DMCCA penalty #2: CMA fines Marks Electrical for use of automatic opt-ins for additional charges

On 18 June 2026 the Competition and Markets Authority (CMA) announced that it had fined Marks Electrical for breaching consumer law by automatically opting customers into paying for additional services which were in fact optional.

Following early settlement, the CMA imposed a penalty of £720,000 and required the company to refund nearly 40,000 customers. The refund requirement represents an average payment per customer of £15 and will total around £600,000 – resulting in a cumulative ‘penalty’ of £1.32 million.

This is the second civil penalty imposed by the CMA for a substantive breach of consumer law using its powers under the Digital Markets, Competition and Consumers Act 2024 (DMCCA). It follows the £4.2m fine imposed on AA and BSM in April 2026.

Marks Electrical were one of eight companies that the CMA opened investigations into in late 2025, alongside AA and BSM, for suspected consumer law infringements. Investigations into the remaining companies continue, alongside its ongoing fake reviews enforcement cases and investigations into Adobe and Ryanair.

Pre-ticked boxes: where did Marks Electrical go wrong?

During the period from April 2025 to November 2025, Marks Electrical had automatically opted customers buying appliances online into the following additional services:

‘Recycle Old Appliance’: removing the customer’s old appliance at delivery for recycling; and
‘Unwrap and Recycle Packaging’: unwrapping, removing and recycling the packaging of the new appliance.

Each of these services carried charges, which were automatically added to the customer’s purchase through a pre-ticked box. This meant consumers would have to actively remove them prior to final payment in order to avoid being charged. Default opt-ins of this nature have long been viewed by the CMA as a harmful form of online choice architecture.

In the CMA’s press release, Emma Cochrane, Executive Director of Consumer Protection at the CMA, said: “Buying a new washing machine, dishwasher or cooker is expensive and people should have the right to decide if they want optional extras — not be landed with costs that they did not agree to. All businesses need to check their policy on automatic opt-ins — the bottom line is that they should not be used.”

Consumer law and additional charges

The law in this area is not new: under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (CCRs), consumers must have genuine choice and provide express consent for additional optional charges and services.

What is new is that the CMA now has much tougher powers to impose civil penalties in relation to long-standing consumer protection rules. This case confirms that the CMA’s new enforcement powers don’t just cover the substantive consumer law contained within Part 4 of the DMCCA itself; they can also be used in relation to wider consumer law breaches.

That said, we await publication of the Final Infringement Notice (FIN) to better understand the basis on which the CMA has imposed a penalty. The interplay between the CCRs and the DMCCA in an enforcement context remains somewhat ambiguous and untested.

CMA guidance for businesses

Optional services and extras during a purchase journey are common offerings for consumers, such as upgrades to delivery, insurance products, donations to charities or gift wrapping.

Businesses offering such extras should review their digital sales journeys to ensure that such services remain genuinely optional and are not pre-selected for customers.

The CMA has published guidance on ‘Getting consent for additional charges when selling online’, which outlines the following core principles that businesses should adopt.

Note that this guidance is in relation to genuinely optional charges. For mandatory charges associated with a purchase journey, businesses should consider the CMA guidance on price transparency.

1. Consent must be express and cannot be inferred by default

The CMA’s guidance on consent for additional charges demonstrates that the existence of a box for additional charges is permissible at different stages of the digital purchase journey. However, the customer must choose whether to take positive action and tick that box – it must not be presented to the customer pre-ticked as it should not be the default position that the customer has to pay.

Express consent is also not provided by merely failing to opt-out. For example, if a customer fails to tick a box saying that they do not want the additional service, this should not be taken as consent that they do want the service.

2. There must be a clear and genuine choice for the customer: No dark patterns allowed

The user interface must not employ ‘dark patterns’ or manipulation to coerce or push a customer into selecting the additional charge.

Dark patterns are deceptive forms of online choice architecture presented to consumers which deliberately attempt to influence decision making in a way that harms consumers. Examples include unnecessarily complex language, making certain text or graphics bigger to draw attention, and making scarcity claims to rush consumers into completing their purchase.

In the context of an additional charge, dark patterns may take the form of language pressurising the customer into accepting the additional service offered.

3. Additional payments must be clearly and fully explained to the customer prior to the contract being formed

The exact pricing and terms associated with the additional service, product or charge must be clearly laid out to the customer prior to any payment taking place.

In addition, the customer must be presented with a way to check and confirm what they are paying for, such as through a summary basket outlining all additional charges at the end of their purchase journey.

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4. The customer will have an automatic right to a refund for additional payments that were not expressly consented to

Where customers did not provide express consent in relation to additional charges incurred, the charge will be void and unenforceable under the CCRs. This means they are legally entitled to seek a refund of that charge.

TLT’s Consumer Law team has extensive experience working with digital platforms, retailers and online marketplaces on UX design. Get in touch with the team if you’d like to discuss these issues.

Contributor: Tessa Lloyd

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Date published

22 Jun 2026