives and information constraints. Broad, ambiguous standards invite lobbying by firms that can bear fixed compliance costs, by competitors that would prefer rivals to lose a pricing tool, and by advocacy groups that value visible prohibitions while discounting unseen transactions. Broad discretion can also encourage jurisdictional expansion. These concerns do not depend on attributing bad faith to any participant. The point is structural: a vague disclosure regime offers channels for rent-seeking and error that a rule confined to demonstrated deception and unfairness does not.
CFJ therefore recommends that the Commission not adopt the Proposed Statement as written. If it issues guidance, the Commission should:
require an actual express or implied representation, grounded in the seller’s words or the transaction’s objective context, before treating silence about price personalization as deceptive;
apply each element of Section 5(n) separately and on case-specific evidence, including a realistic comparison with the price, availability, and output that would exist without personalization;
clarify that a price difference, standing alone, is neither deception nor substantial injury;
create a safe harbor, or at minimum a strong enforcement presumption, for bona fide personalized discounts, coupons, loyalty offers, retention offers, and similar prices no higher than a contemporaneous generally available price;
limit any required disclosure to what is necessary to correct a demonstrably misleading impression, rather than compelling disclosure of pricing logic, model architecture, or categories of data as a matter of course; and
preserve targeted enforcement against false statements, fictitious reference prices, deceptive data collection or use, and discrimination prohibited by other law.
I. Personalized Pricing Is a Market-Discovery Process
A. Prices emerge from subjective valuation
The Proposed Statement begins from an understandable consumer-protection concern: buyers may care whether a quoted price was influenced by information about them. But its framing juxtaposes a supposedly neutral nonpersonalized price with a personalized price treated as a departure requiring explanation. Economic analysis provides no basis for treating the former as a neutral benchmark.
In the Austrian tradition, value is subjective. A good does not contain an objectively correct price derived from its production cost. A price emerges when a seller’s minimum acceptable terms meet a buyer’s maximum acceptable terms. Ludwig von Mises put the point sharply: value judgments ultimately determine prices, and the prices that exist in the world are the historical terms of completed exchanges, not hypothetical “final prices” embedded in goods.3 Carl Menger’s subjectivist account yields the same lesson: goods become economic goods because particular people perceive them as serving particular ends under conditions of scarcity.4 Hayek later used catallaxy to describe the spontaneous order produced when people with different purposes adjust to one another through exchange; the order does not pursue a single administratively chosen end.5
That account is especially important in differentiated, changing markets. A ticket’s value may depend on the date, seat, buyer’s schedule, and alternatives. A software subscription may be worth more to a firm that uses it daily than to a student trying it for the first time. A rideshare trip’s value depends on location, timing, urgency, and available substitutes. The fact that two offers concern a product described with the same noun does not make the underlying exchange circumstances identical.
Alchian and Allen call firms that must choose their own prices “price searchers,” distinguishing them from the stylized price taker that accepts a single market price. Most sellers must test a price for their particular product, service, and customers. Buyers undertake a different search: they compare sellers and substitutes and decide whether an offer is worth accepting. Both sides learn from the resulting purchases and refusals. A seller’s best price is rarely known in advance.6
Personalized pricing is one way to test possible terms of exchange. Data may help a seller infer that a buyer is price sensitive, likely to switch, or interested in a particular bundle. A coupon makes a similar inference through the buyer’s willingness to find and redeem it. A negotiated price uses conversation rather than an algorithm. A student discount uses status as a proxy. These mechanisms vary in privacy implications and accuracy, but they perform the same economic function: they allow different offers when a uniform offer would leave mutually beneficial trades unrealized.
B. The knowledge required for pricing is dispersed and tacit
Friedrich Hayek explained why central direction cannot reproduce this process. The relevant knowledge is not only scientific or statistical. It includes “knowledge of the particular circumstances of time and place”—fleeting local information, changing plans, available substitutes, urgency, and practical judgments that often cannot be stated fully.7 The price system economizes on that knowledge. It communicates changes without requiring one mind to possess the facts that produced them.
