Background
Summary of Council decision:
Five issues were investigated, of which two were Not upheld and three were Upheld.
Ad description
Claims on a website, www.drive-dynamics.co.uk, promoting a driving instructor franchise, stated "Franchise Fees from only £50 PER WEEK". Text underneath stated "Limited Offer First 50 Instructors Only … A starting point of 50 Guaranteed Pupils per annum as a minimum". Further text stated "If you already have your own adapted car, we can offer our Brand franchise from only £99 per week, to any owner drivers". Text on a different page stated "Guaranteed Driving Course To Pass Your Driving Test Guaranteed Pass - 100%...03333 ** **** Call Our Freephone…".
Issue
The complainant challenged whether the following claims were misleading and could be substantiated:
1. "Franchise Fees from only £50 PER WEEK" because they believed that the lowest franchise fee was listed as £99 per week;
2. "Limited Offer First 50 Instructors Only" because they believed that offer had been on the website for a number of months;
3. "A starting point of 50 Guaranteed Pupils per annum as a minimum" because they did not believe that could be guaranteed for every instructor;
4. "Guaranteed Driving Course To Pass Your Driving Test Guaranteed Pass - 100%" because they did not believe it was possible to guarantee that a pupil would pass their test; and
5. "03333 ** **** Call Our Freephone" because they understood that 03333 numbers were not free to call.
Response
1. Kan Kan Ltd t/a Drive Dynamics School of Motoring (Drive Dynamics) said the £50 per week offer referred to their Independent Franchise option, which was a pay-per-pupil scheme and therefore allowed franchisees to pay a flat rate of £50 per week and operate their business themselves. They said instructors on that option were also able to request that Drive Dynamics provided them with additional pupils as required, for a pre-agreed fee per pupil. They said the £99 per week option related to their Standard Franchise option, which included branding on the instructor's own vehicle and the guarantee of 50 pupil bookings per year. They provided contractual evidence for some of their instructors on that option showing that they paid £50 per week.
2. Drive Dynamics said they had introduced the independent franchise in January and that they had limited the "£50 per week" offer to 50 instructors because they were testing the market. They said they currently had 22 instructors on that particular franchise arrangement and provided spreadsheet information in support of that. They stated that, once 50 instructors had signed up to that deal, the offer would be removed from the website. They considered that the nature of the limited claim had been made clear on the website.
3. Drive Dynamics said they guaranteed that all of their instructors would receive 50 pupils a year and that guarantee formed part of the contractual obligation between Drive Dynamics and their instructors. They said some of their instructors did not receive 50 pupils per year because they were not able to commit the necessary amount of time needed to teach that many pupils. They provided a copy of the franchise contract agreement and screenshots of some of their instructors' electronic diary booking systems that showed the number of pupils they had been given since they started working with Drive Dynamics.
4. Drive Dynamics said the "Guaranteed pass course" was not a standard set of driving lessons and included as many driving lessons, up to a maximum of 60, and unlimited driving tests as it took to pass, within a six-month period. They said they introduced those time limits in September 2013 because they needed to ensure that their fleet of instructors could deliver that course and that consumers understood the level of commitment and intensity that was required from them. They said they usually selected the highest grade instructor for pupils on the guaranteed course so that the pupil had the best possible chance to pass. They said the national average time required to pass a driving test was 47 hours and they were therefore comfortable with the six-month and 60 hours limits that they applied to the course. They stated that they would waive the limits if there were unforeseen circumstances on either side and there was a genuine reason why the pupil was unable to pass in the allocated time limits, and that that was stated in their recently revised terms and conditions. They said that the offer linked to their terms and conditions, which set out the time limits. They said that consumers could not book a lesson online unless they had confirmed that they had read and understood their terms and conditions.
Drive Dynamics said "Guaranteed Pass" was a common term used in the industry by almost all of the larger and mid-sized driving schools and they understood that some of their competitors limited the driving hours to a lower amount than they did. They said the name "Guaranteed Pass" needed to be taken in context. They said it was beyond their control as to whether the pupil actually passed their driving test, but with the level of intense training and guidance they provided they believed that they should pass their test within the limitations of the course. They said their website was constantly evolving and changing and that therefore the "Guaranteed Pass" course was no longer advertised as "100%".
