An email from Jet2holidays, received on 14 January 2017, had the subject line “Psst! Our £100pp* SALE has started!” and text within the email stated “Make way for the Jet2holidays New Year SALE with an incredible £100 OFF per person* on all holidays and city breaks”. Small print at the bottom of the email included “Valid on bookings made on Saturday 14th January 2017 until 23.59 on Tuesday 17th January 2017. Terms and conditions apply”.
The complainant, who did not believe the discount was genuine and who was also told by the advertiser that the sale began on 1 January 2017, challenged whether the ad was misleading.
Jet2Holidays Ltd said their £100 off holidays and city breaks promotion had started on 25 December 2016. They said due to an administrative error by a member of their marketing team the email footer did not reflect the accurate start and closing dates of the promotion. If a consumer clicked through from a link in the email footer, they would be directed to their terms and conditions landing page which included the correct dates. They accepted that the dates listed in the email were included in error and committed to making changes to ensure it did not happen again.
They explained the email header “Psst! Our £100pp* SALE has started!” was intended to serve as a strong reminder that the sale was on. They did not believe this wording was misleading as they believed it was factually correct. However, they agreed not to use the wording “has started” in future marketing communications where a promotion had already commenced.
They supplied screenshots of how the savings discount was displayed to consumers on the website – the discount was clearly presented alongside the price of the holiday before the discount was applied (the pre-discount price). They explained that the pre-discount price was worked out by a cost plus dynamic pricing model. They said the pre-discount price was determined at the time of the customer’s actual website search, by adding all the current live costs together at that particular point in time. The sale amount was then applied to those “live costs” to give the final discounted price to the customer.
They explained that there were many factors that determined the live costs, primarily attributable to the phenomenon of dynamic pricing. These factors included accommodation cost, underlying flight cost, competitor pricing, market and trading conditions, stock availability and exchange rates.
They said that due to the dynamic nature of holiday pricing (it could change on a daily basis based on demand and date of travel) it was not possible to compare periods on a direct like-for-like basis. Nevertheless, they provided evidence which they said showed that on 13 January 2017, 63% of their holidays were more than £100 cheaper than the pre-sale prices, meaning the discount had not been eclipsed by price fluctuations in the intervening period in 63% of cases. Further, on 17 February 2017, 75% of their holidays were more than £100 cheaper than the pre-sale prices, meaning the discount had not been eclipsed by price fluctuations in the intervening period in 75% of cases. They attributed the cases where the discount had been eclipsed by an increase in the price over the period to dynamic pricing and the fact that prices tended to increase as the date of travel approached.
In relation to the particular holiday the complainant viewed, they provided evidence that showed the price of the holiday fluctuated at least nine times over the sale period. Five days into the sale, the pre-discount price increased by £7 above the pre-sale price; that happened only on that one occasion. Every other time the price fluctuated it resulted in a net decrease in the pre-discount price. The evidence they provided showed those price fluctuations were directly attributable to the fluctuating underlying flight cost and other package tariffs including the margin uplift (i.e., the profit margin) Jet2Holidays applied to the holiday. They explained the margin uplift (either positive or negative) varied based on the rate of sale, demand for the holiday, number of rooms remaining at the hotel, etc.
They believed that they had demonstrated the effect dynamic pricing had on their pricing and that they had provided evidence to objectively substantiate that the savings claims were genuine.
The ASA considered consumers would understand the claim “£100 OFF per person” to mean that by purchasing a holiday with the discount they would be making a genuine, meaningful saving. We considered that consumers were generally aware that holiday pricing was fluid and that the price of a specific holiday could fluctuate over time, sometimes within the space of a day or less, based on a number of factors. In that context we considered that, despite having an appreciation of these price fluctuations, in the absence of further information about the basis of any savings claims made, consumers would be unable to have an informed understanding of whether or not the discounted price constituted a genuine, meaningful saving.
We noted the ad included information that the discount was valid on bookings made between 14 and 17 January 2017. We considered that consumers would understand from the information in the ad that the stated saving would only be available for a very limited time. In that context we considered that consumers would expect, particularly given the limited timeframe of the sale, that the prices of the advertiser’s holidays would not fluctuate during the sale, and that the stated discount would be applied to the pre-sale price.
We acknowledged that the stated dates had been included in error and that the sale actually ran from December 2016 to February 2017. Nevertheless, in relation to the particular holiday the complainant viewed, the price presented to the consumer on the 13 January was £427. We considered that the consumer would have expected this price to decrease by £100 as set out in the claim on the 14 January when the sale commenced. Instead, the price would have appeared to the consumer to have stayed the same. We considered that this was likely to mislead consumers and cause unnecessary disappointment.
We further considered that because consumers would understand from the small print in the ad that the savings would only be available for a limited time, the time and opportunity to make an informed choice about their purchase was reduced for consumers. We therefore considered that the incorrect date of sale set out in the ad was likely to induce consumers to make a purchase potentially to their disadvantage. We therefore considered the subject line “Psst! Our £100pp* SALE has started!” and sale dates stated in the small print were in conjunction likely to mislead.
Notwithstanding the above, we considered that if the ad had stated the correct dates for the sale (or had not stated dates at all), further information about the basis of the savings claim was likely to be material information consumers would require in order to have an informed understanding of whether or not the discounted price constituted a meaningful saving against a genuine price. We understood that the ‘pre-discount’ prices over the course of the sale were notional prices, as they had never actually been offered to consumers. Because we considered that the discount would be understood by consumers to be based on a genuine price for the holidays and we did not consider the evidence showed that to be the case, we concluded that the savings claim would still have been likely to mislead consumers had the correct (or no) dates been stated.
The ad breached CAP Code (Edition 12) rules 3.1 (Misleading Advertising), 3.7 (Substantiation) and 8.2, 8.17, 8.17.3, 8.17.4 and 8.17.4a (Promotional Marketing).
The ads must not appear again in the form complained of. We told Jet2Holidays Ltd not to make savings claims unless they were genuine and meaningful to consumers, and to ensure they included material information relating to the basis of the savings claim and correctly identified the period of sale in their marketing communications.