RELATING TO CONSUMER PROTECTION.

HB2136

HOUSE OF REPRESENTATIVES

H.B. NO.

2136

THIRTY-THIRD LEGISLATURE, 2026

STATE OF HAWAII

A BILL FOR AN ACT

relating
to consumer protection
.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

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SECTION
1.
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The legislature finds, while the set
of products and services offered by a particular seller � and their
corresponding prices � were historically the same for most potential buyers
under the posted-price paradigm, that is no longer necessarily the case.
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In the existing market, specifically online,
potential buyers can have different experiences when visiting a seller's
business:
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the offers the seller presents
to a particular buyer can depend on a host of other factors, including the
demographics of the prospective buyer, the buyer's location, and the buyer's
previous history with the seller or the seller's partners.

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The
legislature further finds that this new personalized buying experience is the
result of surveillance pricing, an ecosystem designed to use large-scale data
collection to help seller maximize their revenues by customizing the pricing,
as well as the selection of products and services, offered to each
customer.
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In the existing market,
sellers and various third parties collect large amounts of data on consumers �
including their purchase history, their physical movements, their
communications, their medical information, and other highly sensitive data �
sometimes without consumers' knowledge or consent.

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The
legislature also finds that the rapid development of computer and mobile
technologies has only increased the scope and granularity of collected
data:
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mobile devices now routinely run
applications that embed third-party library code for the purpose of tracking
users, websites use a variety of techniques to track browsing across the web,
and even vehicles collect data on consumers for resale to third parties.
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Moreover, the recent progress in fast-moving
technologies, such as artificial intelligence, presents new opportunities for
data use by sellers, enabling potentially easier translation of input data into
actionable pricing and marketing strategies.

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Consequently,
the legislature finds that surveillance pricing is inherently deceptive and
harmful to consumers as the pricing model is based on the lack of transparency,
the exploitation of personal data, and the undermining of price comparison, and
may lead to discrimination.

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Accordingly,
the purpose of this Act is to designate pricing practices based on surveillance
data as unfair or deceptive acts or practices and unfair methods of competition
in the conduct of any trade or commerce.

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SECTION
2.
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Chapter 481B, Hawaii Revised
Statutes, is amended by adding a new section to be appropriately designated and
to read as follows:

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�481B-
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Use of surveillance data in pricing;
prohibited.
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(a)
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No covered entity shall use surveillance data to:

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(1)
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Set or adjust a consumer specific price;

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(2)
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Determine whether a coupon or discount is
available to a specific consumer;

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(3)
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Impose a consumer specific mandatory fee or
service charge; or

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(4)
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Steer a consumer to a higher priced offer
for the same or substantially similar item.

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(b)
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This section shall only apply when:

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(1)
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The covered entity is doing business in the
State or offering goods or services to consumers in the State;

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(2)
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The consumer is physically located in the
State when the price is displayed or offered;

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(3)
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The goods or services are delivered to the
State; or

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(4)
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The transaction occurs in the State.

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(c)
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This section shall apply to the model of pricing in which a business
sets prices for its goods or services that are tailored to different customer
accounts or segments, if such practice uses surveillance data in the model.

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(d)
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This section shall not apply under the following circumstances:

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(1)
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For the following entities or products:

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(A)
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Air carriers with respect to passenger
ticket pricing;

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(B)
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Federally regulated credit products and
bank lending terms;

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(C)
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Insurance underwriting and regulated rate
setting; and

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(D)
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Public utilities and regulated rates;

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(2)
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Where the differentiated price is a result
of objective, non-profile-based price difference, including:

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(A)
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Taxes;

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(B)
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Shipping costs, including interisland or
delivery distance differences;

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(C)
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Time-limited promotions offered on the same
terms to the general public; or

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(D)
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Inventory clearance or supply cost
increases that apply uniformly and are not targeted using surveillance data;
and

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(3)
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Loyalty programs only if:

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(A)
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The consumer affirmatively opts in;

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(B)
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The program terms are disclosed in plain
language;

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(C)
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The pricing is available on equal terms to
all participants; and

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(D)
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Loyalty data is not used to create
individualized pricing outside of the loyalty program that is based on any
indication of a consumer's willingness to pay.

