On 30 November 2022, the CMA announced the start of an investigationstart of an investigation into whether the Emma Sleep GmbH group has misled consumers by the use of countdown timers and false claims that a discounted price will end soon. In particular, the CMA will look at whether Emma Sleep has breached the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277). The CMA notes that the ASA ruled against an Emma Sleep group company on 16 March 2022 for misleading reference pricing and a misleading flash sale countdown clock.
The investigation marks the start of new CMA enforcement work on Online Choice Architecture (OCA); the way in which online design leads users to certain decisions or actions. The CMA notes that while OCA may have benefits (such as making online experience smoother, picking out relevant products and reducing exposure to irrelevant information), it can be used to weaken competition and otherwise harm consumers. The CMA’s programme will focus on urgency tactics such as countdown clocks and eye-catching discount offers which misrepresent the price reduction available.
Harmful use of OCA is often termed “dark patterns”. The government has previously indicated that it will carry out further research before deciding whether to introduce specific legislation in this area, for example to address drip pricing and undisclosed paid-for advertising Dark patterns are also a focus for EU regulators. For example, from February 2024 the EU Digital Services Act ((EU) 2022/2065) will ban the use of dark patterns by online intermediaries, such as platforms, which offer services into the EU.
