Santa’s Watching - And So Are The Regulators
12th December 2025
As the festive season approaches, British traders are gearing up for their biggest sales push of the year – the Christmas sales. Classic promotional banners, such as “last chance”, “was/now” pricing and countdown timers have long been part of the seasonal marketing playbook, helping brands signal time-limited value and exclusivity.
But this year, the legal landscape has shifted in consumers’ favour with the enactment of the Digital Markets, Competition and Consumers Act 2024 (“DMCCA”) imposing tougher requirements of transparency, precision, clarity and banning manipulative e-commerce practices. Promotional tactics are no longer viewed as marketing tools with permissible loose wording. On the contrary, they constitute legal statements subject to scrutiny.
And with the Competition and Markets Authority (“CMA”) now wielding direct enforcement powers (bypassing the previous need to take offenders to court), the stakes are higher than before as there are no more court “booked-months-ahead” procedural calendars or litigation fees to act as “coolers”.
This shift is not theoretical. In the past 18 months, the CMA and the Advertising Standards Authority (“ASA”) have taken action against online mattress retailers, namely Emma Sleep, Simba Sleep and Origin Sleep for using pricing practices that were found wanting.
As a result of its findings in the Emma Sleep investigation, the CMA’s August 2024 guidance for reference pricing was framed around mattresses. However, it is expected that the application will stretch far beyond. For furniture and homeware brands preparing for Christmas campaigns, these cases offer a timely and sobering blueprint.
WHAT’S CHANGED UNDER DMCCA?
The consumer aspects of DMCCA, which came into force in April 2025, were designed to modernise UK consumer law for the digital age and gave the CMA direct powers to:
• enforce consumer protection law without going through the courts;
• impose fines of up to 10% of global turnover for breaches; and
• tackle misleading online practices, including pressure selling, fake scarcity, and deceptive pricing,
all in an attempt to give deterrence “teeth” and make the prospect of enforcement more immediate than before.
THE CMA’S MATTRESS GUIDANCE
The CMA’s August 2024 “Discount and reference pricing principles: selling mattresses online” guidance, though sector-specific in title, is viewed by many as a signal to the wider market.
It sets out five core expectations:
that reference (“was”) prices must be genuine,
that urgency claims must be substantiated,
that pricing history must be meaningful in both time and volume,
that promotional tactics must not mislead, and
that businesses must retain evidence to support their claims.
One of the most significant elements of this guidance is the so-called 1 to 2 ratio principle. This states that for a “was” price to be considered genuine, the trader should have sold at least a third of items at the “was price” relative to the number sold at the discounted, “now” price. The duration of the item available at the “was” price is also part of the test – and it cannot be shorter than the promotional “now” price period.
For example, if 120 identical coffee tables were sold over a period of 2 months, at least 40 should have been sold at a full, non-discounted price, for at least 1 month, prior to the offer kicking in. After the end of the 2-month period, the trader should stop making the price comparison.
These principles were designed to prevent retailers from inflating reference prices for short periods simply to justify dramatic markdowns, and they are being tested in live enforcement.
EMMA SLEEP: A PRE-DMCCA TEST CASE
Perhaps the most high-profile of these investigations was the CMA’s action against Emma Sleep. The regulator had been scrutinising the company’s practices since 2022, focusing on the use of urgency tactics such as countdown timers, “limited time” offers and reference prices that, in the CMA’s opinion, did not appear to reflect genuine prior selling periods. When Emma Sleep declined to give the CMA all of the required undertakings (notably, the 1 to 2 ratio), the CMA took the rare step of initiating court proceedings in October 2024.
This decision is particularly significant because it came just months after DMCCA received the Royal Assent. At the time of the Emma Sleep action, the new DMCCA consumer regime and CMA’s direct enforcement powers had not yet become operational. The CMA, therefore, proceeded under the existing Consumer Protection from Unfair Trading Regulations 2008, using the courts as its enforcement route.
The case is now scheduled for trial in June 2026.
We cannot predict what the court will rule but until that happens, the CMA is unlikely to enforce its new pricing standards, short of clear-cut cases involving a flagrant overstepping.
At the same time, irrespective of what the court rules in this pre-DMCCA case, the CMA no longer needs court approval to act. That means that Emma Sleep case could be one of the last opportunities for a judge to shape how the CMA interprets its new powers. In future, judicial oversight may be reserved for those willing, and financially able, to challenge the regulator’s decisions head-on.
Although at present there is limited data on the commercial repercussions of the legal action for Emma Sleep (which will perhaps become clearer after the trial), the consumer watchdog Which? suspended its “Best Buy” endorsements for Emma Sleep following the CMA’s court action in October 2024.
SIMBA SLEEP: A COLLABORATIVE RESOLUTION
In contrast, Simba Sleep chose a more conciliatory path. Following a CMA investigation launched in December 2023, the company agreed in July 2024 to a set of formal undertakings. These included commitments to ensure that “was/now” prices reflected genuine prior selling periods, that urgency claims were based on verifiable facts, and that internal compliance processes were strengthened.
Notably, Simba’s undertakings were accepted just days before the CMA published its mattress pricing guidance. The timing suggests that Simba’s commitments were shaped by the same principles and that the CMA was willing to resolve matters cooperatively where businesses engaged constructively.
For homeware brands, Simba’s case offers a pragmatic lesson: if your pricing practices are called into question, early engagement and reform may avert more severe consequences.
ORIGIN SLEEP: ASA RULING ON MISLEADING PROMOTIONS
While the CMA was pursuing Emma and Simba, the ASA was conducting its own review of mattress pricing claims. In July 2025, it upheld a complaint against Origin Sleep UK Ltd in relation to a Halloween promotion that ran on 31 October 2024.
The ad in question featured “up to 45% off” claims, crossed-out prices and a countdown timer suggesting the offer was time-limited. However, the ASA found that the higher “was” prices had only been charged briefly, that the urgency claim was misleading (as the same promotion reappeared shortly after under a different name), and that the overall presentation created a false impression of savings.
Although only one of the three issues was formally upheld while the others were informally resolved, the ruling reinforced a key principle: even if a discounted price is genuine, omitting the context of how long the higher price was charged can still mislead consumers.
WHAT THIS MEANS FOR HOMEWARE BRANDS
These cases may have centred on mattresses, but the parallels with furniture and furnishings are striking. Both sectors deal in high value, infrequently purchased goods. Both rely heavily on seasonal promotions. And both are prone to using urgency and discounting to drive conversions.
As Christmas approaches, brands should take stock. Does your online seasonal promotional campaign comply with the CMA mattress guidance, DMCCA, the CAP and/or BCAP Code? If not, you may be skating on regulatory thin ice.
The CMA has made clear that it expects businesses to hold evidence of pricing history, sales volumes and promotional timelines. The ASA, for its part, appears resolute to act where advertising omits material information or creates a misleading impression of value.
This article does not constitute legal advice. For tailored advice on compliant seasonal promotional practices, contact Natalia Samodina at natalia@interiordesignlawyer.co.uk.