S 8616: 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.

  
  STATE OF NEW YORK ________________________________________________________________________ 8616 2025-2026 Regular Sessions  IN SENATE December 12, 2025 ___________ Introduced by Sens. GIANARIS, MAY, CLEARE, RAMOS -- read twice and ordered printed, and when printed to be committed to the Committee on Rules 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- 15 tion and discriminatory pricing schemes like personalized algorithmic 16 pricing and surveillance pricing, in which companies exploit the 17 personal and protected data of consumers to maximize profits. It is in 18 the interest of the state to regulate any technologies or business 19 models that stifle competition through the monetization of consumers' 20 personal information. 21 2. The state of New York further finds that business models in person- 22 alized algorithmic or surveillance pricing will lead to the elimination 23 of numerous jobs, putting the livelihood of many workers at risk. 24 Protecting these jobs will further benefit consumers who are part of EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14248-01-5 
 S. 8616 2 1 this economic ecosystem. It will also add to the growth of the state's 2 economy and job market. Thus, by enacting rules around personalized 3 algorithmic and surveillance pricing, the state of New York can protect 4 these jobs and promote the growth of jobs in the future. 5 § 3. The general business law is amended by adding a new section 349- 6 a-1 to read as follows: 7 § 349-a-1. Discriminatory pricing. 1. The following terms shall have 8 the following meanings for the purposes of this section: 9 (a) "Algorithm" means a computational process that uses a set of rules 10 to define a sequence of operations including but not limited to artifi- 11 cial intelligence systems and facial-recognition software. 12 (b) "Consumer" means a natural person who is seeking or solicited to 13 purchase, lease or receive a good or service not for resale in the ordi- 14 nary course of the natural person's trade or business, but for personal, 15 family or household use. 16 (c) "Consumer data" means any data that identifies or could reasonably 17 be linked, directly or indirectly, with a specific natural person or 18 device, excluding location data. 19 (d) "Dynamic and surveillance pricing" means pricing that fluctuates 20 depending on conditions where algorithmic or artificial intelligence 21 models retrain or recalibrate on information in near real-time, exclud- 22 ing promotional pricing offers, loyalty program benefits or other tempo- 23 rary discounts or changes to pricing related to retention of existing 24 customers. 25 (e) "Surveillance pricing" means offering or setting a customized 26 price for a good or service for a specific consumer or group of consum- 27 ers, based, in whole or in part, on covered information collected 28 through electronic surveillance technology. "Surveillance pricing" 29 includes the use of technological methods, systems, or tools, including, 30 but not limited to, sensors, cameras, device tracking, biometric moni- 31 toring, or other forms of observation or data collection, that are capa- 32 ble of gathering covered information about a consumer's behavior, char- 33 acteristics, location, or other personal attributes, whether in physical 34 or digital environments. 35 (f) "Electronic shelving labels" (ESLs) means electronic and wireless 36 paper (E-paper) displays that present product and pricing information. 37 (g) "Food retail establishment" means a retail store that is either: 38 (1) over fifteen thousand square feet in size and sells primarily house- 39 hold foodstuff for offsite consumption including fresh produce, meats, 40 poultry, fish, deli products, dairy products, canned foods, dry foods, 41 beverages, baked foods and/or prepared foods (other household supplies 42 or products are secondary to the primary purpose of food sales); or (2) 43 over eighty-five thousand square feet and with ten percent of their 44 sales floor area dedicated to the sale of non-taxable merchandise 45 including the sale of fresh produce, meats, poultry, fish, deli 46 products, dairy products, canned foods, dry foods, beverages, baked 47 foods and/or prepared foods. 48 (h) "Drug retail establishment" means a retail store that sells a 49 variety of prescription and nonprescription medicines and miscellaneous 50 items, including drugs, pharmaceuticals, sundries, fresh produce, meats, 51 poultry, fish, deli products, dairy products, canned foods, dry foods, 52 beverages, prepared foods, and other merchandise. 53 (i) "Non-digital presentation of price" means (1) A sign which offers 54 the unit price for one or more brands or sizes of a given commodity; or 55 (2) A sticker, stamp, sign, label, or tag, affixed to the shelf upon 56 which the commodity is displayed; and (3) A sticker, stamp, sign, label, 
 S. 8616 3 1 or tag, affixed to the consumer commodity itself. If a single sign or 2 tag does not provide the unit price information for more than one brand 3 or size of a given commodity, then the following information shall be 4 provided: i. the identity; ii. the brand name; iii. the quantity of the 5 packaged commodity if more than one package size per brand is displayed; 6 iv. the total sale price; and v. the price per appropriate unit. Where a 7 sign providing unit price information for one or more sizes or brands of 8 a given commodity is used, the sign shall be located centrally as close 9 as practical to all items to which the sign refers, and the unit price 10 information displayed thereon shall be presented in a clear, distinct, 11 and non-deceptive manner. 12 (j) "Personalized algorithmic pricing" means dynamic and surveillance 13 pricing derived from or set by an algorithm that uses consumer data 14 which may vary among consumers and/or groups of consumers. 