The website www.flybe.com featured a promotion on the home page with the headline "JUST PAY TAXES AND CHARGES ON RETURN FLIGHTS". Smaller print stated "Book by Midnight 25th June!" and "For travel between 22nd July and 14th December 2013". A list of city names was visible in the background of the image. Clicking on the image took the user to a different page of the website which showed the same information. Further text stated "Hurry, book by midnight 25th June - It's back by popular demand! Today, we've launched a massive 5 day promotion offering flights to 23 destinations where all you have to pay is the taxes and charges! Some of our most popular routes are included in the offer with flights to regional France, Amsterdam and a range of UK cities selling FAST. Hurry - don't miss out on your fare-free flight! Simply book by midnight on the 25th June for travel any time between 22nd July and 14th December". A list of routes, including Southampton to Belfast, was shown beneath the heading "What's on offer...". Small print at the bottom of the page stated "Terms and conditions - Offer only available on return fares booked via Flybe.com, subject to availability. Available for travel 22.07.13 to 14.12.13 (some routes may operate for the Summer only). Offer only available on selected routes to advertised destinations ...".
The complainant, who had been unable to obtain a fare-free return flight from Southampton to Belfast within the stated travel period, challenged whether the claims to offer flights for the cost of taxes and charges only were misleading.
Flybe Ltd stated that 40% of flights on the Southampton to Belfast route had promotional fares available for purchase during the promotion. In total, just over 10% of the total seats on the route were included in the offer. They said availability of seats at the promotional price was weighted towards the autumn/winter months, which might have been why the complainant had been unable to find a fare-free flight, but many sales had nevertheless been made during the booking window. They did not agree that they should be required to overtly state that the offer was available only on selected flights, but said they were willing to include that information in the terms and conditions listed on their website for future campaigns. They considered that consumers would understand that the promotional fares would not be available on every flight on the listed routes during the campaign, that their advertising of the promotion was in line with industry practice, and that they had met the requirements of the CAP Code regarding availability.
The ASA noted that both the home page and the page containing more detailed information about the promotion contained a flash with the headline claim "JUST PAY TAXES AND CHARGES ON RETURN FLIGHTS", next to the prominent qualifications "Book by Midnight 25th June!" and "For travel between 22nd July and 14th December 2013". We considered that, because there was no reference to indicate that the promotion was available only on "selected" flights, the flash implied that every seat would be included in the promotion if booked by the stated end date and for travel within the specified travel period. We understood, however, that that was not the case. We noted that small print at the bottom of the page containing details of the promotion included the text "subject to availability". However, we considered that was not sufficient, because of both its lack of prominence and its non-specific nature, to counteract the impression given by the rest of the website that fare-free seats were available on all return flights booked by 25 June for travel within the specified period. We also noted that the fare-free flights were only available on selected routes, which was explained on the second page but not on the home page. We considered that the fact that only some flights on some routes contained seats at the promotional price was material information which should have been made clear to consumers in a prominent position on both pages of the website. Because it was not, we concluded that the claims to offer flights for the cost of taxes and charges only were misleading.
The claims 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), 3.7 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), and 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. (Sales promotions).
The claims must not appear again in their current form. We told Flybe Ltd to make clear that the promotion only applied to selected return flights, in order to ensure they did not mislead consumers as to the availability of promotional fares.