Prohibition and requirements for food retailers and third party delivery service providers related to dynamic pricing

(a) Prohibition (1) In general Except as provided in paragraph (2), a covered entity may not use any technology that uses the personal data of a consumer to engage in dynamic pricing. (2) Exceptions Paragraph (1) does not apply with respect to any of the following: (A) An offer made to a consumer by a covered entity— (i) that is— (I) a promotional pricing offer, a loyalty program benefit, a reward program benefit, or any other similar membership benefit with respect to which any consumer may voluntarily enroll or consent to participate in; or (II) a temporary discount or price change related to retention of existing customers; or (ii) with respect to which the consumer consented to provide personal data or other information to the covered entity in exchange for such offer. (B) The price of food set by a covered entity based on objective costs (such as costs related to shipping or taxes) related to different consumers. (b) Requirements (1) In general With respect to a covered entity that offers to a consumer the option to order a grocery item online, the covered entity shall disclose to the consumer— (A) if the availability of the grocery item has changed; or (B) if the grocery item is weighed to determine the price of the such item. (2) Requirements for third party delivery service providers With respect to a third party delivery service provider that offers to a consumer the option to order a grocery item online, the third party delivery service provider shall obtain explicit approval from the consumer to substitute such grocery item before the third party delivery service provider or an agent thereof substitutes such item on behalf of the consumer. (c) Enforcement (1) Unfair or deceptive acts or practices A violation of this section shall be treated as a violation of a regulation under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)) regarding unfair or deceptive acts or practices. (2) Powers of Commission The Federal Trade Commission shall enforce this section in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act. Any person who violates this section shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act. (d) Definitions In this section: (1) Covered entity The term covered entity means any of the following: (A) A food retailer. (B) A third party delivery service provider. (2) Dynamic pricing The term dynamic pricing means the practice of increasing the price of food offered for sale to a consumer based on the personal data or other information of such consumer. (3) Food retailer The term food retailer means a business that— (A) is at least 15,000 square feet; and (B) sells food to consumers. (4) Third party delivery service provider The term third party delivery service provider means an entity that facilitates the delivery of food to a consumer. (5) Personal data The term personal data means any information that is linked or can be reasonably linked to an identified or identifiable consumer.