NY AG Probes Instacart Pricing and Data Privacy Compliance

S TATE OF N EW Y ORK O FFICE OF THE A TTORNEY G ENERAL L ETI TIA J AMES J ANE M. A ZIA A TTORNE Y G ENERAL B UREAU C HIE F C ONSUMER F RAUDS & P ROTECTION B UREAU January 8, 2026 Chris Rogers Chief E xecutiv e Offi cer Morgan Fong General Coun sel Maplebea r Inc. d/b/a In stacart 50 Beal e Street, Sui te 60 0 San Francisco, CA 94105 Re: Instacart ’s Pric i ng Pract ices & New York ’s Algorithmic Pricing Disc losure A ct Dear Mr. Rogers and Mr. Fong: I write on behalf of th e New York State Office o f the Attorney General to r eques t information concerning recent report s of substantial price variations among shoppers using Instacart, as well as your efforts to comply with N ew York’s Algorithmic Pricing Disclosure Act. According to a report from Groundwork Collaborative a nd Consumer Reports, releas ed on December 9, 2025, shoppers using Instacart see significantly different prices for the same prod ucts at th e sam e stores. 1 A mong the report’s observations, Instacar t “off ered as many as five di fferent sales p rice s for t he exact sam e gro cery item, in t he ex act s ame sto re, at the ex act same time,” with a 13% averag e pri ce diff erence between highes t and l owest pri ces for a single good. Id. at 2. Furthermore, the researchers found that even when shopp ers were off ered the sam e sale price, there were significant variations in the “original pric e” shown and the discount applied to arriv e at t he sal e pri ce. Id. at 12. Instacart has promoted its Eversight “ Retail Pricing Suite” th at facilita tes “re venue optimization ” and “ pricing solu tions” that involve “ automated, continuous testing of … pr ices directly with s hoppers.” 2 A nd Instacart has brought its pricing and promot ions tools from the web into p hysical stores with the int roduction of its proprietary Cape r Cart “smart” 1 Groundwork C ollab orati ve & C onsumer R eports, Same Cart, Different Price: Instac art’s Price Experimen ts Cost Famili es at C heckout (Dec. 9, 2025), available at https://gro undwor kcollabor ative.org /work/instacart/. 2 Instacart, Evers ight by Inst acart: AI - Powered Price Optimizatio n, www.instacart.com/company/retailer - platform/connected - stores/ evers ight (access ed Jan. 8, 20 2 6).

