A promotion for Purple Travel, seen on travel marketer Icelolly’s Facebook page and website, on 29 November 2016:
a. The Facebook page included a post which stated "5* Agadir, Morocco with up to 47% OFF! All Inclusive v 7 Nights v Return Flights and Transfers v Discounted Child Prices v Wide range of travel dates including Xmas & New Year v Available today from £239pp!...Hurry - must be booked be 7 December! Deal Details …".
b. The website, icepicks.icelolly.com, included a page linked to from the Facebook post which stated "5* All Inclusive Morocco Holiday UP TO 47% OFF From £239 WAS £448 PER PERSON / 7 Nights…Travel on selected dates in January 2017 from £239pp … Alternatively travel on selected dates in December 2016 and February 2017 from £249pp, March 2017 from £309pp, Christmas dates from £569pp or New Year Dates from £669pp".
The complainant challenged whether the savings claim in the promotion was misleading and could be substantiated.
Purple Holidays t/a Purple Travel did not respond to the ASA’s enquiries.
Icelolly Marketing Ltd t/a icepicks explained they operated as a holiday comparison website offering lead generation to third party online travel agents. They said that on 10 November 2016 they had asked Purple Travel to provide proposed holiday offers to promote on icepicks.icelolly.com for the period from 24th November 2016 to 7th December 2016. icepicks explained that Purple Travel provided them with a Deal Submission Form advising that they would like to promote the offer. They said having completed the offer verification process, they built the landing page on the website platform and this was sent to Purple Travel for approval. Purple Travel had thus advised icepicks that they wanted to promote a holiday offer (the subject of the complaint) with a reduced lead price of £239pp, showing a saving of 47% against an originally advertised price of £448pp. icepicks said the holiday had been previously promoted by Purple Travel on their own site at what they said was its normal selling price of £448pp for the two-week period of 10 November to 23 November 2016. Further, Purple Travel informed them that the exact holiday had not been advertised prior to 10 November 2016. Therefore, icepicks said, Purple Travel had seen and approved the advertising copy before it was posted on the website.
icepicks provided a number of invoices for several holidays that had been booked prior to 24 November 2016 and after 24 November 2016. They said Purple Travel had received 63 calls about the offer from 24 November to 7 December 2016. icepicks said, because the holiday offer was available at the higher price for two weeks immediately prior to the start of the promotion and was then promoted for the same period at the lower price, they believed the savings claim was not misleading.
They said that they had worked in partnership with West Yorkshire Trading Standards, since March 2014, and had been advised by Trading Standards after the ASA investigation commenced that they believed the offer was compliant with the best practice guidelines and the associated regulations. West Yorkshire Trading Standards said that the newly revised Guidance for Traders on Pricing Practices provided examples of price comparisons that may not be genuine, as well as examples of ads that were more likely to comply and those that were less likely to comply. They said in each of the examples provided in the guidance, they considered that icepicks had been able to show that the ad in question followed the good practice guidance, and therefore would be more likely to comply than not.
In addition West Yorkshire Trading Standards indicated that when they considered the ads which appeared on Facebook and the icepicks website, against the requirements of the Consumer Protection From Unfair Trading Regulations 2008 (CPRs) they believed the ads did not provide false or misleading information, which would cause the average consumer to take a different decision to which they would have taken otherwise, and did not mislead by failing to provide consumers with the information they needed to make an informed decision, for example by omitting or hiding material information, or providing it in a manner that was unclear or confusing.
The ASA was concerned by Purple Travel’s lack of response and apparent disregard for the Code, and ruled that they had breached CAP Code (Edition 12) rule 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquiries and told them to do so in the future.
We considered that the Facebook ad and the website listing concerned the same promotion. We acknowledged that Purple Travel had provided the advertising copy that appeared on the website and were generally responsible for website listings and the claims that appeared in them, whereas icepicks would be responsible for claims on their own Facebook page. We considered that in this case, however, both ads publicised a promotion for which both icepicks and Purple Travel were jointly responsible.
We considered consumers would understand from the Facebook ad that the price for the holiday represented a genuine saving of up to 47% off. We further considered that consumers would understand from the claim “Wide range of travel dates including Xmas & New Year” in the Facebook ad to mean the promotion concerned a 7-night holiday including transfers over a wide range of travel dates including over the December 2016 and January 2017 period, and that this holiday needed to be booked before 7 December 2016 in order to take advantage of the promotional offer. We noted that the ad stated “from £239pp”, which indicated some prices might be higher. Nevertheless, we considered that consumers were likely to understand from the references to Christmas and New Year that some holidays would be available for that price during that period. However, we understood that was not the case, and that the promotional price in fact related to selected dates in January. Other dates were being advertised at higher prices, up to £669pp for New Year dates. That would only become clear to consumers once they made the decision to enquire further by clicking through to the website.
We considered that consumers would understand from the website ad that a holiday covering “selected dates in January” had previously been available at the price of £448 and that this had been discounted by up to 47% and therefore that they would be able to purchase the holiday from £239 and that additional costs would be accounted for by optional extras. We therefore expected to see evidence demonstrating that £448 (per person) was a genuine reference price relating to the same specific “selected dates” which were being offered for £239 per person – and to see evidence demonstrating that the holidays could be bought for the lower price for those same dates.