Modern analytics do not eliminate Hayek’s knowledge problem. They give firms additional tools for discovering patterns, but the tools remain fallible. Models can misclassify consumers; competitors can react; buyers can decline, delay, search, or conceal information; and yesterday’s pattern can fail tomorrow. The resulting process is entrepreneurial rather than mechanical.
Kirzner emphasized that competition is a discovery procedure in which entrepreneurs notice previously overlooked errors and opportunities. In pricing, those discoveries concern which buyers will purchase, at what prices, and in what quantities.8 A personalized offer may reveal that a customer who would not buy at the prevailing public price will buy at a lower one. A rejected high-priced offer may reveal that the buyer has a better alternative. Those responses help the seller learn about demand, the price at which additional sales may occur, and the tradeoff between price and quantity.
The Proposed Statement risks reversing this relationship. It treats the agency as capable of deciding, after the fact, which expectation about price uniformity was reasonable and how much information about price formation was required. But an agency cannot know the alternative prices, products, and transactions that a different disclosure rule would have produced. Thomas Sowell’s process-oriented formulation is useful here: the relevant comparison is not between imperfect market outcomes and an ideal result, but between institutions with different knowledge, incentives, and feedback mechanisms.9 Market errors generate feedback through lost sales, consumer search, entry, and reputational consequences. Administrative errors can instead become precedents applied across many firms.
II. The Proper Counterfactual Includes Output, Access, and Innovation
A. Personalized discounts can reach submarginal consumers
The most common criticism of personalized pricing imagines a fixed quantity of commerce and asks how the surplus from those transactions will be divided. On that assumption, a seller’s ability to identify a buyer with a higher willingness to pay appears to be a transfer from consumer to producer. That can occur. But the static assumption omits the extensive margin: people who do not buy at the uniform price but do buy when offered a lower personalized price.
Consider a simplified example. A firm offers a service at a public price of $10. One prospective customer values it at $11; a second values it at $8. At the uniform $10 price, only the first customer buys. If the seller can identify the second customer’s price sensitivity and offer a $3 discount, the second pays $7 and both customers buy. Output expands, and the second customer gains $1 of surplus. The seller would need sufficient margin on that additional sale to make the offer worthwhile. If a rule makes the targeted discount costly or infeasible, the likely alternative may be one sale rather than two.
Mises analyzed this possibility directly. Price differentiation may allow a seller to serve buyers who would not purchase at a uniform price, and in some cases the extra revenue from higher-paying buyers makes a product or service feasible for all groups.10 Murray Rothbard likewise noted that lower prices can bring submarginal buyers into a market and that competition constrains attempts to charge higher prices.11 Alchian and Allen used familiar examples—coupons, senior discounts, and tuition scholarships—to show how differentiated prices can increase the marginal revenue associated with additional units or customers while delivering surplus to buyers who receive the discount.12
These examples are not anomalies. Airlines use price differentiation to fill otherwise empty seats. Software firms offer educational pricing. Subscription services make retention offers to customers likely to cancel. Retailers target coupons to shoppers who would otherwise switch or forgo a purchase. A rule that assumes uniform pricing would preserve a lower benchmark overlooks the possibility that uniformity produces a higher price for price-sensitive buyers or excludes them entirely.
B. The empirical evidence is mixed—which is precisely why categorical presumptions are unsound
CFJ does not contend that every personalization system benefits every consumer. The same technique can produce different effects depending on competition, the share of consumers who buy at prevailing prices, which firms can use consumer data, switching costs, and the firm’s objective. The recent empirical literature confirms heterogeneity rather than a universal result.
