Background
Summary of Council decision:
Five issues were investigated, of which four were Upheld and one was Not upheld.
Ad description
Two emails and pages on the Merlin Entertainments Group website:
a. An email sent on 22 December 2014 stated "MERLIN ANNUAL PASS … your Annual Pass runs out in just 14 days' time … you can nab a standard pass from just £83.30 each (instead of £129). And premium passes? … the usual price starts at £169 but for you, it's super-slashed to £93.60. Just click here for these rates and to renew your pass online … P.S. Remember - you still have 14 days until your current pass runs out. There's loads you can do in 14 days (including renewing it online …)".
b. The landing page from ad (a), www.merlinannualpass.co.uk/renewal-prices.aspx stated, on 22 December 2014, "Renew now for the best renewal price for 2014! Passes from just £83.30! Premium Passes Prices frozen for 2014 Individual … £119.40 Family … £93.60pp … Standard Passes Prices frozen for 2014 Individual … £111.30 … Family … £83.30pp".
c. The web address from ad (b), www.merlinannualpass.co.uk/renewal-prices.aspx, accessed on 26 December 2014, stated "… STANDARD … INDIVIDUAL PRICE £169 [struck through] FAMILY PRICE £129 [struck through] INDIVIDUAL SALE £119 FAMILY SALE £99 PREMIUM INDIVIDUAL PRICE £209 FAMILY PRICE £169 INDIVIDUAL SALE £149 FAMILY SALE £119".
d. An email, sent on 31 December , stated "… take advantage of our SALE and buy a MERLIN ANNUAL PASS at the YEAR'S LOWEST PRICES … STANDARD … INDIVIDUAL … £169 [struck through] SALE £119 … FAMILY … £129 [struck through] SALE £99 … Premium … INDIVIDUAL £209 [struck through] … SALE £149 FAMILY … £169 [struck through] … SALE £119 … Choose the YEAR'S BEST PRICES …".
Issue
Twenty-two complainants challenged whether:
1. ad (a) was misleading, because it implied recipients had 14 days to renew their pass and qualify for the advertised prices;
2. ad (b), and particularly the claim "Prices frozen for 2014" , was misleading, because it implied the prices advertised would be available for the whole of 2014;
3. the savings claims in ads (c) were misleading, because they were based on a price that did not reflect the price at which the products were previously sold;
4. the savings claims in ad (d) was misleading for the same reason; and
5. the claim "the YEAR'S LOWEST PRICES" in ad (d) was misleading, because the same product had been available at a lower price earlier in the year.
Response
Merlin Entertainments Group Ltd stated that, in general, their policy was to offer a discounted price to existing customers renewing their pass for a second or subsequent year. On 1 October 2014, they increased the price of the Merlin Annual Pass products but they chose to hold back price changes until 26 December 2014. They did so to allow their current pass holders time to renew before the prices changed. From 26 December 2014, pass holders renewing found that their renewal price had gone up. They also explained that the Merlin Annual Pass Sale Promotion ran from 26 December 2014 to 8 February 2015, when both new and renewing customers were offered discounted rates. They confirmed that during the 'January Sale' due to the effective discount they had given those renewing from 1 October to 26 December 2014, the prices offered for new customers and renewals were the same.
1. Merlin stated that the email was sent to existing pass holders with 14 days until their pass expired, up to 22 December 2014, and invited them to renew their pass at a discounted price. The price comparison was against the market price for the purchase of a new Merlin Annual Pass. They stated that all references to 14 days within the email clearly referred to the expiry of the recipient's pass, not to the price offered. The renewal price offered in the email applied at the time the email was sent and received, and for several days thereafter. There was no commitment to honour the renewal price for any length of time after the receipt of the email. However, in response to some complaints from customers, they applied a policy whereby any customer contacting them who had been due to renew up to 23 January 2015 was offered the opportunity to renew at the pre-26 December 2014 renewal price.
2. Merlin stated that they had asked their agency to remove the claim "Prices frozen for 2014" from the web page after the price increases in October 2014. They confirmed that it was, however, not removed until 19 December. They emphasised that any customer who contacted them, who had been due to renew up to 23 January, was offered the opportunity to renew at the pre-26 December prices.
3. & 4. Merlin said both ads (c) and (d) included price comparisons against the market prices for the purchase of a new Merlin Annual Pass. They said the prices for new purchases of Merlin Annual Passes, which were referenced to in the ads, had been in place from 1 October 2014 to 26 December 2014. They highlighted that the terms and conditions stated at the foot of ad (d) stated "Savings are based on full UK walk-up price …".
5. Merlin stated that the ad was targeted at 'prospects', not current Merlin Pass holders, and was sent late on 31 December 2014. They said it clearly referred to pricing in 2015 and highlighted that references to 2015 appeared several times and prominently throughout the email. For example, they noted that the header stated "2015 could be fun" and the ad also included the claims "Vote Fun in 2015", "People of Britain, a New Year dawns" and "… spend 2015 squealing and SHRIEKING". They said those references appeared alongside wishing customers and prospective customers "Happy New Year". Therefore, they believed it was clear that the claim "… the YEAR'S LOWEST PRICES" referred to 2015, not 2014. They said that claim was accurate, in that the prices for a new pass purchase were the lowest prices which would apply throughout 2015.
Assessment
1. Upheld
The ASA acknowledged that after 26 December, Merlin continued to offer their pre-October 2014 prices to those customers whose passes were due to expire up to 23 January and had complained about the price increase. However, we did not consider that such action had a bearing on how consumers would interpret the claims or our assessment of whether or not the ad was likely to mislead consumers.
