The regulatory spotlight on discount pricing is intensifying. The Competition and Markets Authority (CMA) has been pursuing enforcement action against "was/now" reference pricing under its old powers in the High Court. But the High Court's recent judgment in the ongoing Emma Sleep litigation saw the CMA unable to obtain the enforcement order it was seeking. With that case still unresolved, the government has now announced a different approach.
From the courtroom to the consultation room
Given the CMA's difficulty in obtaining its desired result, it may be no coincidence that the UK government has recently announced plans to crack down on misleading pricing practices, including fake discounts and inflated reference prices. This forms part of the Prime Minister's package of "everyday fixes" aimed at reducing consumer costs and improving fairness, alongside an announcement that the new subscriptions rules will come into force in January 2027.
In the autumn, the government will consult on whether practices such as fake "was" prices, invented discounts, and misleading recommended retail prices (RRPs) should be added to the list of commercial practices automatically prohibited under the Digital Markets, Competition and Consumers Act 2024 (DMCCA). Rather than requiring regulators to prove a practice is misleading case by case, an outright ban would remove that evidential burden.
What this means for your business
If implemented, these proposals would give the CMA a more straightforward route to enforcement and significantly raise compliance stakes. Businesses would be well advised to get ahead of any changes. In practical terms, that means reviewing all "was/now" references, percentage discounts, and RRPs to make sure that they reflect genuine consumer savings and can be substantiated with robust evidence. It also means following the consultation closely; as the Emma Sleep litigation has shown, the scope and definition of any ban will be hotly debated.
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