Jean-Pierre Dubé and Sanjog Misra’s large-scale field experiment found that personalized pricing increased expected profits relative to optimized uniform pricing and that more than 60 percent of customers received lower prices, although aggregate consumer surplus declined in their baseline measure.13 Nicholas Buchholz and coauthors, studying a large rideshare market, estimated that personalized pricing reduced consumer surplus by 2.5 percent while increasing overall surplus by 5.2 percent; they also found that pricing based on drivers’ wait times could capture much of the profit gain without extensive use of consumer data while benefiting consumers.14 Andrew Rhodes and Jidong Zhou show theoretically that the consumer effect depends in part on market coverage—the share of consumers who buy—and on whether all or only some firms can personalize. Where market coverage is high, personalization can intensify competition and benefit consumers; where it is low, the result can reverse.15
This evidence supports two modest but important propositions. First, personalized pricing can expand output, lower prices for many consumers, and increase total welfare. Second, the direction and size of those effects are empirical questions. Neither “personalization always harms consumers” nor “personalization always benefits consumers” is a sound enforcement premise.
In a 2018 submission to the Organisation for Economic Co-operation and Development (OECD), the United States likewise explained that price discrimination is common and can be efficient; mere price differences ordinarily present no consumer-protection issue absent an accompanying unfair or deceptive practice.16 Privacy promises and discrimination forbidden by other laws remain independently enforceable.
C. Compelled transparency can change the conduct being measured
The Proposed Statement suggests that the benefits of personalized pricing may be realized without concealment. That is not a legal conclusion; it is a contestable empirical prediction.17 Disclosure can change consumer behavior, pricing strategy, and rivals’ ability to coordinate or imitate. It can also turn a low-cost targeted discount into a public commitment that the seller must extend more broadly.
The relevant literature again counsels caution. Voluntary-disclosure models show that giving consumers control over information can improve welfare under some technologies and competitive conditions, but the result depends on the disclosure mechanism and market structure.18 George Stigler’s economics of information explains why complete information is not the attainable baseline: information acquisition is costly, sellers and buyers both search, and changing conditions continually generate dispersion.19 A mandate should therefore be judged by its marginal benefits and costs, not by comparison with a frictionless world.
The Commission’s reference to disclosure of the “basis” and “types” of data used is particularly concerning. A short statement that an advertised price “may vary by customer” is different from an obligation to describe the categories of behavioral, location, device, purchase-history, or inferred data affecting the offer. The latter can be complex, can reveal competitively sensitive strategy, and may itself confuse consumers. If a disclosure is necessary to correct a proven misleading impression, it should be tailored to that impression. Section 5 is not a general algorithmic-explainability statute.
III. Section 5 Does Not Create a General Duty to Explain Price Formation
A. Actual false representations remain actionable
The Proposed Statement is on firmest ground when it addresses an actual misleading claim. Section 5 reaches a material representation, omission, or practice likely to mislead consumers acting reasonably under the circumstances.20 A retailer that advertises “the same low price for everyone” while charging individualized prices makes a testable representation. A seller that fabricates a supposed list price, falsely labels an ordinary price as a personalized discount, or misstates why a price changed may also deceive. The Commission can investigate such claims under its existing deception authority.
The same is true of data practices. If a company promises not to use health, location, or browsing data for pricing and then does so, the broken promise may be deceptive. If it obtains sensitive data through a dark pattern or uses data in a way that causes substantial injury that consumers cannot reasonably avoid and that is not outweighed by benefits to consumers or competition, the practice may be unfair. And if a pricing system discriminates on a basis prohibited by another federal or state statute, the responsible agency can enforce that prohibition. None of those propositions establishes that personalized pricing itself is deceptive.
B. Consumer expectation alone cannot supply the missing representation
The difficult part of the Proposed Statement is its treatment of silence. It posits that a consumer may reasonably expect a price to be static or widely offered and that a seller’s failure to disclose personalization may therefore mislead. The Commission’s own authorities impose a more disciplined inquiry.
