We appreciate the opportunity to provide information related to the Federal Trade Commission (FTC)’s Request for “Public Comment on Enforcement Policy Statement Regarding Personalized Pricing.” This comment does not represent the views of any particular party or special interest group but is intended to assist regulators in understanding the role of personalized pricing in the economy, as well as the potential ramifications that new interpretations of Section 5 authority could have on the economy. Our comments focus mainly on these key takeaways:

  • Applying the “reasonable expectation” standard to personalized pricing is a novel interpretation of Section 5’s authority and would grant the Commission a significant expansion of its regulatory power.
  • This novel interpretation would create a lock-in effect for businesses and risk greater regulation of pricing models, ultimately limiting the choices of businesses even when such pricing could benefit consumers.
  • By classifying undisclosed data-driven inputs as deceptive, the Commission is drawing an arbitrary line over what a firm must reveal about its pricing. Prices routinely aggregate inputs that consumers never know about, such as supply disruptions, shipping costs, tariffs, demand spikes, or a firm’s own margin strategy, without being considered a deceptive practice.
  • The Commission cannot claim that undisclosed personalized pricing is an unfair practice that causes a substantial, unavoidable injury, while also claiming that the “effects of personalized pricing on consumers are unclear.”
  • If there is a legitimate case for a disclosure mandate for the use of personalized pricing to resolve information asymmetries between consumers and businesses, the authority to enact such a mandate rests with Congress, not the FTC.