Retail price gouging ban using consumer data

Summary#

SB 1171, titled “Prohibiting retail dynamic price gouging of consumer goods and providing a penalty,” failed and did not become law. It would have created a new section of Wisconsin law, rather than amending an existing Act. Its stated goal was to prohibit retail sellers from setting a consumer’s price for certain goods using a computational system that processes that consumer’s data.

• The ban would have covered consumer goods with a universal product code that are mainly for personal, family, or household use, sold in person or online.
• It would have barred a retail seller from offering or selling a covered good at a price set wholly or partly through the defined practice.
• The Department of Agriculture, Trade and Consumer Protection could issue a warning notice or bring an enforcement action. The Department of Justice could also bring an action after consulting with that department.
• An action could seek a civil forfeiture (a money penalty) of up to $10,000, a temporary or permanent court order stopping the practice, or both.
• The bill would have taken effect on the first day of the fourth month beginning after publication. Because it failed, that start date did not take effect.

What it means for you#

• Consumers: The bill would have covered people located in Wisconsin. It would not have required retailers to charge everyone the same price; it targeted only prices set wholly or partly using the bill’s definition of consumer data.
• Retail sellers: The ban would have applied to sellers of qualifying goods for personal, family, or household use, whether they sold in person or online. The bill did not set out an application or approval process.
• State agencies: The agriculture and consumer protection department could issue warning notices or bring enforcement actions. The Justice Department could act after consulting that department.
• General public: The bill would not have directly regulated goods outside its definition, including goods not packaged with a universal product code.

Money#

No publicly available information on estimated public costs or savings.

• The bill allowed state agencies to enforce the ban, but did not state how much enforcement would cost or require a specific staffing level.
• It authorized a civil forfeiture of up to $10,000 for a violation; it did not set a fee or require a particular penalty in every case.

What is unclear#

• The bill did not define terms such as “surveillance technology” or explain how the agencies would decide whether a price was set using consumer data.
• It did not describe investigation procedures, timelines, appeals, or how a seller could challenge an enforcement action.
• It did not explain how the ban would interact with other consumer-protection rules. The supplied materials do not establish what protections current law already provides.
• It did not explain how many cases agencies might pursue or what resources they would need.

Case for#

• A possible argument for the bill is that retailers should not use personal information to set different prices for specific consumers without their consent.
• The bill included information bought from data brokers, certain information gathered through surveillance or automated extraction, information acquired without consent, and information related to specified prohibited grounds of discrimination.
• Warning notices and court orders could have given agencies options besides seeking a money penalty.

Case against#

• One concern is that the definitions could make it difficult for retailers and agencies to tell which data and pricing methods were covered.
• The bill did not explain how violations would be investigated or how a seller could contest an agency’s findings.
• The ban applied only to goods meeting a specific UPC and household-use definition, so other goods and pricing practices would have remained outside its scope.
• The bill did not estimate enforcement costs or specify staffing, even though it gave state agencies enforcement powers.