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If you’re near Rochester, New York, the price for a carton of Target’s Good & Gather eggs is listed as $1.99 on its website. If you’re in Manhattan’s upscale Tribeca neighborhood, that price changes to $2.29. It’s unclear why the prices differ, but a new notice on Target’s website offers a potential hint: “This price was set by an algorithm using your personal data.”
A recently enacted New York State law requires businesses that algorithmically set prices using customers’ personal data to disclose that. According to the law, personal data includes any data that can be “linked or reasonably linked, directly or indirectly, with a specific consumer or device.” The law doesn’t require businesses to explicitly state what information about a person or device is being used or how each piece of information affects the final price a customer sees. The law includes a carve-out for the use of location data strictly to calculate cab or rideshare fares based on mileage and trip duration but not for other purposes.
The law also requires that the disclosure is “clear and conspicuous.” Target’s disclosure is not the easiest to find–a customer would have to know to click the “i” icon next to the price of an item, then scroll to the bottom of the pop-up. In the past, the courts have held that it’s not always reasonable to assume that a customer will click on “more information” links when it’s not required.
Target didn’t respond to questions about the price differences or explain what personal data was used per the disclosures.
For years, Target has had a practice of setting different prices for different locations. In 2021, the Huffington Post found that Target’s website changed prices depending on the store location associated with a user, and a spokesperson for the company told reporters at the time that its online prices “reflect the local market.” In 2022, the company settled a lawsuit filed by multiple California county district attorneys that alleged it used geofencing to automatically update the prices listed in customers’ Target apps. Today, when you visit Target’s website, it still automatically associates you with a nearby store, which you can change in the website’s settings. (Target didn’t respond to questions about how it decided which brick-and-mortar store to automatically associate with a website visitor.)
In addition to eggs, the price of toilet paper also appears to change based on what store a customer is associated with. For those whose store is set in Flushing, Queens, a six-pack of Mega Charmin Ultra Strong Septic-Safe Toilet Paper is $8.69. Those with the Tribeca location are shown $8.99 for the same listing.
