UK advertising regulator hones in on “online choice architecture” and “dark patterns”

On 27 February 2025, the Advertising Standards Authority (ASA) published an overview of how advertising involving “dark patterns” is regulated under the CAP code. The ASA is the UK’s independent advertising regulator, which is primarily responsible for dealing with complaints about broadcast and non-broadcast advertising, with the CMA and other regulators only becoming involved in more serious cases.

The update comes less than two months before the majority of the consumer protection provisions in the Digital Markets, Competition and Consumers Act 2024 (DMCCA) are due to come into force. It is clear that the presentation of claims relating to subscriptions remains a particular area of concern, and this scrutiny is likely to continue ahead of the new subscriptions-related provisions in the DMCCA coming into force in 2026. The advertising codes administered by the ASA reflect core principles of both current consumer law and the DMCCA, for example around unfair commercial practices including misleading advertising. 

The ASA defines dark patterns as “a range of behavioural and design techniques used to influence consumer choice online, in ways that exploit cognitive biases and can be detrimental to the consumer”.   The ASA clarifies that the use of dark patterns in advertising “is not inherently problematic, however there are some considerations advertisers should bear in mind to ensure they do not mislead.” 

Although the CAP Code does not contain specific provisions relating to “dark patterns”, many relevant practices are likely to fall squarely within the Code’s general provisions on misleading claims. 

The ASA’s recent update provides examples of how the CAP Code has been applied to advertising claims in the context of three distinct categories of dark patterns:

1. Choice Structure – the design and presentation of options may mislead if the choices available to the consumer are not clear, or if it is not made sufficiently clear that the communication is an advert (for a product or a third-party savings programme). For example, a cash back “welcome reward” should not be presented in a way that suggests it is calculated by reference to a consumer’s purchase, if it is just a standard sign-up reward available to all customers who make a purchase.  It should also be made clear if consumers have to take further steps to redeem a reward, such as signing up to a third-party service. Where users are presented with different options, the prominence given to the different options available (such as different colour buttons, and the use of small print to give important information) will also be taken into account in determining whether the overall presentation of the advertisement is likely to mislead.  
2. Choice Pressure – features such as countdown clocks for supposedly time-limited offers or claims about the scarcity (or popularity) of a product may indirectly influence a consumer’s choices, for example by encouraging a consumer to make a faster purchasing decision (thereby reducing the time they have to research and consider other options). Although the ASA acknowledges that countdown clocks and similar features can be used responsibly (i.e. they are not inherently misleading), advertisers must be able to prove that the claims are genuine and not exaggerated – for example, the discount should not continue to be available after the countdown clock has stopped. 
3. Choice Information – the content and framing of information provided to consumers – for example, the provision of a product’s previous or future pricing information – may also affect consumer decision-making, by making the current price seem more attractive. If these claims are if “artificially inflated” (for example, where the price of a product is increased shortly before a multi-buy promotion is run that offers each unit of the product at a higher price than it had originally been available for), they risk being construed as misleading.  

The ASA’s overview on dark patterns reflects the status of existing consumer law while acting as a timely reminder of the fact that, under the DMCCA, regulators (including the ASA) will be closely examining the way in which claims are made to consumers in advertising, as well as the underlying wording of the claims themselves.