Ads for Expedia, seen in September and October 2016, promoted discounted hotel and holiday deals for Expedia members.
a. An email, sent to the Expedia members mailing list, stated “BY INVITE ONLY: SPECIAL MEMBER PRICING You’re Eligible for 50% off”. A “Terms and conditions” link led to text on a separate web page which stated that “These offers are available to logged in Expedia account holders, newsletter subscribers and via the Expedia app”.
b. Ad (a) linked to a landing page on the Expedia website which listed the hotel or holiday offers. At the top of the page, text highlighted in yellow stated “Members get an extra 10% or more off select hotels. Look for Member Pricing below”. Members’ prices were highlighted in yellow, some of which were also labelled “member price”.
The complainant, an Expedia member, challenged whether the claims that discounts were available to members only were misleading.
Expedia explained that their member-only deals (MOD) were available to customers who were Expedia account holders, had subscribed to receive the Expedia MOD newsletter or who accessed Expedia via the app. The MOD emails were sent to those who had actively joined the MOD programme. Expedia considered their emails made clear that the offers were directed at the recipient only, as they stated “just for you”, “by invite only” or referred to the recipient by name. They acknowledged that, if the email was forwarded, the new recipient would have access to the MOD prices. However, as the MOD emails were addressed and marketed to particular recipients and were not sent to non-members, they considered that the offer was sufficiently ring-fenced. They believed it was common industry practice that special offers sent by email and which were advertised as being available only to the recipient would not be ring-fenced with any further measures.
Expedia provided examples of how ad (b) would appear, namely the way in which pricing was presented on the Expedia landing page, when it was accessed via the MOD link. A yellow banner at the top of the website stated that members were eligible for a discount on selected hotels and that any hotels which were subject to the MOD were highlighted in yellow. Additional text on some listings also stated “member price”.
The ASA noted that ad (a) was sent to Expedia members only and stated "BY INVITE ONLY: SPECIAL MEMBER PRICING" and informed the recipient that they were eligible for a discounted price. We considered consumers would understand from ad (a) that the link in the email would provide access to members' offers and was intended to be used by members only. However, we understood that any consumers accessing the Expedia website via the link provided in ad (a) would have access to the MOD prices, including non-members.
We also considered that, because members had signed up to be part of the scheme, they would be generally familiar with the mechanism for obtaining membership, namely having an Expedia account, signing up for the members newsletter or using the app. We noted that membership was not, for example, obtained by paying an additional fee or subscription charge.
Although we understood that the MOD offers in ad (a) could be accessed by non-members, we considered this would only occur if a non-member had gained access to the MOD link in ad (a); for example, if a member had forwarded the link. We further considered consumers were generally familiar with the marketing message in ad (a), whereby an offer was addressed to a particular consumer, but might be accessible to any others who were given access to the relevant link. In that context, we did not consider that ad (a) overstated the exclusivity of the offer and considered that the claims in ad (a) were unlikely to mislead.
We acknowledged that the link in ad (a) led to a particular landing page on the Expedia website (ad (b)) which could be used to search for hotels using particular search terms, such as location. We noted that the list returned in ad (b) did not exclusively comprise hotels offering a members' discount, but included all listings which matched the consumer's search, some of which might not offer a MOD.
We noted that members' prices on the Expedia landing page (ad (b)) were marked in yellow and that some of the hotel listings also included the text "member prices". We further acknowledged that highlighted yellow text at the top of ad (b) stated "Members get an extra 10% or more off select hotels. Look for Member Pricing below". We therefore considered that ad (b) made sufficiently clear which listings were subject to a further discount for members and which listings were being offered at the usual rate on Expedia.
Although we acknowledged that there were instances where non-members might gain access to MOD prices, because we considered that ad (a) was directed to members and that ad (b) made clear which prices were MOD prices and which were not, we considered the advertising claims were not misleading.
We investigated the ad under 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) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration), but did not find it in breach.
No further action necessary.