Background
Summary of Council decision:
Six issues were investigated of which three were Upheld and three were Not upheld.
Ad description
A website and leaflet seen June 2011 promoted boat trips.
a. The website stated, on the home page, "No visit to the Isle of Skye is complete without a trip on the award winning Bella Jane, the only regular fulltime service from Elgol to Loch Coruisk and the longest running boat trip in Elgol and the Isle of Skye - Running 7 days a week 7 months of the year for the past 19 years*. Tourist Board quality approved and offering a unique choice of trips to suit your requirements, we guarantee an unforgettable experience!" The asterisk led to text stating, "*weather and conditions permitting".
Under the heading "About us", text stated, "Bella Jane Boat Trips was established in 1992, is a locally owned and run family business and is the only boat trip service that has operated in Elgol throughout the last 19 years. Another operator's website which claims to be the ‘only locally owned and run boat trips in Elgol’ and to have been operating for 40 years (having commenced in 2005) is not Bella Jane Boat Trips and is not in any way associated with Bella Jane Boat Trips".
Under the tab "BOAT TRIPS" text stated, "Climb aboard the award-winning Bella Jane and let us transport you to one of Scotland's most isolated and breathtaking lochs - Loch Coruisk". Further text explained the different trips available and stated "We offer Early Bird return and oneway [sic] trips from 9.00am to allow you to make the most of your day (see AquaXplore website). These trips are also ideal for climbers and walkers and can give up to 8 hours ashore if required. Also now available are ‘Mini Return’ trips - a shorter 1½ hour (approx) non-landing trip for those with less time, families with small children, or those who do not wish to walk ashore. We are also able to offer trips with flexible return times if required".
Under the sub-heading, "Maxi Day Return Trip" text stated, "A unique opportunity to spend approx 4 ½ hrs ashore".
b. The leaflet was headlined, "Visit Loch Coruisk, the Seals and the Small Isles". Text stated, "The Isle of Skye's longest running, award winning boat trip from Elgol to spectacular Loch Coruisk ... Exhilarating wildlife and sightseeing adventures to the remote Small Isles, Loch Coruisk and the Cuillin Mountains. Regular sighting of whales, dolphins, basking sharks, seals, puffins and sea eagles ..." Text in red roundels stated "FROM £12.50 RETURN" and "FROM £15 RETURN".
Issue
The complainant, who was local to Elgol, challenged whether the claims in ad a) that:
1. "Bella Jane Boat Trips was established in 1992, is a locally owned and run family business and is the only boat trip service that has operated in Elgol throughout the last 19 years" was misleading and could be substantiated, because she understood that the owner of the company did not reside locally and that the business was not locally run;
2. "Another operator's website which claims to be the 'only locally owned and run boat trips in Elgol' and to have been operating for 40 years (having commenced in 2005) is not Bella Jane Boat Trips and is not in any way associated with Bella Jane Boat Trips" denigrated another marketer, Misty Isle Boat Trips (MIBT), because it implied that MIBT made false claims on their website;
3. "the only regular fulltime service from Elgol to Loch Coruisk" was misleading, because she maintained that MIBT, although closed on Sundays, operated what would be regarded by consumers as a full time service;
4. "A unique opportunity to spend approx 4 ½ hrs ashore" was misleading, because she understood that MIBT offered the same trip; and
5. "Also now available are "Mini Return" trips - a shorter 1½ hour (approx) non-landing trip for those with less time, families with small children, or those who do not wish to walk ashore" was misleading because she maintained that people would be unable to see Loch Coruisk without walking on-shore; and
6. the claim in ad b) that the advertiser provided trips to see Loch Coruisk "FROM £12.50 RETURN..." was misleading, because it implied consumers could see the Loch at that price.
Response
1. Bella Jane Boat Trips (Bella Jane) provided information about the trading history and ownership of the business and stated that the business had started in 1992, and was, and had always been, based in Elgol, where all the scheduled trips operated from. They said the trips took visitors to places that could only be reached within a reasonable time from Elgol and all staff (who also lived locally) were at Elgol every day on which they operated. They said the business was registered in Elgol, and this could be checked at Companies House. They added that the owner of the business also lived locally on Skye and provided supporting evidence.
2. They believed that MBIT were making false claims on their website and Bella Jane were trying to make sure that visitors were not misled and deceived. They said that MIBT had commenced operating in 2005 and this was stated on both the Bella Jane and MIBT websites. They said that MIBT had made a deliberate and concerted attempt to portray themselves as the longstanding operator in Elgol since they had started operating in 2005, but felt it was important to refute that claim because they maintained that Bella Jane was the longstanding operator (on Skye and Elgol). They said that that MIBT website's FAQ page stated that "Misty Isle Boat Trips has not been running as a business for long" and "the name 'Misty Isle Boat Trips' has only been in use since 2005".
