ASA Adjudication on easyJet Airline Co Ltd

Ad

An online sales promotion and a radio ad for discounted flights.

a. The online sales promotion, which appeared on the Easyjet homepage and featured an image of an ice lolly, stated "Up to 20% off every seat, every route, every day. Includes August summer holidays. Book by midnight Tuesday". A booking enquiry form appeared next to the promotion.

b. The radio ad stated "Easyjet is now offering 20% off all seats on flights from the 17th June to the 30th September. Including school holidays. That's 20% off every seat, every route, every day ... So book your seats now at easyjet.com. Sale must end midnight Tuesday, conditions apply".

Issue

1. One complainant challenged whether ad (a) was misleading, because the travel dates to which the promotion applied were not included in the ad.

2. Another complainant challenged whether ad (b) misleadingly implied that there was a reduction of 20% off all seats on all flights during the travel period stated as he understood the offer was 'up to' 20% off.

The ASA challenged whether:

3. ad (a) was misleading because it did not make clear that, although discounted, prices could rise during the promotional period; and

4. ad (b) was misleading because it did not make clear that, although discounted, prices could rise during the promotional period.

CAP Code

BCAP Radio Code

Response

1. Easyjet Airline Co Ltd (Easyjet) argued that the online promotion included several indications to the consumer that the offer was time limited, such as the word 'sale', the text "Book by midnight Tuesday" and "includes August summer holidays", and the image of the ice lolly, which they argued was a clear visual indication of a summer sale. Easyjet said they believed consumers would understand that the references to summer in the artwork and copy meant that the sale applied to travel during the summer period and would therefore not be misled.

Easyjet explained that clicking on the online promotion took customers directly to a landing page that contained information about the travel dates to which the promotion applied (17 June to 30 September), as well as other conditions of the offer. They said all significant information about the promotion was therefore featured either in the promotion introduction itself or within one click of the promotion, and they argued that customers generally understood that clicking on an online ad would lead to further details of the advertised offer.

Easyjet said they understood that a previous, similar ASA adjudication had concluded that it was acceptable for advertisers to provide significant qualifications and conditions to an offer no more than one click-through away from online banner ads. They said they believed their online promotion complied with that position.

2. Easyjet confirmed that the offer was for "up to 20% off", rather than the "20% off" stated in the ad. They explained that the phrase "up to" had been omitted in error and had not been picked up by them at the time the ads were cleared. Easyjet said the ad was broadcast for no more than three days before it was replaced with a second script that included the "up to 20% off" wording.

The Radio Advertising Clearance Centre (RACC) said they cleared two separate campaigns on behalf of Easyjet on 5 June 2009. They explained that they cleared ad (b) on the condition that all seats to all destinations, at all times and on all routes, were reduced by a minimum of 20%.

3. Easyjet explained that they operated a dynamic pricing structure and argued that the average consumer of airline travel would be aware that the price of an airline ticket was influenced by several factors, including proximity to the date of departure, the season, day and time of flight.  Easyjet said the disclaimer, "Prices, although discounted, may rise during the promotional period", was included on the first page customers were taken to after clicking on the online promotion. They referred to their response to point one.

4. Easyjet argued that the disclaimer for their non-broadcast marketing, as set out above, was inappropriate and unworkable for use in a 20-second radio ad because of its length and complexity. They pointed out that ad (b) made clear reference to the Easyjet website and also stated that conditions applied. Any customer considering whether to take up the offer, therefore, would be aware that conditions were attached and would be explained in full on the website. Easyjet said the full wording of the disclaimer was available on their website by clicking on the online ad promoting the "up to 20% off" sale.

The RACC said they considered that the statement "Conditions apply" in ad (b) in combination with the reference to Easyjet's website, where it was made clear that discounted prices may rise during the promotional period, was sufficient for customers not to be misled.

Assessment

1. Upheld

The ASA noted Easyjet's argument that the travel period to which the offer applied was clear from the creative treatment of the promotion. Whilst we considered that consumers would understand from the promotion that the offer was time limited, we did not consider that consumers would understand that the references to 'summer' related to the travel dates to which the offer applied. Rather, we considered that consumers would interpret the references as an indication of a summer sale on flights at any time including during August summer holidays.

We also noted that the travel dates to which the promotion applied and pricing information were included on the landing page that was displayed after clicking on the online promotion. The previous adjudication to which Easyjet referred related to a banner ad in paid-for space on a third-party website. That ad was not a sales promotion but rather compared the advertiser's product to a competitor's, and customers were invited to click on the ad to find details of the advertised offer including significant qualifications, conditions and differences between the products. However, in this instance the Easyjet promotion appeared on their homepage next to the booking enquiry form and, unlike in the similar case, it was not limited by space and did not include an instruction for customers to 'click through' for significant information relating to the offer, the travel dates and pricing information. It was therefore possible for customers to book tickets directly from the homepage without being made aware of the travel dates to which the promotion applied. We therefore concluded that ad (a) was misleading and that the travel dates should have been included where the online promotion was introduced to the consumer on Easyjet's homepage.  

2. Upheld

We noted that ad (b) had been produced in error and should have stated that the offer was for "up to 20% off". We acknowledged that Easyjet had withdrawn the ad and replaced it with an amended version of the script when the mistake had been realised. However, because we considered that customers who heard ad (b) could have been misinformed about the nature of the offer, we concluded that the ad was misleading.

3. Upheld

We understood that Easyjet's pricing structure was such that, towards the end of the promotional period, fares on some routes could be increased due to demand, and that as a result some customers could pay more for their flights than if they booked their tickets in the period immediately before the promotion began. We considered this significant pricing information should be made clear to customers and considered the disclaimer used by Easyjet, "Prices, although discounted, may rise during the promotional period", was acceptable.

We noted that the disclaimer appeared on the first 'click-through' page after the online promotion introduction. As explained in point one, however, we also noted that it was possible for customers to book tickets without being made aware of this significant pricing information. We therefore concluded that the online promotion was misleading and the disclaimer should have been included in the promotion introduction on Easyjet's homepage.

4. Upheld

We noted Easyjet's argument that the radio ad gave their website address and stated that conditions applied to the offer, which signalled to customers where the conditions to the offer could be found. We also noted, however, that there was no indication on the online promotion, or elsewhere on Easyjet's homepage, that customers should 'click through' for the conditions to the offer. Notwithstanding that, and as explained in point three, we considered that the pricing information was a significant condition. We noted radio ads were limited by time and noted Easyjet's argument that their disclaimer for non-broadcast marketing was quite lengthy. We nevertheless considered that the phrase "Conditions apply" did not adequately explain or go far enough to alert customers to the pricing structure of the promotion, and concluded that ad (b) was misleading.

On points 1 and 3 ad (a) breached CAP (Code) clauses 7.1 and 7.2 (Truthfulness), 27.4 (Sales promotion rules), 34.1b and 34.1c (Significant conditions for promotions).

On points 2 and 4 ad (b) breached CAP (Broadcast) Radio Advertising Standards Code Section two rule 3.1 (Misleadingness).

Action

Ads (a) and (b) must not appear again in their current forms.

Adjudication of the ASA Council (Broadcast)

Adjudication of the ASA Council (Non-broadcast)