Advice on limited-availability travel offers

26 November 2007

In April 2005, CAP wrote to travel agents in the UK asking them to make sure that advertisements featuring a limited special travel offer make explicitly clear whether the offer was extremely limited.

But, if an advertisement does not state “extremely limited availability” or similar, what level of availability can a consumer reasonably expect?  The CAP Help Note on Travel Marketing states “quoted fares should be available in sufficient quantities to ensure a reasonable prospect of obtaining a flight at the advertised price”. But a “reasonable prospect” has been notoriously difficult to define and could be open to various interpretations. Recently, however, the requirement has been given added clarity through an ASA adjudication.

The ASA, in response to a complaint about three British Airways (BA) advertisements for flights to Europe, concluded that advertisers must be able to demonstrate a “minimum of 10% availability and a reasonably even spread of availability throughout the promotional period”.  The ASA did not uphold challenges to the first two ads despite the availability fluctuating above and below 10% throughout the promotional period, because generally more than 10% of seats were available at the stated price. But the challenge to the third ad was upheld because most of the seats at the promotional price were offered for departures more than six months after the ad appeared and availability was absent or very limited during the months preceding that; the ASA did not regard that as a reasonably even spread.
 
The ASA’s conclusion contains two distinct elements: the “10%” requirement and the “reasonably even spread” requirement.  Although the 10% requirement has been referred to in ASA adjudications before (both inside and outside the travel sector) and is generally understood, the condition that availability must be spread evenly across the promotional period is a logical development that should now provide a helpful guide for marketers seeking to support promotional seat prices.

Interestingly, the ASA made clear in the adjudication that the sold percentages, submitted by BA to support its claims and calculated using the total number of seats sold were not relevant to the investigation because they did not represent a fair picture of availability.  The ASA relied solely on the percentages of seats available when the ads were published, presumably because consumers respond to advertisements at the point of, and soon after, publication and expectations should be met at that stage as well as throughout the promotional period.  The implication is that marketers are likely to fall foul of the Code if, by “opening up” more promotional seats at a later date, the 10% reasonably even spread requirement is met only through selling more seats than are initially made available when the ads were published.