Another month, another development regarding “online choice architecture” (OCA) and so-called “dark patterns".  Examples of this include urgency claims like countdown clocks, where websites tell consumers that they have a short period to complete a transaction when that isn’t actually true, or using discount claims which are opaque.

Among other sectors, the CMA has been looking at certain mattress retailers to review their use of OCA, including Emma Sleep. The CMA recently announced that Simba Sleep Limited (Simba) had signed undertakings in relation to its online selling practices. The undertakings commit Simba to, among other things, an agreed set of rules around the use of discount claims and urgency claims (such as countdown clocks) including:

• avoiding discount claims that are potentially misleading: where Simba wishes to use a higher ‘was’ or comparison price, it must ensure that it establishes the higher price as a genuine price by achieving sales of the product at the higher price for a sufficient period and in sufficient volumes;
• using clear and accurate countdown clocks: countdown clocks must not give consumers a false impression that they must act quickly to avoid missing out on a deal.

Simba must also report to the CMA within six months of signing the undertakings to demonstrate its compliance with the commitments.

As well as this, the CMA has published new guidance for retailers selling mattresses online regarding reference pricing. Although it is aimed at a specific market, the principles it contains will be useful for any online retailers wanting to ensure that their websites and customer journeys remain on the right side of the line in light of the CMA’s forthcoming powers in the new Digital Markets, Competition and Consumers Act.

The guidance sets out the principles along with useful examples. It states that to ensure a reference price reflects the genuine price of the product, traders must make sure that any products, including bundles of products, that are offered for sale using a ‘was/now’ price, have actually been sold in sufficient volume, over a sufficient duration, at or above that reference price. These sales should be made on the same website as that used for the promotion and immediately before the discount begins. 

This requires a comparison to be made between the sales made at the higher price and the sales made at the lower price, and there will come a point where the reference price is no longer a genuine reference price. Where traders choose to advertise using a reference price, they must only use the reference price for as long as it remains genuine. 

Both the volume and duration requirements must be met; it is not sufficient for a trader to meet one requirement only. 

The same considerations apply when traders offer prices or discounts for products that traders say will increase to the higher reference price in the future. Sales of the product in the future must be made in sufficient volume and over a sufficient duration, at or above that reference price.