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AUTHORSHIP
10 June 2026
Maryland: Ostensible ‘ban’ on surveillance pricing shows importance of substance over style in policy-making
Loopholes in legislation signed by Gov. Wes Moore render bill to rein in dynamic pricing ineffectual
Attribution: SumUp (Unsplash)
I. Introduction
ISSUE AREAS
ANTITRUST & COMPETITION
PUBLIC ACCOUNTABILITY
For decades, consumers have complained about corporations’ usage of dynamic pricing and the uncertainty it can cause for personal finances. Over the past decade, this practice has taken on a more intimate form characterized as surveillance pricing, where corporations can charge individualized pricing based on personal data. In the absence of regulation, corporations have increasingly felt empowered to use factors such as a user’s browsing history and location data, along with more intimate personal details, to set prices. Advances in artificial intelligence development have made it even easier for companies to engage in these practices, particularly in the absence of federal laws restricting surveillance pricing.
Under the leadership of Lina Khan, the Federal Trade Commission (FTC) finally took steps to address the practice. At a time when the issue remained publicly obscure, the commission worked to build a meaningful evidentiary record on surveillance pricing, issuing 6(b) orders to eight major retail firms. However, following a change in FTC leadership in the second Trump administration, the commission has largely abandoned efforts on surveillance pricing. Andrew Ferguson, Khan’s successor, abruptly close the public comment period on the commission’s surveillance pricing inquiry less than a week after it was first issued. Amid federal inaction, legislation to rein in surveillance pricing has become a mainstay of state legislatures across the country.
On April 28, 2026, Maryland Governor Wes Moore signed into law House Bill 895 (Protection From Predatory Pricing Act), and announced that it would make the state the first in the nation to prohibit surveillance pricing in grocery stores. At a time when high prices at the grocery store are causing significant strains for consumers, it’s unsurprising that the passage of this legislation was met with online fanfare. An investigation into Instacart in 2025, which discovered that prices of a particular grocery item on the app could vary by over 20% from one individual to another, has made the issue of surveillance pricing in food costs particularly potent. Nevertheless, loopholes in House Bill 895 render the bill largely ineffective, and risk enabling further harmful corporate pricing practices. As other states consider their own proposals, the law's shortcomings are a reminder that substance, not style, matters most in policymaking.
II. Current Policy Landscape
STRUCTURAL FLAWS OF MARYLAND LEGISLATION
Despite being presented as a prohibition on dynamic pricing, the substance of House Bill 895 does not meaningfully serve to prevent the practice. One provision that particularly undermines the bill's intent is the explicit exclusion of corporate loyalty programs from the law’s purview. As noted by the Electronic Privacy Information Center (EPIC), loyalty programs are generally used by companies to collect “more personal data to extract and sell, target hyper-personalized offers and discounts, and degrade consumer benefits over time”. EPIC further notes that under this exemption, companies will be permitted to continue offering discounted prices to specific consumers who receive promotional offers, a clear example of dynamic pricing.
Beyond these exemptions, House Bill 895 was criticized for weak enforcement mechanisms: the legislation explicitly eliminates consumers’ private right of action. As a result, enforcement against violators will fall entirely on state regulators with capacity constraints. A loophole in the bill, which allows companies to engage in these practices if consumers consent via terms of service agreement, will likely render it mostly ineffectual. Antitrust scholar Zephyr Teachout, a vocal supporter of surveillance pricing regulation, strongly criticized the law, describing it as a “fake surveillance pricing 'ban'” that will enable companies to continue engaging in these practices.
POTENTIAL LEGISLATIVE IMPACT
Per one estimate, there have been a total of 89 bills across 27 U.S. states that aim to curtail at least certain aspects of surveillance pricing. These include legislation that aims to mandate that firms engaging in the practice disclose their use of users’ personal data for pricing, as well as legislation aiming to outright ban the practice altogether. On June 4, Connecticut Gov. Ned Lamont signed into law HB 5563, leading news outlets to describe the state as the second in the nation to implement regulations on dynamic pricing. Consumer Reports, while characterizing the bill as stronger in substance than Maryland’s and praising Lamont’s signature, argued it contained discount exemptions that undermined its purpose.
In New York, the similar One Fair Price Act has passed the state legislature; as of June 10, 2026 it awaits a signature or veto by Gov. Kathy Hochul. The bill follows the Algorithmic Pricing Disclosure Act signed into law in 2025, which implements disclosure requirements for businesses that engage in surveillance pricing. As with the bill in Connecticut, it has received the endorsement of Consumer Reports. Earlier in 2026, competition advocates criticized Colorado Gov. Jared Polis for vetoing HB 26-1210, a bill passed by the state legislature that would have barred companies from using personal data for pricing. In a press release, the American Economic Liberties Project argued that by vetoing the legislation, Polis was effectively siding with tech industry interests over consumers.
III. Conclusion
Though extraordinarily unlikely to pass in a Republican-controlled Congress, it is notable that there are several federal legislative efforts to curtail surveillance pricing. This includes the federal One Fair Price Act, a bill introduced by Sen. Kirsten Gillibrand with provisions comparable to legislative proposals in her home state of New York. Opinion polling has found wide public discontent with surveillance pricing, and it is promising that federal Democrats are increasingly calling attention to the issue via legislation and letters ahead of the 2026 midterms. But in the absence of a real federal framework on the issue, it is crucial that state lawmakers seeking to protect consumers from surveillance pricing prioritize substance over style.
Aidan Smith
Founder, Labyrinth Insights
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