Assembly Bill A9396

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9396
 
                        2025-2026 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             December 19, 2025
                                ___________
 
 Introduced  by M. of A. SOLAGES -- read once and referred to the Commit-
   tee on Consumer Affairs and Protection
 
 AN ACT to amend the general business law, in  relation  to  establishing
   the protecting consumers and jobs from discriminatory pricing act
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Short title. This act shall be known and may  be  cited  as
 the "Protecting Consumers and Jobs from Discriminatory Pricing Act".
   § 2. Legislative findings. The legislature finds and declares that:
   1. It is the policy of the state of New York to protect consumers from
 discriminatory  pricing  schemes  in  whatever  iteration they appear or
 evolve. Advancements in algorithms, in artificial intelligence,  and  in
 electronic  shelving technology have created commercial and retail envi-
 ronments where it is possible to set pricing for a  product  or  service
 based  on  personal  or protected data. Currently, there are no prohibi-
 tions on companies using such data to set prices; this gap  in  the  law
 presents  a distinct potential for companies to violate consumer privacy
 rights and create discriminatory results.
   While offering goods at different prices due to customer demand is not
 new, there are subtle and important differences between price  optimiza-
 tion  and  discriminatory  pricing schemes like personalized algorithmic
 pricing  and  surveillance  pricing,  in  which  companies  exploit  the
 personal  and  protected data of consumers to maximize profits. It is in
 the interest of the state  to  regulate  any  technologies  or  business
 models  that  stifle  competition through the monetization of consumers'
 personal information.
   2. The state of New York further finds that business models in person-
 alized algorithmic or surveillance pricing will lead to the  elimination
 of  numerous  jobs,  putting  the  livelihood  of  many workers at risk.
 Protecting these jobs will further benefit consumers  who  are  part  of
 this  economic  ecosystem. It will also add to the growth of the state's
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD14248-01-5
              

 A. 9396                             2
 
 economy and job market. Thus,  by  enacting  rules  around  personalized
 algorithmic  and surveillance pricing, the state of New York can protect
 these jobs and promote the growth of jobs in the future.
   §  3. The general business law is amended by adding a new section 349-
 a-1 to read as follows:
   § 349-A-1. DISCRIMINATORY PRICING.  1. THE FOLLOWING TERMS SHALL  HAVE
 THE FOLLOWING MEANINGS FOR THE PURPOSES OF THIS SECTION:
   (A) "ALGORITHM" MEANS A COMPUTATIONAL PROCESS THAT USES A SET OF RULES
 TO  DEFINE A SEQUENCE OF OPERATIONS INCLUDING BUT NOT LIMITED TO ARTIFI-
 CIAL INTELLIGENCE SYSTEMS AND FACIAL-RECOGNITION SOFTWARE.
   (B) "CONSUMER" MEANS A NATURAL PERSON WHO IS SEEKING OR  SOLICITED  TO
 PURCHASE, LEASE OR RECEIVE A GOOD OR SERVICE NOT FOR RESALE IN THE ORDI-
 NARY COURSE OF THE NATURAL PERSON'S TRADE OR BUSINESS, BUT FOR PERSONAL,
 FAMILY OR HOUSEHOLD USE.
   (C) "CONSUMER DATA" MEANS ANY DATA THAT IDENTIFIES OR COULD REASONABLY
 BE  LINKED,  DIRECTLY  OR  INDIRECTLY, WITH A SPECIFIC NATURAL PERSON OR
 DEVICE, EXCLUDING LOCATION DATA.
   (D) "DYNAMIC AND SURVEILLANCE PRICING" MEANS PRICING  THAT  FLUCTUATES
 DEPENDING  ON  CONDITIONS  WHERE  ALGORITHMIC OR ARTIFICIAL INTELLIGENCE
 MODELS RETRAIN OR RECALIBRATE ON INFORMATION IN NEAR REAL-TIME,  EXCLUD-
 ING PROMOTIONAL PRICING OFFERS, LOYALTY PROGRAM BENEFITS OR OTHER TEMPO-
 RARY  DISCOUNTS  OR  CHANGES TO PRICING RELATED TO RETENTION OF EXISTING
 CUSTOMERS.
