Senate Bill S8616A

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8616--A
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                             December 12, 2025
                                ___________
 
 Introduced  by  Sens.  GIANARIS,  MAY,  BRISPORT, BROUK, CLEARE, COMRIE,
   FAHY, GONZALEZ,  HARCKHAM,  HINCHEY,  JACKSON,  KRUEGER,  LIU,  MAYER,
   MYRIE,  RAMOS,  C. RYAN,  SERRANO,  SKOUFIS,  SUTTON -- read twice and
   ordered printed, and when printed to be committed to the Committee  on
   Rules  --  recommitted  to  the  Committee  on  Consumer Protection in
   accordance with Senate Rule 6, sec. 8 --  committee  discharged,  bill
   amended,  ordered reprinted as amended and recommitted to said commit-
   tee
 
 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

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD14248-04-6
 S. 8616--A                          2
              

 
 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
 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 OR SYSTEM THAT APPLIES
 ONE OR MORE SETS OF RULES, INCLUDING RULES GENERATED BY A NATURAL PERSON
 OR BY A COMPUTATIONAL PROCESS OR SYSTEM, TO GENERATE  OUTPUTS  BASED  ON
 INPUTS AND/OR TO DEFINE A SEQUENCE OF OPERATIONS.
   (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 CONSUMER OR CONSUMER'S DEVICE.
 CONSUMER DATA INCLUDES ALL DATA OBTAINED THROUGH TECHNOLOGICAL  METHODS,
 SYSTEMS,  OR  TOOLS,  INCLUDING,  BUT  NOT LIMITED TO, SENSORS, CAMERAS,
 DEVICE TRACKING,  BIOMETRIC MONITORING, OR OTHER FORMS OF OBSERVATION OR
 DATA COLLECTION, THAT ARE CAPABLE OF GATHERING COVERED INFORMATION ABOUT
 A CONSUMER, INCLUDING BUT NOT LIMITED TO THE CONSUMER'S BEHAVIOR,  CHAR-
 ACTERISTICS,  BELONGINGS,  POSSESSIONS, LOCATION, OR OTHER ATTRIBUTES OF
 THE CONSUMER, WHETHER IN PHYSICAL OR DIGITAL ENVIRONMENTS.
   (D) "DYNAMIC PRICING"  MEANS  PRICING  THAT  FLUCTUATES  AUTOMATICALLY
 DEPENDING ON CONDITIONS BASED COMPLETELY OR IN PART ON ONE OR MORE ALGO-
 RITHMS,  EXCLUDING  PRICE  FLUCTUATIONS BASED SOLELY ON BONA FIDE CUSTOM
 DISCOUNTS OR CHANGES TO PRICING RELATED TO RETENTION OF EXISTING CUSTOM-
 ERS.
   (E) "ELECTRONIC SHELVING LABELS" (ESLS) MEANS ELECTRONIC AND  WIRELESS
 PAPER (E-PAPER) DISPLAYS THAT PRESENT PRODUCT AND PRICING INFORMATION.
   (F)  "FOOD  RETAIL ESTABLISHMENT" MEANS A RETAIL STORE THAT IS EITHER:
 I.  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 II.
 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.
   (G) "DRUG RETAIL ESTABLISHMENT" MEANS A  RETAIL  STORE  THAT  SELLS  A
 VARIETY  OF PRESCRIPTION AND NONPRESCRIPTION MEDICINES AND MISCELLANEOUS
 ITEMS, SUCH AS DRUGS, PHARMACEUTICALS, SUNDRIES, FRESH  PRODUCE,  MEATS,
 POULTRY,  FISH,  DELI PRODUCTS, DAIRY PRODUCTS, CANNED FOODS, DRY FOODS,
 BEVERAGES, PREPARED FOODS, AND OTHER MERCHANDISE.
   (H) "ENTITY" MEANS ANY NATURAL PERSON,  FIRM,  ORGANIZATION,  PARTNER-
 SHIP,  ASSOCIATION,  CORPORATION, OR ANY OTHER ENTITY DOMICILED OR DOING
 S. 8616--A                          3
 