2 28 L IBERTY S TREET, N EW Y ORK, NY 1 0005 ● P HONE (212) 416 -8 300 ● F AX (212) 416 - 6003 ● WWW. AG. NY. GOV shopping cart, “ which provides three key c apabilities: gamification, personalization, and advertising.” 3 In response to th at report, Instacart ackno wledg ed th e exist ence of price variations and, while claiming tha t it had been ra ndomly assigning customers to price-testing cohorts, stat ed that its retail part ners “m ay u se beh avioral dat a … t o infor m discounts or pr omotional offers.” Id. at 13. When ac complished by means of an algorit hm, the use of a consumer’s behavior and other personal data to inform the prices the consumer pays at checkout is con sid ered “per sonali zed algorithmic pricing” and requires disclosure under New York law. O n December 22, 2025, Instacart announced that, “ eff ective imm ediatel y, Instacart is ending a ll item price tests on our pla tform. Retailers w ill no longer be able to use Eversig ht technology to run item price tests on Instacart. ” 4 In stacart barely d escri be d the “item price tests ” that it was planning to end, though it cla imed those particu lar “test s we re not dynamic pricing or surveil lance pri cin g.” Id. Whatever the now - canc eled t ests en tailed, Instac art acknowledged t hat its “[r] etail partne rs will continue to set their own prices on Instacart” and t hat Insta cart will “ continue offering relevant promotions, discounts, and marketing incentives – including those funded by CPG brands and retailers – as well as loyalty integrations, to help bring additional savings to customers. ” Id. Following In st aca rt’s announcement, “ Inst acart to ld [Consumer Reports] that it would still allow its pa rtners —grocery retailers and food brands— to test diffe rent types of promotions and discounts on their customers through the platform.” 5 New York’s Algorithmic Pricing Disclosure Act, G.B.L § 349 - A (t he “A ct”), whic h took effect on November 10, 2025, requires compa nies to disclose the use of pe rsonalized pricing algorithms when offering goods or services to consumers in New York. Th e Act cov ers “personalized algorithmic pricing,” which is defined as “dynamic pricing set by an algorith m that uses pers on al data. ” G.B.L. § 349 - A(1)(f). The A ct furth er defi nes “d ynamic pricing” as “pricing that fluctuates dependent on conditio ns, and “personal d ata” as “ any data that identifies or could reasonabl y be linked, directly or indirectly, with a specific consumer or de vice.” G.B.L. § 349- A(1)(d), (e). Under paragraph 2 of § 349-A: Any en tit y that s ets t he price of a s peci fic goo d or s ervice using personalized algorithmic pricing, and that directly or indirec tly, advertises, promotes, labels or publishes a statement, display, image, offer or announc ement of personalized algorithmic pricing to a consumer in New York, using personal data specific to such consumer, shall 3 IGA News, Why Smart Cart s Are the Winning T echn ology F ormat f or Indepe ndent Gr oce rs (De c. 18, 2024), www.iga.c om/insig hts/why - smart - carts - are - the - w inning - technolog y - for ma t - fo r - independe nt - grocers. 4 Instacart, Ending It em Pri ce T est s on Inst acart (D ec. 22, 2025), www.ins tacart.com/com pany/u pdates /ending - item - price - tests - on - instacart. 5 Consumer R eports, Inst acart Stops Pr ici ng Test s on Its Platf orm Ami d Outr age from Customer s (updat ed Dec. 23, 2025), www.cons umerr eport s.org/mo ney/ques tiona ble - business - practices/instacart - stops - ai - pricing - experi ment s - a1176475 852/.

3 28 L IBERTY S TREET, N EW Y ORK, NY 1 0005 ● P HONE (212) 416 -8 300 ● F AX (212) 416 - 6003 ● WWW. AG. NY. GOV include with such statement, display, image, offe r or announcement, a clear and conspicuous disclosure that states: “ THIS PR ICE WAS SET B Y AN ALGOR ITHM USING YOUR PERS ONAL DATA ”. Entities found to be in violation of the law m ay, after continuing to violate the Act following receipt of a cease - and - desist lette r, be subject to injunctive and monetary relief. G.B.L. § 349- A(4). We have s ome co ncern s about Instacart ’s attempts to comply with t he Act. Based on our observations, the Insta cart platform provides the following disclosure on a page linked to certain retail stores ’ front page s, accessed by c licking fine print text: “New York law requi res the following disclosure because certain prices and/or fees may vary based on randomized tests, we use perso nal in formati on (such as d elivery add ress) to calcul at e fees, and we o ffer c ertain personal ized incent ives: thi s pri ce was s e t by an al gorithm using your personal data.” 6 Th is form of disclosure does not appear to comply with, among other things, the “clear and conspicuous” requirem ent s of the A ct. Moreover, there was no disclosure on c ategory pages listing product prices (e.g., Meat & Seafood) or on individual product pages displaying price, though a disclosure is required for all displays of price covered by the Act. In order to ensure compliance with the Act, we request that you provide, by January 29, 2026, the following documents and information: 1. All curren t ag reemen ts wit h the ret ailers Target, Stop & Shop, Wegmans, Best Buy, Key Food, Aldi, ShopRite, and Costco in any way concerning (a) the prices, discounts, offers, and promotions available for Instac art users when purchasing from that re tailer, including terms add ress ing the setting of any ma rkups or discounts, (b) any loyalty or rewards program of the retailer, including integration in the Inst acart and Eversight platform s and the setting of any price s, discounts, offers, or promotions in connec tion with the program, and (c) th e use of the Evers ight platform or C aper Cart system. If any such agreements were changed in connection with Instacart’s December 22 announcement tha t it was halting some price exp erim ents, provi de also the version effective prior to the announcement. 2. All curr ent agreemen ts with the consumer packaged goods (CPG) brands Frito - Lay, Hormel Foods, Nabis co, Oscar Mayer, Pepsi, and Coca Cola in any way concerning (a) the prices, discounts, offers, and promotions available for Instacart users when purchasing those CPG brand’s products, including terms addressing the setting of any markups or discounts and, and (b) the use of the Eversight platform or Caper Cart system. If any suc h agreements were changed in connection with Instac art’s Decemb er 22 announcement that it was halting some price expe riments, provide also the version effective prior to the announcement. 6 The fine print text on the Insta cart app t hat li nked to the di sc losure pa ge was: f or Stop & Shop, “View pric ing policy”; for Wegma ns, “Higher than i n - store prices”; and for Cos tco, “Pricing & fees.”

