Ad description

An e-mail received on 18 November 2013 contained the subject line "Lets[sic] get festive with fares for £5 or less". Text at the top of the e-mail stated "Let's get festive - 250,000 fares for £5 or less one-way". Further text stated "We've pulled together the very best of this year's Christmas markets, ice skating, shopping, winter wonderlands and festivals. It's time to get festive with 250,000 fares for £5 or less one-way (plus £1 booking fee), don't miss out". Small print at the bottom of the e-mail stated "250,000 fares for £5 or less one-way are available for travel until 11 January 2014 (excludes 8 December - 5 January). Plus £1 booking fee, limited availability and online only. Excludes events. For full terms and conditions click here". Clicking on the link took users to a page of the website www.nationalexpress.com that contained details of low-priced "FunFare" tickets.

Issue

The complainant, who believed that the omission of stated departure and destination points was material to consumers' understanding of the ad and thus exaggerated the availability of tickets at £5 or less, challenged whether the ad was misleading.

Response

National Express Ltd supplied spreadsheets showing the availability of FunFares and standard fares at £5 or less across their entire network on 18 November. They noted that over 250,000 fares had been available at that price, and considered that the spread of availability across their network was sufficiently large that it had not been necessary to state specific departure and destination points.

Assessment

Not upheld

The ASA understood that the e-mail referred to National Express' range of low-priced FunFares, rather than a specific promotion existing separately to their usual fare structure. We noted that the ad contained a link labelled "Book now" next to the text "It's time to get festive with 250,000 fares for £5 or less one-way ... don't miss out", and that users clicking on that link would be taken to a part of the National Express website from which it was possibly to search only for FunFare tickets, and not standard coach fares. We therefore considered that only availability data relating to FunFares should be used to support the claims in the ad.

The ad claimed that 250,000 fares were available for £5 or less, and we noted that the spreadsheet provided by National Express demonstrated that significantly more than 250,000 FunFares had been available at that price on the date that the e-mail had been sent. We noted the complainant's concerns that the ad did not state the specific routes on which the advertised fares were available. We considered that, in the absence of such information, consumers would expect to be able to book tickets costing £5 or less to and from a wide range of locations throughout mainland UK but would not expect that every route operated by National Express would include fares at that price. Having examined the evidence sent by National Express, we noted that FunFares costing £5 or less had been available on a wide variety of routes. We acknowledged that many of those routes either departed from or travelled to London. However, we considered that consumers were likely to expect greater availability on routes to London, because it was a popular UK tourist destination, and from London, because it had a large population. Furthermore, a large number of tickets had been available on routes that excluded London. We therefore concluded that the availability of the advertised fares was consistent with the impression consumers were likely to draw from the ad, and that the omission of stated departure and destination points was not materially misleading.

We investigated the ad under CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.  and  3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
 (Misleading advertising),  3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.  (Substantiation),  3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification),  3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.  (Exaggeration),  3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.  and  3.22 3.22 Price claims such as "up to" and "from" must not exaggerate the availability or amount of benefits likely to be obtained by the consumer.  (Prices) and  3.28.3 3.28.3 marketing communications must not mislead consumers by omitting restrictions on the availability of products; for example, geographical restrictions or age limits.  (Availability), but did not find it in breach.

Action

No further action necessary.

CAP Code (Edition 12)

3.1     3.11     3.17     3.22     3.28.3     3.3     3.7     3.9    


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