Surveillance pricing., the official text

An act to add Part 5.6 (commencing with Section 7200) to Division 4 of the Civil Code, relating to consumer protection.

LEGISLATIVE COUNSEL'S DIGEST

Existing law, the California Consumer Privacy Act of 2018 (CCPA), grants a consumer various rights with respect to personal information that is collected or sold by a business, as defined, including the right to direct a business that sells or shares personal information about the consumer to third parties not to sell or share the consumer’s personal information, as specified. Existing law, the California Privacy Rights Act of 2020, approved by the voters as Proposition 24 at the November 3, 2020, statewide general election, amended, added to, and reenacted the CCPA and establishes the California Privacy Protection Agency and vests the agency with full administrative power, authority, and jurisdiction to enforce those provisions.
Existing law requires a retail grocery store or grocery department within a general retail merchandise store that uses a point-of-sale system to have a clearly readable price indicated on 85% of the total number of packaged consumer commodities offered for sale, subject to specified exemptions.
This bill would, subject to certain exceptions, prohibit a retailer from engaging in surveillance pricing. The bill would define “surveillance pricing” to mean offering or setting a customized price for a good for a specific consumer or group of consumers, based, in whole or in part, on personally identifiable information collected through electronic surveillance technology, as specified. The bill would declare that any waiver of these provisions is against public policy and is void and unenforceable.
This bill would declare that its provisions further the purposes and intent of the California Privacy Rights Act of 2020.

The people of the State of California do enact as follows:

SECTION 1.
Part 5.6 (commencing with Section 7200) is added to Division 4 of the Civil Code, to read:
5.6.
SURVEILLANCE PRICING7200.
For purposes of this part, the following definitions apply:
(a) “Discounted price” means a price that is verifiably lower than the widely available and publicly disclosed bona fide market price.
(b) “Electronic surveillance technology” includes the use of technological methods, systems, or tools, including, but not limited to, sensors, cameras, device tracking, or biometric monitoring, that are capable of gathering personally identifiable information about a consumer’s behavior, characteristics, location, or other personal attributes, whether in physical or digital environments.
(c) “Personally identifiable information” shall have the same meaning as “personal information” as defined in paragraph (1) of subdivision (v) of Section 1798.140 of the Civil Code and any regulations promulgated thereunder.
(d) “Retailer” shall have the same meaning as that term is defined in Section 6015 of the Revenue and Taxation Code.
(e) (1) “Surveillance pricing” means offering or setting a customized price for a good for a specific consumer or group of consumers, based, in whole or in part, on personally identifiable information collected through electronic surveillance technology, including personally identifiable information collected through electronic surveillance technology that is gathered, purchased, or otherwise acquired from a third party.
(2) “Surveillance pricing” does not include a discounted price offered to a consumer terminating or taking steps to terminate a service or membership with a person, but does include offering random variations in prices to different customers using a website, mobile application, or comparable online technology.

7201.
(a) Except as provided in subdivision (b), a retailer shall not engage in surveillance pricing.
(b) A retailer does not engage in surveillance pricing if any of the following apply:
(1) The difference in price is based solely on costs associated with providing the good to different consumers.
(2) The discounted price is publicly available and automatically applied to all relevant purchases.
(3) The retailer offers a discounted price based, in whole or in part, on personally identifiable information collected through electronic surveillance technology and all of the following apply:
(A) A discounted price is offered pursuant to any of the following:
(i) Based on publicly disclosed eligibility criteria that any consumer could potentially meet, including, but not limited to, signing up for a mailing list, providing personal information registering for promotional communications, or participating in a promotional event. The terms and criteria for receiving the discounted price shall be conveyed clearly and conspicuously disclosed in clear and prominent terms in such a manner that an ordinary consumer would notice and understand them.
(ii) To members of a broadly defined group, including, but not limited to, teachers, active or retired military, senior citizens, students, or residents of a certain area based on publicly disclosed eligibility criteria.
(iii) Through a loyalty, membership, or rewards program that consumers affirmatively purchase or enroll in.
(B) The current eligibility criteria, available discounts, and any conditions for receiving or earning the discounted price shall be clearly and conspicuously disclosed on the company’s internet website.
(C) The discounted price shall be made available to all consumers who meet the disclosed eligibility criteria.
(4) The retailer satisfies both of the following:
(A) The retailer is licensed pursuant to Section 11700 of the Vehicle Code.
(B) The retailer communicates a total price in compliance with Section 1784.41.

7202.
Any waiver of this part is against public policy and is void and unenforceable.

SEC. 2.
The Legislature finds and declares that this act furthers the purposes and intent of the California Privacy Rights Act of 2020.