A Decade-Old Rule, Enforced With New Teeth
On 19 June 2026, the Competition and Markets Authority announced it had fined appliance retailer Marks Electrical £720,000 and ordered roughly £600,000 in refunds to nearly 40,000 customers. Between April and November 2025, the retailer automatically enrolled shoppers into two paid add-ons — a 'Recycle Old Appliance' service and an 'Unwrap & Recycle Packaging' service — via boxes that were pre-ticked at checkout. Customers had to actively notice and untick them to avoid the charge, averaging £15 per person (GOV.UK).
The underlying rule is not new. Pre-ticked boxes for chargeable extras have breached the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 for over a decade. What changed is enforcement muscle: the Digital Markets, Competition and Consumers Act 2024 (DMCCA), whose consumer-protection provisions took effect on 6 April 2025, lets the CMA issue fines directly rather than petitioning a court first. Marks Electrical is only the second business to be fined this way, after the AA and BSM driving schools were hit with a £4.2 million penalty (reduced from £7 million) on 15 April 2026 for hiding a mandatory £3 booking fee from more than 80,000 learner drivers until after they'd entered their details (GOV.UK). Both cases settled early for a 40% penalty discount — a pattern, not a coincidence.
The Case for Banning the Default
The regulatory logic deserves a fair hearing before any pushback. Behavioral economics is unambiguous that defaults are sticky: when an option is pre-selected, most people leave it as-is regardless of whether they'd have chosen it affirmatively, simply because unticking a box requires attention most shoppers aren't paying at the point of sale. That's precisely why the 2013 Regulations require express agreement to any charge beyond the core price, and why the CMA's own guidance now treats pre-ticked boxes as a species of 'dark pattern' — a design choice that manipulates rather than informs. A retailer that wants £15 for recycling a washing machine can simply ask; defaulting the charge on is a bet that inertia will do the selling.
Why Proportion, Not Prohibition, Is the Right Test
Where the CMA's approach earns credit is in its restraint. Both fines to date sit well under the DMCCA's statutory ceiling of 10% of global turnover or £300,000, whichever is higher — a cap the regulator itself cites as available headroom (CMA enforcement blog). Marks Electrical's £720,000 and the AA's £4.2 million are calibrated penalties tied to the scale of harm and discounted further for early settlement, not maximal punishments designed to make an example. That distinction matters for a pro-innovation reading of the DMCCA: a regulator that reaches for the statutory ceiling on a first or second offense signals that compliance risk is unpredictable, which chills the ordinary business practice of bundling optional services at checkout. A regulator that settles quickly, discounts for cooperation, and scales the fine to actual consumer detriment signals the opposite — that the rule is knowable and the penalty proportionate to the breach, which is exactly what lets legitimate cross-selling continue while punishing the narrow practice of defaulting a charge on without asking.
The Trajectory Worth Watching
The CMA's own account of its first year under the DMCCA's direct powers (April 2025–April 2026) shows 14 investigations opened and two settled, £4.7 million in fines and £760,000 in consumer refunds, alongside 157 advisory letters and 46 information notices — a mix weighted toward guidance over punishment. Marks Electrical is the third settlement in that pipeline, and legal commentary points to further live inquiries in fake reviews and online choice architecture, reportedly including scrutiny of Adobe and Ryanair's checkout flows (TLT LLP). Separate analysis citing government research puts the scale of the underlying problem at nearly half of UK online retailers using some form of dripped or hidden fee, at an estimated aggregate cost to consumers running into billions of pounds a year (Pinsent Masons).
That scale is the real argument for continued enforcement rather than new legislation. Parliament does not need to draft a bespoke dark-patterns statute when the 2013 Regulations already prohibit the conduct and the DMCCA now gives the CMA a fast, direct route to penalise it. The test for whether this remains good regulation rather than regulatory overreach is simple, and so far the CMA is passing it: keep fines tethered to actual consumer harm, keep offering the settlement discount that rewards quick admission over prolonged litigation, and resist the temptation to use the 10% ceiling as a default starting point rather than a backstop for genuinely egregious or repeat conduct. Two cases in, that discipline is holding.
The rule being enforced predates the DMCCA by eleven years. What's new is that the CMA can now act on it in months rather than years — and, so far, is choosing not to maximise the fine simply because it can.