The season of scrutiny
Holiday shoppers expect real bargains, but regulators and plaintiffs are checking the list twice. They are looking to the mechanics behind a promotion: a “was” price that rarely applied, a sale that never ends, a countdown clock that resets, or a “Sale Ends Tonight!” email when the offer continues tomorrow. Even with an accurate checkout price, these tactics can misrepresent savings or urgency.
Retail and consumer products businesses face both regulatory enforcement and private litigation. In the United States, United Kingdom, European Union, and Australia, the question is simple: Can the business prove its price, scarcity message, timer, and email claim were genuine when shoppers saw them?
Where the holiday pressure shows up
United States: The FTC is making a list—and plaintiffs are checking it twice
The Federal Trade Commission (FTC) is using Section 5 of the FTC Act to target “dark patterns”—website or app designs that “trick or trap” shoppers and steer them away from informed choices. Concerns include fake inventory counters, artificial urgency, algorithmic dynamic pricing, and reference prices that do not reflect a genuine former price. Regulators may scrutinize not just the number on the tag, but the digital wrapping around it.
State consumer-protection laws also fuel class actions over phantom discounts, persistent strike-through prices, and emails that manufacture a ticking clock.
- Phantom discounts: Plaintiffs challenge “was/now” pricing when the sale price is continuous, and the higher price becomes a fictional baseline rather than a real price.
- Subject lines on trial (Washington, Maryland, and Indiana): State commercial email laws treat subject lines such as “Sale Ends Tonight!” as misleading when the sale continues or key conditions are hidden. Unclear “free gift” claims raise the same problem.
United Kingdom: No more humbug pricing under the DMCC Act
The U.K. Competition and Markets Authority (CMA) has long focused on misleading pricing and online sales practices. Under the Digital Markets, Competition and Consumers (DMCC) Act, the CMA can now fine companies up to 10% of global annual turnover for unfair commercial practices without going to court and can require redress—a serious risk from Black Friday through the holidays. The CMA has already used these powers against drip pricing (now banned outright), misleading countdown timers, and default opt-ins for additional services, calling them among the “most egregious” breaches and enforcement priorities.
The CMA has also targeted misleading reference (“was/now”) pricing but suffered a setback in September when the UK High Court rejected its 1:2 volume requirement for a legitimate benchmark price. In a pre-DMCC action against online mattress retailer Emma Sleep, the court held that the assessment must consider whether the trader reasonably believed the discount was genuine.
European Union: Clear wrapping required for prices and interfaces
Under Article 6a of the Price Indication Directive, as amended by the Omnibus Directive, a price reduction must generally be based on the lowest price applied in the previous 30 days, so retailers cannot inflate the “was” price to make a discount look bigger.
The Unfair Commercial Practices Directive (UCPD) (Annex I, point 7) also prohibits false urgency. A countdown that resets at zero, or a “last chance” offer that keeps running on the same terms, may break the rules.
Article 25 of the Digital Services Act (DSA) bars online platforms from using manipulative interface designs that impair consumers’ ability to make autonomous, informed choices. Under Article 25(2), this ban does not apply to practices the UCPD already covers—but those practices remain subject to consumer-protection rules.
Enforcement is real. A 2026 European Commission Black Friday and Cyber Monday screening of 314 online traders found that around 30% referenced discounts incorrectly. In 2026, Italy’s Autorità Garante della Concorrenza e del Mercato fined one company €2 million for resetting countdown timers and another company €9 million, citing artificial scarcity and time pressure alongside subscription and cancellation issues—a sign that regulators examine the whole customer journey, not just the price tag.
Australia: What's really under the tree down under
The Australian Competition and Consumer Commission (ACCC) has long scrutinized retail pricing, including holiday “bargains,” especially during Black Friday, Cyber Monday, and festive sales.
The Australian Consumer Law (ACL) prohibits misleading or deceptive conduct and false representations in retail pricing. The ACCC enforces these rules rigorously, and penalties are very significant.
In May, the Federal Court of Australia found that certain promotional discounts by a major supermarket operator were not genuine because the product had not been sold at the stated “was” price for a reasonable period. The ACCC also watches for drip pricing and hidden charges: The total price, including taxes, unavoidable extras, fees, and surcharges, must appear as a single figure.
Scrutiny will soon intensify. Under new laws passed this year, “unfair trading practices” will be prohibited from July 2027, banning conduct that manipulates consumers or unreasonably distorts their decision-making—such as dark patterns, false urgency, and overly complex terms. The reforms also target drip pricing by requiring prominent disclosure of transaction-based charges alongside base prices, and subscription traps through new requirements for subscription contracts.
Nice, not naughty: Your pre-launch checklist
Before the next Black Friday email, Cyber Monday page, or holiday countdown goes live ask six questions:
- Is the reference price real? Audit “was" or list prices against the applicable baseline period and actual sales history.
- Does the timer truly end? Remove countdown timers that reset by cookie, session, or script unless the offer actually ends.
- Can scarcity be proved? Tie “Only 3 left!” and similar messages to live inventory data, not static or randomized displays.
- Does the email say what the shopper will get? Review subject-line logic, sale-end dates, and discount conditions under applicable commercial-email laws.
- Is the whole journey clean? Check default opt-ins, subscription prompts, and cancellation flows, not just the headline price.
- Has pricing had a second set of eyes? Require legal or compliance sign-off before launching algorithmic pricing, strike-through engines, dynamic promotions, or automated campaigns. The best holiday gift is a promotion the business can prove was genuine.
For help evaluating your cross-border digital compliance program or defending pending consumer litigation, please contact our Antitrust & Competition team.
