FTC's Section 6(b) Orders on Personalized Pricing and Pay: What Businesses Need to Know

The Federal Trade Commission (FTC) on October 28, 2026, voted 2-0 to issue Section 6(b) special orders to nine major companies in the airline, ride-sharing, food delivery and retail sectors. The orders demand detailed information on whether and how the respondents use consumers' personal data to set individualized prices, as well as how platform companies use workers' personal data to assign jobs and set pay. All nine companies must file responses within 45 days of receiving the orders, placing most deadlines in mid-December 2026.

The timing of these orders appears to be deliberate. In August, the FTC proposed an enforcement policy statement warning that undisclosed personalized pricing is likely to violate Section 5 of the FTC Act. The new orders supply the factual record that the agency says its 2024 study failed to produce. They also arrive as the U.S. Congress, state attorneys general, state legislatures, municipalities and private plaintiffs all converge on the same practices.

Why It Matters: These orders are a study, not an accusation. However, they are also a blueprint. The specifications reveal exactly what the FTC considers relevant: the inputs, tools, A/B tests, vendor relationships, disclosures and internal communications behind any price or wage that varies from one person to the next. Companies well beyond the nine recipients – any business that uses customer or worker data to shape prices, promotions, loyalty offers or compensation – should treat the orders as a preview of the questions regulators and plaintiffs will ask next.

Background: What Is a Section 6(b) Order?

Section 6(b) of the FTC Act authorizes the FTC to require companies to file "special reports" answering specific questions about their business practices. As the FTC itself emphasized when announcing these orders, the authority permits wide-ranging studies that do not have a specific law enforcement purpose.

The FTC describes Section 6(b) as one of its investigative tools, but it serves a different purpose than a civil investigative demand (CID). The Bureau of Consumer Protection (BCP) uses CIDs to investigate whether particular conduct may be an unfair or deceptive practice. A 6(b) study, by contrast, gathers information across a market so the FTC can understand it, publish findings, inform policymakers and set enforcement priorities.

"Study" does not mean "optional." The orders are compulsory and were issued under a formal FTC resolution directing the use of compulsory process. A recipient may petition to limit or quash an order. If a company defaults, the FTC may sue in federal court under Section 10 of the FTC Act, and daily penalties can accrue after a 30-day grace period. Each special report must be sworn by a company official, and the order warns that penalties may be imposed for failing to file or for filing false reports. The FTC also reports confidential submissions only in aggregate or anonymous form under Sections 6(f) and 21(d) of the FTC Act, with 10 days of notice before it discloses material marked confidential. Section 6(f) separately permits the FTC to share confidential information with other appropriate enforcement agencies, subject to limits and confidentiality assurances.

A notable detail: The orders carry FTC Matter No. P246202, the same matter number attached to the FTC's 2024 study of "surveillance pricing" intermediaries. The FTC now says the study examined middlemen consultancies only and shed no light on actual pricing decisions. The new orders go directly to the businesses that set prices and pay.

What the Latest Orders Require

The FTC published a template of the order, with company names left blank. Its scope is broad, definitions broader and timeline short.

Timeline and Process

Core Substantive Demands

Pricing Methodologies: Each respondent is asked to describe every methodology that uses personal information to set or adjust consumer prices. For each price component, respondents are also asked to identify the tools, including artificial intelligence (AI), each input, every step the methodology takes, how missing data is handled, and when the company modifies or overrides the result (including overrides driven by state or local restrictions).

Worker Job Assignment and Pay: Platform respondents are asked to provide parallel descriptions of how they decide which workers see which jobs and how they set compensation. They are also asked to explain how consumer pricing affects worker pay and how revenue is split between the worker and the company.

Segmentation: The orders ask how companies divide consumers or workers into groups that receive different pricing, job offers or pay and what factors drive those groupings.

Provenance and Vendors: Respondents are asked to explain where each tool, input and data set came from, including the names of third-party vendors, how the company modified or validated the tool, and whether it licenses or sells its own pricing tools or data to others.

Testing and Economics: The FTC wants every analysis, A/B test, study and presentation evaluating these practices, plus a cost-benefit account of how each methodology affects prices, consumer access, worker supply and pay.

Disclosures: Companies are asked to produce the exact wording, location, URL and dates of every disclosure involving these practices, with screenshots of pop-ups, mouseovers and other digital content.

Organizational Detail: The orders also request corporate structure, financial results, all websites and apps, and document retention policies, along with headcounts for teams working on pricing, offer assignment, compensation, AI, loyalty programs and privacy.