 BUSINESS IN NEW YORK STATE. A SINGLE ENTITY MAY HAVE ONE  OR  MORE  FOOD
 RETAIL ESTABLISHMENTS OR DRUG RETAIL ESTABLISHMENTS.
   (I)  "NON-DIGITAL  PRESENTATION  OF PRICE" I.  MEANS: (1) A SIGN WHICH
 OFFERS THE UNIT PRICE FOR ONE OR MORE BRANDS OR SIZES OF A GIVEN GOOD OR
 SET OF GOODS; OR
   (2) A STICKER, STAMP, SIGN, LABEL, OR TAG, AFFIXED TO THE  SHELF  UPON
 WHICH THE GOODS ARE DISPLAYED; AND
   (3)  A  STICKER,  STAMP,  SIGN, LABEL, OR TAG, AFFIXED TO THE CONSUMER
 GOOD ITSELF.
   II. IF A SINGLE SIGN OR TAG DOES NOT PROVIDE THE UNIT  PRICE  INFORMA-
 TION  FOR  MORE  THAN ONE BRAND OR SIZE OF A GIVEN GOOD OR SET OF GOODS,
 THEN THE FOLLOWING INFORMATION SHALL BE PROVIDED; (1) THE IDENTITY;  (2)
 THE  BRAND  NAME; (3) THE QUANTITY OF THE PACKAGED GOOD IF MORE THAN ONE
 PACKAGE SIZE PER BRAND IS DISPLAYED; (4) THE TOTAL SALE PRICE;  AND  (5)
 THE PRICE PER APPROPRIATE UNIT.
   III.  WHERE  A  SIGN  PROVIDING UNIT PRICE INFORMATION FOR ONE OR MORE
 SIZES OR BRANDS OF A GIVEN GOOD 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) "SURVEILLANCE PRICING" MEANS PRICING SET COMPLETELY OR IN PART  BY
 AN  ALGORITHM  THAT  USES  CONSUMER  DATA  TO  OFFER DIFFERENT PRICES TO
 DIFFERENT CONSUMERS FOR THE SAME GOODS OR SERVICES AND DOES NOT  INCLUDE
 BONA FIDE CUSTOM DISCOUNTS.
   (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.
   (M)  "BONA  FIDE  DISCOUNT" MEANS A GENUINE REDUCTION IN PRICE THAT IS
 REFERRED TO AS SUCH TO CONSUMERS. ENTITIES MAY REASONABLY INTERPRET BONA
 FIDE DISCOUNT TO MEAN A GENUINE  REDUCTION  FROM  A  CONTEMPORANEOUS  OR
 RECENT  REFERENCE PRICE THAT IS ESTABLISHED ABSENT OF DECEPTIVE, ABUSIVE
 AND UNFAIR PRACTICES AS REQUIRED BY SECTION THREE HUNDRED FORTY-NINE  OF
 THE GENERAL BUSINESS LAW AND 16 CFR PART 233.
   (N) "BONA FIDE CUSTOM DISCOUNT" MEANS I. A BONA FIDE DISCOUNT CONSIST-
 ENT  WITH  FEDERAL, STATE, AND LOCAL ANTI-DISCRIMINATION LAWS OFFERED BY
 AN ENTITY:
   (1) TO A CONSUMER WHO AFFIRMATIVELY AND KNOWINGLY ENROLLS IN A  LOYAL-
 TY, MEMBERSHIP OR REWARDS PROGRAM, INCLUDING BY SIGNING UP FOR A MAILING
 LIST,  REGISTERING  FOR PROMOTIONAL COMMUNICATION, OR PARTICIPATING IN A
 PROMOTIONAL EVENT, PROVIDED THE DISCOUNT IS GIVEN TO ALL MEMBERS OF SUCH
 LOYALTY PROGRAM;
   (2) BASED ON A CONSUMER'S VOLUNTARY SELF-IDENTIFICATION WITH A BROADLY
 DEFINED CLASS OF CONSUMERS  INCLUDING,  BUT  NOT  LIMITED  TO,  MILITARY
 VETERANS,  ACTIVE  DUTY  PERSONNEL,  SENIORS,  TEACHERS,  OR  EMPLOYEES,
 PROVIDED FREELY AND KNOWINGLY BY THE CONSUMER FOR THE  SOLE  PURPOSE  OF
 RECEIVING  THE  DISCOUNT,  AND  IS NOT DERIVED OR INFERRED BY THE ENTITY
 FROM ANY OTHER DATA; OR
   (3) BASED SOLELY ON A CONSUMER'S  PRIOR  PURCHASE  HISTORY  WITH  THAT
 SPECIFIC  ENTITY,  PROVIDED  THAT  SUCH  PURCHASE  DATA  IS  NOT PAIRED,
 COMBINED, OR CROSS-REFERENCED WITH ANY OTHER CONSUMER DATA.
 S. 8616--A                          4
 