The Commission’s Food Advertising Policy Statement distinguishes silence that completes a misleading representation from silence that conveys no particular meaning. Disclosure may be required when necessary to prevent an affirmative claim from misleading. But “not all omissions are deceptive,” even if consumers would find the omitted information useful.21 International Harvester likewise declined to treat a “pure omission” as deceptive merely because consumers may hold a false preconception; such a rule would expand deception virtually without limit.22
FTC v. Colgate-Palmolive Co. does not support a free-standing duty to disclose all facts material to purchase. The case involved affirmative advertising that falsely presented a simulated demonstration as genuine. Its discussion of fictitious reference prices drew an analogy to other deceptive practices.23 Its rule is familiar: a half-truth or misleading demonstration may require qualification. It does not mean that the seller of every product must volunteer how it selected its price.
The Proposed Statement’s reliance on statutes that expressly require reasons for adverse actions underscores the point. The Fair Credit Reporting Act contains detailed instructions about notice and the disclosure of factors affecting credit decisions.24 Congress knew how to impose basis-specific disclosure obligations. The absence of a comparable personalized-pricing provision in Section 5 counsels against creating one through nonbinding enforcement guidance. Congress separately authorized policy statements and substantive rules defining unfair or deceptive practices, with additional procedures for the latter. The Commission should preserve that distinction: guidance may explain existing duties, but should not become a substitute for the rulemaking procedures Congress prescribed.25
The objective transaction context can, of course, communicate an implied claim. A shelf tag displayed beside identical units may represent that the marked price is the store’s current offer to shoppers who take an item to the register. An advertisement may state that a promotion is “available to all.” Whether silence changes the meaning of those words or acts is a factual question. The Commission should require evidence of the representation actually conveyed—not infer a universal-price promise from an asserted expectation untethered to seller conduct.
C. Corpay illustrates the evidence a real Section 5 case requires
The Eleventh Circuit’s recent Corpay decision reinforces this case-specific discipline. The court applied all three elements of Section 5(n) to challenged fee practices. The record included false advertising, unexpected and unauthorized charges, and internal evidence about the company’s conduct. The court did not presume injury from the mere existence of differentiated transaction terms.26
That evidentiary discipline is crucial in a personalized-pricing case. For a deception claim, the Commission should identify the statement or conduct that allegedly misled, the reasonable consumer’s understanding in context, and materiality. For an unfairness claim, it should also assess the price or other outcome the consumer would probably have obtained absent the practice, the consumer’s practical options, and the benefits lost under the proposed alternative. An enforcement statement should not substitute labels for that proof.
IV. Section 5(n) Requires a Realistic, Case-Specific Welfare Inquiry
Congress provided three cumulative limits on unfairness. The act or practice must cause or be likely to cause substantial injury; the injury must not be reasonably avoidable by consumers; and the injury must not be outweighed by countervailing benefits to consumers or competition.27 Public policy may inform the analysis but cannot serve as the primary basis.
A. A different price is not, by itself, substantial injury
The Proposed Statement suggests that a consumer who pays a higher personalized price may suffer substantial monetary injury. That statement skips the counterfactual. The proper comparison is not necessarily the lowest price offered to a different consumer. It is the price and availability that would likely have existed absent the challenged practice.
If a seller would otherwise charge a uniform $10, a buyer who willingly pays $10 is not injured merely because a second buyer received a $3 coupon and paid $7. Treating that $3 discount as injury would turn the second buyer’s saving into an entitlement for everyone, potentially making the targeted offer uneconomic. The offsetting gains are concrete: the second buyer may gain access to a product she would not otherwise purchase and receive surplus from that purchase; total output may rise. Competition for similarly price-sensitive buyers may improve as well. These benefits must be tested against evidence of any real injury, not assumed away.
Substantial injury can exist where a seller charges an undisclosed fee, exploits a consumer who cannot exit, or induces payment through a false universal-price claim. But the Commission must prove that injury from evidence. It should not define harm by assuming the regulatory result it wants—uniform prices at the lowest observed personalized level.
B. Reasonable avoidability is practical, not theoretical
The Proposed Statement notes that a consumer cannot take steps to avoid personalization if it is concealed. That may be true in a particular case. But avoidability must account for how consumers actually respond to price offers. A buyer can reject the offer, compare another seller, delay purchase, use a coupon, choose a substitute, or decide that search costs exceed the expected savings. Those options vary by market and should be evaluated rather than presumed away.
