Text of Senate Amendment 4437

Text of Senate Amendment 4437

Congressional Record, Volume 172 Issue 48 (Tuesday, March 17, 2026) [Congressional Record Volume 172, Number 48 (Tuesday, March 17, 2026)] [Senate] [Pages S1134-S1136] From the Congressional Record Online through the Government Publishing Office [ www.gpo.gov ] 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. [[Page S1135]] (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 subsec