S.Amdt. 4437

SA 4437. Mr. GALLEGO submitted an amendment intended to be proposed
by him to the bill S. 1383, to establish the Veterans Advisory
Committee on Equal Access, and for other purposes; which was ordered to
lie on the table; as follows:

At the appropriate place, insert the following:

SEC. ____. PROHIBITION ON SURVEILLANCE-BASED PRICE SETTING.

(a) Short Title.--This section may be cited as the ``One
Fair Price Act of 2026''.
(b) 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.

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(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.
(c) Enforcement by the Commission.--
(1) Unfair or deceptive acts or practices; unfair methods
of competition.--A violation of subsection (b) 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 (b) 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 (b) or a regulation
promulgated under subsection (b), 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
(b).
(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 section may be
construed to limit the authority of the Commission under any
other provision of law.
(d) 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 (b) 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 section 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.
(e) Private Right of Action.--
(1) In general.--An individual who has been injured by a
person in violation of subsection (b) 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 (b) 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 (b)(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 (b) and an individual is not valid
or enforceable for purposes of the individual bringing a
civil action against such person under this subsection.
(f) 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 section 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.
(g) 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

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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.
(h) Application of Prohibition on Surveillance-based Price
Setting to Air Carriers and Ticket Agents.--
(1) 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
subsection (b) of the One Fair Price Act of 2026.''.
(2) 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
subsection (b) of the One Fair Price Act of 2026; 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.''.
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