Background

 Summary of Council decision:

Two issues were investigated, of which both were Upheld.

Ad description

The website www.opodo.co.uk, for an online travel agent, provided facilities for consumers to search for and purchase flights from Bangkok to Phuket.  The search results page displayed prices for the various options, which consumers could then purchase.

Issue

The complainant challenged whether the ad was misleading, because:

1. he understood that a compulsory handling fee was charged at the end of the booking process; and

2. there was a further compulsory charge if payment was made using a credit card.

Response

1. Opodo Ltd (Opodo) acknowledged that an earlier ASA adjudication in February 2012 had held that the non-optional handling fee must be included in the prices they quoted and that they had not subsequently implemented that change, which they told us was due to communication and technological difficulties as a result of a merger between Opodo and a number of other companies.  They said they had not sought to mislead consumers and they were currently working on a radical re-design of their website, which they believed would rectify the issue and ensure that their pricing was clear in future.  

2. Opodo said they did charge additional fees for some payment types, but that these could be avoided by paying with a debit card.

Assessment

1. Upheld

Whilst the ASA welcomed Opodo's assurance that they intended to ensure that non-optional handling fees were included in the initial price quoted in future, we were concerned that they had not taken such action as a result of the previous adjudication and that they had told us the change would not be made immediately. We therefore concluded that the ad breached the Code.

On this point, the ad breached 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) and  3.18 3.18 Quoted prices must include non-optional taxes, duties, fees and charges that apply to all or most buyers. However, VAT-exclusive prices may be given if all those to whom the price claim is clearly addressed pay no VAT or can recover VAT.  Such VAT-exclusive prices must be accompanied by a prominent statement of the amount or rate of VAT payable.  (Prices).

2. Upheld

We noted that the CAP Code required all non-optional fees and charges to be included within quoted prices. However, we acknowledged that because the credit card fee would only be charged where consumers opted to pay using that method, it could not be incorporated within the initial price quoted. However, we considered that consumers should be notified of the existence and amount of the credit card fee at the beginning and end of the booking process and, because that was not the case, we concluded that the ad breached the Code.

On this point, the ad breached 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) and  3.19 3.19 If a tax, duty, fee or charge cannot be calculated in advance, for example, because it depends on the consumer's circumstances, the marketing communication must make clear that it is excluded from the advertised price and state how it is calculated.  (Prices).

Action

The ad must not appear again in its current form.  We told Opodo to ensure that any non-optional fees and charges were included in quoted prices and, where it was not possible to calculate them in advance, to make clear that they were excluded and how they would be calculated.

CAP Code (Edition 12)

3.1     3.18     3.19     3.3    


More on