A 4085/S 3612 would create serious harm to New Jersey families, businesses, and workers through overly broad restrictions on common and beneficial commercial practices — banning the dynamic discounting tools that help retailers lower prices and reduce waste, and threatening the loyalty programs that millions of New Jersey families depend on to afford essentials.
NetChoice Letter of Opposition on New Jersey’s A 4085/S 3612 – The Fair Price Protection Act
June 30, 2026
The Honorable Nicholas P. Scutari, Senate President
The Honorable Craig J. Coughlin, Speaker of the General Assembly
The Honorable M. Teresa Ruiz, Senate Majority Leader
The Honorable Louis D. Greenwald, Assembly Majority Leader
State House 125 West State Street Trenton, NJ 08625-1101
Dear Mr. President, Mr. Speaker, Majority Leader Ruiz, and Majority Leader Greenwald:
On behalf of NetChoice, a trade association dedicated to making the internet safe for free enterprise and free expression, we respectfully write in opposition to A 4085/S 3612, the Fair Price Protection Act. While we share the sponsors’ efforts to combat exploitative business practices, A 4085/S 3612 would create serious harm to New Jersey families, businesses, and workers through overly broad restrictions on common and beneficial commercial practices — banning the dynamic tools that help retailers lower prices and reduce waste, and threatening the loyalty programs that millions of New Jersey families depend on to afford essentials.
This Bill Bans Technology that Benefits Consumers
At its core, A4085/S 3612 bans businesses from using algorithmic tools to price groceries and household goods. But dynamic discounting is neither predatory nor new or unique to the modern age. Businesses have long used dynamic discounting to lower prices, improve inventory management, and reduce food waste, all of which pass savings along to customers. A grocery store lowering the cost of soon-to-expire produce, a practice which benefits consumers and businesses alike, is dynamic discounting.
Dynamic discounting exists in many forms. Besides popular loyalty savings programs, dynamic discounting is seen in win-back offers, subscription and retention offers, and even new product introductions, all of which are additional ways consumers benefit from dynamic discounting.
In our modern age, dynamic discounting technology allows retailers to reduce the cost of perishable goods before they expire, respond to regional supply fluctuations in real time, and offer competitive discounts at scale. A blanket prohibition on dynamic discounting conflates the tool with its potential misuse and, in doing so, eliminates consumer benefits that this bill does not quantify.
The Loyalty Program Carve Out is a Promise the Bill Cannot Keep
The bill claims to preserve loyalty programs — and sponsors have pointed to this carve out when saying this legislation strikes a reasonable balance. It does not. Loyalty programs are by definition built on collecting and acting on individual consumer data: purchase history, frequency, product preferences, spending patterns. The moment a retailer uses that data to decide which discount to offer a loyalty member — which is exactly what every loyalty program does — it risks running afoul of the bill’s core prohibition on pricing that is “determined, adjusted, optimized, or recommended” based on personal data.
The loyalty program carve-out in the bill may protect broad uniform discounts such as student, military, and senior discounts, but guts protections for the most common and widely applied and enjoyed customer loyalty discounts. Retailers can’t afford to extend targeted, behavior-based discounts to every customer uniformly — and if forced to choose between offering them to everyone or no one, they’ll choose no one.
The carve-out and the prohibition on utilizing personalized data cannot coexist as written. Retailers operating loyalty programs will face a genuine legal dilemma: either significantly cutting loyalty programs entirely or risk Attorney General enforcement actions carrying penalties of $50,000 per violation. New Jersey families who rely on loyalty savings to manage their grocery budgets will be the ones who pay the price for this failure.
The Terms of this Bill are Dangerously Vague
The bill defines “personalized algorithmic pricing” and “surveillance pricing” in sweeping terms that would capture a wide range of ordinary, beneficial retail practices. Under the bill’s plain language, a grocery chain that adjusts shelf prices based on regional supply data, local competition, or demand could face liability — even if no individual consumer’s personal data was ever utilized.
The definitions offer no safe harbor for aggregate market analysis, competitive benchmarking, or operational efficiency tools that don’t unfairly impact customers or collect hyperpersonal data of consumers. When statutory definitions are this broad and this vague, the result is not consumer protection — it is legal uncertainty that chills innovation and raises compliance costs, which are inevitably passed back to consumers in the form of higher prices.
The Electronic Shelf Label Moratorium is Unjustified
The bill imposes a one-year moratorium on new uses of electronic shelf labels — digital price displays that improve pricing transparency, reduce paper waste, and allow retailers to correct pricing errors instantly. Electronic shelf labels are often used to show a discounted price offered on a product. Far from being a threat to consumers, electronic shelf labels are a transparency enhancement. Banning them while a study is conducted presumes harm that has not been proven, unfairly burdens retailers who have already invested in the technology, and delays consumer-facing benefits without any corresponding protection. A study can be conducted without a moratorium. The Legislature should not ban technology first and ask questions later.
Existing Law Already Addresses Exploitative Business Practices
New Jersey’s Consumer Fraud Act (CFA) is a broad and actively enforced consumer protection statute. If a retailer uses consumer data to discriminate against a protected class, charge deceptive prices, price gouge, or engage in bait and switch schemes, the CFA already provides a remedy that includes substantial civil penalties for violators.
The Attorney General does not need a new statutory framework to pursue bad actors. What A 4085 adds is not targeted enforcement against demonstrable harm; it is an overreaching ban on an entire category of technology that has no demonstrable harm.
The Bill Invites Commerce Clause Scrutiny
Online retailers and digital marketplaces routinely price goods across state lines using the same algorithmic systems A 4085/S 3612 targets. A New Jersey prohibition that reaches pricing decisions made outside the state, affecting interstate commerce, raises serious dormant Commerce Clause concerns. Courts have repeatedly scrutinized state economic regulations that impose compliance burdens on interstate commerce without a clear, narrowly tailored justification. This bill, as currently drafted, would struggle to survive that scrutiny.
The practical reality is that if a national grocery chain or e-commerce platform operates a single, unified pricing infrastructure that serves customers in New Jersey, New York, and beyond, A 4085 would effectively compel that business to either build a New Jersey-specific pricing silo — at enormous cost — or abandon dynamic discounting altogether across its entire operation to avoid the risk of violations. Neither outcome serves New Jersey families.
The former raises operational costs that flow directly to the checkout line; the latter strips every American customer of the efficiency benefits those systems provide. The dormant Commerce Clause exists precisely to prevent individual states from leveraging their regulatory authority to reshape commercial practices that extend far beyond their borders, and federal courts have not hesitated to apply it where, as here, the burden on interstate commerce is substantial, and the local benefit is speculative at best.
Conclusion
NetChoice shares the goal of ensuring that New Jersey consumers are treated fairly and that pricing practices are transparent and honest. We would welcome the opportunity to work with the sponsors and this Committee on targeted legislation that addresses specific, documented harms — such as explicit price discrimination based on protected class status — without banning the broad class of pricing technologies that today help put food on New Jersey families’ tables at lower cost.
NetChoice respectfully urges you to oppose A 4085/S 3612. We remain available to discuss any of these issues in further detail and appreciate the opportunity to provide the Committee with our perspective.
Sincerely,
Tyler Fields
Government Affairs Associate, NetChoice (The views of NetChoice expressed here do not necessarily represent the views of all NetChoice members.)
NetChoice is a trade association that works to protect free expression and promote free enterprise online.