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Bill No.: Summary Actions Committee&nbspVotes Floor&nbspVotes Memo Text LFIN Chamber&nbspVideo/Transcript S08616 Summary: BILL NO S08616B &nbsp SAME AS SAME AS A09396-B

&nbsp SPONSOR GIANARIS &nbsp COSPNSR MAY, ADDABBO, BRISPORT, BROUK, CLEARE, COMRIE, FAHY, GONZALEZ, HARCKHAM, HINCHEY, JACKSON, KRUEGER, LIU, MAYER, MYRIE, RAMOS, RYAN C, SEPULVEDA, SERRANO, SKOUFIS, SUTTON &nbsp MLTSPNSR &nbsp Add §349-a-1, Gen Bus L &nbsp Prohibits the use of electronic shelving labels, digital shelf display technology, and surveillance pricing in food retail establishments and drug retail establishments; provides injunctive relief and civil penalties.

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STATE OF NEW YORK ________________________________________________________________________

8616--B Cal. No. 1009

2025-2026 Regular Sessions

IN SENATE

December 12, 2025 ___________

Introduced by Sens. GIANARIS, MAY, ADDABBO, BRISPORT, BROUK, CLEARE, COMRIE, FAHY, GONZALEZ, HARCKHAM, HINCHEY, JACKSON, KRUEGER, LIU, MAYER, MYRIE, RAMOS, C. RYAN, SEPULVEDA, 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 committee -- reported favorably from said committee and committed to the Committee on Rules -- reported favorably from said committee, ordered to a third reading, passed by Senate and delivered to the Assembly, recalled, vote reconsidered, restored to third read- ing, amended and ordered reprinted, retaining its place in the order of third reading

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:

1 Section 1. Short title. This act shall be known and may be cited as 2 the "Protecting Consumers and Jobs from Discriminatory Pricing Act". 3 § 2. Legislative findings. The legislature finds and declares that: 4 1. It is the policy of the state of New York to protect consumers from 5 discriminatory pricing schemes in whatever iteration they appear or 6 evolve. Advancements in algorithms, in artificial intelligence, and in 7 electronic shelving technology have created commercial and retail envi- 8 ronments where it is possible to set pricing for a product or service 9 based on personal or protected data. Currently, there are no prohibi- 10 tions on companies using such data to set prices; this gap in the law 11 presents a distinct potential for companies to violate consumer privacy 12 rights and create discriminatory results. 13 While offering goods at different prices due to customer demand is not 14 new, there are subtle and important differences between price optimiza-

EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14248-07-6

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1 tion and discriminatory pricing schemes like personalized algorithmic 2 pricing and surveillance pricing, in which companies exploit the 3 personal and protected data of consumers to maximize profits. It is in 4 the interest of the state to regulate any technologies or business 5 models that stifle competition through the monetization of consumers' 6 personal information. 7 2. The state of New York further finds that business models in person- 8 alized algorithmic or surveillance pricing will lead to the elimination 9 of numerous jobs, putting the livelihood of many workers at risk. 10 Protecting these jobs will further benefit consumers who are part of 11 this economic ecosystem. It will also add to the growth of the state's 12 economy and job market. Thus, by enacting rules around personalized 13 algorithmic and surveillance pricing, the state of New York can protect 14 these jobs and promote the growth of jobs in the future. 15 § 3. The general business law is amended by adding a new section 349- 16 a-1 to read as follows: 17 § 349-a-1. Discriminatory pricing. 1. The following terms shall have 18 the following meanings for the purposes of this section: 19 (a) "Algorithm" means a computational process or system that applies 20 one or more sets of rules, including rules generated by a natural person 21 or by a computational process or system, to generate outputs based on 22 inputs and/or to define a sequence of operations. 23 (b) "Consumer" means a natural person who is seeking or solicited to 24 purchase, lease or receive a good or service for personal, family or 25 household use in New York state or from an entity domiciled in New York 26 state. 27 (c) "Personal data" means any data that identifies or could reasonably 28 be linked, directly or indirectly, with a consumer or consumer's device. 29 Personal data includes all data obtained through technological methods, 30 systems, or tools, including, but not limited to, sensors, cameras, 31 device tracking, biometric monitoring, or other forms of observation or 32 data collection, that are capable of gathering covered information about 33 a consumer, including but not limited to the consumer's behavior, char- 34 acteristics, belongings, possessions, location, or other attributes of 35 the consumer, whether in physical or digital environments. Personal 36 data shall not include location data that is affirmatively and knowingly 37 provided or shared by a consumer and used: i. for the purpose of calcu- 38 lating trip duration and mileage costs associated with location-based 39 service, such as transportation, delivery, courier logistics; or ii. to 40 assess local supply and demand conditions. 41 (d) "Dynamic pricing" means pricing that fluctuates automatically 42 depending on conditions based completely or in part on one or more algo- 43 rithms, excluding price fluctuations based solely on bona fide custom 44 discounts or changes to pricing related to retention of existing custom- 45 ers. 46 (e) "Electronic shelving labels" (ESLs) means electronic and wireless 47 paper (E-paper) displays that present product and pricing information. 48 (f) "Food retail establishment" means a retail store that is either: 49 i. over ten thousand square feet in size and sells primarily household 50 foodstuff for offsite consumption including fresh produce, meats, poul- 51 try, fish, deli products, dairy products, canned foods, dry foods, 52 beverages, baked foods and/or prepared foods (other household supplies 53 or products are secondary to the primary purpose of food sales); or ii. 54 over eighty-five thousand square feet and with ten percent of their 55 sales floor area dedicated to the sale of non-taxable merchandise 56 including the sale of fresh produce, meats, poultry, fish, deli

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1 products, dairy products, canned foods, dry foods, beverages, baked 2 foods and/or prepared foods. 3 (g) "Drug retail establishment" means a retail store that sells a 4 variety of prescription and nonprescription medicines and miscellaneous 5 items, such as drugs, pharmaceuticals, sundries, fresh produce, meats, 6 poultry, fish, deli products, dairy products, canned foods, dry foods, 7 beverages, prepared foods, and other merchandise. 8 (h) "Entity" means any natural person, firm, organization, partner- 9 ship, association, corporation, or any other entity domiciled or doing 10 business in New York state. A single entity may have one or more food 11 retail establishments or drug retail establishments. 12 (i) "Non-digital presentation of price" i. means: (1) A sign which 13 offers the unit price for one or more brands or sizes of a given good or 14 set of goods; or 15 (2) A sticker, stamp, sign, label, or tag, affixed to the shelf upon 16 which the goods are displayed; and 17 (3) A sticker, stamp, sign, label, or tag, affixed to the consumer 18 good itself. 19 ii. If a single sign or tag does not provide the unit price informa- 20 tion for more than one brand or size of a given good or set of goods, 21 then the following information shall be provided: (1) the identity; (2) 22 the brand name; (3) the quantity of the packaged good if more than one 23 package size per brand is displayed; (4) the total sale price; and (5) 24 the price per appropriate unit. 25 iii. Where a sign providing unit price information for one or more 26 sizes or brands of a given good is used, the sign shall be located 27 centrally as close as practical to all items to which the sign refers, 28 and the unit price information displayed thereon shall be presented in a 29 clear, distinct, and non-deceptive manner. 30 (j) "Surveillance pricing" means pricing set completely or in part by 31 an algorithm that uses personal data to offer different prices to 32 different consumers for the same goods or services and does not include 33 bona fide custom discounts. 34 (k) "Person" means any human being or individual. 35 (l) "Protected class data" means information about an individual 36 person or groups of people that directly, in combination, or by impli- 37 cation identifies a characteristic that is legally protected from 38 discrimination under the laws of this state or under federal law, 39 including but not limited to ethnicity, national origin, age, disabili- 40 ty, predisposing genetic characteristic, sex, sexual orientation, gender 41 identity and expression, pregnancy-related conditions, marital status, 42 familial status, religion, and reproductive health care. 43 (m) "Bona fide discount" means a genuine reduction in price that is 44 referred to as such to consumers, including generally available 45 reductions in price from the reference price based on bulk purchases or 46 subscriptions. Entities may reasonably interpret bona fide discount to 47 mean a genuine reduction from a contemporaneous or recent reference 48 price that is established absent of deceptive, abusive and unfair prac- 49 tices as required by section three hundred forty-nine of the general 50 business law and 16 CFR Part 233. 51 (n) "Bona fide custom discount" means i. A bona fide discount consist- 52 ent with federal, state, and local anti-discrimination laws offered by 53 an entity: 54 (1) to a consumer who affirmatively and knowingly enrolls in a loyal- 55 ty, membership or rewards program, including by signing up for a mailing 56 list, registering for promotional communication, or participating in a

