New FTC chair shuts down public comment on retailers’ surveillance pricing

New FTC chair Andrew Ferguson has closed public comment on a request for information (RFI) regarding retailers’ use of surveillance pricing less than a week after it was issued under former chair Lina Khan.

The FTC published the RFI on January 17, releasing findings of its market study that retailers “frequently use” consumers’ personal information like location and browsing history to individually tailor pricing. It then asked the public to share their own surveillance pricing experiences, as well as businesses’ thoughts on the potential impact on competition. Ferguson voted against issuing this report.

The comment period was set to run until April 17, but under Ferguson, who replaced Khan as FTC chair on Monday, the RFI has been closed for comments, withdrawn “due to agency request.” The FTC did not return Retail Brew’s request for comment.

On Thursday, Commissioner Alvaro Bedoya released a dissenting statement against Ferguson’s closing of the FTC’s DE&I office per President Trump’s executive order, criticizing Ferguson’s move to close public comment on five RFIs rather than address rising consumer prices.

“Chairman Ferguson seems uninterested in the challenges that regular human beings face,” Bedoya said. “Rather than let the American people speak to him, Chairman Ferguson shut them out.”

Lindsay Owens, executive director of DC-based economic think tank Groundwork Collaborative, told Retail Brew via email that the move to close comments “has made it clear that [Ferguson is] not up to the task of ensuring competition and protecting consumers.”

In July, using 6(b) authority, the FTC issued orders to eight companies which offer “surveillance pricing products and services that incorporate data about consumers’ characteristics and behavior,” aiming to obtain information regarding their impact on “privacy, competition, and consumer protection” and better understand how they’re using algorithms, AI, and consumer information to target prices.

Orders were sent to Mastercard, Revionics, Bloomreach, JPMorgan Chase, Task Software, PROS, Accenture, and McKinsey & Co.—firms employed by 250 clients including grocery, health and beauty, apparel, and convenience stores.

Last week, the FTC revealed its findings that these companies use data like behaviors, time, location, and preferences to shift prices for different consumers. This could include a cosmetic company providing discounts based on a consumer’s skin type and tone, the FTC said.

The practice could “fundamentally upend how consumers buy products and how companies compete,” the FTC said, and Khan noted the commission should “continue to investigate” the issue.