The Broader Enforcement Landscape: Congressional, State and Private Action

The 6(b) orders do not stand alone. They are one node in a network of federal, state and private pressure, and each strand reinforces the others.

The FTC's 2-Track Strategy

The FTC has been candid about the limits of its power. Its proposed policy statement, issued on August 19, 2026, concedes that Congress has not given the FTC authority to ban personalized pricing in all circumstances. Instead, the FTC asserts that where consumers reasonably expect uniform prices, companies must clearly and conspicuously disclose that a price is personalized, the basis for the personalization and types of data used. Failure to do so, the FTC says, is likely deceptive or unfair. Telling a consumer a price is "specially selected" would not suffice.

The policy statement also flags data practices: Collecting or using personal data for pricing without adequate notice or consent, or without verifying that consent, may itself violate Section 5. The comment period closed on September 25, 2026. The 6(b) record will now inform the final statement and, potentially, the FTC's first enforcement targets.

Congress: Bipartisan Scrutiny, Legislative Momentum

Capitol Hill interest is notably bipartisan. In March 2026, the Republican chairman of the U.S. House Committee on Oversight and Government Reform sent letters to travel, ride-hailing and grocery delivery platforms about AI-driven "surveillance pricing." In May and August 2026, the Democratic ranking member of the U.S. House Committee on Energy and Commerce sent inquiries to 25 major corporations and eight U.S. airlines.

Legislation has also been introduced. The Stop AI Price Gouging and Wage Fixing Act (H.R. 4640), introduced in July 2025, would restrict algorithmic systems that set individualized prices and wages. The Senate's One Fair Price Act (S. 3387), introduced in December 2025, would bar charging different consumers different prices based on surveillance data. Both bills remain in committee. The FTC's own acknowledgment that it lacks authority to ban the practice outright may add momentum to these efforts. Congressional letters create no binding obligations, but they often foreshadow legislation, and documents produced to one body rarely stay contained.

The States: From Disclosure to Prohibition

The states are moving faster than Washington, D.C.. New York's Algorithmic Pricing Disclosure Act, enforced since November 10, 2025, requires a conspicuous statement that a price "was set by an algorithm using your personal data." In January 2026, the New York attorney general invoked the law to demand information from a grocery delivery platform after an advocacy study reported price differences of up to 23 percent for identical products. That same month, the California attorney general reportedly launched an investigative sweep of retail, grocery and hotel businesses under the California Consumer Privacy Act.

Outright bans are now arriving. Maryland's food sector restrictions took effect on October 1, 2026. Connecticut's retail surveillance pricing ban and New Jersey's grocery ban take effect in July and August 2027, respectively. New York's One Fair Price Act, which would replace disclosure with a broad prohibition and carry penalties of up to $20,000 per repeat violation, passed in June 2026 and awaits the governor's action. As of August 2026, more than 50 related bills were reportedly pending in 26 states. Notably, California's ban (Assembly Bill 2564) failed to advance, demonstrating that the patchwork will be uneven.

Federal and state activities are tightly linked. The FTC's orders specifically ask how companies override pricing outputs to comply with "restrictions imposed on Pricing by jurisdictions in which the Company operates." In other words, the FTC wants to see how companies are managing the state patchwork, and state enforcers will be keen to see what the FTC learns.

Private Litigation: The Multiplier

Private enforcement is where exposure can scale quickly. Seattle's new Fair Pricing and Transparency ordinance, effective September 1, 2027, gives individuals and classes a private right of action against covered grocery and delivery businesses. It also creates a rebuttable presumption of a violation if required pricing records are missing. New Jersey's Fair Price Protection Act makes surveillance pricing a violation of the state's Consumer Fraud Act, providing consumers a private right of action and exposure to remedies such as treble damages.

The FTC's policy work may also power private claims indirectly. Many state consumer protection statutes look to Section 5 when defining unfair or deceptive practices. A final FTC statement on personalized pricing could thus become a road map for plaintiffs' lawyers.

Courts remain active on adjacent issues. A retail trade group's First Amendment challenge to New York's disclosure law was dismissed and argued on appeal before the U.S. Court of Appeals for the Second Circuit on October 19, 2026. Meanwhile, antitrust class actions targeting shared pricing software have produced divergent appellate results, with the U.S. Courts of Appeals for the Third Circuit reviving a hotel-pricing class action in July 2026 and Ninth Circuit affirming dismissal of a similar case in August 2025.

