A page on the website www.bannatyne.co.uk, advertising the Bannatyne's Health Club in Rotherham, listed the Club's opening times. The stated closing times were 11 pm on Mondays to Fridays, and 10:30 pm on Saturdays and Sundays.
The complainant challenged whether the ad was misleading, because he understood that the facilities closed half an hour before the stated closing times.
Bannatyne Fitness Ltd (Bannatyne Fitness) did not believe that the complaint fell within the ASA's remit, because they operated as a private members’ health club which members of the public could not access, and their services were provided according to the terms of their contracts with members; they provided a copy of the relevant contract (the "Membership Agreement").
Bannatyne Fitness highlighted that the Membership Agreement stated that "The Club's normal hours in which any facility within the Club are available to Members will be displayed at the Club in a prominent position and can be obtained from the manager upon request". They said the Rotherham club's opening hours were detailed in the Club Rules, a copy of which was given to members as part of a welcome pack when they joined, and which were also prominently displayed in the reception area of the club; they provided a copy. The Club Rules stated "members are advised that they should prepare to vacate our premises 30 minutes prior to closing".
Bannatyne Fitness said they did not believe their website was misleading, because their facilities were open, fully staffed and operational during the stated opening hours. They simply asked their members to be mindful of the closing time and be ready to leave the facilities by that time. In order to achieve that, they asked members to stop exercising and start changing out of their exercise clothing in time for the facilities to close at the stated time.
The ASA noted that the information on opening hours which the complainant had raised appeared on Bannatyne Fitness' own website and was accessible to all consumers whether or not they were already Bannatyne Fitness members. We considered the ad therefore fell within the ASA's remit.
We considered it likely that consumers who were interested in joining a health club or gym would visit the club's website for information about its facilities and services, and that for some consumers the opening hours would be a particularly relevant factor in their decision about whether or not to enquire further about joining the club. We considered that in the absence of information to the contrary, consumers would understand that the facilities would be open for members' use up until the stated closing time. We therefore considered that information that the facilities would close to members 30 minutes prior to the stated closing time constituted a significant limitation to the stated opening hours, which should be included in the ad. Because it was not, we concluded the ad breached the Code.
The ad breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
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), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. and 3.10 3.10 Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification. (Qualification) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
The ad must not appear again in its current form. We told Bannatyne Fitness to ensure that their ads stated significant limitations and qualifications.