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Update on the CMA investigation into Emma Sleep

Author: Woodfines Solicitors
Date: 12 July 2023

In our recent article on the use of “dark patterns” when selling online to consumers, we promised to keep you informed on the Competition and Markets Authority (CMA) investigation into Emma Sleep’s and Wowcher’s online practices. The CMA has now completed its investigation into Emma Sleep.

The CMA concluded that Emma Sleep was using unfair online sales practices, namely countdown timers, high-demand claims and misleading discount claims.

On discount claims, the CMA said that Emma Sleep used what it calls ‘was/now’ pricing (where a retailer shows the original (higher) price of a product and its ‘now’ (cheaper) price) to such a degree that only a small fraction of Emma Sleep products were actually sold at the ‘full’ price. The CMA reported that, as such, the ‘discount’ didn’t represent a genuine saving against the usual selling price of Emma Sleep’s products.

These ‘discounts’ were used alongside countdown clocks. The CMA noted that countdown clocks ‘can sometimes help shoppers to take advantage of genuine sales’ but its investigation found that when an Emma Sleep ‘sale’ ended, ‘it was quickly replaced by another – in some instances within 24 hours’. This practice ‘risked giving the misleading impression that discounts would soon end, and products would return to full price, when this was often not the case.’ The CMA noted that ‘such timers, especially when used with other high demand claims, can put pressure on shoppers to buy quickly for fear they’ll miss out on a sale. This can lead to rushed purchases or consumers spending more than they planned to bag a perceived bargain.’

Emma Sleep now has the opportunity to respond to the CMA and avoid court action by signing undertakings to change its online sales tactics. Remember, at the moment, the CMA can’t levy fines itself, but that is set to change with the Digital Markets, Competition and Consumers Bill. The Wowcher investigation only started in March but we’ll be keeping an eye out for the conclusion of that investigation too.

For more information on ‘dark patterns’ and the Digital Markets, Competition and Consumers Bill, see our previous articles on them here and here, or contact our Corporate & Commercial team.

– Gillian Harding 

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