CMA v Emma Sleep: A Soft Landing for Emma Mattress

It has been a busy period for consumer protection, with the High Court’s judgment in Competition and Markets Authority v Emma Matratzen GmbH and others handed down on 30 July 2026, followed by the CMA’s announcement of three new ‘drip pricing’ investigations on 19 August 2026.

While the CMA’s case against Emma was brought under the enforcement regime before the Digital Markets, Competition and Consumers Act (DMCCA) came into force in 2025, it provides important guidance on aspects of consumer law which is likely to inform the CMA as it conducts investigations under the new regime.

Background to the Emma proceedings

Emma is an online retailer of mattresses. The CMA opened an investigation into Emma on 28 November 2022 under the former Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs), relating to its use of urgency claims and ‘was/now’ reference pricing. Reference pricing involves advertising at a price lower than a previous price, such as a statement on a website noting that a product “was £1,000, now £500”.

On 25 October 2024, the CMA issued proceedings under the CPUTRs after Emma refused to provide formal commitments to address the CMA’s concerns and sought an enforcement order.

Before the hearing took place in June 2026, Emma agreed to binding undertakings concerning its use of urgency claims. Accordingly, the hearing and judgment focused on the CMA’s reference pricing claim.

The High Court’s judgment in Emma

The CMA alleged that Emma breached Regulation 3(4)(a) of the CPUTRs by engaging in misleading actions in its use of reference pricing.

Legal principles

Under Regulation 3(4)(a) of the CPUTRs, a commercial practice was “unfair” if it constituted a misleading action under Regulation 5 (i.e. misleading in relation to matters of price) which caused, or was likely to cause, the average consumer to take a transactional decision they would not otherwise have taken.

The judgment provides a succinct overview of judicial consideration of the old framework:

• A transactional decision is not limited to the decision to buy. It may include a preparatory step directly connected with a purchase, such as entering a physical shop, clicking an online product description or adding an item to an electronic basket.
• The Court may assess the likely effect of reference pricing itself by applying the statutory characteristics of the average consumer, without expert evidence.
• The average consumer takes reasonable care of themselves, rather than being ignorant, careless or over-hasty.
• Causation is assessed through a “but for” test - would the average consumer, but for the trader’s misleading action or omission, have made a different transactional decision? 

Emma’s conduct and the CMA’s proposed remedy

The CMA alleged that Emma used reference prices which did not provide a sufficiently real or reliable basis for the claimed saving. It relied on evidence concerning the relatively short periods in which products were offered at their stated reference price and the lower proportion of sales made at that reference price, as compared to the discounted price.

The CMA sought an enforcement order requiring Emma to implement a fixed volume requirement (FVR). In essence, for every two products Emma sold at the lower price, it would have to sell, or have sold, one product at the higher reference price (a 1:2 ratio). The CMA proposed certain “safety valves” in its remedy, i.e. special arrangements for clearance sales intended to dispose of remaining stock at discounted prices.

The High Court rejected the fixed volume requirement

The Court declined to impose the FVR remedy proposed by the CMA as it considered the evidence did not support making an enforcement order in those terms.

In particular:

• While the proportion of sales at the reference price could be relevant to whether that price was realistic and achievable, a low percentage of reference price sales did not, by itself, establish that a claimed discount was misleading or that the reference price was necessarily unrealistic.
• While the duration for which a product had been offered at the reference price was relevant, a historic higher price may initially be realistic but become a less realistic comparator where a product continues to be sold at a reduced price.
• The CMA had not established that Emma lacked a genuine belief that its reference prices were realistic and achievable. Whilst that belief did not displace the objective assessment required under the CPUTRs, it was a material contextual factor.

Comment

The CMA’s recently announced drip-pricing investigations under the DMCCA concern a different form of potentially misleading pricing practices. The investigations relate to conduct by Trainline, Virgin Atlantic and Red Driving School, and concern drip pricing and whether customers were shown the total price for their services upfront.

The new consumer protection regime under the DMCCA does not precisely mirror the CPUTRs. However, Chapter 1 of Part 4 DMCCA largely recreates the legal effect of the CPUTRs and the relevant consumer protection principles underpinning both regimes, may, in fact, apply more intuitively to drip pricing. When it comes to drip pricing, it is easy to conceptualise how the initial pricing presented by a seller may inform a consumer’s decision whether to purchase at the reduced price, or continue considering a purchase, only for that customer to then be confronted with further fees, thereby affecting the process of making a transactional decision. This can be contrasted with the facts in Emma, where customers may have benefited from purchasing at a discounted price, even where there were concerns about the reference price against which that discount was shown.

It will be interesting to see how these concepts develop as the CMA continues to exercise its new consumer rights enforcement powers and - if judicial challenges to the CMA’s infringement decisions under the competition regime are anything to go by - there will no doubt be growing case law in this area.