Fair treatment rules that quietly shape your promotions and loyalty comms

Two prices sit on the same shelf edge: the yellow Clubcard price, and beneath it, in smaller type, the price everyone else pays. On some lines the gap is a quarter of the item's cost. A shopper without a smartphone, a settled address or an email account pays the higher one. None of that is unlawful, and Tesco has run Clubcard Prices at scale since 2020. It is, though, the exact shape of question that fairness regulation asks: who ends up paying more, did they understand the offer, and could they realistically have taken it up?

This lesson stays on that layer. Whether a price claim can be evidenced is the subject of the claims lesson, and how a scheme changes shopping behaviour belongs to the loyalty lesson. The question here is narrower: given a promotion that is truthful and a loyalty mechanic that works, what can still go wrong in the way the offer treats the people who receive it?

Why fair treatment law reaches into promotions

Consumer protection used to sit in the back office: terms, refunds, small print. Regulators now treat the marketing mechanics themselves, how a price is displayed, how urgency is signalled, who gets the message, as the place where harm happens.

Three threads matter for retail marketers:

Vulnerable customer duties. The FCA's Consumer Duty, in force since July 2023, requires firms to avoid foreseeable harm to customers in vulnerable circumstances. It formally binds FCA-regulated firms, which catches retailers offering point-of-sale credit, store cards and insurance, but the underlying vulnerability principle has spread into general consumer enforcement through the CMA.

Pressure mechanics. False urgency, countdown timers that reset on refresh, "only 3 left" counters that are decorative, and drip pricing (a low headline followed by mandatory fees revealed at the last screen) are all named practices under the EU's Unfair Commercial Practices Directive and the UK's Digital Markets, Competition and Consumers Act. The DMCC unfair commercial practices regime took effect on 6 April 2025 and lets the CMA impose penalties of up to 10% of global turnover directly, without first going to court. That change in enforcement route matters more to a CMO than the wording of any individual prohibition.

Differential pricing. Member-only prices are legal and widespread, but they put a second number on the shelf, and that second number now has to answer for itself.

What "vulnerable customer" actually means for a retailer

Vulnerability is not a fixed category like "over 65" or "low income". The FCA defines it functionally: someone especially susceptible to harm because of their circumstances, particularly where a firm is not acting with appropriate care (FCA guidance FG21/1).

The scale of that definition catches teams out. The FCA's Financial Lives research has repeatedly found that roughly half of UK adults show one or more characteristics of vulnerability at a given point: poor health, a recent bereavement or job loss, low financial resilience, low capability. A marketing team that treats vulnerability as a small suppression list has misread the number by two orders of magnitude.

In practice:

• A "double points, this weekend only" push notification is harder to defend when it goes to customers whose behaviour already suggests loss of control: unusually frequent app sessions, repeated buy-now-pay-later use, credit limit maxed each cycle.
• A store card reminder that "your credit limit increase is ready" needs to check repayment stress, not just profitability scores.
• Bereavement, illness or job loss can turn an ordinary "we miss you, 20% off" win-back into something that lands badly, and worse if the retailer held signals (returned mail, a support ticket) that it ignored.

Tesco Bank and Sainsbury's Bank, before their banking arms moved to Barclays and NatWest, both ran vulnerability flags inside CRMCRMCustomer Relationship Management: software and strategy to manage and analyse customer interactions throughout their lifecycle.View full definition →: a service note could suppress a customer from aggressive promotional segmentssegmentsDividing a market into distinct groups of customers who share similar needs, characteristics or behaviours, so each group can be served with a tailored approach.View full definition →. That is a marketing operations decision driven by a regulatory duty, and it survives the change of ownership because the underlying obligation follows the product, not the brand.

The failure mode is over-correction. Suppress every flagged customer from every promotion and you withhold the cheaper prices from the people who need them most, which is its own fairness problem and a measurable revenue loss. The better design is a second creative treatment: same discount, no countdown, no scarcity language, no upsell to credit.

Subscription traps: the mechanics regulators are targeting

Negative option billing (you pay unless you cancel) is not illegal. What regulators have converged on is three conditions:

1. The recurring nature, amount and frequency must be clear before payment, not buried in terms.
2. Cancelling must be at least as easy as signing up. If sign-up is two clicks, cancellation cannot be a phone call and four retention screens.
3. Renewal reminders before an annual charge are required in several EU member states and under California's Automatic Renewal Law.

