Surveillance Pricing:
Your Browser History Might Make Your Pretzels Pricier
Issue 3 (September 15, 2026)
Last September, Consumer Reports, the Groundwork Collaborative, and More Perfect Union sent more than 400 shoppers to buy the same products on Instacart, fulfilled at the same store at the same time. The results, published in December: up to five different prices for the same product, with an average 13% gap between the highest and lowest.
Why? Surveillance pricing. Instacart had set individualized prices based on personal data such as browser/app history of past purchases and near purchases (items added to a shopping cart but then discarded).
The FTC reportedly served Instacart with a civil investigative demand after the report published. Then the New York Attorney General demanded Instacart’s current agreements with eight retailers and six prominent CPG names – Frito-Lay, Hormel Foods, Nabisco, Oscar Mayer, Pepsi, and Coca-Cola.
Nine months later, four states have enacted surveillance pricing statutes, the FTC has issued a proposed enforcement policy statement, and more than forty surveillance pricing bills are pending across more than two dozen states. No class action complaints have been filed against food and beverage companies, though that may change as state surveillance pricing laws granting private rights of action come into effect.
What to Know If You’re the CEO
Surveillance pricing is the practice of using individualized personal or behavioral data – browsing history, purchase patterns, location, inferred willingness to pay – to set different prices for the same product for different consumers without their knowledge. The new wave of state statutes and the FTC’s proposed policy target this practice either by banning it, or imposing disclosure obligations.
This is not solely a retailer problem. These statutes reach the manufacturers too. For example, New Jersey’s Fair Price Protection Act does not limit liability to retailers. It covers any “person” who varies the price of groceries based on personal data, including “pricing benefits by another person,” namely, a brand that funds a retailer’s program.
What is covered. The following practices fall within the statutes’ scope:
Personalized pricing – varying the price a consumer sees based on what a platform’s model infers about that shopper.
Shopper-specific digital coupons – issuing different discounts to different consumers through a retailer’s app based on individualized data profiles.
Audience-targeted promotional offers – retail media network offers powered by behavioral data. The legislation reaches both the platform enabling the targeting and the brand funding it.
Shopper data used for promotional lift measurement that feeds back into pricing – this practice may fall within the statutes’ scope depending on whether the data is used at an individualized level; the answer will vary by jurisdiction. For example, if the data showed that a certain data-behavioral segment purchased a product with a $0.50 digital coupon, but another data-behavioral segment did not, the manufacturer during the next promotion might issue the purchasing segment the $0.50 coupon again, while issuing a $1.00 digital coupon to the non-purchasing segment. And this activity may fall within the scope of prohibited activities, or activities requiring a disclosure.
What is not covered. The statutes generally exclude:
Traditional loyalty program discounts – pricing benefits uniformly available on the same terms to all program members, where enrollment rather than individualized profiling determines eligibility. New Jersey’s Act, for example, contains an express loyalty exception.
Uniform promotional pricing – promotions offered at the same price or discount to all consumers (e.g., a manufacturer coupon available to anyone at the same discount).
What to Do Next
Threshold questions. Does the company fund offers that vary by shopper based on data about that shopper? Does the company run pricing or promotional tests on its own direct-to-consumer channels? Does the company use shopper data from retail partners to generate the next round of discounts that vary by data-behavior group?
Retail media partner questions. Who decides which shoppers see your offer? What data feeds that decision? Does the platform use purchase history, browsing behavior, or inferred income to target your price?
DTC questions. If the ecommerce team runs A/B price tests, promotion engines, or dynamic offer tools, find out what data they ingest. A tool that adjusts offers based on browsing history or inferred location is doing exactly what these statutes target.
What to Know If You’re the GC
State Statutes
Maryland. The Protection from Predatory Pricing Act signed April 28 takes effect October 1, 2026. It covers food retailers with establishments of at least 15,000 square feet and third-party delivery providers, barring them from using personal data or “dynamic pricing” to set a higher price for food items exempt from Maryland sales tax. Enforcement is AG-only, with a 45-day cure period, and penalties up to $10,000 per violation ($25,000 for repeat violators). The loyalty carve-out is broad: any program “in which any consumer may voluntarily enroll” is exempt.
Connecticut. Public Act 26-130 (HB 5563), signed June 4, takes effect July 1, 2027. It prohibits “retail sellers” (including food establishments) and third-party delivery services from surveillance pricing. All other entities that use personal data to raise an online price must display “THIS PRICE WAS INCREASED USING YOUR PERSONAL DATA.” AG-only enforcement.
New Jersey. The Fair Price Protection Act, signed July 23, is the most consequential. Scope: it reaches “a person” (including a food manufacturer) who varies the price of “groceries and other foodstuffs” based on personal data. Remedies: it is a Consumer Fraud Act violation, with a private right of action, class actions, and treble damages – the first state to put a surveillance pricing claim in a consumer’s hands. Timing: the pricing prohibition takes effect August 1, 2027; a moratorium on new electronic shelf labels starts February 1, 2027.
New York. The existing disclosure law (GBL 349-a) has required a conspicuous algorithmic pricing label since November 10, 2025. The National Retail Federation challenged the law on First Amendment grounds. The NRF’s complaint was dismissed, but the NRF’s appeal is pending in the Second Circuit. Governor Hochul signed the One Fair Price Act (S.8623B/A.9349B) on June 17, 2026. The OFPA replaces disclosure with an outright ban and tightens the loyalty exception. The ban takes effect 180 days after signing, approximately December 14, 2026.
California. AB446 died in September 2025; its successor, AB 2564, passed the Senate 22-14 but missed the Assembly concurrence deadline and did not reach the Governor’s desk.
Others. By late July, more than 40 surveillance pricing bills were pending across more than two dozen states. Interestingly, Colorado’s governor vetoed HB26-1210 on June 2 on the ground that it would penalize differentially lower prices in addition to differentially higher prices.
Federal Activity
The FTC has acknowledged that it lacks standalone rulemaking authority to impose an outright ban on surveillance pricing, though it maintains enforcement authority under Section 5 of the FTC Act to challenge deceptive or unfair personalized pricing practices. On August 19, it published a proposed Enforcement Policy Statement taking the position that undisclosed personalized pricing can be deceptive or unfair under Section 5. The comment deadline was extended from September 18 to September 25. The draft statement calls for three disclosures: that the price is personalized, the basis for personalization, and the types of data used. It would flag as deceptive the practice of calling a price “special” when the algorithm raised it, and reserves the question of whether personalization could be unfair even if fully disclosed.
Congressional attention is rising, though legislation remains stalled. Notable activity includes the Casar-Tlaib Stop AI Price Gouging and Wage Fixing Act, the Gallego One Fair Price Act, and the bipartisan Gottheimer-Lawler No Rigged Grocery Prices Act. House Oversight sent document requests to Instacart and four travel and ride-share platforms in March. On August 4, the Senate Judiciary Subcommittee on Crime and Counterterrorism held a bipartisan hearing titled “Your Data, Their Profit: The Consumer Cost of AI Surveillance Pricing,” chaired by Senator Hawley.
Litigation
No class action complaints have been filed to date regarding surveillance pricing in the food and beverage industry. That may change if other states enact statutes that permit private causes of action, similar to New Jersey’s law, whose ban becomes effective August 1, 2027.