If your store shows different prices to different shoppers based on their data, two states have now made that illegal, and a third wave of lawsuits is going after the crossed-out “was” price sitting next to your sale price. Maryland’s ban takes effect October 1, 2026. New Jersey’s took effect the day it was signed, July 23.
Most small store owners assume this is a Big Retail problem. It is not. The Maryland law has a store-size threshold. The New Jersey one does not read like it does. And the phantom discount lawsuits have nothing to do with your size at all.
What New Jersey actually banned
Governor Mikie Sherrill signed the Fair Price Protection Act on July 23, 2026. According to the Governor’s Office announcement, the law “prevents businesses from using personal information—such as online activity, location, purchasing history, or other collected data—to charge different prices for identical products based on what an algorithm predicts a shopper is willing or able to pay.”
Read that list again. Online activity. Location. Purchasing history. That is a description of what a standard personalization app does.
The announcement is explicit that the law “does not ban loyalty programs or discounts.” Broadly defined group discounts, the kind you offer teachers or veterans, are also outside it. The line is individualized pricing driven by data about that specific person.
New Jersey also did something no other state has. It placed a one-year moratorium on new deployments of electronic shelf labels while the New Jersey Innovation Authority studies them. Stores already using ESLs can keep using, repairing and replacing them. Nobody new gets to install them until the study is done.
What to do this week
Pull a list of every app, script and tag on your store that can change a displayed price. Discount engines, cart-abandonment tools, geo-pricing plugins, AI merchandising apps, dynamic bundling. For each one, answer a single question: does it read anything about the individual shopper before it decides the number? If yes, that app is now a compliance question in two states and counting.
Maryland went first, and it has teeth
Maryland Governor Wes Moore signed HB 895, the Protection From Predatory Pricing Act, on April 28, 2026. Analyses from law firms including Skadden and Greenberg Traurig describe the same core mechanics: it applies to food retailers operating establishments of at least 15,000 square feet and to third-party delivery service providers, it takes effect October 1, 2026, and it empowers the Maryland Attorney General to seek civil penalties of up to $10,000 per violation, rising to $25,000 per violation for repeat offenders.
The definition matters more than the penalty. Maryland defines dynamic pricing as offering or setting a personalized price specific to a consumer based on that consumer’s personal data, “regardless of whether the seller collected or purchased the personal data.”
That last clause closes the obvious loophole. You cannot outsource the surveillance to a vendor and claim clean hands.
This is not stopping at two states
According to MultiState’s legislative tracking, more than 40 dynamic pricing bills were introduced across state legislatures in 2026, with active proposals in California, Hawaii and New York among others. The definitions vary between them, which is the part that will hurt operators.
A federal standard would be annoying but manageable. Fifty slightly different definitions of “personalized price” is an engineering problem. Anyone who lived through the state-by-state sales tax nexus mess after Wayfair knows exactly how this goes.
The regulatory interest did not appear from nowhere. The FTC’s surveillance pricing 6(b) staff perspective, published in January 2025, found that intermediaries used consumer signals including location, demographics, browsing patterns and shopping history to set individualized prices. The FTC noted that behaviors as granular as mouse movements on a page and items left unpurchased in a cart could be tracked and fed into pricing. The FTC labelled those findings preliminary, and two commissioners objected to their release, so treat them as a staff perspective rather than a finished report. Legislators clearly did not wait for the finished version.
If you are already mapping which vendors hold your customer data for privacy reasons, that same map answers most of this. Our breakdown of the California Delete Act and its $200-a-day penalty clock walks through building that inventory.
The bigger near-term risk: your crossed-out price
Personalized pricing laws are a slow-moving threat. Reference price lawsuits are already here, and they do not care how small you are.
On July 21, 2026, plaintiff Corinne Pearson filed a class action against Nike in the U.S. District Court for the Southern District of California. As reported by Modern Retail, the complaint alleges that between September 8, 2025 and March 14, 2026, a pair of Nike Air Max 2017 sneakers was shown at sale prices alongside a $190 reference price, when the shoes had in fact been continuously marked down for that entire six-month stretch. The suit brings claims under California’s Unfair Competition Law, False Advertising Law, the Consumer Legal Remedies Act, and unjust enrichment.