The FTC's click-to-cancel rule, finalised in October 2024, codified the second point. The Eighth Circuit vacated it in July 2025 on procedural grounds, which is a useful lesson in how not to read regulatory news: the rule went, the enforcement did not. ROSCA, state automatic renewal statutes and the general prohibition on unfair practices all still apply, and the FTC's case against Amazon over the Prime cancellation flow was brought before the rule existed.

Loyalty tiers inherit all of this the moment they carry a fee. Tesco's paid Clubcard Plus tier is a subscription in law as much as a loyalty product, so the renewal wording and the cancel path fall under the same rules as any box scheme.

Drip pricing: the checkout flow as a legal document

Drip pricing feels like a pricing tactic (anchor low, add later). Regulators treat it as a disclosure failure.

A worked example of the pattern:

• Advertised price: £49.99
• Added at cart: £4.99 handling fee
• Added at the payment page: £3.50 "checkout protection"
• True price paid: £58.48, a 17% markup on the advertised figure, revealed at the last screen

The FTC's rule on unfair or deceptive fees, effective May 2025, bans this for live-event tickets and short-term lodging, with broader retail scrutiny signalled. Under the DMCC, mandatory fees that every buyer must pay have to sit in the headline price from the first display. The compliant version leads with £58.48, or itemises everything before the customer commits.

The second-order effect is on media. A "prices from £49.99" subject line, a shopping feed entry and a paid search ad are all first displaysdisplaysThe total number of times an ad or piece of content is displayed, regardless of clicks. Each display counts as one impression, even to the same person.View full definition →. If the fee only appears in the checkout, the ad is the violation, not the checkout.

Member-only pricing: what the CMA actually checked

The CMA opened a review of supermarket loyalty pricing in January 2024, after Which? argued that some member prices were not genuine savings. Its 2024 findings were mostly reassuring for retailers: it found loyalty prices generally offered a real saving and no significant evidence that shoppers were being misled overall.

The conditions attached to that verdict are the part worth keeping:

• The non-member price has to be a genuine reference price, one actually charged for a meaningful period, not a figure invented to make the member price look better. Long-running member prices erode this: if the yellow price is the price nearly everyone pays nearly all the time, the other number stops being a market price and becomes a claim about a saving.
• Unit pricing applies to both figures. An amendment to the Price Marking Order in 2024 extends unit-price display to loyalty prices, so a shopper can compare per 100g without joining anything.
• Access matters. Schemes that require a smartphone, an email address or a UK address exclude a slice of shoppers by construction, and those shoppers skew towards the groups the FCA calls vulnerable. Sainsbury's Nectar Prices and Clubcard Prices both allow in-store card sign-up, which is the mitigation, and it only works if staff can actually complete it at the till.

For marketing, the practical constraint is on the comparison, not the discount. "Save 50% with Clubcard" is a claim about the non-member price, and it inherits every substantiation obligation the claims lesson sets out.

🎬 [VIDEO: "The FTC's Click-to-Cancel Rule Explained" - youtube.com - search for FTC or consumer law channels covering the 2024 negative option rule and what it requires of subscription businesses]

Why this sits with the CMO, not only with legal

Amazon shows what the bill looks like when growth metrics beat friction obligations. The FTC sued in 2023 over the Prime enrolment and cancellation design, internally nicknamed the Iliad flow, and the case settled in September 2025 for $2.5bn: a $1bn civil penalty plus $1.5bn in customer refunds. No claim in that campaign was false. The failure was in the shape of the journey.

That is the arbitration a marketing leader owns. Retention friction, urgency copy and member-price framing each add measurable conversion, and each converts a growth number into a regulatory exposure that no one on the growth team is scored on. Deciding which of those you will not use, before the quarter gets tight, is cheaper than deciding it afterwards. How to read published decisions for early signals of where the regulator looks next is covered in the enforcement lesson.

Key Takeaways

• Fairness rules bite on mechanics, not truth: how the price is displayed, how urgent it looks, who receives the message, and how hard it is to leave.
• Roughly half of UK adults show a characteristic of vulnerability at any time, so suppression lists alone will not do the job. Build a low-pressure creative treatment instead of withholding the offer.
• Mandatory fees belong in the first displayed price. Under the DMCC the CMA can fine up to 10% of global turnover directly, and the offending display is often the ad, not the checkout.
• Cancellation must be as easy as sign-up. The vacated FTC rule did not remove the obligation, as Amazon's $2.5bn Prime settlement in 2025 shows.
• Member-only pricing survived the CMA's 2024 review, conditional on the non-member price being genuine, unit prices being shown on both, and the scheme being joinable by people without a smartphone.