3. Bella Jane Boat Trips (Bella Jane) said a full-time service was not one that operated for only part of the week and their service took people to Coruisk on a regular scheduled basis: seven days a week during the main seven month operating season, and there were many passengers who travelled on Sundays. They maintained that their log of information on trips departing from Elgol showed that MIBT and another operator, Elgol Boat Trips (EBT) operated two trips per day on average throughout the season, which was fewer than Bella Jane and fewer than the number of trips MIBT and EBT might have originally scheduled for each day.
They believed that EBT did not run such a regular and fulltime service and were therefore irrelevant to the investigation. They maintained that EBT did not advertise their service or state they were a regular and fulltime service and that EBT operated with only one skipper and was therefore a small operation, which meant that the service was entirely dependent at all times on one person being available to run the trips offered. They said the EBT website made a specific reference to days when they were not running, because it stated "for days we are not running, if you have a large party you might want to consider the Misty Isle boat trips...". They maintained that their log showed that EBT operated on only 60 days at most during 2011, which they did not consider constituted a full time service.
They also maintained that there were days when MIBT could not operate, namely when the sea conditions and weather were less favourable and over the winter period, because MIBT's MCA Class VI licence required "favourable weather" and was limited to travel between the months of April and October. They said their boat, the Bella Jane, had two licences, one of which (the Category 3 Small commercial vessel certificate) allowed operation when conditions were not "favourable" and throughout the year. They provided supporting documentation regarding the Bella Jane. They therefore felt that MIBT did not offer a "full time" service. They maintained EBT had a category 6 licence and therefore also had operating limitations, which were even more restrictive than MIBT.
4. They believed their trip was unique, because, in general terms, the trip could only be made from Elgol. They also believed it was unique, because theirs was the only operation that provided the trip reliably and at various times during the day. They said that Bella Jane offered the trip at 9am, 9.30am and 10.45am, as well as other times. They stated they had reworded the claim to state "A unique and flexible opportunity to spend 3, 4½, 6 ½hrs or more ashore". They said their website made clear on the home page that there was another operator to Loch Coruisk.
5. They stated that the website was not just about the Loch, but about the range of boat trips and options Bella Jane offered. They stated that the term "Loch Coruisk" was used to describe the general area immediately around and near to the loch, and not just the surface of the loch itself. They said that when the boat pulled up to the landing steps for Loch Coruisk, passengers were in the area known as Loch Coruisk and that many people did not feel that it was significant for them to see the surface of the loch itself. They felt the ad made clear that they offered a short trip for any visitors who did not wish to see the loch itself and who did not wish to walk ashore, because the website stated that the trip was for "those who do not wish to walk ashore at Coruisk" and felt that that was unambiguous.
6. They did not believe the claim was misleading. They said they ran a range of trips and "from £12.50 return" indicated that that was the cheapest return trip they offered, which was for the Mini Return trip. It did not state or imply that that trip went ashore to Loch Coruisk.
Assessment
1. Not upheld
The ASA noted that the owner lived on the Isle of Skye and considered that, in the context of an ad promoting boat trips from an area in Skye to tourists, the business was "locally owned". We noted that the nature of the business was to offer boat trips from Elgol and that the business was therefore site specific and considered therefore that it was "locally run". We noted that the documentation provided showed that the business was registered in Skye. We noted that the business had been running since 1992 and that documentation provided showed that ownership had changed in 2004 and understood that the business and liabilities had been taken on by the current owner at that time. We understood that the nature of the business, offering boat trips from Elgol, had not changed in that time.
We understood that Bella Jane Boat Trips was a private limited company and small independent business. We considered that consumers would understand a "family business" to mean a small independent company that was not part of a larger corporate entity or chain.
We therefore concluded that the claim "Bella Jane Boat Trips was established in 1992, is a locally owned and run family business" had been supported and was not misleading.
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) 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), but did not find it in breach.
2. Not upheld
We noted that the FAQ section on MIBT's website stated "Q: How do you justify your claim that you are the "ONLY Locally Owned and Run Boat Trip in Elgol?", and the answer section stated "All out [sic] staff and crew are from Elgol. To us, this seems like quite a clear issue as there are no other boat trip companies operating from Elgol who are registered in Scotland, let alone Elgol itself, and there are no other boat trip company [sic] which is owned or run by anyone who lives on the Isle of Skye! If you do have any doubts or questions about this, our advice is that you simply ask anyone from Elgol." We considered that the claims on Bella Jane's website had therefore been made in the context of responding to those claims on MIBT's website.
We noted that Bella Jane website did not expressly state that MIBT were making false claims and considered that the claim on the Bella Jane website that "Another operator's website which claims to be the 'only locally owned and run boat trips in Elgol' and to have been operating for 40 years (having commenced in 2005) is not Bella Jane Boat Trips and is not in any way associated with Bella Jane Boat Trips" was posted in response to the information on the MIBT website in an attempt to clarify Bella Jane's own position. We also considered that consumers looking to make a boat trip from Elgol were likely to research the available options, particularly where one competitor was making specific references to and claims about another, and would therefore understand that the claims were being made in an effort to provide clarifying information about the different operators who offered boat trips from Elgol, and that consumers could come to their own conclusions about the different operators that existed.
