On 30 July 2026, the High Court handed down its judgment in CMA v Emma Matratzen GmbH & Ors [2026] EWHC 1995 (Ch), marking another milestone in the CMA’s long-running consumer law investigation into Emma Sleep’s online sales practices. Emma, an online mattress retailer, has been under investigation by the CMA since November 2022 over aspects of its online sales practices. In May of this year, the parties reached a court-endorsed settlement in relation to the CMA’s concerns over misleading ‘urgency messaging’, where visitors to Emma’s website were shown countdown timers which falsely indicated that a product would only be available on particular terms for a limited time.

However, the parties failed to agree a settlement in relation to Emma’s use of ‘was/now’ reference pricing (for example “was £200, now £100”). The CMA sought an enforcement order under section 217 of the Enterprise Act 2002 (EA 2002). This would broadly require Emma to sell at least one mattress at the (higher) reference price for every two sold at the discounted price which referred to the higher price (a 1:2 ‘Fixed Volume Requirement’ or FVR).

Emma admitted that some uses of its reference pricing were unlawful – where very small numbers of mattresses had been sold at the higher reference price – and indicated that it was happy to give undertakings that would oblige it to offer the higher price for a certain length of time in order for it to be used as a reference price. However, Emma argued that while volumes were relevant, for the most part the reference prices it used were genuine and so did not mislead consumers or breach consumer law. The Court ultimately rejected the CMA’s request for an enforcement order with a 1:2 FVR. The Court has directed the parties to try to agree on the terms of an alternative enforcement order in light of its findings.

The judgment considers the relevance of the volume of products sold to the question of whether the use of reference pricing will constitute a ‘misleading action’ under the Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs), which have now been revoked and replaced by the Digital Markets, Competition and Consumers Act 2024 (DMCCA) (but under which similar issues would arise). 

Key takeaways

1. Reference pricing

The Court found that there may be situations where very low sales at the reference price would not mislead consumers. The Court considered that Emma's genuine, subjective belief about whether a reference price was ‘realistic’ or ‘genuine’ is relevant in determining whether it was misleading. In particular, Richards J noted “an average consumer would also consider it relevant to consider whether Emma had a genuine belief that it could make significant sales at that Reference Price.” One might think the proven fact that Emma did not make very significant sales at certain of its reference prices might override its (prior) belief, such that continuing to display ‘was/now’ pricing might well be misleading, and indeed there was no evidence of what Emma’s expectations had in fact been. 

Richards J made a number of other interesting observations on the nature of reference pricing, noting that discounting “acts as an inducement to an average consumer not to defer purchasing a mattress, but rather to take some action because of a perception that a good deal is on offer” (paragraph 93). Further, he suggests that consumers are not “entering a competition to ‘beat’ other consumers” by paying a lower price for a mattress than other purchasers (paragraph 96). 

2. Transactional decision 

The judgment reaffirmed the broad definition of a consumer’s ‘transactional decision’ as defined in the CPUTRs (which is similarly defined in section 245 of the DMCCA). Richards J explained that, in the context of an online business such as Emma, a decision by a consumer to click on product descriptions on Emma’s website and add a product to an electronic basket would be a ‘transactional decision’ just as much as a decision to purchase a product would be. Richards J observed that the “breadth of the concept of ‘transactional decision’” was settled law and did “not consider that proposition could seriously be disputed” (paragraph 122). 

3. Relevance of customer satisfaction to breach 

Richards J dismissed Emma’s argument that some uses of its reference pricing were not misleading on the basis that Emma’s customer satisfaction statistics and consumer awards show its customers were generally satisfied with their purchases. Customer satisfaction is no rebuttal in circumstances where misleading practices have had a causative effect on a transactional decision. Consumer law creates clear obligations on traders, even if traders believe that consumers value those practices which the law prohibits. How this might feed into enforcement priorities remains an open question.

4. Direct vs. indirect enforcement 

These proceedings were brought under the previous consumer enforcement regime (via Part 8 of the EA 2002), under which the CMA is required to seek an order from the High Court if it considered a trader had breached consumer law. Since then, the DMCCA has introduced a new consumer enforcement regime, which gives the CMA direct enforcement powers. 

If the CMA were to pursue a similar investigation on reference pricing today, it would be brought under the new regime, likely framed as a series of misleading actions or omissions (sections 226 and 227 of the DMCCA). In such a case, the CMA could directly find that a trader’s use of reference pricing was unlawful, fine them and potentially impose enhanced consumer measures related to their future conduct. In turn, the trader would have to appeal that decision to the High Court under section 202 of the DMCCA. 

5. Alternative enforcement order

It remains to be seen whether the CMA and Emma can agree on the terms of an enforcement order that takes into account the conclusions expressed in the Court’s judgment. Richards J demurred on Emma’s suggestion of a 1:19 FVR, which would require Emma to make only 5 percent of its sales at the reference price. 

The judgment has significant implications for the CMA's enforcement strategy going forward:

• The CMA could try to agree a compromise FVR ratio with Emma, although any ratio significantly higher than 1:2 would undermine its prior (now temporarily withdrawn) guidance and pleaded submissions on the importance of a 1:2 FVR. The judgment notes at paragraph 67 that, in 2024, Emma sold seven discounted mattresses for every one sold at an undiscounted price (a 1:7 FVR), some way north of the CMA’s 1:2 FVR ratio. Should the parties remain far apart, one might expect the CMA to seek further evidence to bolster parts of its case that the Court took issue with – for example, subjective beliefs and expectations. 

• As discussed above, the CMA also has the option of opening a consumer case against Emma under the direct enforcement regime based on Emma’s conduct from 6 April 2025 onwards (the commencement date of Parts 3 and 4 of the DMCCA), but the Court’s remarks in this case would remain of real significance.

In any case, both the CMA and Emma will be acutely aware of the government’s renewed interest in this topic, with the Prime Minister recently announcing a crackdown on misleading ‘was/now’ pricing, with plans to ban fake discounts where retailers inflate a previous price or use misleading recommended retail prices to make savings look bigger than they really are.

The government will consult this autumn on adding these practices to the list of banned consumer trading practices, as part of a wider cost of living package.