On July 30, 2026, the High Court refused the Competition and Markets Authority's attempt to impose a rigid pricing rule on online retailer Emma. This decision rejects the CMA's proposed fixed sales ratio as an appropriate test for determining misleading "was/now" discounts. Online retailers using promotional pricing are immediately affected, leading to a re-evaluation of compliance strategies for discount claims. The ruling clarifies limits on regulatory powers to mandate prescriptive quantitative tests for consumer protection.

Full News Breakdown

The dispute arose from the Competition and Markets Authority's engagement with online mattress supplier Emma concerning "was/now" promotional pricing. The disagreement centered on the CMA's proposal for a specific fixed sales ratio: one item sold at a higher price for every two at a discount, as a definitive test for misleading claims. The High Court declined to endorse this prescriptive quantitative metric.

• Court: High Court

• Date: July 30, 2026

• EU Instruments / UK Legislation Cited: Consumer Protection from Unfair Trading Regulations 2008; Enterprise Act 2002

• Key Provisions: "fixed sales ratio"; "one item at the higher price for every two sold at the discounted price"; "mislead consumers"

• Primary Legal Issue: Appropriateness of a fixed sales ratio as a test for misleading "was/now" discounts

• Applicant Arguments: The mattress supplier should only use "was/now" pricing if it sold one item at the higher price for every two sold at the discounted price

• Court Reasoning: A fixed sales ratio is not the appropriate test of whether certain discounts mislead consumers

• Holding: Refusal of the Competition and Markets Authority's attempt to impose a rigid pricing rule on online retailer Emma

• Practical Outcome: The UK antitrust regulator’s attempt to impose a rigid pricing rule on Emma was refused

How Does This Affect You?

Before this judgment, businesses faced uncertainty about regulatory expectations for substantiating "was/now" pricing claims. The High Court has now clarified that regulators cannot impose a rigid, mathematical sales ratio as the sole or primary test for determining misleading discounts. This shift highlights the need for a broader, more evidence-based approach to consumer protection compliance, moving beyond rigid quantitative metrics.

For Lawyers & Advocates

• Counsel advising clients on ongoing Competition and Markets Authority investigations into pricing practices may consider assessing whether any allegations rely on similar rigid quantitative tests, potentially forming a basis for challenge or defence.

• Legal advisors may wish to review and revise marketing compliance policies and internal guidance for retail clients, moving away from reliance on fixed sales ratios towards more comprehensive substantiation under the Consumer Protection from Unfair Trading Regulations 2008.

• This judgment limits the CMA's ability to impose overly prescriptive enforcement measures under its powers derived from the Enterprise Act 2002, influencing the scope and proportionality arguments in future regulatory engagements.

• When advising clients on new promotional campaigns, lawyers may want to emphasize the need for robust, holistic evidence demonstrating genuine consumer value rather than simply meeting an arbitrary numerical threshold for "was/now" claims.

• While limiting rigid tests, the ruling does not diminish the underlying obligation to avoid misleading consumers, leaving open the need for sophisticated qualitative and quantitative data to support pricing claims.

For Law Students

This case exemplifies the High Court's role in scrutinising the exercise of regulatory power, particularly concerning the proportionality and legal basis of prescriptive enforcement methodologies employed in consumer protection. The decision demonstrates judicial oversight of regulatory discretion, particularly regarding the proportionality and appropriateness of enforcement methodologies in consumer protection.

The decision is particularly relevant for the study of:

• Consumer Protection Law

• Administrative Law

• EU Single Market Law (as CPUTR 2008 transposed Directive 2005/29/EC concerning unfair business-to-consumer commercial practices)

Comparing this judgment with R (Public and Commercial Services Union) v Minister for the Cabinet Office [2022] EWHC 2928 (Admin) highlights the boundaries of judicial review regarding public bodies' discretionary powers. Office of Fair Trading v Abbey National Plc [2009] UKSC 6, although on a distinct subject, offers a similar perspective on statutory interpretation regarding the assessment of fairness in consumer dealings.

For Businesses

• Online retailers may want to review their marketing and pricing policies, particularly for "was/now" discounts, to confirm reliance on robust, multi-faceted evidence rather than a single numerical sales ratio. Inaction risks continued regulatory scrutiny and potential enforcement actions based on alternative grounds.

• Boards and General Counsel may wish to consider internal training programs for marketing and sales teams, educating them on the nuanced approach now expected for discount substantiation. Failure to adapt internal processes could lead to non-compliant advertising and reputational damage.

• E-commerce platforms hosting multiple sellers may consider updating their vendor guidelines and terms of service to reflect the court's stance, promoting broader compliance standards for advertised pricing across their ecosystem. Lack of updated guidance could expose the platform to indirect liability or consumer complaints.

Key Takeaways

• UK law now clarifies that a rigid, single-metric sales ratio is not an appropriate legal test for identifying misleading "was/now" discount claims under consumer protection statutes.

• Compliance officers and marketing directors may find it useful to implement comprehensive substantiation strategies for discount advertising, moving away from reliance on rigid numerical benchmarks.

• The CMA is now limited in its ability to impose highly prescriptive, quantitative rules as an exclusive measure for determining consumer protection breaches in pricing.

• Businesses may want to monitor upcoming guidance or policy statements from the CMA on "was/now" pricing, which will likely outline revised enforcement approaches following this High Court judgment.

• Retail sector general counsel may wish to brief their boards on the need to update internal discount pricing policies before the next major promotional cycle.

Source: Emma pricing order refused as UK court rejects CMA proposal