We understood that the claim that Bella Jane was not associated with the other local operator was accurate and considered that Bella Jane's claims were acceptable in the context of clarifying their position with regard to information about boat services from Elgol. We concluded that the ad was unlikely to mislead and did not denigrate MIBT.
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 3.42 3.42 Marketing communications must not discredit or denigrate another product, marketer, trade mark, trade name or other distinguishing mark. (Imitation and denigration), but did not find it in breach.
3. Upheld
We understood that the timetable for the Elgol harbour showed that the three operators, Bella Jane, MIBT and EBT, each scheduled four trips per day. We understood that, under the terms agreed by the Highland Council, Bella Jane and EBT offered trips on a seven day basis and MIBT offered trips on a six day basis.
Although we noted that the advertisers had provided documentation showing the licence held by Bella Jane and the conditions in which Bella Jane was able to operate, we also noted that we had not seen comparative evidence showing that MIBT and EBT could only operate in more limited conditions, nor evidence that they did not operate according to their timetable.
We noted that the advertisers had not informed the ASA that there was also a third operator, Sea Eagle, which ran trips from Elgol, because they did not consider that they should be part of the comparison, because they maintained they did not run such a regular and fulltime service. We noted that we had not been provided with the personal log that they maintained showed their competitors' sailings and had not seen confirmation that the log had been independently verified. We considered that consumers would understand the claim "the only regular fulltime service from Elgol to Loch Coruisk" to be comparing Bella Jane with any other regular operator from Elgol and, in the absence of evidence showing that EBT was not a regular operator, we considered that EBT should be included in the comparison.
We considered that consumers were likely to interpret the claim "the only regular fulltime service from Elgol to Loch Coruisk" to mean that Bella Jane were the only company to offer regular daily trips throughout the week, including Sundays. Although the service offered by MIBT was not a seven day service, because we understood that a third operator offered trips from Elgol seven days per week, we concluded the claim "the only regular fulltime service from Elgol to Loch Coruisk" was misleading.
The claim 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 (Misleading advertising).
4. Upheld
We understood that Bella Jane offered a more frequent service than their competitors and that they intended to mean that it was "unique" on that basis. We noted that the home page indicated that there was another operator, but that the claim "A unique opportunity to spend approx 4 ½ hrs ashore" had appeared on a separate webpage, under the "Boat Trips" tab. We considered that consumers were likely to understand the claim "A unique opportunity to spend approx 4 ½ hrs ashore" to mean that no other companies offered a trip ashore to Loch Coruisk, because the term "unique" suggested that this was the only trip of its kind.
Because we considered that consumers were likely to infer from the claim "A unique opportunity to spend approx 4 ½ hrs ashore" that the advertisers were the only company offering boat trips to Loch Coruisk and because we understood that people could take a boat trip to Loch Coruisk with another company, we concluded that the claim was misleading.
The claim 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 (Misleading advertising).
5. Upheld
We noted that the website promoted the range of boat trips and options Bella Jane offered and considered it was clear to consumers that both landing and non-landing trips were available to them. We understood, however, that the loch itself, Loch Coruisk, was not visible from the boat, and that anyone wishing to view the loch itself would need to walk there from the landing dock. We noted that the claim "Also now available are "Mini Return" trips - a shorter 1½ hour (approx) non-landing trip..." was made on a webpage which was sub-headed "climb aboard the award-winning Bella Jane and let us transport you to one of Scotland's most isolated and breath-taking lochs - Loch Coruisk" and considered that, in that context, consumers would be likely to understand that "Loch Coruisk" referred to the loch itself, rather than the general surrounding area, and would therefore infer that the Mini Return trip offered a view of the loch itself.
We considered that many readers would be potential tourists who would not be familiar with the local area, and, in the absence of clarifying information expressly stating that the loch itself was not visible from the water, we considered they would infer from the website's claims that the loch would be visible from the boat. Because we understood that that was not the case, we concluded that the claims were likely to mislead.
The claim 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 (Misleading advertising).
6. Not upheld
We understood that £12.50 was the cost of the cheapest trip offered by Bella Jane, namely the Mini Return non-landing trip described under point 5. We noted that the claim "FROM £12.50 RETURN" was made in ad b), rather than the website, in a leaflet providing general information about the trips offered by Bella Jane. We noted that the ad stated "Visit Loch Coruisk, the Seals and the Small Isles" and provided general information about the types of trips, sites and destinations offered, but noted that the claim "FROM £12.50 RETURN" was not linked to any particular trip or destination. We considered that consumers would understand that the "£12.50" price was the cheapest trip available with Bella Jane boats, but did not consider that they would infer that "£12.50" would be the cost of a trip to see the loch itself. We therefore concluded that the claim was not misleading.
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. 3.3 (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), but did not find it in breach.
Action
The claims must not appear again in their current form.
