New York state may thwart algorithm-determined surveillance pricing based on individual shopping behavior

August 17, 2026

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On June 4, 2026, the New York state legislature passed the One Fair Price Act.

If signed into law by New York Governor Kathy Hochul, the One Fair Price Act would ban surveillance pricing in New York and prohibit the use of consumers’ personal data to set individualized, algorithmically determined prices.

This act would ensure all individuals are charged the same price for the same product. It would also require disclosure of any use of automated pricing systems.

Andrew B. Lustigman

Price is not right
The One Fair Price Act does not affect discounts and loyalty programs and explicitly allows discounts, including loyalty programs, coupons, subscription pricing and standard promotions, including for veterans and seniors.

The One Fair Price Act also authorizes the Office of the Attorney General to bring civil cases for penalties and restitution against companies or retailers that use surveillance pricing.

Surveillance pricing occurs when companies use individuals’ private data to set unique, individualized prices for different consumers and often results in consumers paying more for essential products.

Online platforms do this by collecting consumer data points, such as their usual purchase history, when they receive their paycheck or benefits, or how long they hover over a product online.

Companies then use this information to inform pricing algorithms that continuously update to estimate the highest price a consumer is likely willing to pay at any given moment.

As a result, two shoppers could visit the same website at the same time and see two different prices for the exact same product.

Surveillance pricing is not limited to shopping online.

Electronic shelf labels (ESLs) allow companies to change prices in-store, so that one shopper could buy a gallon of milk at one price while another shopper would pay more for the same gallon later that same day.

There is another bill pending before the New York legislature called the Protecting Consumers and Jobs from Discriminatory Price Act, which would ban the use of electronic shelf labels and prohibit surveillance pricing in grocery stores and pharmacies.

Takeaway
Because of the borderless nature of ecommerce, online marketers that use algorithmic pricing may need to adjust their practices, regardless as to where they are located.

Online sellers as well as bricks-and-mortar retailers operating in New York will need to ensure that, in many instances, they do not rely on personal data to set varying prices as required by the proposed Act.

Andrew B. Lustigman is co-managing partner and chair of the advertising, marketing and promotions practice and co-chair of the brand management and protection practice at law firm Olshan Frome Wolosky, New York. Reach him at [email protected].

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New York state may thwart algorithm-determined surveillance pricing based on individual shopping behavior

New York state may thwart algorithm-determined surveillance pricing based on individual shopping behavior

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