S. 3387

119 S3387 IS: One Fair Price Act of 2025
 U.S. Senate
 2025-12-08
 text/xml
 EN
 Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
 II  119th CONGRESS  1st Session  S. 3387  IN THE SENATE OF THE UNITED STATES   December 8 (legislative day, December 4), 2025   Mr. Gallego  introduced the following bill; which was read twice and referred to the  Committee on Commerce, Science, and Transportation    A BILL
To prohibit certain uses of automated decision systems to inform individualized prices, and for other purposes.
1.
Short title
This Act may be cited as the   One Fair Price Act of 2025  .
2.
Prohibition on surveillance-based price setting
(a)
Surveillance-Based price setting
(1)
In general
Subject to paragraphs (2) and (3), it shall be unlawful for a person to offer or charge different prices to different consumers for the same, or a substantially similar, product or service using, informed by, or based on, in whole or in part, surveillance data.
(2)
Safe harbor
(A)
In general
The following shall not be considered surveillance-based price setting for purposes of paragraph (1) if the conditions of subparagraph (B) are met:
(i)
A difference in price that is based solely on reasonable costs associated with providing the product or service to different consumers.
(ii)
A bona fide discount that is offered to any member of a broadly defined group, including teachers, active duty personnel, veterans, senior citizens, or students.
(iii)
A bona fide discount that is offered to any consumer who affirmatively and knowingly enrolls in a loyalty program.
(B)
Conditions for exception
The conditions described in this subparagraph are the following:
(i)
Any basis for a difference in reasonable costs associated with providing a product or service to different consumers is disclosed to the consumer prior to purchase.
(ii)
Any eligibility condition or criteria for receiving or earning a bona fide discount is clearly and conspicuously disclosed.
(iii)
Any bona fide discount is offered uniformly to any consumer who meets the disclosed eligibility conditions or criteria.
(iv)
Any surveillance data used solely to offer or administer a bona fide discount is not used for any other purpose, including profiling, targeted advertising, or individualized price setting.
(v)
Any loyalty program that allows a user to accrue and exchange points, credits, or any similar nonmonetary system of value for a product or service does not charge a different price for those points, credits, or similar nonmonetary system of value to different consumers for the same or substantially similar product or service.
(3)
Inapplicability to insurance or credit products
The prohibition under paragraph (1) shall not apply to the business of insurance or any credit product.
(b)
Enforcement by the Commission
(1)
Unfair or deceptive acts or practices; Unfair methods of competition
A violation of subsection (a) or a regulation promulgated under such subsection shall be treated as a violation of a rule defining an unfair or deceptive act or practice under section 18(a)(1)(B) of the  Federal Trade Commission Act  ( 15 U.S.C. 57a(a)(1)(B) ) and as a violation of section 5(a) of the Federal Trade Commission Act ( 15 U.S.C. 45(a) ) regarding unfair methods of competition.
(2)
Powers of the Commission
(A)
In general
Except as provided in subparagraph (C), the Commission shall enforce subsection (a) and any regulation promulgated under such subsection 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.
(B)
Privileges and immunities
Except as provided in subparagraph (C), any person who violates such subsection or a regulation promulgated under such subsection shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act.
(C)
Common carriers, nonprofit organizations, and air carriers
Notwithstanding section 4, 5(a)(2), or 6 of the Federal Trade Commission Act ( 15 U.S.C. 44 , 45(a)(2), 46) or any jurisdictional limitation of the Commission, the Commission shall also enforce subsection (a) or a regulation promulgated under subsection (a), in the same manner provided in subparagraphs (A) and (B), with respect to—
(i)
common carriers subject to the Communications Act of 1934 ( 47 U.S.C. 151 et seq. ) and all Acts amendatory thereof and supplementary thereto;
(ii)
organizations not organized to carry on business for their own profit or that of their members; and
(iii)
air carriers and foreign air carriers subject to the Federal Aviation Act of 1958.
(D)
Rulemaking
(i)
In general
The Commission may promulgate in accordance with section 553 of title 5, United States Code, such rules as may be necessary to carry out this section, including guidance regarding how to comply with subsection (a).
(ii)
Small business concerns
The Commission shall consider rules necessary to carry out this Act as having a significant economic impact on a substantial number of small entities for purposes of  chapter 6  of title 5, United States Code (commonly referred to as the  Regulatory Flexibility Act ).
(E)
Authority preserved
Nothing in this Act may be construed to limit the authority of the Commission under any other provision of law.
(c)
Actions by States
(1)
In general
In any case in which the attorney general of a State, or an official or agency of a State, has reason to believe that an interest of the residents of such State has been or is threatened or adversely affected by the engagement of any person in an act or practice in violation of subsection (a) or a regulation promulgated under such subsection, the attorney general of the State, may as parens patriae, bring a civil action on behalf of the residents of the State in an appropriate State court or an appropriate district court of the United States to—
(A)
enjoin such act or practice;
(B)
enforce compliance with such subsection or such regulation;
(C)
obtain, for each violation, the greater of—
(i)
the actual monetary damages incurred from the violation; or
(ii)
$3,000; or
(D)
obtain, for each violation, any other restitution, penalties, and other legal or equitable relief as the court may deem appropriate.
(2)
Rule of construction
For purposes of bringing a civil action under this subsection, nothing in this Act shall be construed to prevent an attorney general, official, or agency of a State from exercising the powers conferred on the attorney general, official, or agency by the laws of such State to conduct investigations, administer oaths and affirmations, or compel the attendance of witnesses or the production of documentary and other evidence.