Lululemon drew a similar suit in Los Angeles Superior Court. According to Courthouse News, plaintiff Annette Cody alleges she bought Wunder Train high-rise tights for $59 marked down from a crossed-out $98, when the tights had not actually sold at $98 on the site since October 2025.
Modern Retail reports roughly twice as many of these suits filed in 2025 as in 2024. These are plaintiff-firm cases. They scale by finding the pattern, not by targeting a brand.
What to do this week
Open your store and find every product showing a crossed-out compare-at price. For each one, confirm the product actually sold at that price recently and that you can prove it from order data. If a product has been “on sale” for four straight months, the compare-at price is not a reference price anymore. It is a marketing claim you would have to defend.
Then fix the process, not just the products. Set a rule that compare-at prices expire, and have someone own it. The cost of getting this wrong is not the refund. It is the class.
Build the audit trail before you need it
Every one of these exposures comes down to the same missing capability: most stores cannot reconstruct what price a given shopper saw on a given day and explain why.
Three things worth putting in place, in order of effort:
Log displayed prices, not just transacted ones. Your order history tells you what people paid. It rarely tells you what they were shown. Keep a dated record of list price, compare-at price and any personalization applied.
Keep pricing rules region-aware. You will eventually need to turn a pricing behavior off for one state without turning it off everywhere. Building that toggle now is cheap. Retrofitting it under a deadline is not.
Write down why each rule exists. When a regulator or a plaintiff’s lawyer asks why one shopper saw a different number, “the app decided” is not an answer. This is the same discipline behind the AI disclosure rules now hitting customer-facing chat: regulators want your automated systems to be explainable, not just effective.
Worth noting how quickly this went from proposal to law. Maryland in April, New Jersey in July, both signed in the same year they were introduced. Compliance timelines are compressing, the same way they did with accessibility enforcement, where partial compliance still lost in court.
The takeaway
Personalization built on customer data has been the default growth advice in e-commerce for a decade. Two states have now decided that when personalization touches price, it is not optimization, it is discrimination.
You do not need a legal department to get ahead of this. You need to know which of your apps can change a price, whether any of them look at the individual shopper first, and whether every crossed-out price on your site is one you can prove. That is a one-afternoon audit that gets more expensive every month you delay it.
Sources
- Office of Governor Mikie Sherrill, “Governor Sherrill Signs the Fair Price Protection Act to Shield New Jersey Grocery Shoppers from Surveillance Pricing,” July 23, 2026 — nj.gov
- Skadden, Arps, Slate, Meagher & Flom LLP, “Maryland Becomes the First State to Restrict Surveillance Pricing in the Food Industry,” May 2026 — skadden.com
- Greenberg Traurig LLP, “Maryland Enacts Food-Sector Personalized Pricing Law,” May 2026 — gtlaw.com
- MultiState, “Maryland Becomes First State to Ban Surveillance Pricing on Some Food Products,” April 30, 2026 — multistate.us
- Federal Trade Commission, “FTC Surveillance Pricing Study Indicates Wide Range of Personal Data Used to Set Individualized Consumer Prices,” January 2025 — ftc.gov
- Modern Retail, “Nike, Lululemon hit with lawsuits alleging deceptive ‘phantom discounts'” — modernretail.co
- Courthouse News Service, “Lululemon sued over ‘phantom discounts'” — courthousenews.com
- PYMNTS, “New Jersey Bans Surveillance Pricing and Freezes Digital Shelf Labels,” 2026 — pymnts.com
Last reviewed: August 4, 2026
This article is general information, not legal advice. Pricing law varies by state and by the specifics of your business. Talk to a qualified attorney before making compliance decisions.
Affiliate disclosure: E-Comm Partners may earn a commission from links on this site, at no additional cost to you. This does not influence our reporting or recommendations.
