Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Two online ads for annual passes to a group of attractions:
a. A website, www.merlinannualpass.co.uk, stated prices for 'Standard' passes: "Normal Price ... Individual £159 Family £119 ... Jan Sale Price ... Individual £105 Family £79".
b. A social media post, dated 8 February, stated, "Hey all just to let you know our current call hold times are approximately 5 minutes. Please note that our experienced wizard line will close at 5pm today and will reopen tomorrow again at 9am. Our experience wizard line will be open tomorrow from 9am to 5pm. We will not be able to honour the January Sale rate after tomorrow at 5pm so please do not leave it until last minute tomorrow in case our experienced wizard lines are busy close to the 5pm cut off, we don't want anyone to miss out!" The post contained a further comment from the advertiser that stated, "… we are still honouring the January sale price this weekend through our experienced wizards only. Please call [NUMBER] this weekend only".
Issue
The complainant, who understood that the January sale had been extended until 7 February and had visited the website on the evening of that day, challenged whether:
1. ad (a) was misleading because it omitted the significant condition that the offer was not valid online after 5pm on 7 February; and
2. both ads were misleading because, on phoning the 'experienced wizard line' on 8 February, she was informed that the website sale prices were for renewals only.
Response
1. Merlin Entertainments Group Ltd stated that, due to popular demand and comments from customers, the sale had originally been extended from 31 January to 5pm on 7 February, and that this extension was advertised widely via social media, e-mail and the Merlin Annual Pass Website. They said that after the 5pm deadline on 7 February they received a number of comments via e-mail and social media stating that customers believed the offer had been open until midnight, rather than the 5pm deadline. They therefore decided to offer the reduced rate for a further 24 hours and posted ad (b) to their Facebook page. Merlin Entertainments noted that the post gave wait and opening times for the call centre, but acknowledged that the ad was not clear that the new deadline was a goodwill gesture rather than an extension of the promotion and that the cut-off date for this should have been made clearer.
Merlin Entertainments acknowledged that the time at which the promotion ended had not been advertised clearly and that, although the end date had been communicated through other channels, visitors to the website may not have seen this. They said that the website did, however, state that the "offer could be withdrawn at any time without notice".
2. Merlin Entertainments did not provide a response on this specific point.
Assessment
1. Upheld
We noted Merlin's assertion that the original deadline extension to 5pm on 7 February had been advertised widely. However, we had not been provided with examples of how this had been done, and noted that the website as seen on 6 February did not appear to contain a closing date or time for the promotional prices. We also considered that, had Merlin provided us with examples of the social media and e-mail notifications of this deadline, these would have been insufficient to address the specific point of complaint because they would not necessarily have been seen by visitors to the website. Although we appreciated Merlin Entertainment’s assertion that the website stated that the offer could be withdrawn at any time, we noted that this disclaimer was not visible on ad (a). Moreover, we noted that the presence of such a disclaimer did not exempt promoters from their obligations to conduct their promotions equitably, to be seen to deal fairly and honourably with participants or to avoid causing unnecessary disappointment. The disclaimer was therefore insufficient as a means to notify consumers of the promotion's closing time. Because we had not seen evidence to demonstrate that the 5pm closing time of the 7 February deadline had been clearly communicated to consumers on the website, which continued to advertise the 'January Sale' rates on that day we considered that ad (a) was in breach of the Code.
Ad (a) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
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.
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(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),
8.17
8.17
All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include:
8.17.1
8.17.1
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
8.17
8.17
All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include:
4.a,
8.17
8.17
All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include:
4.c and
8.18
8.18
Marketing communications that include a promotion and are significantly limited by time or space must include as much information about significant conditions as practicable and must direct consumers clearly to an easily accessible alternative source where all the significant conditions of the promotion are prominently stated. Participants should be able to retain those conditions or easily access them throughout the promotion.
(Significant Conditions for Sales Promotions)
2. Upheld
We noted that both ads referred to the January sale prices, with ad (a) listing them specifically, and ad (b) stated that these prices would be available through the “experienced wizard line”. We also noted that ad (a) appeared to be the price list for new passes, rather than renewals, and that ad (b) did not clarify whether the sale prices were for new passes, renewals or for both. We understood that the complainant had been told by the “experienced wizard line” that the prices in ad (a) were for pass renewals only. Because Merlin Entertainments had not provided evidence to demonstrate that this was not the case, we concluded that both ads were in breach of the Code.
Ads (a) and (b) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
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.
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification) and
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)
Action
The ads must not appear again in their current form. We told Merlin Entertainments Group Ltd to ensure that the closing times of future sale promotions were made clear.
CAP Code (Edition 12)
3.1 3.10 3.3 3.9 8.17 8.17.1 8.17.4a 8.17.4c 8.18 8.2
