Hawley Said 'Documented.' Target's Was 2019.

Introduction

Four numbers did most of the work at the Senate's first hearing on AI surveillance pricing. Chairman Josh Hawley called two of them "documented cases" of companies charging different shoppers different prices: a Target vacuum that cost $150 more the moment a shopper's phone crossed into the store, and 55 Lyft riders in Missouri quoted 29 different prices for the same route at the same time. In a separate stretch on surveillance he put up a third, Kroger earning "over $500 million from selling" data harvested from loyalty customers. The fourth came under oath from the lead witness, a 23% price gap on a carton of eggs. Set each one beside the document it came from and all four move.

What's being argued over is your own bill: whether the price in your Kroger app, on your Target shelf, or in your Lyft fare estimate is the price the next person gets for the same thing at the same second. Two hours of testimony in, nobody in Washington can tell you.

The Federal Trade Commission answered fifteen days later. On August 19, Chair Andrew Ferguson's commission proposed an enforcement policy statement requiring companies to disclose personalized pricing, which says in its own text that "Congress has not given the Commission the authority to prohibit personalized pricing in all circumstances." Its 30-day comment period hasn't started, because the notice hasn't been published in the Federal Register.

What Hawley Put on the Record August 4

The Senate Judiciary Subcommittee on Crime and Counterterrorism met on August 4 for a hearing titled "Your Data, Their Profit: The Consumer Cost of AI Surveillance Pricing". Five witnesses testified, among them Lindsay Owens of the Groundwork Collaborative, former Visa chief data officer Robert Hedges, Lee Hepner of the American Economic Liberties Project, and Wharton marketing professor Z. John Zhang. Nobody from Target, Kroger, Lyft or Staples sat at that table, and no company answered a question under oath.

Hawley opened on the AI industry's partnership with big corporations "to effectively scam consumers out of every last dollar they have," then ran his examples: Staples charging more online based on a shopper's IP address or proximity to a rival's store, Target's app and the vacuum, Lyft's 29 fares. "These are all documented cases," he said, per the verbatim transcript. Kroger came up in a separate stretch about surveillance rather than pricing, as "a data selling mega corporation" with one customer's loyalty profile running 62 pages.

Zhang broke with the panel, cautioning that personalized pricing can help price-sensitive shoppers and that Congress shouldn't outlaw legitimate dynamic pricing. Sen. Richard Blumenthal said he and Hawley "have a framework for legislation" and that "we need a law." Seventeen days on, Hawley's own bill list doesn't have one and neither does Blumenthal's, while Sen. Ruben Gallego's One Fair Price Act, covering the same practice, has been pending since August 2025 without either as a cosponsor.

Four Numbers, Checked Against Their Sources

Hawley's Target figure traces to a February 2019 investigation by KARE 11, the NBC station in Minneapolis, which clocked a Dyson vacuum's in-app price rising $148 when a shopper's phone entered the store. The mechanism was a geofence rather than AI reading personal data: the app showed the online price at home and the in-store price in the aisle. Consumer Watchdog's December 2024 report, which put the example back into circulation, notes Target's violation was failing to disclose the lower price, not charging people different amounts. Seven California county district attorneys, led by San Diego, filed over it in February 2022 and settled the next month for $5 million in civil penalties, an order to stop geofencing, and seven years of price-accuracy audits in California. Target told the Star Tribune that geofencing "is not currently used to impact prices."

Hawley's word for what happened to those 55 riders was "charged." Consumer Reports' June 2026 rideshare investigation, the source of both numbers, had volunteer testers pull price quotes rather than book rides. The $37 spread Hawley put on it doesn't appear in the investigation either; what Consumer Reports published is that the highest fare came in at more than double the lowest.

Consumer Reports also went further than the hearing did to say what that doesn't prove: after Uber and Lyft denied personalizing base fares, the outlet wrote that it "is not disputing this; rather, it is questioning whether the price differences observed are based only on market forces." Lyft told Bloomberg Law it does not engage in surveillance pricing. Of the four, this is the one I'd have bet on holding.

Kroger's figures come from a May 2025 Consumer Reports investigation of the company's shopper profiles. Guggenheim Securities estimated that Kroger's precision marketing division made about $527 million in profit in 2024, an analyst's estimate of profit in one segment rather than a company disclosure of revenue "from selling" anything. The 33% of net income Hawley cited belongs to Kroger's broader "alternative profit" business, reported at more than 35%. Consumer Reports does describe that division as selling customer data for marketing, so his verb holds. Kroger's public answer, "Kroger does not personalize prices on its products," denies a charge Hawley never made against it.