   (E) "SURVEILLANCE PRICING" MEANS  OFFERING  OR  SETTING  A  CUSTOMIZED
 PRICE  FOR A GOOD OR SERVICE FOR A SPECIFIC CONSUMER OR GROUP OF CONSUM-
 ERS, BASED, IN WHOLE  OR  IN  PART,  ON  COVERED  INFORMATION  COLLECTED
 THROUGH   ELECTRONIC  SURVEILLANCE  TECHNOLOGY.  "SURVEILLANCE  PRICING"
 INCLUDES THE USE OF TECHNOLOGICAL METHODS, SYSTEMS, OR TOOLS, INCLUDING,
 BUT NOT LIMITED TO, SENSORS, CAMERAS, DEVICE TRACKING,  BIOMETRIC  MONI-
 TORING, OR OTHER FORMS OF OBSERVATION OR DATA COLLECTION, THAT ARE CAPA-
 BLE  OF GATHERING COVERED INFORMATION ABOUT A CONSUMER'S BEHAVIOR, CHAR-
 ACTERISTICS, LOCATION, OR OTHER PERSONAL ATTRIBUTES, WHETHER IN PHYSICAL
 OR DIGITAL ENVIRONMENTS.
   (F) "ELECTRONIC SHELVING LABELS" (ESLS) MEANS ELECTRONIC AND  WIRELESS
 PAPER (E-PAPER) DISPLAYS THAT PRESENT PRODUCT AND PRICING INFORMATION.
   (G)  "FOOD  RETAIL ESTABLISHMENT" MEANS A RETAIL STORE THAT IS EITHER:
 (1) OVER FIFTEEN THOUSAND SQUARE FEET IN SIZE AND SELLS PRIMARILY HOUSE-
 HOLD FOODSTUFF FOR OFFSITE CONSUMPTION INCLUDING FRESH  PRODUCE,  MEATS,
 POULTRY,  FISH,  DELI PRODUCTS, DAIRY PRODUCTS, CANNED FOODS, DRY FOODS,
 BEVERAGES, BAKED FOODS AND/OR PREPARED FOODS (OTHER  HOUSEHOLD  SUPPLIES
 OR  PRODUCTS ARE SECONDARY TO THE PRIMARY PURPOSE OF FOOD SALES); OR (2)
 OVER EIGHTY-FIVE THOUSAND SQUARE FEET AND  WITH  TEN  PERCENT  OF  THEIR
 SALES  FLOOR  AREA  DEDICATED  TO  THE  SALE  OF NON-TAXABLE MERCHANDISE
 INCLUDING  THE  SALE  OF  FRESH  PRODUCE,  MEATS,  POULTRY,  FISH,  DELI
 PRODUCTS,  DAIRY  PRODUCTS,  CANNED  FOODS,  DRY FOODS, BEVERAGES, BAKED
 FOODS AND/OR PREPARED FOODS.
   (H) "DRUG RETAIL ESTABLISHMENT" MEANS A  RETAIL  STORE  THAT  SELLS  A
 VARIETY  OF PRESCRIPTION AND NONPRESCRIPTION MEDICINES AND MISCELLANEOUS
 ITEMS, INCLUDING DRUGS, PHARMACEUTICALS, SUNDRIES, FRESH PRODUCE, MEATS,
 POULTRY, FISH, DELI PRODUCTS, DAIRY PRODUCTS, CANNED FOODS,  DRY  FOODS,
 BEVERAGES, PREPARED FOODS, AND OTHER MERCHANDISE.
