Was/now pricing: context still counts as High Court rejects CMA’s proposed 1:2 “Fixed Volume Ratio”

The question

What was the CMA seeking to impose with its proposed 1:2 “fixed volume requirement” (FVR) for “was/now” selling techniques? And what does the Emma judgement mean for retailers’ pricing strategies moving forwards?

The key takeaway

While this case, strictly speaking, concerned the law under the (now revoked) Consumer Protection from Unfair Trading Regulations 2008 (CPRs), its outcome has been eagerly anticipated for any guidance that may apply under similar provisions of the DMCCA. While the High Court accepted certain CPR breaches admitted by (mattress maker) Emma Matratzen GmbH (Emma), it declined to endorse the CMA’s proposal for a FVR, for the purposes of determining whether “was/now” pricing is misleading. Under this proposal (and request for an enforcement order to this effect), the CMA had sought to establish a principle that for every two products sold at the discounted price, one should have been sold at the higher reference price. Instead of endorsing this principle, the High Court held that “misleading” turns not on a standalone sales ratio but on the average consumer’s perspective and the genuineness of the reference price, including the trader’s own genuine belief about whether the price is realistic.

The background

Beginning at the end of November 2022, the CMA investigated Emma’s sales practices relating to urgency messaging and reference pricing. It then pursued proceedings against Emma for breaches of the CPRs. A consent order was agreed on 22 May 2026 resolving the urgency messaging issues, but reference pricing remained on the agenda for full trial, with the CMA requesting an enforcement order against Emma on this point. Judgment on this reference pricing aspect was handed down on 30 July 2026, and now the parties need to agree a new consent order based on the judgement (or else the High Court will impose its own in due course).

The development

What the CMA sought

The CMA’s case focused on “reference pricing” (eg, “Was £1,000, now £500”) and asked the High Court to impose an FVR broadly requiring a 1:2 ratio requirement, subject to “safety valves” (ie specific exception and buffer rules to prevent the FVR from being overly rigid or unfair).

Why the High Court rejected the 1:2 FVR

The High Court’s primary reason for refusing the FVR was that it was “not satisfied that breaching a 1:2 FVR, even with the safety-valves that the CMA proposes, involves a Schedule 13 infringement” (being a breach of UK consumer protection laws that harms the collective interests of consumers). The High Court held that the CMA’s approach, treating reference pricing as necessarily misleading where most sales occur at the discounted price, ignored considerations the average consumer would regard as relevant. Crucially, the High Court found that a trader’s genuine belief that a reference price is realistic is one such consideration: an average consumer would regard it as relevant whether Emma genuinely believed it could make significant sales at that price. The High Court also considered this consistent with ASA and CTSI guidance that low sales volumes alone are not determinative if the reference price is nevertheless “realistic.”

The High Court further noted the product-specific context: mattresses are high-cost, infrequent, non-urgent purchases where consumers can defer and use comparison tools, meaning the perception of a “good deal” has market-specific dynamics.

Secondly, the High Court highlighted that under the DMCCA penalty regime, breach of an FVR-based enforcement order in this case could produce disproportionate consequences where no underlying infringement existed.

Admitted breaches

Emma had already admitted certain CPR breaches:

• using struck-through reference prices for new products without offering the higher price
• using a reference price that was not the immediately preceding price
• misleading bundle/parallel promotion pricing, and
• during trial, Emma admitted that sales volumes for certain product lines were insufficient to substantiate the reference prices used.

The High Court concluded those admitted infringements harmed collective consumer interests and met preconditions for an enforcement order (though the terms were left for further discussion).

Next steps

The High Court has invited the parties to agree appropriate order terms, with a further hearing if agreement is not reached. In the meantime, the CMA has stated it is “temporarily withdrawing” its online mattress sales guidance recommending a 1:2 FVR, so as to align with the judgment’s conclusions. It remains to be seen whether the guidance will remain permanently withdrawn or whether it will be updated to remove the 1:2 FVR and then republished.

Why is this important?

First, the judgment signals judicial resistance to quantitative “substantiation ratios” being imposed via enforcement orders where the CPRs-test (and therefore DMCCA too) remains effects-based and consumer-centric. Of course, this reasoning was informed by the specific characteristics of the mattress market and may not apply identically in all sectors. It also reinforces that the courts will scrutinise on its facts whether a given reference price is “genuine/realistic”; evaluating metrics such as duration, recency, and evidence of meaningful sales or reasonable expectation of sales. In the new era of direct enforcement and imposing of fines by the CMA, it is perhaps interesting to see the CMA wanting to establish a more principles based approach, and businesses should be cautious going forwards.

Any practical tips?

• Treat reference pricing as a governance and evidence problem, not a creative/marketing one. Internal controls should ensure the “was” price is anchored to a defensible reference price with documented rationale showing why it was a realistic selling price at the time.
• Avoid implied “usual price” claims where a product was never sold at the higher price, and label genuine introductory pricing clearly.
• Track CMA updates following the withdrawal of the mattress sector guidance and anticipate renewed interest in enforcement action under the DMCCA.

Autumn 2026