Two years ago, we wrote about the FTC's investigation into what many then knew as “surveillance pricing”: the use of personal data and technology to charge different consumers different prices for the same products. The Commission had sent orders to eight intermediary companies, including Mastercard, JPMorgan Chase, Accenture, and McKinsey, seeking to understand the products and services that could enable their customers to personalize prices.

Now, the FTC is back for another round, this time with focus on brands, rather than middlemen. On October 28, the FTC issued Section 6(b) orders to nine companies across the airline, rideshare, delivery, and grocery industries seeking detailed information about their use of personal data to determine prices. This inquiry goes further, examining how rideshare and delivery companies allocate jobs and compensate workers. 

What Does the FTC Want to Know?

As we've seen at the state level, “Pricing” here is defined more broadly than simply showing two consumers different sticker prices. It includes coupons, discounts, special offers, promotions, purchasing opportunities, bonuses, and deals. “Personal Information,” is similarly expansive, covering browsing and purchasing history, geolocation, reactions to advertising and offered prices, employment and income information, a consumer’s “willingness to pay,” and information inferred from these and other data points.

What Does This Tell Us About Enforcement?

The 2024 inquiry was framed as pure fact-finding, but this one arrives in a more developed enforcement landscape. In August, the Commission proposed an Enforcement Policy Statement identifying circumstances in which personalized pricing practices could violate Section 5 of the FTC Act, including when a business fails to disclose that a price has been personalized or obscures the data used to personalize it.