Games may have “drip” but no “drip pricing” – A new era for Video Games and Online Content

Mario Bros. came out in 1983, which may explain why, as a plumber, Mario has no drip. Controversial statements (and Gen Z slang) aside ‘drip’ does have keen relevance for video games in 2025. DLA Piper have written previously about Generative AI through the lens of video games, the perils that can befall video games advertisers and issues for online advertisers and loot box purveyors, but an area of UK law that may have escaped the focus of the gaming industry is ‘drip pricing’.

TLDR – ‘Drip pricing’ (incrementally revealing that an initially stated attractive price is not, in fact, the full price during a consumer’s purchase journey) is a form of ‘online choice architecture’ that must be a thing of the past.

 

Part 1 – Drip Pricing

You may have read about the UK’s Digital Market Competition and Consumers Act (the Act) which came into force last year and is now being implemented. While wider ‘noise’ about the Act may have been drowned out by the media’s focus on the Online Safety Act (more on that here), but the Act is expansive in scope and will have significant impacts for traders operating in the UK. The Act implements significant reforms to the UK digital markets regulatory framework, the powers of the UK consumer and competition law regulator the Competition and Markets Authority (CMA), and to the consumer protection regime. In this article, we provide an overview of how the Act addresses so-called “drip pricing” ie when a trader adds to an initial price during the course of the sales process – a consumer harm that the CMA has long identified as a concern, especially online.  

 

Background – Old Law

The Consumer Protection from Unfair Trading Regulations 2008 (Regulations) came into force in May 2008, implementing the EU’s Unfair Commercial Practices Directive, and have formed a key element of the consumer protection regime in the UK.

The Regulations applied to B2C commercial practices ie any act, omission, conduct or communication by a trader in connection with the promotion, sale or supply of a product (whether goods, services or digital content) whether before, during or after a transaction with a consumer. They contained a general prohibition on unfair commercial practices including misleading and aggressive commercial practices which caused or were likely to cause an average consumer to take a different transactional decision. The Regulations also contained a list of 31 specific commercial practices which are, in all circumstances, considered unfair, aggressive or misleading and are therefore banned.

Being in force since 6 April 2025, the Act has repealed and recast the Regulations. While the overall regime will effectively be retained, there are a number of material additions and changes made, including on drip pricing that B2C traders must note.

 

Changes to the law: drip pricing

The UK’s Department for Business & Trade highlighted its concerns in relation to drip pricing in its 2023 consultation on ‘Smarter Regulation: Improving consumer price transparency and product information for consumers’ stating that:

‘Drip pricing can undermine price transparency and make it difficult for consumers to make informed purchase decisions based on price and/or the characteristics of the product. As well as leading consumers to spend more than they otherwise would if the total price was clear upfront, this lack of transparency may also limit price competition as traders compete on artificially low headline prices rather than the price which consumers pay in practice. This means that consumers cannot easily compare prices across providers and make informed purchasing decisions’.

Dripping additional fees into the transaction process is considered to unfairly exploit behavioural biases using ‘online choice architecture’, as consumers often complete a purchase they have started based on the initial price information. It has been identified as a particular concern in online purchase flows where a consumer may respond to a headline price in search results or an ad then click through a sale in stages, with greater potential for incremental increases.

The Regulations prohibited commercial practices where:

• material information was omitted or hidden, or provided in an unclear, unintelligible, ambiguous manner; and
• this caused or was likely to cause the average consumer to take a transactional decision they would not have otherwise taken.

The CMA relied upon this to take action against consumer pricing practices in various sectors, interpreting the definition of “transactional decision” broadly – beyond actually purchasing or entering into a contract. The Act updates the definition to reflect this broad approach and its explanatory note confirms that it includes, for example, decisions to exercise a cancellation right or simply to click through a website. 

To tackle drip pricing, the Act tightens this area of the law further. It extends the above prohibition by making the omission of material information from an invitation to purchase an unfair commercial practice in and of itself. There is no longer any requirement to establish the second limb above regarding a transactional decision. 

