This article was last updated 0 months ago and may not represent current law.
On 30 November 2022, the CMA announced the start of an investigation into whether the Emma Sleep GmbH group had misled consumers by the use of countdown timers and false claims that a discounted price would end soon. In particular, the CMA was looking at whether Emma Sleep had breached the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277), which were the rules in force at the time. The CMA noted that the ASA had ruled against an Emma Sleep group company on 16 March 2022 for misleading reference pricing and a misleading flash sale countdown clock.
The investigation marked the start of CMA enforcement work on Online Choice Architecture (OCA); the way in which online design leads users to certain decisions or actions. The CMA accepted that OCA may have benefits (such as making online experience smoother, picking out relevant products and reducing exposure to irrelevant information), but said it can be used to weaken competition and otherwise harm consumers. Its programme focused 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”.
I wrote this in December 2022 when the investigation had only just been opened, and it took until 2026 to reach a conclusion. The CMA took Emma Sleep to the High Court, and on 22 May 2026 the court made an order recording that Emma had broken the law with its countdown timers, its “high demand” messages and its discount claims. There was no contested hearing on those points, as Emma admitted the breaches and gave binding undertakings to the court to change how it sells (the CMA’s announcement is here).
The part that was argued was reference pricing, which is the “was £X, now £Y” type of claim. The CMA asked the court to go further than the admitted breaches and impose a fixed sales volume requirement for Emma’s “was” prices. On 30 July 2026, in CMA v Emma Matratzen GmbH [2026] EWHC 1995 (Ch), Richards J refused to do that, as he wasn’t satisfied that breaching the CMA’s proposed ratio would in itself be a breach of the law. He found infringements only where Emma had already admitted them. So a “was” price still has to be genuine, but the court hasn’t laid down a set figure for how much you need to have sold at the higher price before you can use it.
The law has also moved on. When I first wrote this, the government had said it would carry out further research before deciding whether to legislate on things like drip pricing. It has since legislated. The 2008 Regulations were replaced on 6 April 2025 by the unfair trading rules in the Digital Markets, Competition and Consumers Act 2024 (the Emma Sleep case was decided under the old Regulations). Under section 230 the price you show a consumer has to be the total price, including any fees or charges they’ll have to pay anyway, which is what deals with drip pricing. Fake reviews are now on the list of practices that are unfair in all circumstances. The CMA can also now decide for itself that a business has broken these rules and fine it up to £300,000 or, if higher, 10% of its turnover.
There may be more to come on pricing. On 9 August 2026 the government said it will consult this autumn on adding fake “was” prices, invented discounts and misleading RRPs to the banned list. That is a consultation and not yet law. Dark patterns are also a focus for EU regulators, and the EU Digital Services Act ((EU) 2022/2065) has its own rules on them for online platforms which offer services into the EU.
If you sell to consumers online and your site uses countdown clocks, “only 3 left” messages or was/now pricing, I’d check that each of them is actually true, as the CMA no longer needs to go to court to fine you. I’ve written more generally about selling to consumers, and if you want your terms and conditions looked at, get in touch.
Written by Steven Mather, a business solicitor acting on company sales and purchases. This is general information about the law, not legal advice on your situation. Law correct as at .
