Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
The providers of many walking tours do not charge attendees a fee, instead inviting tips or discretionary payments, and often these tours are advertised as “free”. Tours can be described as “free” only if consumers are not required to make any payment to attend. Advertisers are permitted to invite or accept discretionary payments provided these are voluntary, and that this is clearly stated in the ad.
When can you describe a tour as free?
What if the guides invite discretionary payments?
Does the ad make it clear that payments are voluntary?
What if the guide doesn’t keep 100% of discretionary payments?
The Code prohibits ads from describing something as free if the consumer has to pay anything other than the unavoidable costs of responding or collecting the item. In light of this, walking tours should not be described as “free”, or similar, if consumers are required to make a payment. This includes payments required to reserve spaces on tours, whether or not that payment is refunded to the consumer afterwards. Claims such as “gratis”, “no charge”, “without charge” and “free to join” are likely to be interpreted as being equivalent to “free”.
Code rule 3.3 states that ads must not mislead by omitting material information. If guides will be inviting discretionary payments at any point during the tour, this is likely to be considered material information and should be stated prominently in the ad.
If a guided walking tour is advertised as “free”, consumers are unlikely to expect to be asked, or invited, to make a discretionary payment and may feel misled if they are asked to do so and this was not made clear in the ad.
A Google ad for free walking tours was upheld because, whilst the webpage one click away from the ad stated that tips would be invited, this information should have been included in the ad itself (Sandemans New Europe Ltd, 09 May 2018).
Advertisers offering free tours should ensure there is no implication in the ad that payment is required or expected, and it must be clear that any payment is entirely voluntary.
Qualifications must not contradict a headline claim and if inviting donations for “free” walking tours, advertisers should ensure that these do not contradict the headline claim.
Examples of claims which are likely to be understood by consumers to mean that payment is required, thus contradicting a “free” claim include “Name your own price”, “pay according to your budget”, “contribute what you think its worth” and suggestions as to specific or approximate payment amounts.
Instead, advertisers should ensure claims make clear that payment is voluntary. This includes claims such as “tips welcome”, “guides work on a tips-only basis” or “we’d be grateful if you…tip your guide / leave us a tip / reward your guide / show appreciation to your guide”. These claims must be stated clearly.
Consumers are likely to expect that any discretionary payment will go directly, and in full, to the tour guide. If this is the case it is unlikely that advertisers will need to state this in advertising, although they may wish to highlight that their guides are paid on a tips-only basis.
If any part of a discretionary payment will not be kept by the guide, for example if advertisers charge the guide a fee per person on the tour, a fee for marketing costs, or take a portion of any tip, this should be made clear to consumers. The ad must not imply that the guide will receive the full amount.
An ad for free tours offered by Sandemans using free lance tour guides was upheld because it included no information about the relationship between Sandemans and the tour guides, who had to pay a marketing fee. The ASA asked Sandemans to ensure that this information was included, but that, dues to size restriction in the google paid for ad it would be sufficient to include this on the website one click away (Sandemans New Europe Ltd, 09 May 2018).