Then the witness. Owens testified that "more than three quarters" of the items in Groundwork's Instacart test basket were offered at different prices, and that the gap ran "as much as 23% for a simple carton of eggs." Her own report says almost three quarters, 74%, and puts the 23% ceiling on a set of shelf-stable items including a box of Signature SELECT corn flakes that sold at $2.99, $3.49 and $3.69. The eggs, a dozen Lucerne, ran $3.99 to $4.79, roughly 20%. That's the one I keep coming back to, because the accurate version makes the same point and it's in the report she came to describe.

The investigation underneath it holds up: 437 shoppers, four cities, covered here in March. The $1,200 a year Hawley drew from it is a modeled estimate for a family of four, and Instacart says its price experiments "don't use any personal or demographic data."

The Comment Clock That Hasn't Started

The FTC has been at this before with much better tools. In July 2024 it used its 6(b) authority to order eight companies to hand over information on the surveillance pricing ecosystem. None of them is a retailer; they sell retailers the pricing tools and analytics, and among them they work with at least 250 retail clients across grocery, apparel, home goods and general merchandise. Staff published summaries of six of the eight productions on January 17, 2025, at the end of Lina Khan's term. Ferguson, then a commissioner, dissented and called the work "far from a comprehensive report," less than six months after voting to open the study in the first place. After becoming chair he withdrew the public comment docket, and the agency left the subject alone until this month.

What replaced it is a disclosure standard. Companies would have to disclose "not just that the price is personalized, but also the basis for that personalization and the types of data" behind it. The document reserves the harder question, declining "at this time to take any position on whether some personalized pricing practices are unfair even when fully disclosed to consumers," which Consumer Finance Monitor reads as leaving room for enforcement later. The vote to put it out for comment was 2-0, the entire commission at the moment. Per IAPP, the public gets 30 days once the notice reaches the Federal Register, and as of today it isn't there.

Who Benefits

Start with the companies. Every number that misses hands a named company a citation to argue with instead of a practice to defend. Target can answer the vacuum with an injunction it has been under since 2022. For the 29 fares, Lyft has the investigating outlet's own sentence saying it isn't disputing the company's denial. Kroger can deny personalizing prices, accurately, on a charge nobody made. None of that touches whether retailers set individual prices from personal data in 2026, which is the question the hearing was called to settle.

The other thing they get is time. Bloomberg Law reported on August 17 that Kroger, Albertsons, Uber and Walmart have been lobbying on surveillance pricing, and that NetChoice, whose members include Amazon and Etsy, plans to ramp its own lobbying up. NetChoice government affairs VP Amy Bos said the goal is making sure lawmakers "understand the benefits" of personalized pricing and that "legislation is narrowly drafted." That's lobbying against a bill with no text, which only makes sense as an effort to shape it while it's still a framework. Owens testified that delays at the state level have drawn industry efforts to water those bills down "until they're virtually meaningless."

Ferguson gets cover: a disclosure proposal lets the FTC answer bipartisan pressure in public while disclaiming any authority to ban the practice.

Delta Described It on Its Own Earnings Call

None of the four numbers Hawley cited hits as hard as what he put on the record almost as an aside, per the same transcript: Delta's own second-quarter 2025 earnings call, where then-president Glen Hauenstein called the shift "a full re-engineering of how we price" and told investors, "We will have a price that's available on that flight, on that time to you, the individual."

There's no methodology to attack and no denial on file, because it's an executive telling shareholders what his company intends to do. That gap runs under all four numbers: consumer-side testing can only watch prices from the outside, so testers see outputs and never inputs, and a company can always answer that the difference was demand or geography. Evidence that can't be waved off comes from inside the company, offered up on an investor call or compelled.

Compulsion is what the 6(b) orders were for. Announcing the staff findings in January 2025, then-Chair Khan said retailers use personal information to set tailored prices "from a person's location and demographics, down to their mouse movements on a webpage." What the agency proposed this month asks companies to describe their own personalization in their own words.

The Bottom Line

The case for regulating this rests on the FTC's own staff findings about eight pricing intermediaries with at least 250 retail clients, and on an airline president explaining individualized pricing to his own investors, not on any of the four numbers Hawley cited. What got quoted into headlines is the part that doesn't survive a check, and the companies now get to litigate the citations instead of the conduct.

Eight airlines, Delta among them, owe Rep. Frank Pallone of House Energy and Commerce answers on AI pricing by August 25, four days from now. When those answers land this week, what does Congress have left to check them against?