Two ads for boat trips on the Isle of Skye, seen in August 2016:
a. A web page describing different boat trips on www.aquaxplore.co.uk stated “UNIQUE "NO HYPE" money back guarantee - on all trips gives you confidence in what wildlife you will see. Its [sic] simple - if you don't see the wildlife we promised you get your money back!”.
b. A magazine ad seen in the local press stated “Unique wildlife guarantee!”.
The complainant, who had understood that they were “guaranteed” to see the wildlife listed in the description of the trip they took, challenged whether the guarantee was misleading because the terms and conditions were not made sufficiently clear.
Bella Jane Boat Trips said that the “No Hype guarantee” was a promise that the business would make accurate and truthful statements about wildlife to customers, without “hype” or exaggeration. It was designed to ensure that they told the truth about wildlife, and gave customers reassurance as to the wildlife they would see and that they were not being misled. If they were to breach this promise, customers could claim against the guarantee by contacting them (verbally or in writing) and they would investigate and respond. If they were at fault then they would refund the customer’s ticket price in full.
Bella Jane Boat Trips said the relevant information could be found on the “Questions” page of their website. They said there were no terms, conditions or limitations to the guarantee and the website clearly stated this. They stated that they had never received a claim against the guarantee in 12 years.
Bella Jane Boat Trips said that the wildlife that could be seen inevitably varied according to the time of year, location, weather and other factors, and what they told customers reflected this. Customers were invited to contact the business for further information about the wildlife they might see, and frequently did. Bella Jane Boat Trips said that the information about wildlife on their website was clear and correct, and they were always truthful about what would be seen, or would be likely to be seen, when asked about this in person. They believed that the wording on the website was balanced and did not overstate the likelihood of seeing particular wildlife, hence the reference to “no hype”. For those reasons, they believed that the ads were not misleading.
The ASA noted that the complainant had understood that the “guarantee” constituted a promise that customers would see the types of wildlife listed for each trip, as described on the “Boat Trips” page of www.aquaxplore.co.uk. They had not seen any of the wildlife listed for the trip they went on, and had tried to claim their money back from the advertiser, but were told that guarantee did not apply to their situation. We understood from Bella Jane Boat Trips that the guarantee was intended to refer to the accuracy of any verbal statements as well as any written information they made or gave to customers about wildlife, and to provide reassurance that they wouldn’t exaggerate the chances of seeing any particular wildlife on a given trip. However, we noted that ad (a) stated “if you don’t see the wildlife we promised you get your money back”. In the absence of qualifying information or further detail about what “the wildlife we promised” referred to, we considered that consumers would likely understand that this referred to the wildlife listed in the descriptions of the boat trips. If they, therefore, did not see any or all of these animals, they would be entitled to a refund. Ad (b) stated “unique wildlife guarantee”, but did not feature any further details about the guarantee, which we considered was likely to give a similar impression that the guarantee referred to the wildlife that customers would see.
We noted that the “Questions” page of the website featured additional information about the guarantee (and that Bella Jane Boat Trips had now amended the website to refer customers to this information). The “Questions” page stated “What if I am unhappy with my trip? We are sure you will enjoy your trip with us but if for any reason (apart from the weather!) your trip has not lived up to our usual standards we offer a full refund”. This appeared to refer to a separate money-back guarantee. However, we considered that, given the unclear presentation of the “No-Hype” guarantee, customers were likely to confuse the two. We also noted that it stated customers could claim their money back if they were dissatisfied with the trip “for any reason (apart from the weather)”. This, however, had not been the complainant’s experience.
We acknowledged that the advertiser had made some changes to their press ad. They had also added text on the website stating “How does your No-Hype guarantee work? If you believe we have broken our guarantee, as stated on the boat trips page, please contact us (verbally or in writing). We will investigate and respond within 2 weeks. If we have broken our guarantee you will be refunded in full. (NB there are no further terms, conditions or limitations)”. While this explained how customers could claim against the “No-Hype” guarantee, it did not make clear what the company would consider to be a valid breach of the guarantee. The likelihood of seeing any particular wildlife was clearly dependent on a number of different factors, and we acknowledged that there could be no absolute guarantee that customers would see a given animal on a given trip. We understood that Bella Jane Boat Trips would advise customers of the likelihood of seeing a particular animal, whether through the information on their website, or in direct, verbal communications. However, it was not clear how a customer could demonstrate that a false statement had been made to them about the probability of seeing wildlife. In addition, we understood that the “guarantee” applied to any statement (including verbal) made by a representative of Bella Jane Boat Trips, of which there would not necessarily be any record.
While we appreciated that the advertiser wished to state that they would not exaggerate the likelihood of seeing particular animals, we considered that due to the general nature of the guarantee, the lack of clarity in its presentation, and the lack of any further explanation of any applicable limitations, it would not be possible for customers to gain an understanding of its full terms before taking it up. Furthermore, the guarantee had been presented in a way that was likely to give customers the impression that it “guaranteed” that they would see particular types of wildlife. We therefore concluded that the ads were misleading.
Ads (a) and (b) 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. (Qualification) and 3.54 3.54 Marketing communications must make clear each significant limitation to an advertised guarantee (of the type that has implications for a consumer's rights). Marketers must supply the full terms before the consumer is committed to taking up the guarantee. (Guarantees and after-sales service).
The ads must not appear again in the forms complained about. We told Bella Jane Boat Trips not to offer a “money-back guarantee” unless the full terms and conditions of that guarantee were made clear to customers.