The FTC wants three facts disclosed on a personalized price, and it never mentions business buyers

The Federal Trade Commission has put a disclosure standard on the table for personalized pricing, and the window to argue with it shuts on September 25. The proposed enforcement policy statement, dated August 19 and cleared on a 2-0 Commission vote, does not outlaw the practice. It sets out what the agency intends to treat as illegal: charging someone a price derived from their own data while letting them believe the figure on screen is the one everyone gets.

The agency is candid about the limits of its own reach. Congress, the statement says, never gave it authority for an outright ban. What it has is Section 5 of the FTC Act and its bar on unfair or deceptive practices, alongside other authorities it already enforces — including the Restore Online Shoppers' Confidence Act, the law that governs subscription billing.

The deadline has already slipped once. September 18 was the original date; on September 3 the Commission added seven days.

Three facts, not one

The operative requirement is narrower and more demanding than telling buyers that prices vary. A disclosure, the statement says, should be clear and conspicuous, and it should carry three separate facts: that personalization happened, what drove it, and which categories of data fed the calculation.

The document is explicit that the first fact on its own falls short. Flagging a "specially selected price" would likely mislead, it argues, because it withholds everything a buyer would need in order to respond — to correct bad data about themselves, to change the behaviour triggering the price, or to shop elsewhere. The statement's own model of a sufficient disclosure is considerably more specific: a price built from an estimated willingness to pay, computed from that customer's earlier purchases under the same login, described accurately and in full.

Businesses that fail to tell consumers how their personal data is being used to set a price may be in violation of the FTC Act.

That is FTC Chairman Andrew Ferguson, in the agency's August announcement.

Where software pricing touches this

Read literally, this is a document about retailers and shoppers. It runs through seven illustrative scenarios — food delivery, groceries, hotels, two rideshare cases, a security camera, a retailer's own parking lot — and not one involves buying software. A company selling annual contracts through a sales team is plainly not the target, and the consumer framing throughout gives it a fair argument that it never was.

Three corners of the software business sit less comfortably.

• Self-serve checkout. A public pricing page bought by individuals — contractors, freelancers, one-person shops paying on a personal card — is close to the situation described: a posted number the buyer reasonably takes to be universal.
• Subscription mechanics. ROSCA already demands express informed consent to a recurring charge and clear disclosure of material terms before payment details are captured. Price is a material term, and the statement draws that law into the same frame.
• Bought-in data. A business may run afoul of Section 5, the statement says, by pricing off personal data without sufficiently verifying that the person consented to its collection for that purpose. Intent feeds, enrichment vendors and third-party audience data all live inside that sentence.

The distinction the Commission draws is between dynamic and personalized pricing, and it repays close reading. Usage tiers, regional purchasing-power rates, launch discounts and volume breaks all price a bucket. Everyone in the bucket sees the same figure, and the rule that produced it is published. Personalized pricing inverts that: it begins with a conclusion about one identified person and asks what they will tolerate. Most software pricing is the first kind. The awkward cases are in between — the exit-intent discount, the win-back offer priced off account history, the quote that shifts because an enrichment record says the visitor works somewhere with money.

Whether any of that can be operationalised is a separate question. Reporting by MarTech, which is owned by Semrush, quotes Paul Brenner of In-Store Marketplace on the state of the underlying plumbing: "There's such a delineation between data you're allowed to use and not allowed to use." The data driving personalization sits across customer data platforms, billing systems and enrichment tools that were never built to produce an audit trail.

The gap worth commenting on

The statement never addresses business purchasers. Silence is not an exemption — Section 5 reaches unfair and deceptive acts in commerce, and a sole trader buying a seat with a personal card looks a great deal like a consumer whatever the sales motion is called. But the ambiguity is real, it is unresolved, and a comment period is the designated place to raise it. Software vendors have thirteen days to do so.

Note too what the Commission deliberately left open. It declines, for now, to say whether some personalized pricing is unfair even when fully disclosed. Anyone reading the three-part disclosure as a safe harbour is reading further than the text goes. And the statement is candid that it binds nobody: in any enforcement action the FTC still has to prove a violation of an existing statute or rule.