Last week, TechFreedom filed comments on the Federal Trade Commission’s (FTC) proposed enforcement policy statement regarding personalized pricing. While we agree that Section 5 applies to false or misleading representations about personalized pricing and to practices satisfying Section 5’s statutory unfairness test, the proposed statement goes too far by presuming, without market-specific or empirical evidence, that undisclosed personalization is generally deceptive or unfair and by imposing disclosure requirements unsupported by evidence that they affect consumer choice.

Our comments argue that the Commission should withdraw the Proposed Statement, complete its ongoing Section 6(b) study, and direct the Bureau of Economics to undertake a more comprehensive research program on personalized pricing. Existing law permits immediate action against materially false claims, misleading half-truths, and practices proved unfair under 15 U.S.C. § 45(n). Withdrawal would remove uncertainty about the status of the Proposed Statement while the Commission develops the evidence needed to determine whether market-specific guidance is warranted.

If the Commission proceeds with guidance based on the present record, it should (a) eliminate any general inference that a displayed price means the same price is offered to other consumers in otherwise comparable transactions at the same time and place; (b) require evidence of the meaning and materiality of an alleged implied claim when that meaning is not reasonably clear on the face of the claim; (c) apply the unfairness test to an identified injury and counterfactual, including the actual costs and benefits of the proposed remedy; and (d) distinguish among disclosure of the fact of personalization, its “basis,” and the “types of data” used; test each disclosure; define its required content; and provide an administrable safe harbor.

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Find these comments on our website. We can be reached for comment at media@techfreedom.org. Read our related work, including:

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