While these findings relate to EU regulation, they carry important lessons for UK retailers – especially as UK regulators intensify scrutiny under the Digital Markets, Competition and Consumers Act (DMCC Act) and the Advertising Standards Authority (ASA) steps up its review of Black Friday claims.

The EU investigation: 1 in 3 traders displayed discounts incorrectly

Working with consumer authorities across the EEA through the Consumer Protection Cooperation (CPC) network, the Commission carried out a coordinated “sweep” (a simultaneous check of online shops) to see if traders complied with EU consumer law.

In their review of 314 online traders, the Commission and CPC found that a significant number of retailers failed to comply with pricing rules throughout Black Friday and Cyber Monday, with 30% presenting discounts incorrectly. Under the Price Indications Directive, any advertised discount must be based on the lowest price the retailer applied in the previous 30 days – a requirement many had not met.

As well as this, the CPC uncovered a range of tactics likely to influence shoppers unfairly:

• 36% added optional items to baskets – and in around 40% of those cases, this happened without clearly asking for consent.
• 34% used price comparisons, but six in ten failed to explain what price they were comparing to, leaving consumers guessing.
• 18% relied on pressure-selling techniques, such as countdown timers or claims that stock was running out, with over half of these claims found to be misleading or entirely fake.
• 10% engaged in “drip pricing”, revealing additional fees (like shipping or service costs) only at the final stages of checkout.

Practices like adding items into baskets, obscuring price details, faking scarcity, or hiding extra fees until the end of checkout breach EU consumer law (and, for the avoidance of doubt, UK consumer law too, see below), which imposes requirements for transparent pricing and fair consumer treatment. These tactics can distort consumer decision-making and erode trust.

Following the sweep, national consumer authorities may take enforcement action against the businesses that breached the rules. The Commission and CPC will continue focusing on online sales practices, especially during high-pressure retail events.

The position in the UK: CMA powers strengthen and ASA scrutiny intensifies

While the UK is no longer bound by EU directives, UK retailers face still face stringent obligations under domestic law. UK regulators are already targeting many of the same practices highlighted in the EU sweep.

The Competition and Markets Authority (CMA) and ASA may take action against UK traders who engage in these practices too, as they breach the Digital Markets, Competition and Consumers Act 2024, and the CAP Codes.

CMA enforcement

The DMCC Act has reshaped consumer law enforcement in the UK, granting the CMA powers to:

• Choose which businesses to investigate, conduct the investigation directly (using strong powers to compel disclosure of information), and decide if the business has breached consumer law – all without going to court,
• Direct businesses to change their practices,
• Impose fines of up to 10% of global turnover and order compensation for affected consumers, and
• Issue administrative penalties for non-compliance with investigations. 

In its recent Annual Plan, the CMA set out its key consumer protection priorities, which are closely aligned with issues identified in the EU sweep. They include, among other things, providing information to consumers that is objectively false and fees that are hidden until late in the purchase process. 

Last year, it also published its final guidance on price transparency and getting consent for additional charges and, in its first enforcement cases under its new powers, has been investigating eight firms across various different sectors – we expect an update on those investigations in the next few weeks. In the meantime, the CMA has sent warning letters to a further 100 companies, highlighting that this isn’t a temporary area of focus.

Even before the DMCC Act came into force, the CMA also took action against various retailers regarding pricing practices, pre-ticked boxes and countdown timers. A prime example was Wowcher, which agreed undertakings that it would only use clear and accurate countdown timers, it would make sure that all marketing claims were clear and accurate, and refund members who had signed up to a “VIP membership” via a pre-ticked box.

ASA focus on Black Friday promotional claims

The ASA also continues to take a robust approach to promotional pricing, especially during Black Friday. It published general guidance on pricing practices, reminding marketers that:

• Saving claims (such as “70% off”) must reflect genuine, evidenced reductions in price,
• ‘Up to x% off’ claims must apply to a significant proportion of products,
• ‘Everything’ claims must be accurate and unqualified, and
• Promotional periods must not be extended unless justified by legitimate reasons outside of the retailer’s control.

While the ASA cannot impose financial penalties, or compel disclosure of confidential and commercially sensitive information, it has been proactively sweeping for problematic websites, issuing rulings on time-limited offers. Further to its own investigations, it can publish rulings which are often shared in the mainstream media, and can be taken into account by the CMA. We have noted that the ASA is increasingly demanding sales data from companies, going back several months, to prove that their references prices reflect the genuine unusual selling price of the product on offer. The ASA seems prepared to draw adverse inferences if that data is not shared. This seems to reflect a hardening of the ASA’s approach to potentially misleading pricing and discount claims, and reinforcing the fact that the onus for proving the higher price is genuine, falls squarely on the advertiser.

What steps do businesses need to take?

For UK retailers, the EU sweep is an indicator of intense cross-jurisdictional scrutiny on online pricing practices – while, of course, businesses should ensure any EU-based activities comply with local law, it is important to acknowledge that similar behaviour in the UK could trigger CMA investigation or ASA intervention.

Given this rapidly evolving landscape, it is essential to align your pricing practices with the new standards to maintain consumer trust and avoid fines. At Lewis Silkin, we regularly offer practical advice

to help businesses audit and adapt their pricing and promotional strategies, ensuring compliance and fostering consumer confidence.

We can help you audit your pricing and customer journeys, establish a basis for price comparisons, and refresh Black Friday strategy. If you need advice on how ensure you comply with these new consumer laws, contact the team and/or visit our Consumer Law Hub.