Two national press ads for Mercury Holidays, which promoted holiday deals, seen in June 2018:
a. The first ad featured text which stated “A week 4* Half Board with a 2nd week FREE from £359”. The ad featured a table which showed the “from” prices of different durations between September to May. Smaller text in the ad stated “*From’ price applies to departures 01-10/05/19. 2nd FREE applies to arrivals 15/09/18-13/10/08 & 01/04/19-20/06/19. Bold text stated “Please note availability is limited for our lead-in ‘from’ prices. Prices were accurately costed on 05/06/18 & are subject to change since going to print due to airline availability”.
b. Text in the ad stated “2 weeks Half Board with 3rd week free from £329*”. The ad featured a table headed “2018/19 DATES & PRICES - OTHER DEPATURES AVAILABLE UNTIL AUGUST 19”. The table showed the “from” prices of different durations between June to February. Smaller text in the ad stated “*From’ price applies to departures 01-10/12/18. Bold text stated “Please note availability is limited for our lead-in ‘from’ prices. Prices were accurately costed on 05/06/18 & are subject to change since going to print due to airline availability”.
IssueTwo complainants, who were unable to find holidays at the advertised from prices, challenged whether the ads were misleading and could be substantiated.
Sunspot Tours t/a Mercury Holiday provided a copy of their flight inventory which they said showed the cost and availability of flights. They explained that the flights were based on low cost airlines which changed daily. They said that they kept screenshots of flight prices and availability at the time of the ad going to press.
Mercury Holidays said that they had a contract with the room rates, supplements and special offers with the hotel. They argued that due to the margins constantly changing, sometimes on a short term basis, there was no way of showing what was on the system at the time the ad appeared except from screenshots of the total package. They provided a copy of the hotel inventory and an invoice for a three week holiday in January for £395.33 per person including £44 for luggage. They also provided a holiday search which showed that a three week holiday was available for £339.39 per person in December 2018.
Mercury Holidays in relation to ad (a) there were 30 flights available at the lead in price. 10 of those flights were between 01/05/2019 to 15/05/2019. They said that there were total of 80 flights available during that period. In relation to ad (b), they said that 22% of flights were available at the lead in price for December 2018. They said that those flights were split in the first week of December due to the Christmas holidays. They also said that it was difficult to determine the exact number of flights available due to their arrangement with low cost airlines. They also provided a copy of a cache search which showed that there were holidays priced at £329 in December 2018 for a three week duration.
Mercury Holidays said that they sent out all ads on a Wednesday/Thursday for that weekend and that all prices were run a day before the ad was due for press to ensure that they took their publication lead time into account. They said that they also included the dating of costing in the terms and conditions in the ad. Mercury Holidays said that there was a supplement charge for single travellers which was made clear by the text “per person, based on 2 adults sharing”. They also highlighted the disclaimer at the bottom of the ad which advised that “from” were subject to limited availability, to change and accurate at the date of print.
The ASA noted that ad (a) included the headline claim “A week 4* Half Board with a 2nd week FREE from £359*”. Below the headline was a table which featured different dates, prices and holiday durations. The month of May was highlighted with the price “£359”. In the second week column, the price stated “FREE”. Ad (b) included the headline claim, “2 weeks Half Board with 3rd week FREE from £329*”. The month of December was highlighted with the price of £329 under the two week column. In the three week column, the price stated “FREE”.
We considered that consumers would interpret ad (a) to mean that they could purchase a two week holiday across a number of different dates in May 2019 for £359 and ad (b) to mean that they could purchase a three week holiday across a number of different dates in December 2018 for £329. We also considered that consumers were generally aware that holiday pricing was fluid and that the price of a specific holiday could fluctuate over time, sometimes within the space of a day or less, based on a number of factors. The flight inventory for ad (a) showed a range of flights departing in May 2019 and the number of seats available at a specific price. The flights’ prices ranged from £1 to £140.
We acknowledged that 30 seats out of a total of 80 were available at the lead in price and those 30 seats were split across 5 dates in May. However, we considered that seats at the lead in price should have been spread evenly across the advertised travel period of May 2019. The hotel inventory for ad (a) showed a total of 600 one bedroom apartments, 450 single studios and 150 studios available between 1st May and 31st May 2019.
We understood that Mercury Holidays had a fixed rate contract with its accommodation suppliers in relation to pricing of rooms. On that basis, we were satisfied that the quantity of accommodation (in excess of 1000 rooms) and the fixed prices of the rooms was adequate. In relation to ad (b) Mercury Holidays argued that the flights were based on low cost airlines which changed daily meaning that they could not retain evidence in relation to flight prices and availability. We acknowledged that travel advertisers working with third party content were unlikely to be able to monitor real time availability of flights, meaning fares or rates may not have been available at the stated price by the time consumers attempted to make a purchase. However, we considered that advertisers should hold evidence to prove that the price in question was available to consumers at the time the ad appeared, and in reasonable quantities.
The hotel inventory for ad (b) showed the number of different rooms available during January 2019. However, we considered that pricing information was required in order to assess the overall proportion of flights available at the ‘from’ price. While we acknowledged that Mercury Holidays had provided a copy of a holiday search at the time the ad appeared, we noted that the total price for each holiday was £339.39 which was more than the ‘from’ price of £329 stated in the ad for December 2018.
Mercury Holidays also provided a copy of a cache search based on a mixture of live prices which showed that three week holidays in December 2018 were priced at £329. However, we considered that information did not demonstrate that price in question was available to consumers in reasonable quantities at the time the ad appeared. Finally, we acknowledged that the all the prices in both ads had been described as “from”. However, we noted that information about the limited availability was placed at the bottom of the ad in smaller text. We considered that the position and size of the text was such that it was likely to have been overlooked by consumers. Because we had not seen evidence to demonstrate that a reasonable quantity of holidays were available at the advertised "from" price at the time the ad appeared and because the ad did not make sufficiently clear that the “from” price was subject to change and had limited availability we concluded that the ad was misleading. The ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 3.22 (Prices).
The ads must not appear again in their current form. We told Sunspot Tours not to use “from” prices if they were unable to demonstrate that the price in question was available to consumers at the time the ad appeared, in reasonable quantities and spread evenly across the advertised travel period. We also told them to ensure that, where holiday prices were subject to change and had limited availability that was made clear in a prominent statement.