The fact that some consumers do not know the seller’s internal pricing process does not by itself make the price unavoidable. Consumers ordinarily do not know a seller’s marginal cost, inventory forecast, elasticity estimate, or negotiation limit. They know the offered price and decide whether the product is worth more to them. Additional facts become legally relevant when the seller has misrepresented them or when market conditions materially impair a consumer’s ability to avoid the injury—not simply because the pricing process is proprietary.
C. Countervailing benefits include output, access, competition, and learning
The Proposed Statement’s brief benefits discussion is too narrow. Section 5(n) expressly includes benefits to “consumers or to competition.”28 The inquiry must therefore account for:
lower offers to price-sensitive consumers;
transactions and output that would not occur at a uniform price;
entry enabled by more efficient customer acquisition;
experimentation with bundles, service levels, and subscription terms;
intensified competition for consumers likely to switch; and
the cost of mandated disclosures, model redesign, and enforcement uncertainty.
Competition policy has long distinguished the protection of competition from the protection of particular competitors. Robert Bork framed consumer welfare in terms that include price, output, innovation, and choice.29 Herbert Hovenkamp similarly identifies output and innovation as central measures and cautions against turning antitrust into positive price regulation.30 Gregory Werden explains that the core federal antitrust rules principally target agreements among rivals and exclusionary unilateral conduct—not unilateral price variation as such.31 Although the Proposed Statement invokes consumer-protection authority rather than alleging an antitrust offense, Section 5(n)’s direction to count benefits to competition makes these insights relevant.
A high-cost incumbent may prefer a rule that prevents a more agile rival from identifying price-sensitive customers. A platform may support a complex disclosure mandate that smaller entrants cannot implement cheaply. A seller with broad brand recognition may welcome a rule that limits targeted introductory offers by newcomers. The Commission should not build such consequences into the law under the banner of neutrality.
V. Public Choice and Administrative Knowledge Counsel a Narrow Rule
A. Regulators face incentives and information constraints too
Public Choice theory applies the same assumptions about human choice to politics that economists apply to markets. James Buchanan rejected the notion that political decisions are delivered by omniscient, error-free actors. The same kinds of people who respond to incentives in private settings populate public institutions.32 George Stigler’s theory of economic regulation showed how concentrated groups can seek rules whose costs are dispersed across the public. In this setting, a high-cost incumbent might favor a rule that makes a smaller rival’s targeted discounts too costly to offer; a large platform might favor complex disclosures it can absorb more easily than new entrants.33 Gordon Tullock explained how resources spent seeking government-created advantages are social costs, not transfers without consequence.34
These are institutional propositions, not accusations about motive. They predict recurring risks:
Concentrated benefits and dispersed costs. A competitor that gains from constraining a rival’s pricing technology has a strong incentive to lobby; consumers who lose small discounts or never see products that are not offered have weak incentives to organize.
Visible harms and invisible foregone trades. A complaint from a buyer who learns that someone else paid less is concrete. The discounted transactions that never occur under a restrictive rule are not observed and are easily ignored.
Fixed-cost advantage. Large firms can build compliance teams, legal review, and disclosure systems. Small firms and new entrants face the same interpretive uncertainty but have fewer resources to manage it.
Jurisdictional expansion. A standard based on consumer “expectation” can migrate from demonstrably misleading claims to a broad supervisory role over ordinary price formation.
Information distortion within bureaucracy. As Tullock’s analysis of hierarchy emphasizes, information passed upward can be simplified and errors can compound.35 An enforcement program will tend to classify heterogeneous pricing systems into administratively manageable categories, losing the local details on which their effects depend.
The Commission can reduce these risks by writing a narrow, evidence-bound policy. It should identify conduct Congress actually prohibited, require proof of each statutory element, and preserve space for experimentation outside that boundary.
