You may remember that earlier this year, the CMA concluded its investigation into Emma Sleep and Simba Sleep’s use of online choice architecture (“OCA”) and so-called “dark patterns”. This investigation forms part of the CMA’s ongoing programme of consumer enforcement work focused on OCA. This aims to tackle potentially harmful online selling practices, including pressure selling tactics. Under this programme, the CMA secured formal changes to the business practices of Simba Sleep. These included ensuring that any “was” price is genuine – including making sure that a sufficient volume of product was sold at that price and for a sufficient period of time when compared to the “now” price. 

Unlike Simba Sleep, Emma Sleep has failed to take the necessary action to address the CMA’s previously raised concerns relating to the use of reference pricing. As a result, the CMA has now issued court proceedings following a letter before claim being issued in May 2024. The CMA’s investigation into Emma Sleep focuses on its use of its use of practices such as discounts and urgency claims, including countdown timers and high demand prompts, which may mislead consumers. 

It is rare for the CMA to take businesses to court and, in most cases, the CMA resolves investigations by agreeing undertakings with businesses. Despite the commencement of the CMA’s court action, Emma Sleep can still agree to change its practices by consenting to an order or giving undertakings to the court ahead of the case being heard. However, if this investigation does make it to court, we may end up with a court precedent that sheds additional light on what types of urgency claims and discounting practices breach consumer laws which will be of interest to many B2C businesses.

It is also worth highlighting that, under the Digital Markets, Competition and Consumers Act 2024, from April 2025 the CMA expects to have the power to decide itself whether consumer law has been broken and to fine companies up to 10% of their global turnover, if appropriate. It will not, therefore, have to go to court first, although organisations will still have the right to appeal the CMA’s decision to the courts. However, this will only apply to cases that the CMA has not already taken to court.