The Competition and Markets Authority (CMA) has secured a court-endorsed settlement from mattress company Emma Sleep, which has admitted breaching consumer law via:
- Misleading use of headline discount claims and countdown timers. Emma Sleep used headline discount claims (i.e. price reduction claims where the relevant discounted product(s) were not specified) between January to October 2022, and then again between December 2022 to March 2024. Although the headline discount claims were presented as limited-time offers, they were in fact run continuously with no gaps between the claims. Alongside the headline discount claims, Emma Sleep also used countdown timers , adding further pressure for shoppers to buy quickly.
- Misleading use of high demand claims. For example, for one product the website stated “High Demand During the last 24 hours this product has been viewed 6,458 times”, when in fact only seven units of the product were sold that day, and there was no shortage of supply. Overall, Emma Sleep admitted to 55 instances of such misleading claims.
What obligations has Emma Sleep agreed to?
To settle this part of the case, Emma Sleep has entered into legally binding undertakings – breaching these could lead to contempt of court, fines and imprisonment of company directors.
When using a countdown timer, Emma Sleep must:
Be clear and specify prominently which promotion and product the countdown timer applies to.
Only have the countdown timer displayed on webpages and other communications where directly relevant to the promotions and products the countdown timer applies to.
Not give consumers a false impression that they must act quickly to avoid losing out.
Stop using the countdown timer when the relevant promotion ends.
Not use a new countdown timer when the product (or a substitute of the product) is being offered on a substantially similar promotion within 28 consecutive days of the old countdown timer ending.
Emma Sleep has given similar undertakings in relation to high demand claims.
The company also has forward-looking compliance obligations to:
Provide datasets to the CMA, including in relation to high demand claims and countdown timers shown by the company from June to November 2026.
Monitor and record its own compliance, including training its staff.
If Emma Sleep suspects it is not complying with the undertakings, it must take “all necessary steps” to assess whether it is compliant and to bring itself into compliance within just five days.
Don’t press snooze – what online retailers should look out for
The Emma Sleep saga presents a few lessons for online retailers:
Although this case was launched under the CMA’s old pre-DMCCA consumer protection mandate, which required the CMA to take cases to court, it’s a clear indication of the increasing regulatory scrutiny breaches of consumer protection law are receiving. Under the DMCCA, the CMA can swiftly take action against breaches of consumer protection law via direct enforcement without going to court, such as investigating potential breaches, fining companies up to 10% of their global turnover and ordering customer refunds). CMA investigations can now conclude within a matter of months. The Emma Sleep case is a reminder of just how much the UK’s consumer protection landscape has changed in a short period of time.
The CMA’s press release contains a warning to retailers: “Businesses should be clear on what the law says: using fake countdown clocks or misleading ‘discounts’ to push people into spending is illegal.” These are just some of the practices that the CMA has focussed on as part of its work tackling ‘online choice architecture’ which harms consumers – other practices to be aware of include subscription traps and hidden fees. You can read more about these topics here.
Finally, further lessons are still to be learnt from the Emma Sleep litigation. A High Court trial will shortly determine the remaining issue in dispute: whether the company’s ‘was/now’ pricing breached consumer law. Stay tuned for a further update.
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