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(e)
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Each covered entity shall keep and maintain
documents and records detailing the covered entity's pricing model, strategy,
or policy for no less than four years.
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The documents and records shall include the categories used in pricing,
documentation of pricing rules or decision logic, and audit logs detailing when
and why prices or discounts were available for substantially similar items.

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(f) Notwithstanding section 480-3.1, any
person who violates subsection (a), other than intentionally or knowingly,
shall be fined a sum of no more than
$ , which shall be
collected in the manner as provided under section 480-3.1.

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(g)
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This section shall not be construed to prevent any fraud or security
measures that are designed to prevent abuse or harm and do not affect an
offered price.

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(h)
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For purposes of this section:

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"Add-to-cart events" means the
metric that logs when a person places an item in an online shopping cart.

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"Clicks" means a measure of
the number of times a person actively selects an advertisement or link on a
webpage or digital application.

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"Consumer" means an individual
acting in a personal or household context.

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"Covered
entity" means any person advertising, offering, selling, or facilitating
the sale of goods or services to consumers in the State.
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"Covered entities" includes
marketplaces and intermediaries that participate in price setting or
presentation.

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"Device
identifiers" means a unique code assigned to a physical electronic device
to track, manage, and secure the device across networks and that is distinct
from user accounts.

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"Digital
application" means a software program that is for electronic devices and
that performs specific tasks.

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"Dwell
time" means the length of time a person spends on a specific webpage after
clicking from a search result or advertisement, before returning to a previous
webpage or taking another action.

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"HTTP
cookie" means a small block of data created by a web server while a person
is browsing a website and placed on the person's electronic device by the
person's web browser.

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"Inferred
traits" means the characteristics, assumptions, or conclusions about a
person that are analytically deduced from collected data.
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"Inferred traits" includes income
proxy, willingness to pay, risk score, and sensitivity to discounts.

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"Location
signals" means data that indicates the geographic location of an
electronic device.

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"Lookalike
modeling" means the process that identifies persons that look and act like
a target audience.

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"Mobile
electronic device advertising identifier" means the unique, resettable
alphanumeric code assigned by mobile electric device operating systems to
identify devices for personalized advertising.

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"Online
or digital application behavioral data" means the following metrics:
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clicks, search queries, browsing behavior, and
dwell time.

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"Same
or substantially similar item" means an item with the same stock keeping
unit number, a materially identical product, or the same service package on
materially identical terms.

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"Surveillance
data" means data collected, derived, or inferred about a consumer from:

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(1)
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Online or digital application behavioral
data;

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(2)
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Device identifiers;

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(3)
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HTTP cookies;

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(4)
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Mobile electronic device advertising
identifiers;

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(5)
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Internet protocol address;

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(6)
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Location signals;

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(7)
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Transaction and commerce behavior;

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(8)
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Third-party data brokers;

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(9)
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Lookalike modeling; and

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(10)
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Inferred traits.

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"Surveillance
data" includes data indicating the type or condition of the hardware of
the person's electronic device.

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"Transaction
and commerce behavior" means a person's purchase history, add-to-cart
events, and account behavior.
"

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SECTION
3.
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This Act does not affect rights and
duties that matured, penalties that were incurred, and proceedings that were
begun before its effective date.

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SECTION
4.
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New statutory material is
underscored.

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SECTION 5.
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This Act shall take effect on July 1, 2026.

INTRODUCED BY:

_____________________________

Report Title:

Pricing Practices
Based on Surveillance Data; UDAP; Unfair Methods of Competition

Description:

Designates
pricing practices based on surveillance data as unfair or deceptive acts or
practices and unfair methods of competition in the conduct of any trade or
commerce.

The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.