An offer on a daily deal website, seen on www.kgbdeals.co.uk stated "£34 for a one-day kite surfing course worth £99 at South Wales Kite Surfing - save 66%". The expiry date was 30 August 2012.
The complainant challenged whether the ad was misleading by omission, because it failed to make clear significant conditions of the offer.
kgb (UK) Ltd (kgb) said, due to an administrative error, they did not have a copy of the signed contract with South Wales Kitesurfing (SWK). They also said, because SWK did not respond to their enquiries in relation to the complaint, they were unable to provide any evidence. They said SWK was given the opportunity to provide them with details of any significant conditions in the Merchant Order Form (MOF) but had not mentioned additional fees for weekend courses, or that the one-day course was only available during the working week. They said if they had been made aware of those conditions, they would have communicated them in the ad.
SWK said the ad appeared on the website without their prior consent and that they had not signed a contract with kgb. They also said all weekend slots had been booked when the complainant contacted them and that, had they been able to book a weekend slot, they would have needed to attend the full course, which cost an additional £100 per person. They said their courses were weather dependent and that, due to poor conditions this year, they had a backlog of students.
The ASA understood that the complainant purchased the offer and was informed by SWK that, in order to book a session at a weekend, she would have to purchase the full two-day course for an additional fee of £100 per person. We also understood that, while the ad stated that the offer expired on 31 August, the complainant was informed that the offer expired on 1 August and during that month the centre would be closed. The promotion had failed to make clear that the offer was only redeemable on weekdays, or consumers would need to pay an additional charge of £100 per person. Because significant conditions about when the offer could be redeemed had not been included, the ad was misleading. Furthermore, the closing date had changed without any efforts to ensure that consumers were not disadvantaged. We therefore concluded that the promotion breached the Code.
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), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification), 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), 8.14 8.14 Promoters must ensure that their promotions are conducted under proper supervision and make adequate resources available to administer them. Promoters, agencies and intermediaries should not give consumers justifiable grounds for complaint. (Administration) and 8.17.4e (Significant conditions for promotions).
The ad must not appear again in its current form. We told kgb to communicate all significant conditions in future, which included those relating to the closing date. We also told them to ensure that future sales promotions dealt fairly with consumers.