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What did the senators investigate?
On August 7, 2024, Warren and Casey said they had sent a letter to Rodney McMullen, then identified in the senators’ release as Kroger’s chairman and CEO. They sought information about Kroger’s electronic shelf label platforms, including their use for dynamic pricing and collection of sensitive consumer data. The release described the lawmakers’ concerns; it did not report a finding that Kroger had engaged in surge pricing. The senators’ announcement and the letter quoted in it are the public record cited here.
The letter warned: “Widespread adoption of digital price tags appears poised to enable large grocery stores to squeeze consumers to increase profits.” The lawmakers also wrote: “I am concerned about whether Kroger and Microsoft are adequately protecting consumers’ data, and that as Kroger expands the personalized customer experience, customers will ultimately be offered a worse deal.” Those statements express the senators’ concerns, not established findings about Kroger’s conduct. The full press release reproduces the letter.
How do electronic shelf labels affect prices?
Electronic shelf labels are digital replacements for paper shelf tags. They let a retailer update displayed prices remotely rather than replacing tags by hand. In 2024, the senators’ office said Kroger began using the labels in 2018 and had expanded them to 500 stores. That is a historical figure reported by the office as of August 2024, not a current store count. The senators’ letter describes Kroger’s Enhanced Display for Grocery Environment (EDGE) shelf, developed through a partnership with Microsoft.
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Remote updates make price changes easier to implement, but the technology alone does not show why a price changed or whether different shoppers saw different prices. The cited announcement does not establish that Kroger used facial recognition, shopper profiles, or individualized willingness-to-pay data to set shelf prices.
Surge, dynamic and surveillance pricing are different claims
- Dynamic pricing generally means prices change over time or in response to market conditions.
- Surge pricing usually means a temporary increase associated with elevated demand or another short-term factor.
- Surveillance pricing means using personal data to tailor prices to individuals. A 2026 Senate announcement uses the term in that sense.
The terms can overlap in public debate, but evidence of one does not establish the others. Showing that digital labels can be updated remotely, for example, is not evidence that a retailer raises prices during demand spikes or sets a different price for each customer.
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What later evidence and policy developments show
A 2025 working paper
A May 2025 working paper indexed by SSRN, “Electronic shelf labels have not led to surge pricing in US grocery retail, despite regulator concerns,” reported that temporary price increases affected about 0.0042% of products on an average store-date before electronic shelf label adoption. It reported an insignificant post-adoption change of 0.0006 percentage points (p=0.90). The available abstract-level information does not establish the paper’s full methods or store sample, and the result is not a Kroger-specific finding. The SSRN working paper record provides the reported result.
A 2026 legislative proposal
On February 12, 2026, Senators Ben Ray Luján and Jeff Merkley announced the introduction of the Stop Price Gouging in Grocery Stores Act of 2026. The announcement describes proposed restrictions on pricing practices; it should not be read as evidence that the proposal became law. The senators’ announcement describes the proposal.
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Separately, Senator Dick Durbin’s office reported an August 2026 Senate Judiciary Subcommittee hearing on AI surveillance pricing. That broader hearing is policy context; it does not establish the outcome or continuation of the Warren–Casey inquiry. Durbin’s office summarized the hearing.
Do expired sale tags prove surge pricing?
No. In June 2025, Senator Ruben Gallego’s office summarized a Consumer Reports investigation into expired sale tags and checkout overcharges. The reported review covered 14 states and more than 150 items, with an average overcharge of about $1.70 per item, or an 18% markup over the expected discount price. That issue concerns old promotional signage and checkout prices—not evidence of surge pricing or individualized prices. Gallego’s office summarized the Consumer Reports findings.
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What is known about the inquiry’s outcome?
The cited official announcement does not establish Kroger’s direct response to the August 2024 letter or the inquiry’s final disposition. It therefore supports saying that the senators requested information and raised concerns, but not that Kroger admitted, denied, or was found to have used surge pricing.
For consumers evaluating a grocery pricing practice, the useful questions are whether the price applies to everyone or is individualized, what triggers a change (such as time, demand, inventory, or personal data), how clearly changes are disclosed, and whether the retailer can document that shelf and checkout prices match. The sources cited above do not establish Kroger’s practices on each of those points.
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