A brochure for Trailfinders Australia and Pacific 2021 – 2022 holidays, seen on 24 February 2022, contained text under individual holidays which stated, “Trailfinders Offers – 3rd night free – free room upgrade”. Further on in the brochure, on page 208, text stated “Due to the complexity, dynamism and varied restrictions that apply to special offers, we only give a general indication of available offers. Please call for full details”. On page 213, text stated, “Special offers can be withdrawn or amended at any time”.
IssueThe complainant, who chose a holiday on the basis of the offers but was told they were not available on the chosen dates, challenged whether the ad was misleading.
Trailfinders Ltd said the brochure was printed on 12 October 2020 and was distributed from 5 November 2020. It had not been known at the time of printing that the time that would follow would be one of extremely limited travel opportunities to Australia due to the Covid-19 pandemic.
They said offers would have been available for specific dates and were usually valid for a limited number of rooms only. They supplied the dates for which the “3rd night free” and “free room upgrade” offers were valid for the holiday the complainant was interested in. The offers were mutually exclusive.
They said special offers in the brochure were a general indication only of what was available at the time of going to press and were subject to the complex and dynamic nature of pricing in the travel industry. Offers could be removed by a hotel at any time and were usually linked to a fixed number of rooms; when they were sold, the offer would no longer be guaranteed.
A price in the brochure was flagged as a “Guide Price” with the instruction to “Call for latest price and offers”. These points were covered in the terms and conditions printed in the same brochure.
The ASA considered consumers seeing the ad would expect to receive the “3rd night free” and “free room upgrade” offers if they booked the holiday advertised (unless the hotel was fully booked on the requested dates or did not have rooms to upgrade to, as would always be the case when booking a hotel room). We acknowledged that the price was flagged on that page as “GUIDE PRICE” with the instruction to “Call for latest price & offers”. However, while that was likely to be interpreted by consumers to mean that a brochure price might be subject to change and that other offers might become available, we considered consumers were unlikely to understand it to mean that restrictions and exclusions applied to the offers listed against the holiday. There was therefore no indication on the holiday page that the offers were restricted, both in terms of certain dates being excluded and the offers being mutually exclusive.
We acknowledged that the terms and conditions at the back of the brochure explained that special offers were subject to change and availability. However, we noted that there was no mention of the terms and conditions on the holiday page and considered they were, therefore, not sufficient to counter the impression that there were no limitations on the “3rd night free” and “free room upgrade” offers for that hotel. Furthermore, even if that information had appeared on the holiday page, we considered it did not explain sufficiently clearly the significant information that the offers would only ever be available for certain holiday dates; that they were limited in number; and that the two offers listed were not available together.
Because the ad did not make it sufficiently clear that the offers were subject to restrictions and did not include significant information about the restrictions, we concluded that it was misleading.
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) and 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. and 3.10 3.10 Qualifications must be presented clearly.
CAP has published Advertising Guidance on Misleading advertising: use of qualifications. (Qualification).
The ad must not appear again in the form complained of. We told Trailfinders Ltd to ensure that ads made it sufficiently clear if offers were subject to restrictions and included significant information about the restrictions.