A website for Truly Travel, www.teletextholidays.co.uk, seen on 9 March 2017, included text which stated "£377*pp incl. flight & hotel". Next to this text an icon, when hovered over, revealed text which stated "Prices correct at 09/03 - 17.33 pm All prices shown are accurate at the time period posted - please call for the current live price".
The complainant, who was unable to purchase the holiday at the advertised price, challenged whether the price claim was misleading and could be substantiated.
Truly Travel Ltd t/a Teletext Holidays said they did not set the prices on their website; they were the prices charged by airlines and accommodation providers. The price was qualified by text which stated when it was last updated and that the price was accurate at that time, but that a telephone call was needed to establish the current live price. The accommodation prices were automatically updated at approximately 5 am every day by a cache imported directly into their system. The flight prices were updated by an automated system approximately every four hours.
Teletext Holidays said it had been their intention for prices to be displayed as “from” prices and they were not sure why the complainant had not been served “from” prices.
They said the complainant had called to purchase the holiday at about 2 pm on 9 March. The sales agent noted that the accommodation element of the price was no longer available. Teletext Holidays explained that they had an internal system whereby, if a sales agent was unable to match the website price, they initiated a process to investigate and quickly remove the offer where necessary. The sales agent therefore initiated that process and once completed, they removed the price until the next automatic (and accurate) accommodation price update at 5 am the next day.
Teletext Holidays said they offered approximately 100 billion holiday combinations at any given time (taking into account the possible permutations of dates, flights, hotels etc.), and as a result the removal process was not simple. There were many different flights from many different departure airports on a variety of different dates which may have been invalidated by the unavailability of the accommodation at that price. They said in simple cases the removal could be completed in two hours, but could take longer; it took three and a half hours to remove the price seen by the complainant. They said the flight price had remained accurate when flights were updated at 5.33 pm, but by that time they had not yet removed the whole price. As a result, when the complainant had looked at the ad again on the evening of 9 March it still stated that the price for the holiday package was £377 per person.
Teletext Holidays said they were aware that the CAP Code required them to keep evidence of the accuracy of marketing claims, including prices. However, they said given the 100 billion combinations, and the fact they were updated several times a day by airlines and every day by accommodation providers, they could not keep an audit trail for a long period of time. They believed it would take quite extraordinary computer functionality to keep all that information for months or longer.
They provided an explanation of their flight and accommodation data system from their data processing provider Tecnologia Turistica Sistemas y Servicios SL (TTSS), which provided such data to the websites of a number of travel providers. TTSS said they collated both flight data and accommodation data. Their accommodation data cache was updated daily, whereas flight data was in some cases updated more frequently.
TTSS said they processed approximately one billion accommodation records and 410 million flight records daily. TTSS said that it was not possible to serve the hundreds of thousands of daily visitors using “live” availability across multiple airlines, bed banks and hotels within a reasonable period. They said by using cache technology a visitor could see results within seconds whereas using live technology a visitor may not see results for 30 to 60 seconds and even then, a live connection could time out (producing no results or partial results). They said visitors expected to see results within five seconds and if web pages took longer to load were more likely to abandon their search.
They further explained that if a customer was presented a particular price it was possible that other people could be looking at the offer at the same time. If any of them clicked to book the holiday a fraction of a second faster, the last few seats could already be taken by the time the first customer clicked to book. They said using live technology could flood suppliers’ own server infrastructure, and even on an airline’s own website which allowed for live availability it was possible to run into that situation, which could result in the price increasing for the customer or no more seats remaining.
TTSS said it was not feasible to substantiate any specific price stated in an ad, given the vast amount of ever-changing data. However, they said that because data was transferred directly to them from the providers of the different elements of the holiday, and from them on to the travel company, the price shown by the travel company would have been the up-to-date price at the time it was uploaded.
Teletext Holidays also provided confirmation from the bed bank which sold the accommodation for the advertised holiday that their pricing information was updated daily and provided, via TTSS, to Teletext Holidays normally once a day. They said that the price supplied and updated to the TTSS system on the morning of 9 March was therefore accurate at that time, even though it had become inaccurate later that day.
Finally, Teletext said they intended to make changes to their website.
The ASA considered that consumers would understand the ad to mean they would be able to purchase the flight and hotel package for £377 per person, and that price was accurate at 5.33 pm that day, if they called at that time. We 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. We considered that because the ad specified the time the prices were updated, it was likely to have given consumers the impression that the price for the package had been updated at 5.33 pm and, further, that prices were accurately and frequently updated.
We acknowledged the advertiser’s explanation that the price removal process was not simple and that the flight price had remained accurate when flights were updated at 5.33 pm, but by that time it had not yet been possible to remove the whole price. However, we considered that because there was no qualification or other contextual or explanatory information to manage consumers’ expectations and inform them that it was only the flight price and not the lead package price which had been updated at 5.33 pm, the price presentation was likely to mislead.
We considered that where stated prices were subject to change and had limited availability, they should be described as “from” prices and a prominent statement indicating that prices were subject to change and had limited availability should be included in order to manage consumers’ expectations. We noted the price stated in the ad was not presented as a “from” price and it did not make clear that prices were subject to change and had limited availability.
Because we considered consumers would understand the package price had been updated at 5.33 pm and there was no information which managed the impression that this price was achievable if website visitors called to request a current live price, we concluded that the ad was likely to mislead consumers.
Notwithstanding that we considered the presentation of the price was misleading, we also considered whether Teletext Holidays had substantiated that the holiday had been available for purchase at £377 per person, and whether they had taken adequate action to withdraw the ad once that price was no longer available.
We acknowledged the advertiser’s explanation that it was not feasible to retain pricing data months after a particular price was advertised to a consumer. However, we considered that in the absence of such documentary evidence, the advertiser must provide alternative substantiation adequate to demonstrate that the holiday was available for purchase at £377 per person on 9 March.
We understood that due to the systems involved in updating prices on Teletext Holiday’s website, the prices provided by flight and accommodation providers to Teletext Holidays via TTSS were up-to-date, accurate and available at the time they were provided. On that basis we considered that the assurance Teletext Holidays provided to us from the relevant bed bank was adequate substantiation to demonstrate that the price was accurate and achievable when it had initially been updated earlier in the day.
We noted the CAP guidance stated travel advertisers working with third party content were unlikely to be able to monitor real time availability of flights or accommodation, meaning fares or rates may not have been available at the stated price by the time consumers attempted to make a purchase. We considered that by undertaking systematic daily price updates Teletext had met the requirements for monitoring stocks when promoting third-party holiday packages in their space. We further noted that Teletext Holidays had engaged in a rapid removal process when they became aware that the price was no longer available. We considered that the steps taken by Teletext Holidays to withdraw the advertised price when they became aware that it was no longer available was sufficient.
The ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading Advertising), 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Prices) and 3.28 3.28 Marketing communications that quote a price for a featured product must state any reasonable grounds the marketer has for believing that it might not be able to supply the advertised (or an equivalent) product at the advertised price within a reasonable period and in reasonable quantities. In particular: (Availability).
We also investigated the ad under 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) and 3.29 3.29 Marketers must monitor stocks. If a product becomes unavailable, marketers must, whenever possible, withdraw or amend marketing communications that feature that product. (Availability), but did not find it in breach.
The ad must not appear again in the form complained of. We told Teletext Holidays to ensure that where they stated a specific time that a price had been updated, that should relate to the updated price of the advertised holiday package as a whole, or alternatively that the ad should specifically state the times at which prices of the component parts of the holiday package had been updated.
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, and that such prices were described as “from” prices.