4 28 L IBERTY S TREET, N EW Y ORK, NY 1 0005 ● P HONE (212) 416 -8 300 ● F AX (212) 416 - 6003 ● WWW. AG. NY. GOV 3. A de tailed description of the Eversight platform a nd C aper Cart s ystem and how each is used, by Instac art or by r etailers and CP G brands using the Instacart platform, to adjust prices and promotions, including how consumer dat a m ay be used for pricing and promotions. 4. A detail ed description of all price expe rim ents perf ormed and b eing performed by Instacart and/or retai l ers or CPG brands through Instacart ’s platform s and t ools (including Eversight or C aper Cart), including (1) the starting and ending dates of the price experiments, (2) how customers were selected for price experimentation and how m any cust omers were a ffected, (3) the va riabl es that were ad just ed as p art of the price experiment (e.g., sa le price, original price, discount, or promotion), (4) how those variables were adjusted, including whether customer data was used and how different values for different variables were assigned to different custom ers, and (5) the e ffect on total prices paid for pr oducts and baskets of products for individual affected consumers and all affected c onsumers as a group. 5. A statem ent wh ether In stacart and/ or r etailer s o r CPG brands using Instacart ’s platform s and tools (including Eversight or Caper Cart) use dyn amic prici ng or persona lized algor ithmic pricing (as d efined in t he Act) — including by fluct uating base prices or discounts, offers, or promotions affecting price — when o ffering goods or services to consumers in New York State; and if so, (a) the specific goods or servi ces or cat egories su bject t o dynamic pricing or person alized a lgorithmic pricing, (b) a list of all co nditions on which pric ing fluctuations depend, identifying specifi cally al l catego ries of per sonal d ata and per son al data s pecific t o a con sumer, and (c) a brief description of how the pri c ing i s s et by an “algo rithm ” (as defin ed in G.B.L. § 349- A(1)(a)). 6. If Instacart an d/or retai ler s or CPG brands usin g Instacart ’s plat form s a nd tools (including Eversight or Caper Cart) use p ersonalized a lgorithmic pricing, an explanation of efforts to comply with the disclosure requirement of G.B.L. § 349- A(2), accompanied by screenshots and s creen - flows of co nsumer transactions from initial display of price, discount, offer, promotion, o r other pricing information, for r elevant web pages and mobil e apps (with accompanying links or dir ections to lo cate ap p int erfaces). 7. O ther documents suffici ent to d emonst rate th e pol icies an d pra ctices Inst acart is undertaking to comply with the provisions of the Act.

5 Please send your responses to me by email at ryan.galisewski@ag.ny.gov or to my attention at 28 Liberty Street, New York, NY 10005 by January 29, 2026. We appreciate your cooperation and your efforts to comply with the new legal obligations discussed above. Ryan D. Galisewski Assistant Attorney General Bureau of Consumer Frauds and Protection ryan.galisewski@ag.ny.gov Tel: (212) 416-8341 28 LIBERTY STREET, NEW YO RK, NY 10005 • PHONE (212)416-8300 • FAX (212) 416-6003 • WWW.AG.NY.GOV