   (I)  "NON-DIGITAL PRESENTATION OF PRICE" MEANS (1) A SIGN WHICH OFFERS
 THE UNIT PRICE FOR ONE OR MORE BRANDS OR SIZES OF A GIVEN COMMODITY;  OR
 (2)  A  STICKER,  STAMP,  SIGN, LABEL, OR TAG, AFFIXED TO THE SHELF UPON
 WHICH THE COMMODITY IS DISPLAYED; AND (3) A STICKER, STAMP, SIGN, LABEL,
 OR TAG, AFFIXED TO THE CONSUMER COMMODITY ITSELF. IF A  SINGLE  SIGN  OR
 A. 9396                             3
 
 TAG  DOES NOT PROVIDE THE UNIT PRICE INFORMATION FOR MORE THAN ONE BRAND
 OR SIZE OF A GIVEN COMMODITY, THEN THE FOLLOWING  INFORMATION  SHALL  BE
 PROVIDED: I.  THE IDENTITY; II. THE BRAND NAME; III. THE QUANTITY OF THE
 PACKAGED COMMODITY IF MORE THAN ONE PACKAGE SIZE PER BRAND IS DISPLAYED;
 IV. THE TOTAL SALE PRICE; AND V. THE PRICE PER APPROPRIATE UNIT. WHERE A
 SIGN PROVIDING UNIT PRICE INFORMATION FOR ONE OR MORE SIZES OR BRANDS OF
 A  GIVEN COMMODITY IS USED, THE SIGN SHALL BE LOCATED CENTRALLY AS CLOSE
 AS PRACTICAL TO ALL ITEMS TO WHICH THE SIGN REFERS, AND THE  UNIT  PRICE
 INFORMATION  DISPLAYED  THEREON SHALL BE PRESENTED IN A CLEAR, DISTINCT,
 AND NON-DECEPTIVE MANNER.
   (J) "PERSONALIZED ALGORITHMIC PRICING" MEANS DYNAMIC AND  SURVEILLANCE
 PRICING  DERIVED  FROM  OR  SET  BY AN ALGORITHM THAT USES CONSUMER DATA
 WHICH MAY VARY AMONG CONSUMERS AND/OR GROUPS OF CONSUMERS.
   (K) "PERSON" MEANS ANY HUMAN BEING OR INDIVIDUAL.
   (L) "PROTECTED CLASS  DATA"  MEANS  INFORMATION  ABOUT  AN  INDIVIDUAL
 PERSON  OR  GROUPS OF PEOPLE THAT DIRECTLY, IN COMBINATION, OR BY IMPLI-
 CATION IDENTIFIES  A  CHARACTERISTIC  THAT  IS  LEGALLY  PROTECTED  FROM
 DISCRIMINATION  UNDER  THE  LAWS  OF  THIS  STATE  OR UNDER FEDERAL LAW,
 INCLUDING BUT NOT LIMITED TO ETHNICITY, NATIONAL ORIGIN, AGE,  DISABILI-
 TY, PREDISPOSING GENETIC CHARACTERISTIC, SEX, SEXUAL ORIENTATION, GENDER
 IDENTITY  AND  EXPRESSION, PREGNANCY-RELATED CONDITIONS, MARITAL STATUS,
 FAMILIAL STATUS, RELIGION, AND REPRODUCTIVE HEALTH CARE.
   2. (A) IN FOOD RETAIL ESTABLISHMENTS AND  IN  DRUG  RETAIL  ESTABLISH-
 MENTS,  THE USE OF ESLS OR ANY DIGITAL SHELF DISPLAY TECHNOLOGY SHALL BE
 PROHIBITED AND A NON-DIGITAL PRESENTATION OF PRICE SHALL BE  USED.  THIS
 PROHIBITION  DOES NOT LIMIT ANY FOOD RETAIL OR DRUG RETAIL ESTABLISHMENT
 AND ANY BUSINESS TO PROVIDE CONSUMERS, BASED ON PREVIOUS PURCHASE HISTO-
 RY, A DISCOUNT, PROMOTIONAL PRICE, OR LOYALTY PROGRAM BENEFIT.