We understood that the email was a standard communication sent to all pass holders whose passes were due to expire, 14 days before they did so. We understood that Merlin had increased their prices for new passes on 1 October 2014, but decided to hold their pre-October 2014 renewal prices until 26 December 2014. We also understood that that price increase and subsequent decision to hold the prices down for renewals had not been communicated to current pass holders or advertised on the Merlin website. We noted that the email highlighted that the recipient's Annual Pass was due to expire "in just 14 days' time". Further text stated "Simply renew your Merlin Annual Pass and continue having extraordinary adventures for another 12 amazing months", before listing the prices for premium and standard renewals, and inviting the recipient to "Just click here for these rates and to renew your pass online …". We noted that the ad did not include any indication that those prices were time limited or would increase on 26 December 2014 and considered that the overall impression was that the stated prices represented Merlin's standard prices for renewing customers that were applicable from the date of receipt and would remain valid for the coming months of 2015. We understood, however, that on 26 December, despite being promoted as a "January Sale", the prices for renewals increased by a maximum of £30 for a premium individual renewal and £7.70 for a standard individual renewal. Therefore, we were concerned that a number of recipients might have delayed their purchase, believing that the prices would be applicable beyond 26 December 2014, only to discover later that the price had increased.
Because we considered that the consumers reading the ad would believe that the prices represented Merlin's standard renewal prices and would not be subject to increases in the coming weeks, whereas they were only valid until 26 December and subsequently increased, we concluded that the ad was misleading.
On that point, ad (a) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
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.
(Qualification) and
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.
(Prices).
2. Upheld
We acknowledged Merlin's comment that the claim "Prices frozen for 2014" had continued to appear on the website beyond October in error. We noted that the claim appeared alongside the pre-October 2014 renewal prices which were valid until 26 December when the prices increased. We considered that consumers reading the claims would believe that the prices would be applicable until at least 31 December 2014, and that they could delay their purchase until that date and still take advantage of the promoted prices, should that be more convenient. Because the prices increased on 26 December 2014, we considered that the claim was misleading.
On that point, ad (b) 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) and 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. (Prices).
3. Upheld
We understood that ad (c) was the renewals web page that consumers were directed to upon clicking on the link in ad (a) after 26 December and that, although there was no specific mention of renewal prices, the promoted prices were accurate for new and renewing customers. We noted that the ad included crossed out higher prices for each pass option available and then presented the lower prices as part of a "SALE". We considered that renewal customers who had been directed to the page would believe that the crossed out figures represented the prices at which the renewal passes had been sold before the sale. We understood, however, that the crossed out "was" prices represented the price of a new pass from 1 October to 26 December 2014. We also understood that the promoted "SALE" prices for each option were higher than those at which consumers were able to renew their passes at when purchased prior to 26 December. While we understood that Merlin believed that it was legitimate to refer to the renewal prices offered from 26 December as sale prices, because the price had been increased in October 2014, we understood that the prices had in fact been frozen and so no renewing customers had paid a higher price from 1 October to 26 December 2014, and any implied saving was against a notional price at which no renewal passes had been previously sold. Further, while we understood that the price of renewal passes were due to increase, and did increase, from the claimed sale price in February 2015, we considered that in the absence of any explanation that that was the case, consumers would believe the "SALE" prices related to the prices at which renewals had been previously sold, not to a future selling price.
Because the stated prices were presented as time-limited sale prices, but renewal passes had been sold for less than the promotional prices before 26 December 2014 and had never been sold for more than the sale prices, we concluded that the implied savings claims had not been substantiated and were misleading.
On that point, ad (c) 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. (Prices) 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).
4. Upheld
We understood that ad (d) was targeted to consumers who had previously enquired about purchasing a Merlin Annual Pass, or had registered their interest, but were not current pass holders. Therefore, we understood that the promoted prices related to individuals purchasing new passes, rather than renewals. We considered that consumers reading the ad would believe that the crossed out prices represented the price at which they were usually sold. While we acknowledged that new passes had been sold at the crossed out prices for three months before the sale, which then ran for just over six weeks, we noted that Merlin had not provided any information regarding the wider context of their pricing, such as the pricing history, incorporating any promotional periods, and volume sales of new passes before October 2014. In the absence of adequate evidence to show that the prices valid from October 2014 represented their usual selling prices for new passes, we considered that Merlin had not demonstrated that the implied savings claims were genuine, and concluded that the ad was misleading.
On that point, ad (d) 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. (Prices) 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).
5. Not upheld
We understood from the complainants that the email had arrived throughout the day on 31 December 2014. We noted that it included the claim "… the YEAR'S LOWEST PRICES" alongside a number of references to the New Year, such as "2015 could be FUN …", "VOTE FUN IN 2015", "Happy New Year!" and "… a New Year dawns". We considered that the overall impression of the ad was that Merlin were wishing the recipients a Happy New Year and highlighting the fun an individual or family could have in 2015 if they purchased a Merlin Annual Pass. Therefore, while we appreciated that the ad had been received in 2014, given the proximity of the New Year and the number of references to 2015 within the ad, we considered that most consumers would interpret the claim "the YEAR'S LOWEST PRICES" to mean that the promoted prices were the lowest that would be available to consumers throughout 2015. Because of that, we concluded that the claim was unlikely to mislead.
On that point, we investigated ad (d) under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), but did not find it in breach.
Action
The ads must not appear again in their current form. We told Merlin Entertainments Group Ltd to ensure they held sufficient evidence to substantiate their marketing claims, that they did not misleadingly imply that their prices were valid for a longer period of time than they were, and to ensure their savings claims were accurate and reflected a genuine saving.