Drive Dynamics said it was an expensive and time demanding course and therefore did not appeal to everyone. They stated that only six pupils had opted to take the guaranteed course and that four of those had passed their test. Of the other two, one was ongoing and the other pupil had been refunded due to the fact that they did not like manual gear change. Drive Dynamics did not have an automatic as an alternative.
5. Drive Dynamics said they had recently changed from their old 0800 number, which was free to call from a landline, but not from a mobile. They stated that, because contacts from mobile phone users were much more substantial, they invested in an 03333 number in September 2013 so that it was cheaper for their customers to contact them. They said the header of the website had already been amended to refer to the number as "Low call" and stated that they were in the process of amending the rest of the website. They said those changes could take another 12‒18 months to carry out because the "freephone" number featured on many pages.
Assessment
1. Not upheld
The ASA understood that Drive Dynamics offered a selection of franchise options, including the Independent Franchise. We noted text on the website stated "You choose which suits you" and outlined the basic features of each franchise, and considered that this made it clear that instructors were able to choose between multiple franchises. We considered that the evidence provided by Drive Dynamics showed that employees on the Independent Franchise paid £50 per week and therefore concluded that the claim "Franchise Fees from only £50 PER WEEK" was not misleading.
On this point, we investigated the claim under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. (Prices), but did not find it in breach.
2. Not upheld
We noted that the £50 per week offer was limited by the number of instructors who took up that franchise and not by time. We noted the evidence provided by Drive Dynamics that showed that they currently had 22 instructors on that franchise. Because the claim made clear the limited nature of the offer, and because it appeared as though that limit had not yet been met, we concluded that the claim was not misleading.
On this point, we investigated the claim under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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 3.31 3.31 Marketing communications must not falsely claim that the marketer is about to cease trading or move premises. They must not falsely state that a product, or the terms on which it is offered, will be available only for a very limited time to deprive consumers of the time or opportunity to make an informed choice. (Availability) but did not find it in breach.
3. Upheld
We noted that the guarantee of 50 pupils per year was included within Drive Dynamics' contract agreement with their franchisees. We also noted the evidence provided by Drive Dynamics, which showed that some of their instructors had received an average of at least 50 pupils each year since they had started working with the company. However, we noted that some of Drive Dynamics' instructors had not received 50 pupils per year because they did not have adequate time to teach that many pupils. We understood that the demand for driving lessons was not fixed and could fluctuate according to many factors and therefore considered that it was not possible for a driving school to guarantee that they would receive a certain number of pupil enquiries each year. Because we did not consider that Drive Dynamics were able to guarantee that all instructors would receive a minimum of 50 pupils per year, we concluded that the claim was misleading.
On this point, the claim breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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 20.7 20.7 Marketing communications for business opportunities must neither contain unrepresentative or overstated earnings figures nor exaggerate the support available to investors. (Employment, homework schemes and business opportunities).
4. Upheld
We noted that the claim stated "Guaranteed Driving Course To Pass Your Driving Test Guaranteed Pass - 100%" and considered that consumers were likely to interpret that to mean that they would be able to take as many lessons and driving tests as was needed for them to pass their driving test. However, we noted that consumers were limited to 60 hours of lessons over six months. Although we acknowledged the steps that Drive Dynamics took to ensure that their pupils had the best possible chance to pass their test during that time, and that they were prepared to waive those limits in the event of unforeseen circumstances, we considered that it was still possible that some consumers who took the course would not pass their test. Because we did not consider that Drive Dynamics were able to guarantee that all consumers would pass their driving test if they took their "Guaranteed Pass" course, we concluded that the claim was misleading.
On this point, the claim breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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).
5. Upheld
We considered that readers would understand from the claim "Freephone" that the stated number was free to call from a landline, in the same way that 0800 and 0808 numbers were. However, we understood that the number was chargeable from a landline and free only to those with inclusive calls in their calling plan. We acknowledged that Drive Dynamics was in the process of amending the website to replace all references to "freephone" with "low call". However, because the number charged callers the same per minute as a geographic number, we concluded that the claim "Freephone" was misleading.
On this point, the claim breached CAP Code (Edition 12) rule 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising).
Action
The ad must not appear again in its current form. We told Kan Kan Ltd t/a Drive Dynamics School of Motoring not to use the claim "Freephone" if calls from landlines were charged. We also told them not to claim that a service or result was guaranteed if that was not the case.