   (B) THE USE OF ESLS OR ANY DIGITAL SHELF DISPLAY TECHNOLOGY TO DISPLAY
 PERSONALIZED ALGORITHMIC PRICING OR SURVEILLANCE PRICING IS PROHIBITED.
   (C) IT IS UNLAWFUL, FOR ANY REASON, FOR ANY FOOD RETAIL OR DRUG RETAIL
 ESTABLISHMENT TO ENGAGE IN PERSONALIZED ALGORITHMIC PRICING OR  SURVEIL-
 LANCE PRICING.
   (D)  DATA OF MINORS UNDER SEVENTEEN SHALL NOT BE COLLECTED OR USED FOR
 TARGETED ADVERTISING  OR  PERSONALIZED  ALGORITHMIC  PRICING  UNDER  ANY
 CIRCUMSTANCES.
   (E)  NO  FOOD  RETAIL OR DRUG RETAIL ESTABLISHMENT SHALL USE PROTECTED
 CLASS DATA IN SETTING A PRICE FOR, OFFERING, MARKETING, OR  SELLING  ANY
 GOOD OR SERVICE IF ANY OF THE FOLLOWING ARE TRUE:
   (1)  THE USE OF THAT DATA HAS THE EFFECT OF WITHHOLDING OR DENYING ANY
 OF THE ACCOMMODATIONS, ADVANTAGES, AND PRIVILEGES ACCORDED TO OTHERS.
   (2) THE PRICE FOR SUCH GOOD OR SERVICE IS  DIFFERENT  FROM  THE  PRICE
 OFFERED  TO OTHER INDIVIDUALS OR GROUPS BASED IN WHOLE OR IN PART ON THE
 USE OF PROTECTED CLASS DATA.
   (F) NOTHING IN THIS SECTION SHALL APPLY TO FINANCIAL SERVICES, INCLUD-
 ING BUT NOT LIMITED TO  FINANCIAL  INSTITUTIONS,  FINANCIAL  INSTITUTION
 AFFILIATES, BROKER-DEALERS, REGISTERED INVESTMENT ADVISORS, AND ENTITIES
 THAT  PROVIDE  CONSUMER  CREDIT  PRODUCTS SUCH AS CREDIT CARDS, PERSONAL
 LOANS, AND MORTGAGES.
   (G) NOTHING IN THIS SECTION SHALL APPLY TO ANY INSURER LICENSED, REGU-
 LATED, OR OTHERWISE AUTHORIZED TO DO BUSINESS IN THE STATE OF  NEW  YORK
 UNDER  THE  INSURANCE  LAW, INCLUDING ANY PERSONS, AGENTS, OR AFFILIATES
 ACTING ON BEHALF OF SUCH INSURER.
   3. (A) WHENEVER THERE SHALL BE A VIOLATION  OF  ANY  PORTION  OF  THIS
 SECTION,  AN  APPLICATION  MAY BE MADE BY THE ATTORNEY GENERAL OR, WHERE
 APPLICABLE, BY A CONSUMER, WORKER OR LABOR ORGANIZATION ACTING ON BEHALF
 A. 9396                             4
 
 OF AFFECTED INDIVIDUALS IN THE NAME OF THE PEOPLE OF THE  STATE  OF  NEW
 YORK  TO  A COURT OR JUSTICE HAVING JURISDICTION TO ISSUE AN INJUNCTION,
 AND UPON NOTICE TO THE RESPONDENT OF NOT LESS THAN FIVE DAYS, TO  ENJOIN
 AND  RESTRAIN THE CONTINUANCE OF SUCH VIOLATIONS; AND IF IT SHALL APPEAR
 TO THE SATISFACTION OF THE COURT OR JUSTICE THAT THE RESPONDENT HAS,  IN
 FACT, VIOLATED ANY PORTION, AN INJUNCTION MAY BE ISSUED BY SUCH COURT OR
 JUSTICE,  ENJOINING  AND  RESTRAINING  ANY  FURTHER  VIOLATION,  WITHOUT
 REQUIRING PROOF THAT ANY PERSON HAS, IN FACT, BEEN  INJURED  OR  DAMAGED
 THEREBY.