B. Restricting discovery imposes costs that administrative records cannot fully reveal
Hayek’s “competition as a discovery procedure” adds a further point. Competition is valuable precisely because its results are not known in advance. If officials already knew which offers, prices, and business models would best serve consumers, discovery would be unnecessary.36 A policy that chills experiments therefore destroys information before it can enter the record.
Kirzner similarly warned that restrictions can dull entrepreneurial alertness and that the resulting losses are difficult to measure because the discoveries never occur.37 Adam Thierer’s “permissionless innovation” framework translates that insight into a contemporary policy default: experimentation should proceed unless the government can identify a compelling, legally grounded harm that cannot be addressed more narrowly.38
Personalized pricing should not receive immunity. It should receive ordinary treatment. The agency should prosecute a lie as a lie, an unauthorized charge as an unauthorized charge, and an unlawful use of personal data as an unlawful use of personal data. It should not convert the mere use of analytics into a presumption that a seller owes an explanation of how it searched for a price.
VI. Recommended Revisions
A. Withdraw the generalized omission theory
The final statement should delete language suggesting that failure to disclose personalization is likely deceptive whenever consumers reasonably expect a nonvarying price. It should instead say:
Personalized pricing is not, standing alone, a deceptive act or practice. A failure to disclose personalization may be deceptive when the seller’s express representations or the objective context of the transaction convey a material false impression that the offered price is uniform or universally available. The Commission will assess the representation, consumer understanding, materiality, and reasonableness on case-specific evidence.
This formulation preserves enforcement against half-truths without creating a general duty to volunteer pricing methodology.
B. State the correct Section 5(n) counterfactual
The final statement should expressly provide that a different price offered to another consumer does not, standing alone, establish substantial injury. The comparison must be to the likely price, product availability, output, and quality absent the challenged practice. The Commission should also commit to establishing that the injury is not reasonably avoidable and is not outweighed by benefits to consumers or competition rather than treating concealment as dispositive of both.
C. Protect bona fide discounts and competitive experimentation
The Commission should establish a safe harbor, or at least a strong presumption against enforcement, for:
a personalized price no higher than a bona fide, contemporaneous price generally available for the same product on materially similar terms;
targeted coupons and promotions;
opt-in loyalty-program offers;
retention and win-back offers; and
negotiated prices where the buyer understands that the terms are individualized.
This protection should not apply to fictitious reference prices, false statements about eligibility or savings, unauthorized charges, deceptive data practices, or conduct prohibited by another law. The distinction is straightforward: a genuine discount expands choice; a false discount misrepresents it.
D. Tailor disclosures to proven misleading impressions
If disclosure is needed to cure an actual misleading impression, the remedy should be proportionate. A concise statement that prices “may vary by customer or transaction” may suffice if it corrects the specific misleading impression; its adequacy will depend on context. The Commission should not require disclosure of model architecture, elasticity estimates, weighting, proprietary rules, or categories that do not bear on the misleading impression. A brief online checkout notice and an in-store shelf notice may need different formats; the Commission should test any model notice for consumer understanding before recommending it.
E. Preserve targeted privacy and discrimination enforcement
The final statement should clarify that it does not displace existing laws governing protected classes, credit, insurance, health information, or other regulated domains. It should also maintain ordinary Section 5 enforcement where a firm makes and breaks a material data-use promise or collects data through deception. This approach addresses cognizable misconduct without making every personalized offer carry the legal burdens of an adverse credit decision.
Abbott’s Mercatus comment offers a complementary formulation: preserve the traditional deception standard, rigorously apply Section 5(n), and protect bona fide personalized discounts.39 CFJ agrees with that direction and grounds it in the broader economic and institutional analysis developed here.