(d)
Private right of action
(1)
In general
An individual who has been injured by a person in violation of subsection (a) or a regulation promulgated under such subsection may bring a civil action against such person in an appropriate State court or an appropriate district court of the United States to—
(A)
enjoin the violation;
(B)
obtain, for each violation, the greater of—
(i)
the actual monetary damages incurred from the violation; or
(ii)
$3,000; or
(C)
obtain, for each violation, any other restitution, penalties, and other legal or equitable relief as the court may deem appropriate.
(2)
Willful violations
If the court finds that the defendant acted willfully in committing a violation described in paragraph (1), the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under paragraph (1)(B).
(3)
Prima facie case; rebuttal
(A)
Prima facie case
In any proceeding commenced pursuant to paragraph (1), the defendant shall be presumed to be in violation of subsection (a) if the plaintiff can demonstrate that—
(i)
two or more individuals were offered different prices by the defendant for the same, or a substantially similar, product or service during the same, or a substantially similar, period of time; or
(ii)
one individual was offered different prices by the defendant for the same, or a substantially similar, product or service during the same, or a substantially similar, period of time while using different means of viewing the price.
(B)
Burden of rebutting prima facie case
The defendant may rebut the presumption described in subparagraph (A) by demonstrating that the alleged difference in price was—
(i)
not informed, in whole or in part, by surveillance data; or
(ii)
fully explained by the safe harbors described in subsection (a)(2).
(4)
Costs and attorney’s fees
The court shall award to a prevailing plaintiff in an action under this subsection the litigation costs of such action and reasonable attorney’s fees, as determined by the court.
(5)
Limitation
An action may be commenced under this subsection not later than 5 years after the date on which the individual first discovered or had a reasonable opportunity to discover the violation.
(6)
Nonexclusive remedy
Bringing a civil action under this subsection shall be in addition to any other remedy available to the individual bringing such civil action.
(7)
Invalidity of pre-dispute arbitration and joint action waivers
Notwithstanding  chapter 1  of title 9, United States Code (commonly known as the  Federal Arbitration Act ), or any other provision of law, a pre-dispute arbitration agreement or pre-dispute joint action waiver between a person in violation of subsection (a) and an individual is not valid or enforceable for purposes of the individual bringing a civil action against such person under this subsection.
(e)
Joint study and report
(1)
Study
Not later than 1 year after the date of enactment of this section, the Office of Advocacy of the Small Business Administration (in this subsection referred to as the  Office of Advocacy ), in consultation with the Commission, shall conduct a joint study to evaluate the impact of this Act on—
(A)
small business concerns; and
(B)
promoting competition between large and small business enterprises.
(2)
Report
Not later than 180 days after the Office of Advocacy completes the study under paragraph (1), the Commission and the Office of Advocacy shall submit to Congress a report on such study, including any relevant findings and recommendations resulting from such study.
(f)
Definitions
In this section:
(1)
Bona fide discount
The term  bona fide discount  means an offered price that is lower than the genuine price at which a product or service is widely offered to the public on a regular basis for a reasonably substantial period of time and not for the purpose of establishing a fictitious price to enable the subsequent offer of a reduction.
(2)
Business of insurance; credit
The terms  business of insurance  and  credit  have the meaning given such terms in section 1002 of the Consumer Financial Protection Act of 2010 ( 12 U.S.C. 5481 ).
(3)
Commission
The term  Commission  means the Federal Trade Commission.
(4)
Genetic information
The term  genetic information  has the meaning given such term in section 2791(d) of the Public Health Service Act ( 42 U.S.C. 300gg–91(d) ).
(5)
Personal information
The term  personal information  means any quality, feature, attribute, or trait of an individual, including any immutable characteristic (such as race and eye color), mutable characteristic (such as address, weight, citizenship, family, or parenthood status), genetic information, and any other information that could reasonably be linked, directly or indirectly, with a particular individual or household.
(6)
Pre-dispute arbitration agreement
The term  pre-dispute arbitration agreement  means any agreement to arbitrate a dispute that has not arisen at the time of making the agreement.
(7)
Pre-dispute joint action waiver
The term  pre-dispute joint action waiver  means an agreement, including as part of a pre-dispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum, concerning a dispute that has not arisen at the time of making the agreement.
(8)
Price
The term  price  means the amount charged or offered to a consumer in relation to a transaction, including any related cost and fee and any other material term of the transaction that has direct bearing on the amount paid by the consumer or the value of the product or service offered or provided to the consumer.
(9)
Small business concern
The term  small business concern —
(A)
has the meaning given such term in section 3 of the Small Business Act ( 15 U.S.C. 632 ); and
(B)
shall not include a small business concern involved in developing, training, or selling a product or service for the primary purpose of aiding a business to determine a price.
(10)
Surveillance data
The term  surveillance data —
(A)
means data that is related to the personal information, behavior, or biometrics of an individual; and
(B)
includes data gathered, purchased, or otherwise acquired.
3.
Application of prohibition on surveillance-based price setting to air carriers and ticket agents
(a)
In general
Section 41712 of title 49, United States Code, is amended by adding at the end the following:
(d)
Prohibition on surveillance-Based price setting
It shall be an unfair or deceptive practice under subsection (a) for an air carrier, foreign air carrier, or ticket agent to engage in surveillance-based price setting, as described in section 2(a) of the  One Fair Price Act of 2025 .
 .
(b)
No preemption of consumer protection claims
Section 41713(b)(4) of title 49, United States Code, is amended by adding at the end the following:
(D)
No preemption of surveillance-based price setting claims
Nothing in subparagraphs (A) through (C) may be construed—
(i)
to preempt, displace, or supplant any action for civil damages or injunctive relief based on a violation of section 2(a) of the  One Fair Price Act of 2025 ; or
(ii)
to restrict the authority of any government entity, including an attorney general of a State, from bringing a legal claim on behalf of the citizens of the State with respect to any such violation.
 .