   II. BONA FIDE CUSTOM DISCOUNT DOES NOT INCLUDE ANY REDUCTION OR CHANGE
 IN REFERENCE PRICE BASED ON PERSONAL DATA OTHER THAN PERSONAL DATA IDEN-
 TIFIED IN CLAUSES ONE, TWO AND THREE OF SUBPARAGRAPH  I  OF  THIS  PARA-
 GRAPH.
   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.
   (B)  THE  USE  OF ESLS OR ANY DIGITAL SHELF DISPLAY TECHNOLOGY IN FOOD
 RETAIL ESTABLISHMENTS AND  IN  DRUG  RETAIL  ESTABLISHMENTS  TO  DISPLAY
 SURVEILLANCE PRICING IS PROHIBITED.
   (C)  IT IS UNLAWFUL, FOR ANY REASON, FOR ANY FOOD RETAIL ESTABLISHMENT
 OR DRUG RETAIL ESTABLISHMENT TO ENGAGE IN SURVEILLANCE  PRICING.    THIS
 PROHIBITION  DOES NOT LIMIT ANY FOOD RETAIL ESTABLISHMENT OR DRUG RETAIL
 ESTABLISHMENT AND/OR ANY BUSINESS FROM PROVIDING CONSUMERS A  BONA  FIDE
 DISCOUNT OR BONA FIDE CUSTOM DISCOUNT.
   (D) WHERE A FOOD RETAIL ESTABLISHMENT OR DRUG RETAIL ESTABLISHMENT HAS
 ACTUAL  KNOWLEDGE THAT IT HAS COLLECTED DATA OF A MINOR UNDER THE AGE OF
 SEVENTEEN, SUCH ESTABLISHMENT SHALL  CEASE  PROCESSING  SUCH  DATA,  AND
 DELETE  ALL INFORMATION ASSOCIATED WITH THE INDIVIDUAL WITHIN THE ESTAB-
 LISHMENT'S POSSESSION OR CONTROL  AS  SOON  AS  REASONABLY  PRACTICABLE,
 EXCEPT  TO THE EXTENT NECESSARY TO COMPLY WITH THE ESTABLISHMENT'S LEGAL
 OBLIGATIONS.
   (E) NO FOOD RETAIL ESTABLISHMENT 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:
   I.  THE  USE OF THAT DATA HAS THE EFFECT OF WITHHOLDING OR DENYING ANY
 OF THE ACCOMMODATIONS, ADVANTAGES, AND PRIVILEGES ACCORDED TO OTHERS.
   II. 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.
   3. NOTHING IN THIS SECTION SHALL APPLY TO:
   (A) ANY FINANCIAL INSTITUTION OR AFFILIATE OF A FINANCIAL INSTITUTION,
 ALL AS DEFINED IN 15 U.S.C. 6809, TO THE EXTENT THAT:
   I. THE FINANCIAL INSTITUTION OR AFFILIATE IS SUBJECT TO TITLE V OF THE
 GRAMM LEACH BLILEY ACT (15 U.S.C. § 6801, ET SEQ., AS AMENDED)  AND  THE
 RULES AND IMPLEMENTING REGULATIONS PROMULGATED THEREUNDER; AND
   II.  THE GOOD OR SERVICE THE FINANCIAL INSTITUTION OR AFFILIATE OFFERS
 OR PROVIDES IS BASED IN WHOLE OR IN PART ON THE CONSUMER'S  CREDIT  RISK
 BASED ON THE CONSUMER'S PERSONAL DATA.
   (B)  ANY  INSURER  LICENSED,  REGULATED, 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.
   4. (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
 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
 S. 8616--A                          5
 
 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) THE PROVISIONS OF THIS SECTION MAY BE ENFORCED CONCURRENTLY BY THE
 DIRECTOR  OF  A MUNICIPAL CONSUMER AFFAIRS OFFICE, OR BY THE TOWN ATTOR-
 NEY, CITY CORPORATION COUNSEL, OR OTHER LAWFULLY DESIGNATED  ENFORCEMENT
 OFFICER  OF A MUNICIPALITY OR LOCAL GOVERNMENT, AND ALL MONIES COLLECTED
 THEREUNDER SHALL BE RETAINED BY SUCH MUNICIPALITY OR LOCAL GOVERNMENT.
   (D) 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.
   §  4. Construction.  This act shall be liberally construed to effectu-
 ate its purposes.   This section shall not be  construed  to  limit  any
 other  criminal  or  civil liability such entity may be subject to under
 law.
   § 5. Severability. If any clause,  sentence,  paragraph,  subdivision,
 section, or part of this act shall be adjudged by any court of competent
 jurisdiction  to  be invalid, such judgment shall not affect, impair, or
 invalidate the remainder thereof, but shall be confined in its operation
 to the clause, sentence, paragraph, subdivision, section, or part there-
 of directly involved in the controversy in  which  such  judgment  shall
 have been rendered. It is hereby declared to be the intent of the legis-
 lature  that  this  act  would  have  been  enacted even if such invalid
 provisions had not been included herein.  Courts are  hereby  authorized
 to  reform  the  provisions of this act in order to preserve the maximum
 lawful effect thereof.
   § 6. The attorney general may promulgate such rules and regulations as
 are necessary to effectuate and enforce the provisions of this section.
   § 7. This act shall take effect on the one hundred eightieth day after
 it shall have become a law. Effective immediately, the addition,  amend-
 ment and/or repeal of any rule or regulation necessary for the implemen-
 tation  of  this act on its effective date are authorized to be made and
 completed on or before such effective date.