F. Distinguish individualized prices from ordinary price changes
National Taxpayers Union usefully asks the Commission to distinguish a price based on data about the particular buyer from a price that changes with time, inventory, or marketwide demand. It also urges the Commission to connect the data to the challenged price and to assess each merchant, marketplace, or pricing vendor under existing law according to its own conduct and knowledge.40 CFJ agrees on the need for that causal and actor-specific proof before liability. An investigation, however, may begin with evidence that warrants inquiry; it need not begin with a fully proved causal chain. Nor should a rigid definition exclude a consumer-data-based coupon or loyalty offer from analysis: such discounts are personalized in the economic sense and should receive the protection recommended above. The final statement should reiterate that it creates no new legal duty, monetary remedy, or private right of action.
Conclusion
The Commission is right not to claim a power Congress withheld: a categorical prohibition on personalized pricing. It should be equally careful not to approximate that result through an expansive omission theory.
Personalized pricing can transfer surplus to sellers. It can also lower prices, expand output, make products available to submarginal consumers, intensify competition, and generate information about what consumers value. Which effect dominates depends on facts that cannot be inferred from the existence of data analytics or from the fact that two people received different offers.
Prices emerge from the choices of buyers and sellers, through a process no regulator can fully replicate. Regulators respond to incentives too, and broad discretion creates more room for mistakes and efforts to use government power for private advantage. The statutory lesson is restraint: Section 5 reaches proven deception and unfair practices; Section 5(n) limits unfairness authority. Neither provision creates a general duty to explain price formation. Therefore, we respectfully urge the Commission to withdraw or revise the Proposed Statement along the lines set out above.
Footnotes
1 Federal Trade Commission, Proposed Enforcement Policy Statement Regarding Personalized Pricing 1 (Aug. 19, 2026), https://www.ftc.gov/system/files/ftc_gov/pdf/p034101-ftc-enforcement-policy-statement-re-personalized-pricing-proposed-for-public-comment.pdf [hereinafter Proposed Statement]. The Commission extended the comment deadline to September 25, 2026. Federal Trade Commission, “FTC Extends Public Comment on Proposed Policy Statement Regarding Personalized Pricing” (Sept. 2026), https://www.ftc.gov/news-events/news/press-releases/2026/09/ftc-extends-public-comment-proposed-policy-statement-regarding-personalized-pricing.
2 Proposed Statement, at 1, 3–4.
3 Ludwig von Mises, Human Action: A Treatise on Economics 331–32, 388–90 (Scholar’s ed. 1998) (1949).
4 Carl Menger, Principles of Economics 52–54, 94–96, 145–46 (James Dingwall & Bert F. Hoselitz trans., Ludwig von Mises Institute 2007) (1871).
5 F. A. Hayek, New Studies in Philosophy, Politics, Economics and the History of Ideas 59–60 (Univ. of Chicago Press 1978).
6 Armen A. Alchian & William R. Allen, Universal Economics 285–87 (Liberty Fund 2018).
7 F. A. Hayek, The Use of Knowledge in Society, in Individualism and Economic Order 77, 80–86 (Univ. of Chicago Press 1948).
8 Israel M. Kirzner, Reflections on Ethics, Freedom, Welfare Economics, Policy, and the Legacy of Austrian Economics 14–15, 40–53 (Liberty Fund 2018).
9 Thomas Sowell, Knowledge and Decisions 3–7, 383–89 (Basic Books 1980).
10 Mises, Human Action, at 388–90.
11 Murray N. Rothbard, Man, Economy, and State with Power and Market 742–44 (Scholar’s ed., 2d ed. 2009).
12 Alchian & Allen, Universal Economics, at 287–93.
13 Jean-Pierre Dubé & Sanjog Misra, Personalized Pricing and Consumer Welfare, 131 J. Pol. Econ. 131, 131–33, 165–72 (2023), https://www.journals.uchicago.edu/doi/10.1086/720793.
14 Nicholas Buchholz et al., Personalized Pricing and the Value of Time: Evidence from Auctioned Cab Rides, 93 Econometrica 929, 929–32 (2025), https://economics.mit.edu/sites/default/files/inline-files/ECTA18838.pdf.