Strategic Implications for Businesses

The Audience Is Far Wider Than Nine Companies: The FTC's proposed policy statement includes hypotheticals involving food delivery, grocery, hotel, ride-share and retail pricing. Any company that uses loyalty data, browsing behavior, location or inferred willingness to pay to shape prices or offers falls within the analytical frame the FTC is building. Because "consumer" includes businesses, business-to-business pricing is not obviously exempt.

The Worker Dimension Is a New Front: By pairing consumer pricing with algorithmic job assignment and pay, the FTC has joined its consumer protection agenda to the work of its Labor Task Force. Gig economy and platform businesses should expect wage-setting algorithms to receive scrutiny comparable to consumer pricing.

Your Documents Will Tell the Story: The orders reach business communication threads, A/B test decks and generative AI workspaces. Careless internal shorthand, such as a slide about charging "price-insensitive" users more, can define a company's narrative long before its lawyers do.

Loyalty Programs Are Not Automatic Safe Harbors: State laws generally carve out bona fide discounts and loyalty programs. However, the carve-outs come with detailed eligibility, uniformity, disclosure and data use conditions, and the FTC warns that disguising a higher personalized price as a loyalty discount may be deceptive.

Vendors Do Not Shift the Risk: The FTC is asking for the names of third-party pricing vendors and how companies validated their tools. Reliance on a vendor's "black box" alone will not satisfy a regulator who expects the company to explain every input.

Reputation Moves Faster Than Enforcement: Advocacy groups have already investigated most of the recipients, and media coverage has been extensive. Affordability is a front-line political issue, and companies perceived as "surveillance pricing" leaders face brand risk regardless of the legal outcome.

Finance Companies, Financial Technology and Nonbank Lenders Are in the Frame: The FTC's jurisdiction excludes banks, thrifts and federal credit unions but reaches most other financial services providers, and the agency enforces the Equal Credit Opportunity Act against them. Its proposed policy statement acknowledges that credit pricing must account for individual characteristics to reflect risk. However, using browsing, device or behavioral data to estimate what a borrower will tolerate, rather than whether the borrower will repay, is a different matter. The statement points to Fair Credit Reporting Act adverse action notices as a model for disclosure. State exemptions are also narrower than many assume: New York's pending One Fair Price Act would exempt only creditworthiness-based pricing that relies on consumer report data.

Potential Action Steps

1. Take Stock of Pricing and Pay Methodologies: The 6(b) specifications can serve as a helpful guide for identifying systems that set, adjust or recommend prices, discounts, job offers or worker pay, along with their key inputs and overrides.
2. Review Inputs in Light of the FTC's Definition of Personal Information: Inferences, device signals, location, loyalty data and any proxies for willingness to pay or accept work may warrant particular attention, as may any use of sensitive data.
3. Consider Existing Disclosures Against the Proposed Policy Statement: Where prices vary based on personal data, companies may want to assess whether disclosures address the fact of personalization, its basis and the data used. The FTC has signaled that vague language such as "specially selected" pricing may not suffice.
4. Monitor the Jurisdictional Landscape: Keeping track of New York's current disclosure law and Maryland's now-effective restrictions, along with the 2027 Connecticut, New Jersey and Seattle effective dates and New York's pending ban, can help clarify which regimes may apply to particular use cases.
5. Evaluate Vendor Relationships. Given the FTC's interest in third-party tools, companies may want to assess what visibility and contractual protections they have regarding vendor data sources, model inputs and cooperation with regulatory inquiries.
6. If You Receive an Order, Act Promptly: The 14-day meet-and-confer window is the best opportunity to negotiate scope, clarify definitions, and address confidentiality concerns and designations. Early, credible engagement with FTC staff often shapes the burden and tenor of the entire process.

Final Thoughts: What to Watch Next

The next 90 days will be pivotal. Special reports are due by mid-December. The FTC may finalize its personalized pricing policy statement. New York's governor must act on the One Fair Price Act, possibly with chapter amendments, and the Second Circuit will rule on the constitutionality of New York's disclosure regime. A new Congress in January 2027 may revisit federal legislation, and Maryland's attorney general may begin enforcing its new law once the statute's 45-day notice-and-cure process runs.

Longer term, the FTC's eventual public report could provide regulators, legislators and plaintiffs additional evidence on personalized pricing and pay practices. The direction is clear: Transparency is becoming the minimum expectation, and prohibition is gaining ground. Companies that understand and document their pricing and pay practices now will be best positioned to respond on their own terms.

Holland & Knight attorneys advise companies on Section 6(b) orders, CIDs, state attorneys general inquiries, privacy and algorithmic pricing compliance, and related litigation. For guidance on how these developments can affect your business, please contact the authors.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.