Background

Summary of Council decision:

Two issues were investigated, of which one was Upheld and one was Not Upheld.

Ad description

A website, www.lufthansa.com, featured text that stated "Luxury, comfort and perfection: welcome to First Class Dubai from £2,999* * First Class return flights including taxes, fees and charges". On clicking the "Book now" link, consumers were led to a separate page that stated "… Book before 19 November 2013 for travel between 13 January 2014 - 31 March 2014 …". The page also featured text beneath the sub-heading "Hong Kong" that stated "from £3,399*".

Issue

The complainant challenged whether:

1. the claim that First Class return flights to Hong Kong were available "from £3,399" was misleading because, having attempted to redeem the offer, they could not find flights available for below £5,606; and

2. the advertisers had conducted the promotion fairly and honourably, because the promotional price of "from £3,399" became available only on the last day of the promotional period.

Response

1. Deutsche Lufthansa AG, trading as Lufthansa German Airlines provided screenshots from their systems dated 12 November 2013, which was the date the promotion commenced. The screenshots showed the planned availability of the advertised fare on six routes between the UK and Honk Kong for a period of 12 months. They said that evidence showed the advertised fare was available on significantly more than 10% of all reservable seats across the promotional period.

2. Lufthansa provided a screenshot from their fare filing system which they said demonstrated that the advertised fares were loaded for the first day of the promotion. They explained that fare filings were not checked on a daily basis, but only at the start of the promotion. They acknowledged that during the promotion the Asia Pacific promotional fares became unavailable due to a technical error. They said that, when they were made aware of that error on 18 November, it was corrected immediately.

Assessment

1. Not upheld

The ASA noted the search options beneath the advertised fare provided a number of routes from which flights were available. The data supplied by Lufthansa showed the planned availability of the advertised fare from those locations. The data showed availability on a monthly basis over the promotional period and was produced when the promotion commenced. We noted that the data showed that the fare had been allocated in quantities of over 10% of all reservable seats on the routes.

Because we had seen evidence that a sufficient proportion of seats had been allocated on the qualifying routes at the advertised fare, we concluded that the ad was not misleading on this point.

On this point, we investigated the ad under CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.  and  3.3 3.3 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.
 (Material information),  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 3.22 (Prices) but did not find it in breach.

2. Upheld

We understood from the complainant that the advertised fare was not available for a significant period of the promotion. We noted Lufthansa acknowledged that the Asia Pacific promotional fares became unavailable due to a technical error and we welcomed their comments that they had taken steps to remedy that immediately. Notwithstanding that, the Code required promoters to avoid causing unnecessary disappointment. We were therefore concerned that the advertised fares were unavailable for a significant proportion of the promotional period. On that basis, we concluded that the ad breached the Code.

On this point, the ad 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  8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions.  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).

Action

The ad must not appear again in its current form.

CAP Code (Edition 12)

3.1     3.17     3.3     3.7     8.1     8.2    


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