15 Andrew Rhodes & Jidong Zhou, Personalized Pricing and Competition, 114 Am. Econ. Rev. 2141, 2141–45 (2024), https://www.aeaweb.org/articles?id=10.1257/aer.20221524.
16 United States, Personalised Pricing in the Digital Era—Note by the United States ¶¶ 2–4, 14, OECD Competition Committee, DAF/COMP/WD(2018)140 (Nov. 28, 2018), https://one.oecd.org/document/DAF/COMP/WD(2018)140/en/pdf.
17 Proposed Statement, at 6.
18 S. Nageeb Ali, Greg Lewis & Shoshana Vasserman, Voluntary Disclosure and Personalized Pricing 1–5, NBER Working Paper No. 26592 (2019), https://www.nber.org/papers/w26592.
19 George J. Stigler, The Economics of Information, 69 J. Pol. Econ. 213, 214–16, 224 (1961).
20 See Proposed Statement, at 4–5; FTC Policy Statement on Deception, appended to Cliffdale Associates, Inc., 103 F.T.C. 110, 174–84 (1984).
21 Federal Trade Commission, Enforcement Policy Statement on Food Advertising (May 13, 1994), https://www.ftc.gov/legal-library/browse/enforcement-policy-statement-food-advertising.
22 In re International Harvester Co., 104 F.T.C. 949, 1058–59 (1984), https://www.ftc.gov/sites/default/files/documents/commission_decision_volumes/volume-104/ftc_volume_decision_104_july-december_1984pages949_-_1088.pdf.
23 FTC v. Colgate-Palmolive Co., 380 U.S. 374, 386–92 (1965).
24 15 U.S.C. § 1681m(a)–(b).
25 15 U.S.C. § 57a(a)(1), (b).
26 Federal Trade Commission v. Corpay, Inc., 164 F.4th 807, 839–40 (11th Cir. 2026), https://media.ca11.uscourts.gov/opinions/pub/files/202312539.pdf.
27 15 U.S.C. § 45(n), https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section45&num=0&edition=prelim.
28 15 U.S.C. § 45(n).
29 Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself 7–11, 50–66 (Bork Publishing 2021) (1978).
30 Herbert Hovenkamp, The Antitrust Enterprise: Principle and Execution 2–13, 37–41 (Harvard Univ. Press 2005).
31 Gregory J. Werden, The Foundations of Antitrust: Events, Ideas, and Doctrines 3–14 (Carolina Academic Press 2020).
32 James M. Buchanan, Politics as Public Choice 26–27, 51–52 (Liberty Fund 2000).
33 George J. Stigler, The Theory of Economic Regulation, 2 Bell J. Econ. & Mgmt. Sci. 3, 3–6 (1971).
34 Gordon Tullock, Rents and Rent-Seeking, in The Rent-Seeking Society 147, 148–67 (Charles K. Rowley ed., Liberty Fund 2005).
35 Gordon Tullock, The Bureaucracy 12–18, 148–50 (Charles K. Rowley ed., Liberty Fund 2005).
36 F. A. Hayek, Competition as a Discovery Procedure, in New Studies in Philosophy, Politics, Economics and the History of Ideas 179, 179–90 (Univ. of Chicago Press 1978).
37 Kirzner, Reflections on Ethics, Freedom, Welfare Economics, Policy, and the Legacy of Austrian Economics, at 14–15, 40–53.
38 Adam Thierer, Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom 1–8, 15–22 (rev. & expanded ed., Mercatus Center 2016).
39 Alden F. Abbott, Comment of the Mercatus Center on the FTC’s Proposed Enforcement Policy Statement Regarding Personalized Pricing 2–5, Docket No. FTC-2026-1057 (Sept. 2, 2026); Alden F. Abbott, Your Price May Vary: An Economist’s Guide to Personalized Pricing, Truth on the Market (Sept. 2, 2026).
40 National Taxpayers Union, Revisions Urged for FTC Personalized Pricing Proposal 2–4, Docket No. FTC-2026-1057 (Sept. 2026).