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1 promotional event, provided the discount is offered and clearly and 2 conspicuously disclosed to all members in a given local geographic 3 market, or commonly used distribution channels of such loyalty program 4 pursuant to publicly disclosed terms and conditions. Such loyalty, 5 membership or rewards programs may include tiers of bona fide discounts 6 based on prior purchase history data provided that the tiers are clearly 7 and conspicuously disclosed and that such prior purchase history data is 8 not paired, combined, or cross-referenced with any other personal data 9 except enrollment in the loyalty, membership or rewards program; 10 (2) based on a consumer's voluntary self-identification with a broadly 11 defined class of consumers including, but not limited to, military 12 veterans, active duty personnel, seniors, teachers, or employees, or 13 individuals belonging to a class of consumers based on date of birth or 14 anniversary of membership in a loyalty program, provided affirmatively 15 and knowingly by the consumer and is not derived or inferred by the 16 entity from any other data, provided the basis of the discount is clear- 17 ly and conspicuously disclosed to all members of the defined class of 18 consumers; or 19 (3) based solely on a consumer's prior purchase history, including 20 goods or services purchased, timing or frequency of purchases including 21 first-time or subsequent purchases, returns or cancellations, with that 22 specific entity, provided that (A) such purchase data is not paired, 23 combined, or cross-referenced with any other personal data except the 24 fact of enrollment in a loyalty, membership or rewards program; and (B) 25 the entity clearly and conspicuously discloses its use of prior purchase 26 history data. 27 ii. Bona fide custom discount does not include any reduction in refer- 28 ence price based on personal data other than personal data identified in 29 clauses one, two and three of subparagraph i of this paragraph. 30 iii. Nothing herein shall prevent an entity from notifying the consum- 31 er of a bona fide custom discount, or automatically applying a bona fide 32 custom discount where the entity has knowledge of a consumer's eligibil- 33 ity for such a discount, provided the entity does not change the refer- 34 ence price. Where an entity provides a bona fide custom discount auto- 35 matically, such entity shall notify the consumer of their eligibility. 36 iv. Nothing herein shall prevent an entity from marketing a bona fide 37 discount to a consumer for the purposes of attracting a new customer or 38 reengaging a consumer as a customer with the entity unless such consumer 39 opts out of such communications. 40 2. (a) In food retail establishments and in drug retail establish- 41 ments, the use of ESLs or any digital shelf display technology shall be 42 prohibited and a non-digital presentation of price shall be used. 43 (b) The use of ESLs or any digital shelf display technology in food 44 retail establishments and in drug retail establishments to display 45 surveillance pricing is prohibited. 46 (c) It is unlawful, for any reason, for any food retail establishment 47 or drug retail establishment to engage in surveillance pricing. This 48 prohibition does not limit any food retail establishment or drug retail 49 establishment and/or any business from providing consumers a bona fide 50 discount or bona fide custom discount. 51 (d) Where a food retail establishment or drug retail establishment has 52 actual knowledge that it has collected data of a minor under the age of 53 seventeen, such establishment shall cease processing such data, and 54 delete all information associated with the individual within the estab- 55 lishment's possession or control as soon as reasonably practicable,