   (B) WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF ANY PORTION
 OF  THIS  SECTION  HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF
 NOT MORE THAN TEN THOUSAND DOLLARS FOR EACH VIOLATION, WITH EACH DAY  OF
 A  CONTINUING VIOLATION CONSTITUTING A SEPARATE AND DISTINCT OFFENSE. IN
 CONNECTION WITH ANY SUCH APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED
 TO TAKE PROOF AND MAKE A DETERMINATION OF  THE  RELEVANT  FACTS  AND  TO
 ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES. ALL
 PENALTIES  COLLECTED  UNDER THIS SECTION SHALL BE DEPOSITED INTO A DEDI-
 CATED CONSUMER AND WORKER PROTECTION FUND TO SUPPORT ENFORCEMENT, EDUCA-
 TION AND REMEDIES FOR AFFECTED INDIVIDUALS.
   (C) IN ADDITION TO ANY OTHER REMEDIES PROVIDED IN  THIS  SECTION,  ANY
 CONSUMER, EMPLOYEE OR LABOR ORGANIZATION, INDIVIDUALLY OR ON BEHALF OF A
 CLASS  OF  SIMILARLY-SITUATED  PERSONS, AGGRIEVED BY A VIOLATION OF THIS
 SECTION SHALL HAVE A PRIVATE RIGHT OF ACTION IN ANY COURT  OF  COMPETENT
 JURISDICTION.  PREVAILING  PLAINTIFFS  SHALL  BE ENTITLED TO RECOVER THE
 GREATER OF ACTUAL DAMAGES OR STATUTORY DAMAGES OF  NOT  LESS  THAN  FIVE
 THOUSAND  DOLLARS  PER  VIOLATION,  INJUNCTIVE  AND  DECLARATORY RELIEF,
 RESTITUTION, DISGORGEMENT OF PROFITS, AND ANY OTHER RELIEF DEEMED APPRO-
 PRIATE  BY  THE  COURT.  IN  CASES  OF  WILLFUL,  RECKLESS  OR   KNOWING
 VIOLATIONS, TREBLE DAMAGES SHALL BE AWARDED. PREVAILING PLAINTIFFS SHALL
 ALSO  BE  AWARDED  REASONABLE  ATTORNEY'S  FEES, EXPERT WITNESS FEES AND
 COSTS. NOTHING IN THIS SECTION SHALL IN ANY WAY LIMIT  OR  RESTRICT  ANY
 RIGHTS OR REMEDIES WHICH ARE OTHERWISE AVAILABLE UNDER LAW TO THE ATTOR-
 NEY GENERAL OR ANY OTHER PERSON AUTHORIZED TO BRING AN ACTION UNDER THIS
 SECTION.  ANY  WAIVER  OF THE RIGHTS PROVIDED BY THIS SECTION IS AGAINST
 PUBLIC POLICY, VOID AND UNENFORCEABLE. RETALIATION AGAINST ANY PERSON OR
 ORGANIZATION EXERCISING RIGHTS UNDER  THIS  SECTION  IS  PROHIBITED  AND
 CONSTITUTES A SEPARATE VIOLATION.
   § 4. This act shall be liberally construed to effectuate its purposes.
 If a court declares any provision or application of this act to be ille-
 gal,  the remaining provisions shall remain in effect. Courts are hereby
 authorized to reform the provisions of this act in order to preserve the
 maximum lawful effect thereof.
   § 5. This act shall take effect immediately.