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In CMA v Emma Matratzen GmbH & Ors [2026] EWHC 1995 (Ch), Mr Justice Richards has considered the relevance of the volume of products sold to the question of whether the use of reference pricing (for example “was £100, now £50”) will constitute a “misleading action” under the Consumer Protection from Unfair Trading Regulations 2008. There is now a new consumer enforcement regime under the Digital Markets, Competition and Consumers Act 2024, but this judgment remains important reading for practitioners in consumer law.
The central issue in dispute by the time of the hearing was whether the Court should make an enforcement order that included provisions preventing Emma from selling more than two items at a discounted price for every one item sold at the full price, subject to certain safety valves. This mechanism is referred to in the judgment as a 1:2 fixed volume ratio. On balance, the Court held that the CMA had not established that Emma’s use of reference pricing was generally misleading based on data showing low levels of sales at the reference price alone. The Judge held that other relevant considerations included Emma’s subjective beliefs as to whether its reference prices were realistic and the nature of the products it was selling. The Court was accordingly not willing make an order incorporating the 1:2 fixed volume ratio sought by the CMA.
The Court has directed that the parties seek to agree the terms of an enforcement order that takes into account the conclusions expressed in the judgment. If necessary, the Court will hear further submissions on whether, and if so on what terms, the court should make an enforcement order, at a hearing in the Michaelmas term.
Anneli Howard KC and Jonathan Lewis acted for Emma Mattresses.
Rob Williams KC and Daisy Mackersie acted for the CMA.