The Which? super-complaint

On 21 April 2015, the Competition and Markets Authority (CMA) received a super-complaint from the consumer organisation Which? in respect of perceived concerns about misleading and opaque pricing practices in the grocery market. Which? identified 3 potential areas of concern that it would like the CMA to investigate:

  • Confusing and misleading special offers
  • A lack of easily comparable prices due to the way unit pricing is being done, and
  • Shrinking pack sizes without any corresponding price reduction.

It is also concerned about the impact of supermarket 'price match' schemes on consumer decision making.

The CMA now has 90 days to consider the super-complaint and will need to issue a reasoned response, setting out what action, if any, it intends to take, by 21 July 2015.

What is a super-complaint?

A super-complaint, as defined in section 11(1) of the Enterprise Act, is a complaint submitted by a designated consumer body to the CMA that 'any feature, or combination of features, of a market in the UK for goods or services is or appears to be significantly harming the interests of consumers.' For the purposes of making a super-complaint, a consumer is an individual who is supplied, or ought to be supplied, goods or services in the course of a business carried on by the person supplying or seeking to supply them, ie the end consumer.

Super-complaints must relate to markets as a whole, and not just to the conduct of a particular business. The relevant geographic market may be regional, national or supranational (where the UK forms part of the market). The super-complaint process is intended to be a fast-track system for designated consumer bodies to bring to the attention of the CMA and the Sector Regulators, such as Ofcom and the Financial Conduct Authority (who have concurrency powers and can equally receive and consider complaints), market features that appear to be significantly harming the interests of the consumers, rather than necessarily the conduct of one or more individual market participants.

Which? is one of the bodies eligible to make a super-complaint designated by the Secretary of State, as representing the interests of UK consumers.

Making a super-complaint

The body making a super-complaint must submit a short paper setting out the reasons why it considers that a UK market for goods or services has features that appear to be significantly harming the interests of consumers, supported, where possible, by evidence. Complaints that are not reasoned or supported by evidence are unlikely to be progressed.

Within five working days of a receipt of a super-complaint, the CMA provides the complainant with details of who within the CMA (or relevant sector regulator) is handling the matter. It will first assess whether the criteria in section 11(1) of the Enterprise Act 2002 are satisfied and whether the information provided is sufficient. If so, it will then start its own inquiries, which can include sending questionnaires to companies active in the relevant market, in this case likely to be both supermarkets and suppliers.

What action can result from a super-complaint?

The possible outcomes of a super-complaint include:

  • Enforcement action by the CMA's for potential breaches of competition law
  • Launching a market study
  • Making a market investigation reference for an in depth inquiry
  • Referring the complaint to another consumer enforcement body
  • Finding that the complaint requires no action
  • Finding that the complaint to be unfounded, or
  • Dismissing the complaint as frivolous or vexatious.

In recent years there have been a number of super-complaints made by the designated consumer bodies, including by Which? regarding credit and debit card fees; the Campaign for Real Ale (CAMRA), regarding the supply of beer in pubs; Consumer Focus regarding Cash ISAs; and Citizens Advice regarding payment protection insurance. Some of these complaints were rejected, while others led to industry recommendations or the introductions including codes of practice, for example, the information made available to consumers regarding ISAs. Other complaints include lengthy in depth investigation and ultimately led to orders being imposed, for example, in relation to payment protection insurance. Each super-complaint and its outcome is highly dependent on what alleged issues were, and the extent to which the identified issues can be easily remedied.