Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Claims on a website for a holiday company, www.theultimateholidaypackage.co.uk, which was seen on 27 February 2016, stated "The Ultimate way to holiday! As the single largest provider of promotional holidays in Europe, we strive for excellence in every way ...". One page of the website was headed "T's & C's" and included text stating "19. As a couple, you will be required by the resort to attend a presentation, of at least 90 minutes, to show you the facilities and to explain to you the benefits of the ownership system. However, you are under no obligation to buy or enter into any contract. An appointment will be made for you during your stay at your chosen resort. If you fail to attend this presentation, without valid reason, you shall be liable to pay the full rental cost for your accommodation for the duration of your holiday ...".
Kwickchex Ltd, as part of the Timeshare Force Initiative, challenged whether:
1. the ad was misleading, because it did not make sufficiently clear that the price of the holidays was dependent on customers attending a timeshare sales presentation and that failure to attend would mean incurring the full cost of the holiday accommodation; and
2. the claim "the single largest provider of promotional holidays in Europe" was misleading and could be substantiated.
Easy Consulting SL t/a The Ultimate Holiday Package did not respond to the ASA's enquiries.
The ASA was concerned by The Ultimate Holiday Package's lack of response and apparent disregard for the Code, which was a breach of CAP Code rule 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay). We reminded them of their responsibility to provide a response to our enquiries and told them to do so in future.
We noted that the requirement to attend a timeshare sales presentation was set out at paragraph 19 of the terms and conditions which were on the 'T's and C's' section of the website and that failure to attend such a presentation would result in the customer incurring the full cost of the holiday. We considered that consumers would not expect to have to attend such a presentation unless it was made clear, and such a requirement was significant information which was likely to affect a consumer's decision as to whether or not to purchase a holiday. We considered that, given its presentation within the terms and conditions on a separate page of the website, it was not sufficiently prominent to alert consumers to the requirement. Because of that, we considered the ad was misleading and therefore breached the Code.
On that point, the ad 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).
In conjunction with the claim "We deal with the highest standard of resorts all over the world", we considered the claim "the single largest provider of promotional holidays in Europe" would be interpreted by consumers to mean The Ultimate Holiday Package was the number one provider in Europe of promotional holidays worldwide. We considered the claim was capable of objective substantiation in the form of robust, comparative data that showed that The Ultimate Holiday Package had the largest market share in Europe. We had not been provided with any such data from the advertisers and therefore considered that the claim had not been substantiated and was misleading.
On that 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), 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 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors).
The ad must not appear again in its current form. We told The Ultimate Holiday Package to ensure in future they did not make comparative claims unless they could substantiate them and that all significant information was displayed prominently. We referred the matter to CAP's Compliance team.