A web page seen on www.eurostar.com on 24 January 2018 was headed "Trains to France". Further text stated "With Eurostar tickets from as little as £29 o/w* and trains leaving for Paris up to 18 times a day, start your escape in London or Kent and arrive rested and raring to go, right in the heart of the action". Further text stated “Train to Lille from £29* one way”.
The complainant, who said they were unable to find tickets from London to Paris at the price advertised, challenged whether the claim in the ad was misleading and could be substantiated.
Eurostar International Ltd said that the availability of £29 fares was reviewed weekly by the Revenue Management team, who loaded additional capacity into the booking system for the targeted booking horizon, which was the period six to 18 weeks in advance of travel. They considered that customers would not expect to find the lead-in £29 fare available for departures within the immediate six weeks, and would instead expect this fare to be available for bookings made further in advance.
Eurostar said that on the date the ad was seen, 5,070 fares from London to Paris priced at £29 were available for travel dates between 6 March and 8 June 2018. Although the proportion was small, the actual quantity of tickets made the nominal availability significant, which in their view amounted to a significant proportion of tickets being available at the “from” price. They provided data on the overall number of tickets from London to Paris available for travel between 6 March and 8 June 2018 on the day the ad was seen, as well as the number of available tickets at the lead-in £29 fare, broken down by individual train service per day. They also provided a sample of sales records showing the percentage of £29 fares sold per day, which they believed indicated that the fare was readily available and there was a reasonable opportunity for customers to obtain it.
Eurostar said they accepted that the availability period for £29 tickets (six to 18 weeks in advance) could have been more clearly communicated to customers. They had therefore updated the web page to include small print stating “* (At least) 10,000 seats available between London and Paris and (at least) 5,000 seats available between London and Lille, for travel dates comprised between six and 18 weeks from date of booking, subject to availability and black-out dates”. They believed that the updated wording was in line with CAP Guidance.
The ASA considered that consumers would understand the claim “With Eurostar tickets from as little as £29 o/w”, in the context of the page, to mean that a significant proportion of one-way tickets from London to Paris, Paris to London, London to Lille and Lille to London would be available to purchase at £29. In the absence of qualification to the contrary, we considered that consumers would understand the claim to mean that fares were available at £29 from the date of booking onward. We also considered that consumers would expect to find the tickets available at the “from” price across a range of dates and times within that period.
The Chartered Trading Standards Institute (CTSI) Traders on Pricing Practices 2016 offered practical advice to traders on the consumer protection laws and associated practices. While we noted that the guidance provided a set of principles rather than statutory rules, and non-broadcast advertising claims were ultimately assessed under the CAP Code, we took the Guidance into account when making our assessment.
The CTSI guidance stated that “Care should be taken that general notices such as ‘Up to half price sale’ or ‘From 50% off’ are not misleading; they must reflect the reality of the offer. You should only make such a claim if the maximum reduction quoted applies to a significant proportion of the range of products that are included in the promotion”.
The complainant had been unable to purchase tickets from London to Paris, and we therefore looked specifically at the availability of “from” price tickets for the outward and return journeys for that route. We understood that £29 fares were released on an on-going basis, and were made available for a period between six and 18 weeks in advance of travel dates. The figures provided by Eurostar described the numbers and distribution of outward and return tickets from London to Paris that were available to purchase within the relevant booking horizon on 24 January 2018, that is, 7 March through 8 June 2018. However, we understood that the number and relative proportion of £29 tickets available to purchase on that date was representative of those that were available on a general basis. The £29 fares made up a very small percentage of one-way tickets from London to Paris in both directions within the relevant booking horizon. We therefore did not consider that a significant proportion of tickets was available at the “from” price and because of that the claim was likely to mislead.
In addition to the proportion of tickets available at the “from” price we also considered that to avoid misleading consumers, the availability of a product at the “from” price should be spread reasonably evenly across the advertised travel period, unless the ad made clear that was not the case, and marketers should make clear the specific travel period to which an offer related. Tickets at the lead-in price were only available for dates at least six weeks ahead of the date of booking. We acknowledged that on most days in the booking horizon, there were multiple £29 tickets available on different train services. However, because the lead-in price tickets were on sale over a 12-week period, there was considerably less availability toward the beginning of the booking window. Therefore, consumers would need to book as far in advance as possible (i.e. 18 weeks in advance) in order to have a greater chance of obtaining the £29 fare at their desired dates and times. Given that we considered that the tickets were not available at the lead-in price in significant proportions, the lack of information on the period when that price was available and the lack of information indicating that the fares were not reasonably evenly distributed throughout the booking period, we concluded that the ad as it originally appeared was misleading.
We acknowledged Eurostar’s willingness to make changes to their advertising, and also assessed the claim in light of the qualification they had since added to the web page. The additional text was in a smaller font, placed below the main body text and connected to the claim by an asterisk. We understood that the quantities stated in the qualification referred to the total number of one-way fares in each direction between the destinations listed. We acknowledged that the qualification provided material information regarding the dates for which the lead-in fares were available by stating the absolute minimum number of tickets available at that price at any one time. We considered that it would be possible to advertise a “from” price for which the proportion of tickets available was not significant, if the advertiser specified the quantity of tickets available. However, we considered the availability of tickets at an advertised fare should also be spread reasonably evenly across the travel period. If that was not the case, that should be made clear to consumers. We considered that the qualification added by Eurostar did not contain sufficient information to convey to consumers that the fares were not reasonably evenly distributed throughout the available travel period. Furthermore, due to the size and placement of the text, we did not consider that the qualification was sufficiently prominent. Regardless of the relative proportion of tickets available, we considered that the amendment was insufficient to counteract the misleading impression of the headline claim – that is, that fares were available at £29 from the date of booking onward, across a range of dates and times spread reasonably evenly throughout the applicable period.
We concluded that the claim “With Eurostar tickets from as little as £29 o/w”, as consumers were likely to understand it in the context of the ad as it was originally seen, had not been substantiated and was therefore misleading.
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), 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. and 3.22 3.22 Price claims such as "up to" and "from" must not exaggerate the availability or amount of benefits likely to be obtained by the consumer. (Prices).
The ad must not appear again in the form complained about. We told Eurostar International Ltd to ensure in future that when using “from" price claims that a significant proportion of the advertised fares were available at the lead-in price, unless the specified quantity of tickets was stated. In addition, we told them to ensure they made clear the dates when the fares were available and that if lead-in fares were not reasonably evenly distributed throughout the travel period, that this was stated. We also told them to ensure that qualifications were sufficiently prominent.