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1 except to the extent necessary to comply with the establishment's legal 2 obligations. 3 (e) No food retail establishment or drug retail establishment shall 4 use protected class data in setting a price for, offering, marketing, or 5 selling any good or service if any of the following are true: 6 i. The use of that data has the effect of withholding or denying any 7 of the accommodations, advantages, and privileges accorded to others. 8 ii. The price for such good or service is different from the price 9 offered to other individuals or groups based in whole or in part on the 10 use of protected class data. 11 (f) Any food retail establishment or drug retail establishment that 12 uses dynamic pricing to vary the price of any good or service more than 13 once in a twenty-four hour period shall clearly and conspicuously 14 disclose the use of such dynamic pricing, the frequency with which price 15 changes may occur, and the conditions that factor into the current 16 dynamic pricing. 17 3. Nothing in this section shall apply to: 18 (a) Any insurer licensed, regulated, or otherwise authorized to do 19 business in the state of New York under the insurance law, including any 20 persons, agents, or affiliates acting on behalf of such insurer. 21 (b) Pricing required or expressly authorized by federal or state law. 22 (c) A food retail establishment or drug retail establishment's use of 23 personal data to set or adjust the price or terms of a good or service 24 based in whole or in part on an evaluation of creditworthiness, includ- 25 ing the pricing of credit, extension or granting of credit, or the 26 refusal to extend credit based on data provided in a consumer report as 27 defined by the federal Fair Credit Reporting Act, 15 U.S.C. § 1681, et 28 seq. 29 4. (a) Whenever there shall be a violation of any portion of this 30 section, an application may be made by the attorney general acting on 31 behalf of affected individuals in the name of the people of the state of 32 New York to a court or justice having jurisdiction to issue an injunc- 33 tion, and upon notice to the respondent of not less than five days, to 34 enjoin and restrain the continuance of such violations; and if it shall 35 appear to the satisfaction of the court or justice that the respondent 36 has, in fact, violated any portion, an injunction may be issued by such 37 court or justice, enjoining and restraining any further violation, with- 38 out requiring proof that any person has, in fact, been injured or 39 damaged thereby. 40 (b) Whenever the court shall determine that a violation of any portion 41 of this section has occurred, the court may impose a civil penalty of 42 not more than ten thousand dollars for each violation, with each day of 43 a continuing violation constituting a separate and distinct offense. In 44 connection with any such application, the attorney general is authorized 45 to take proof and make a determination of the relevant facts and to 46 issue subpoenas in accordance with the civil practice law and rules. All 47 penalties collected under this section shall be deposited into a dedi- 48 cated consumer and worker protection fund to support enforcement, educa- 49 tion and remedies for affected individuals. 50 (c) The provisions of this section may be enforced concurrently by the 51 director of a municipal consumer affairs office, or by the town attor- 52 ney, city corporation counsel, or other lawfully designated enforcement 53 officer of a municipality or local government, and all monies collected 54 thereunder shall be retained by such municipality or local government.

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1 (d) Nothing in this section shall in any way limit or restrict any 2 rights or remedies which are otherwise available under law to the attor- 3 ney general. 4 § 4. Construction. This act shall be liberally construed to effectu- 5 ate its purposes. This section shall not be construed to limit any 6 other criminal or civil liability such entity may be subject to under 7 law. 8 § 5. Severability. If any clause, sentence, paragraph, subdivision, 9 section, or part of this act shall be adjudged by any court of competent 10 jurisdiction to be invalid, such judgment shall not affect, impair, or 11 invalidate the remainder thereof, but shall be confined in its operation 12 to the clause, sentence, paragraph, subdivision, section, or part there- 13 of directly involved in the controversy in which such judgment shall 14 have been rendered. It is hereby declared to be the intent of the legis- 15 lature that this act would have been enacted even if such invalid 16 provisions had not been included herein. Courts are hereby authorized 17 to reform the provisions of this act in order to preserve the maximum 18 lawful effect thereof. 19 § 6. The attorney general may promulgate such rules and regulations as 20 are necessary to effectuate and enforce the provisions of this section. 21 § 7. This act shall take effect on the one hundred eightieth day after 22 it shall have become a law. Effective immediately, the addition, amend- 23 ment and/or repeal of any rule or regulation necessary for the implemen- 24 tation of this act on its effective date are authorized to be made and 25 completed on or before such effective date.

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