Following the Data: FTC Moves from Policy to Fact-Finding on Personalized Pricing

At a Glance

• While the FTC's 2024 personalized pricing study examined only the intermediaries that sell pricing tools (an approach the current Commission has described as mistaken), this new inquiry goes directly to the companies that set prices and pay.
• The orders also cover worker compensation. The FTC noted that airlines typically pay "a transparent salary or fixed hourly wages." By contrast, gig platforms may offer "shifting compensation offers based on opaque formulas" drawn from, for example, drivers' personal data.
• Exposure extends beyond the FTC's study. Under the August 2026 proposal, implying that a price is the same for everyone when it varies by individual, or using personal data to set prices without adequate disclosure, likely violates Section 5.
• Affected businesses should consider auditing pricing and pay algorithms, mapping data inputs and inferences, testing disclosures against actual practice, revisiting consent mechanisms, preparing for government inquiries, and monitoring federal and state developments.

On October 28, 2026, the Federal Trade Commission (FTC) issued orders under Section 6(b) of the FTC Act to nine airlines, ride-sharing and food-delivery platforms, and retailers. The orders require detailed information regarding whether and how these companies use personal data to set individualized consumer prices and worker compensation. They follow the FTC's August 2026 Proposed Enforcement Policy Statement Regarding Personalized Pricing.

In our August 2026 alert, we reported that the FTC had proposed requiring companies that use personalized pricing to clearly disclose their practices and the types of data they use. The proposal would not ban personalized pricing, but instead treat nondisclosure as a potentially deceptive act under Section 5 of the FTC Act.

The FTC now has moved from proposed policy to fact-finding, asking the companies that set prices and employee compensation to explain how their systems work.

Who Received Orders

The orders went to three airlines, two ride-sharing companies, two delivery platforms, and two retailers. Each recipient must file a sworn "special report" that will allow the FTC to assess whether prices and compensation vary from one person to the next based on factors such as "participation in loyalty programs" or "analysis of personal data by superintelligence algorithms." A loyalty program offering a clearly stated discount may be procompetitive; the FTC's focus is on algorithms that adjust prices based on an individual consumer's characteristics, such as location or willingness to pay. The orders do not accuse any recipient of wrongdoing.

The orders also cover worker compensation. The FTC noted that airlines typically pay "a transparent salary or fixed hourly wages." By contrast, gig platforms may offer "shifting compensation offers based on opaque formulas" drawn from, for example, drivers' personal data.

Recipients have 45 days from service to respond, and the FTC may seek a federal court order to compel compliance. The FTC's only two current commissioners, both Republican, Chairman Andrew Ferguson and Commissioner Mark Meador, approved the orders by a 2-0 vote. Historically, there have been five commissioners on the FTC.

What the Orders Require

The FTC published a template of the special order that shows the breadth of the inquiry. Companies outside the recipient group that use similar practices should treat the orders as a preview of the questions regulators may ask in the future.

Lookback Period

Most requests cover January 1, 2023, through the date the company fully complies. Requests about internal studies and tests reach back to January 1, 2021.

Pricing Methodologies

Recipients must describe in detail each method that uses personal information to adjust or set prices. For each method, they must describe:

• the tools and inputs they use, and the steps they follow
• how they handle missing data
• when they override results, including because of restrictions in particular jurisdictions

Recipients also must report sales and revenue tied to each method and explain how they prioritize consumers' requests.

Worker Pay and Job Assignment

For workers, the orders cover:

• how pay is set
• "Offer Assignment," meaning which workers see which jobs, in what order, and which jobs are hidden from them

Recipients also must explain how consumer pricing affects worker pay and what share of the price the company keeps.

Third-Party Sourcing and Testing

Recipients must identify:

• where each tool and data input came from, including third-party vendors
• how they modified and validated each one
• whether they license or sell any of them to others

They must describe every analysis, study, and A/B test of their pricing and pay practices, along with the results and the names of the people responsible.

They also must report the costs and benefits to consumers and workers, including whether prices or pay went up or down.

Disclosures

Recipients must provide the exact wording, location, and URL, and dates of every disclosure about these practices. They also must provide screenshots of all content shown to consumers and workers.

Documents and Communications

The orders call for all documents relating to the use of personal information in pricing, job assignment, or pay, including related communications.

"Documents" includes chats, text messages, Slack and Teams messages, collaboration platforms, generative AI tools such as ChatGPT and Copilot, and employee-owned devices used for company business.

Recipients also must produce their document retention and destruction policies.

Why This Is a Significant Development

Section 6(b) studies do not require a specific law enforcement purpose, but these orders mark a clear escalation. While the FTC's 2024 personalized pricing study examined only the intermediaries that sell pricing tools (an approach the current Commission has described as mistaken), this inquiry goes directly to the companies that set prices and pay. The FTC additionally tied the inquiry to its enforcement against hidden fees and to its Labor Task Force cases over false earnings claims, signaling that both consumer pricing and gig-worker pay are on its radar.

Exposure extends beyond the FTC's study. Under the August proposal, implying that a price is the same for everyone when it varies by individual, or using personal data to set prices without adequate disclosure, likely violates Section 5. At the state level, Maryland and New Jersey have banned personalized pricing in the grocery sector; and Connecticut's law reaches retailers and delivery services more broadly. New York and California are advancing their own measures; and state attorneys general, congressional Democrats, and private plaintiffs also are pressing these issues.

What Businesses Should Do Now

1. Audit pricing and pay algorithms. Identify whether any pricing, promotion, or offer tool adjusts terms based on individual consumer data rather than market-wide supply and demand. Companies that use algorithmic pay models for workers or contractors should review their systems the same way.
2. Map data inputs and inferences. Document the categories of personal data that feed pricing and pay decisions, including data from third-party vendors. Pay particular attention to inferred traits such as income, urgency, or price sensitivity. Based on the hypotheticals in the FTC's proposed policy statement, inferences tied to health, family circumstances, emergencies, or location are the most likely to draw scrutiny.
3. Test disclosures against actual practice. Confirm that disclosures are clear and conspicuous, appear before purchase, and describe not only that a price is personalized but also the basis for personalization and the types of data used.
4. Revisit consent mechanisms. A consumer's lack of awareness is not consent. Assess whether consumers specifically have agreed to the use of their data for pricing, as distinct from general personalization or marketing, and whether that consent is documented.
5. Prepare for government inquiries. State regulators and congressional committees are asking similar questions. Identify the people and records needed to respond to a request, and confirm that documentation of pricing methods is accurate and current. Make sure internal communications about pricing tools are measured and well supported.
6. Monitor federal and state developments. Track the FTC's finalization of its proposed policy statement, any public report from the Section 6(b) study, and pending legislation in New York, California, and other states.
7. Engage counsel early. The antitrust and consumer protection laws are nuanced and complex and their application to specific business practices is fact-sensitive. We strongly recommend that companies consult with experienced counsel if they have questions or concerns about whether their current or prospective pricing or compensation practices may implicate the FTC’s personalized pricing concerns.