Summary of Council decision:
Two issues were investigated, of which one was Upheld and one was Not upheld.
An ad on Norwegian Air Shuttle's own website www.norwegian.com/uk stated "THREE-DAY SALE Algarve-Faro, Nice & Palma-Mallorca from/one way £10* incl taxes. Booking period: 12-14 November. Travel period: 12 November - 28 February 2014".
easyJet Airline Company Ltd challenged:
1. the availability of flights at the advertised price; and
2. whether the promotion was misleading because it did not make clear that the offer only applied to flights out of London Gatwick and that the offer was only applicable to the outbound leg of a return journey.
1. Norwegian Air Shuttle responded, through their solicitor, that the availability of seats at the advertised rate during the promotional period significantly exceeded 10% of overall capacity. They provided data that demonstrated the number of seats at the promotional rate of £10 for all scheduled flights for each of the three routes during the promotion period from 12 November 2013 to 28 February 2014.
The data that they provided indicated the number of seats available at the advertised rate during the promotional period for each of the three routes: 435 seats out of a total of 2,790 seats from London Gatwick Airport to Algarve-Faro, which was about 15.6% of the total capacity; 879 seats out of a total of 5,580 seats from Gatwick Airport to Nice, which was about 15.8% of the total capacity; and 768 seats out of a total of 2,790 seats from Gatwick Airport to Palma-Mallorca, which was about 28% of the total capacity.
Norwegian Air Shuttle also believed that the availability of the seats at the promotional rate for each route was reasonably spread out throughout the promotional period.
2. Norwegian Air Shuttle did not believe the promotion in the ad was misleading because the terms of the ad were expressly stated next to the price quoted; that the quoted price was for a one-way flight. They said that the offered terms were not conditional upon a customer purchasing a return flight.
Norwegian Air Shuttle said that the ad was displayed as a banner on its website which linked through to the booking engine page. The booking page displayed the available prices and dates with London Gatwick airport set as the only departure airport. Norwegian Air Shuttle provided a screen shot of the booking engine page in question, which showed that the customer would also be able to select the destination location and the price and date of the return flights.
1. Not upheld
The ASA noted that the number of available seats at the advertised rate during the advertised travel period for each of the three routes concerned exceeded 10% of the total number of seats.
We noted that for all three routes, the number of available seats at the advertised rate was greater during November and the beginning of December than during the end of December until the end of February. Although there were a number of flights for all three routes that did not have seats at the promotional rate available, we noted that seats at the promotional rate were available for some of the flights in each month of the promotional period. We considered that the availability of the seats at £10 promotional rate was spread reasonably evenly across the advertised travel period and therefore concluded that Norwegian Air Shuttle had demonstrated sufficient availability in accordance with the Code.
On this point, the ad did not breach CAP Code (Edition 12) rules 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), 3.22 3.22 Price claims such as "up to" and "from" must not exaggerate the availability or amount of benefits likely to be obtained by the consumer. (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. (Sale promotions).
The ASA understood that the offer advertised only applied to one-way journeys from London Gatwick airport to the three destinations listed in the ad and noted that Norwegian Air Shuttle had confirmed in their response that the availability of the advertised price was not dependent on the purchase of a ticket for the return trip. We also noted that the ad did not specify the originating airport for the one way journey to which the offer would apply, given that we understood that Norwegian Air Shuttle also operated flights to the listed destinations from a number of other airports in Europe.
We noted that the ad was a banner on Norwegian Air Shuttles' website that contained a direct link to a customised booking page for the offer advertised and that this page was set to automatically select London Gatwick as the originating airport for the outbound journey. We considered that, while the ad made clear that the price was applicable only to one-way bookings, the requirement for this one-way journey to originate from London Gatwick Airport was a significant condition of the sale promotion and therefore constituted material information on which consumers would base their decisions.
Given that the web page did not expressly state this information or direct the user to another page where it was prominently stated, we concluded that the ad was likely to mislead and had breached the Code.
On this point, 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), 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: (Significant conditions of Sales Promotion), 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.
The ad must not appear again in its current form.