We considered the evidence provided by icepicks. We expected the evidence to show that the holiday had been available at the higher price before the promotion and that significant sales had been made at that higher price or that it was a realistic selling price for the holiday. We noted that before the promotional period, Purple Travel had advertised a holiday at £448 per person for two weeks on their website, equivalent in time to the promotional sale period. However, the screenshot provided of the higher price advertised on Purple Travel’s website did not include any applicable travel dates. We were therefore unable to tell if the previous “was” price advertised related to the dates referenced in either of the ads. We were supplied a screenshot of two of the advertisers competitors’ offers, albeit for January 2018 rather than 2017. The first showed a comparable reference price of £459 per person which concerned dates starting 18 January, and the second showed the comparable reference price of £451 per person which concerned dates starting 15 January. The second screenshot also showed significant price fluctuations from one day to the next from £246 per person to £412 per person across the week in January. We considered this supported the conclusion that prices could vary significantly depending on travel dates. Given that the website ad and the competitor offers demonstrated that prices could vary significantly depending on travel dates, we considered the advertisers needed to show that the travel dates for the advertised higher “was” price and the promotional lower price were the same in order to demonstrate that the difference in price was due to a genuine promotional offer. The screenshot provided by icepicks had not done so.
We also considered the invoices provided. The ones relating to the pre-promotion period did not show that the holidays had been sold at £448. The first showed a holiday for two people had been purchased for two weeks in January 2017 for £751, or £375 each. We considered that in this case the same price had effectively been paid for a 14-night holiday that a consumer would have expected to have paid for the 7-night holiday. The second showed a holiday for two people had been purchased for one week in December 2016 for £860, or £430 each, which did not match the stated price. The final one showed a holiday for two people had been purchased for four nights in January 2017 for £573, or £286.50 each, including optional extras. We noted icepicks’ explanation for why the booking for 14 nights cost £450 was because they said the flights were considerably cheaper for the applicable dates, that is, £157 rather than £504 and £347 for the two other holidays sold. However, we had not seen any information which demonstrated the specific dates that the “£448” price related to, or the cost of the flights associated with that price, and therefore, again, could not determine whether the difference in price was genuinely due to a promotional offer.
Further, the invoices relating to the promotional period showed that more than the stated £239pp had been charged. The first showed that a holiday for two people had been purchased for one week in January 2017 for £262 each. The second showed a holiday for four people had been purchased for one week in January 2017 for £278 each.
We did not consider that the advertisers had either been able to sufficiently explain these discrepancies or had pointed to how the previous higher price or lower price for the holiday could have been achieved and therefore that they had not provided us with evidence that demonstrated that either the higher price or the promotional price was achievable.
We noted West Yorkshire Trading Standards’ view on the specific promotion in light of the Chartered Trading Standards Institute’s Guidance for Traders on Pricing Practices. The guidance made clear that adherence to its recommendations would not, of itself, ensure compliance with the regulations and that the circumstances of each particular case would always need to be considered, but set out a non-exhaustive list of issues that should be considered when determining whether or not a price reduction was genuine. Two relevant issues were “for how long was the product on sale at the higher price compared to the period for which the price comparison is made?” and “were significant sales made at the higher price prior to the price comparison being made or was there any reasonable expectation that consumers would purchase the product at the higher price?”. We noted that the promotion had run for as long as the period for which the higher price was advertised. However, we considered that the advertisers had not, in this instance, demonstrated that sales, or significant sales, had been made at the higher price or that the advertisers had demonstrated that there was any reasonable expectation that consumers had or could have purchased the product at the higher price. We considered this made the specific promotion less likely to comply with the guidance and, on balance, less likely to comply with the legislation it sought to reflect (the CPRs) overall. In this case, although the advertisers believed they had followed the recommendations of the guidance, they were not able to provide evidence to demonstrate that the same holiday had genuinely been on sale at the higher price, given the discrepancy in the dates (and the fluctuation of prices across different dates). Also, they had not demonstrated that there was a reasonable expectation that consumers would purchase the holiday at the specific dates for either the original price or the lower price, based on the invoices we had seen. The savings claims set out based on those prices were likely to affect consumers’ decisions about whether or not to purchase a holiday, and in the absence of evidence to demonstrate that they were genuine, we considered they were therefore likely to mislead.
Because the Facebook ad implied that the reference price and the savings claims applied to a wide range of travel dates including Christmas and New Year when that was not the case, and because we the evidence provided was not sufficient to substantiate the claims, we concluded that the “was” price and the associated savings claims in the promotion were misleading.
Ads (a) and (b) 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), 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).
The promotion must not appear again in the form complained of. We told Purple Travel and icepicks to ensure that they held adequate evidence to substantiate their promotional savings claims. We told icepicks to ensure their price statements and savings claims related to the product featured. We referred Purple Holidays non-response matter to CAP Compliance team.