An invitation to purchase is any commercial practice involving the provision of information to a consumer which:

• indicates the characteristics of a product and its price; and
• enables, or purports to enable, the consumer to decide whether to purchase the product or take another transactional decision in relation to it.

The information indicating the product characteristics and price can be minimal and can take place in the entire period before it is possible for consumers to buy – not just directly before they enter into a contract or take another transactional decision.   

Material information is now effectively extended to include:

• the total price of the product – this must include any fees, taxes, charges or other payments that the consumer will necessarily incur if they purchase the product;
• how to calculate the total price – if any part of the total price cannot reasonably be calculated in advance by the nature of the product, then how it is calculated must be provided with equal prominence to enable the consumer to calculate the total price; and
• any freight, delivery or postal charges (including any taxes) – if these are not included in the total price but a consumer can choose to incur them or, if they cannot reasonably be calculated in advance, the fact that they may be payable.

Apart from those freight, delivery or postal charges, other optional fees are not expressly included in this definition of material information, but note the further comments below as to why and when they may still need to be included.

There may be an omission of material information where it is provided in an unclear or untimely way not just when it is not provided at all. There must be consideration of how wording may be interpreted but also how it is provided for example size, positioning and prominence. There may be an omission where “small print” terms are used or where information is only accessible by a link that could be missed or not opened.

Limitations resulting from the means of communication used for the invitation to purchase including both limitations of space or time and any steps taken by the seller to overcome those limitations by providing information by other means.

 

Practical impact – gaming

The law now requires that whenever a good, service or digital content and its price is promoted to a consumer, for example in a product listing on a website or app, or in any other form of advert.

So, where a headline price is displayed on a webpage, information about variable fees should not be presented in small text at the bottom of the page. Similarly, any additional mandatory fees such as platform fees, subscription fees essential for gameplay and/or any fees that are required to make use of the game are to be provided to consumers at the ‘invitation to purchase’ stage of the trader’s interaction with the consumer. For example, in the product/service listing and/or in advertisements.

Optional fees have not been expressly included in the Act. Certain fees, for example, for specific expansional add-on DLC to the main game which are clearly optional should be distinguished from mandatory fees. However, fees that are treated as ‘optional’ but are mandatory in reality (where it is reasonably foreseeable that most consumers will need to pay them) would be considered as drip pricing. This could include where free-to-play games require a certain amount of in-game currency to access certain features or to progress or where a season pass would need to be purchased to access main functions/features of the game (eg online access in a MMORPG).

So it is important to note that optional pricing may be considered 'material information' in certain cases. Traders must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner. This means that a game advertised using DLC, which is not available within the advertised 'base' price of the game, is likely to mislead a consumer and prevent them from making informed decisions in relation to a product.

Marketers must ensure that the main characteristics of the product are properly advertised and that this corresponds to the nature of the materials in the advertisements (as per DLC above) and that footage from the game which involves additional purchases is clearly signposted. Where an ad for a game features a price, advertisers should ensure that they are quoting the total price with all fees, taxes, charges or other payments that the consumer is unable to avoid (as above this will include where these are technically optional, but mandatory in reality) if they purchase the product.

The CMA has issued draft guidance on these new price transparency rules, discussing in more practical detail what amounts to an invitation to purchase and the principles behind calculating a total price and approaching optional fees, under a consultation ending on 8 September 2025.

 

Why you should care

While misleading customers is no one’s priority, as a banned practice, drip pricing can attract civil action by the CMA, which can result in the imposition of compliance directions and/or monetary penalties of up to the higher of GBP300,000 or 10% of worldwide turnover and also amounts to a criminal offence, which can lead to fines and/or imprisonment.

Appropriate action for and regulatory responses to any particular instance of drip pricing and/or misleading marketing communication will always be fact specific, for advice on any of the issues identified in this article: contact Duncan Calow, Ally Clark and Alex Lowe of DLA Piper UK LLP.