15 (k) "Person" means any human being or individual. 16 (l) "Protected class data" means information about an individual 17 person or groups of people that directly, in combination, or by impli- 18 cation identifies a characteristic that is legally protected from 19 discrimination under the laws of this state or under federal law, 20 including but not limited to ethnicity, national origin, age, disabili- 21 ty, predisposing genetic characteristic, sex, sexual orientation, gender 22 identity and expression, pregnancy-related conditions, marital status, 23 familial status, religion, and reproductive health care. 24 2. (a) In food retail establishments and in drug retail establish- 25 ments, the use of ESLs or any digital shelf display technology shall be 26 prohibited and a non-digital presentation of price shall be used. This 27 prohibition does not limit any food retail or drug retail establishment 28 and any business to provide consumers, based on previous purchase histo- 29 ry, a discount, promotional price, or loyalty program benefit. 30 (b) The use of ESLs or any digital shelf display technology to display 31 personalized algorithmic pricing or surveillance pricing is prohibited. 32 (c) It is unlawful, for any reason, for any food retail or drug retail 33 establishment to engage in personalized algorithmic pricing or surveil- 34 lance pricing. 35 (d) Data of minors under seventeen shall not be collected or used for 36 targeted advertising or personalized algorithmic pricing under any 37 circumstances. 38 (e) No food retail or drug retail establishment shall use protected 39 class data in setting a price for, offering, marketing, or selling any 40 good or service if any of the following are true: 41 (1) The use of that data has the effect of withholding or denying any 42 of the accommodations, advantages, and privileges accorded to others. 43 (2) The price for such good or service is different from the price 44 offered to other individuals or groups based in whole or in part on the 45 use of protected class data. 46 (f) Nothing in this section shall apply to financial services, includ- 47 ing but not limited to financial institutions, financial institution 48 affiliates, broker-dealers, registered investment advisors, and entities 49 that provide consumer credit products such as credit cards, personal 50 loans, and mortgages. 51 (g) Nothing in this section shall apply to any insurer licensed, regu- 52 lated, or otherwise authorized to do business in the state of New York 53 under the insurance law, including any persons, agents, or affiliates 54 acting on behalf of such insurer. 55 3. (a) Whenever there shall be a violation of any portion of this 56 section, an application may be made by the attorney general or, where 
 S. 8616 4 1 applicable, by a consumer, worker or labor organization acting on behalf 2 of affected individuals in the name of the people of the state of New 3 York to a court or justice having jurisdiction to issue an injunction, 4 and upon notice to the respondent of not less than five days, to enjoin 5 and restrain the continuance of such violations; and if it shall appear 6 to the satisfaction of the court or justice that the respondent has, in 7 fact, violated any portion, an injunction may be issued by such court or 8 justice, enjoining and restraining any further violation, without 9 requiring proof that any person has, in fact, been injured or damaged 10 thereby. 11 (b) Whenever the court shall determine that a violation of any portion 12 of this section has occurred, the court may impose a civil penalty of 13 not more than ten thousand dollars for each violation, with each day of 14 a continuing violation constituting a separate and distinct offense. In 15 connection with any such application, the attorney general is authorized 16 to take proof and make a determination of the relevant facts and to 17 issue subpoenas in accordance with the civil practice law and rules. All 18 penalties collected under this section shall be deposited into a dedi- 19 cated consumer and worker protection fund to support enforcement, educa- 20 tion and remedies for affected individuals. 21 (c) In addition to any other remedies provided in this section, any 22 consumer, employee or labor organization, individually or on behalf of a 23 class of similarly-situated persons, aggrieved by a violation of this 24 section shall have a private right of action in any court of competent 25 jurisdiction. Prevailing plaintiffs shall be entitled to recover the 26 greater of actual damages or statutory damages of not less than five 27 thousand dollars per violation, injunctive and declaratory relief, 28 restitution, disgorgement of profits, and any other relief deemed appro- 29 priate by the court. In cases of willful, reckless or knowing 30 violations, treble damages shall be awarded. Prevailing plaintiffs shall 31 also be awarded reasonable attorney's fees, expert witness fees and 32 costs. Nothing in this section shall in any way limit or restrict any 33 rights or remedies which are otherwise available under law to the attor- 34 ney general or any other person authorized to bring an action under this 35 section. Any waiver of the rights provided by this section is against 36 public policy, void and unenforceable. Retaliation against any person or 37 organization exercising rights under this section is prohibited and 38 constitutes a separate violation. 39 § 4. This act shall be liberally construed to effectuate its purposes. 40 If a court declares any provision or application of this act to be ille- 41 gal, the remaining provisions shall remain in effect. Courts are hereby 42 authorized to reform the provisions of this act in order to preserve the 43 maximum lawful effect thereof. 44 § 5. This act shall take effect immediately.