Three holiday package listings seen on the Teletext Holidays website www.teletextholidays.co.uk, in February and April 2018:
a. A listing for a package to Tenerife stated "£278pp* incl. flight + hotel". Next to this text an icon, when hovered over, revealed text which stated "Hotel price correct at 09:44 on 31/01. Flight price correct at 11:29 on 01/02. Limited Availability - All prices and flight times shown are subject to change and accurate at the time posted - please call for the current live price".
b. A listing for a package to Costa Brava stated "£232pp* inc. flight & hotel".
c. A listing for a package to Benidorm stated "£158pp* incl. flight & hotel".
Three complainants, who had been unable to purchase the holidays at the listed prices, challenged whether the price claims were misleading and could be substantiated.
Truly Travel Ltd t/a Teletext Holidays said that they had made changes to their advertising following a previous ruling by the ASA, and believed their ads were in line with CAP guidance and complied with the Code. They had added text stating “Prices change regularly, please call now for the live price” underneath the deals on the website. They had also updated the wording that appeared in the information box to list the time of the last price updates for both the flight and accommodation elements of the package.
They stated that on the website front page, all prices were quoted as "from" prices. Once customers chose a destination, they were presented with a list of options, at the top of which was text stating “Limited availability. All prices and flight times shown are subject to change and accurate at the time posted. - please call for the current live price”. After selecting a specific package, they reached a third screen where the information about price updates and times appeared in an bubble when they hovered over the icon. Given the messages encountered on the customer journey, they considered that limited availability of the listed price should be sufficiently clear.
They stated that there would have been text stating “*Prices change regularly, please call now for the live price” above the price listings in ads (b) and (c) and provided an example. They said that ad (c) was seen in the mobile app, which would have included the disclaimer in an extremely prominent position.
Teletext Holidays said 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 4 hours.
They said that while they did not agree that the CAP Guidance required them to use “from” prices, it was always their intention to do so. All prices on their website were “from” prices with the following exceptions: 1. where, for example, an offer was “up to 30% off”, the price compared against could not by law be a “from price”, but must be the actual price previously charged; and 2. the eventual price that was quoted to a consumer who made an online enquiry to book, which was an actual price.
In addition, next to each price on the website was the option for consumers to report to Teletext Holidays any issues with offers. They also had an internal system whereby the sales agent, on any occasion when they were unable to match the website price, initiated a rapid process to investigate and remove the offer where necessary.
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.
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 provided evidence to show that the three packages had been sold at the prices advertised.
Upheld in part
The ASA considered that consumers would understand the ad to mean they would be able to purchase the flight and hotel packages at the specific prices listed in each ad, at the time they saw it. 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 where stated prices were subject to change and had limited availability, they should be described as “from” prices. In order to avoid misleading consumers a prominent statement indicating that prices were subject to change and had limited availability should be included. Advertisers should also make clear that availability was indicative of the last price update and when that had taken place.
The price in ad (a) was not presented as a “from” price. We noted that it included a box which listed the times at which the flight and accommodation elements were last updated. It also included text stating “Limited Availability - All prices and flight times shown are subject to change and accurate at the time posted - please call for the current live price”. However, consumers needed to hover over the small “i” icon in order to view the information. While we considered it was acceptable to display the specific price update information in this way, the information provided regarding the limited availability of the listed price was insufficiently prominent to manage consumers’ expectation that they would be able to purchase the package at £278 per person.
In relation to ads (b) and (c), we noted Teletext Holidays’ assertion that the full page listing would have also included the statement “*Prices change regularly, please call now for the live price”. However, we considered that the information was insufficiently prominent to manage consumers’ expectationthat they would be able to obtain the packages at the listed prices. Furthermore, the prices were not presented as “from” prices, and there was no information regarding the time of the last price update. We considered consumers were likely to understand that the packages were available to purchase at £232 and £158 per person respectively.
We acknowledged that prices were listed as "from" prices on the front page of the website, however, this referred more generally to all packages for a particular destination, and was unlikely to convey to consumers that the individual package price they had selected would also be a "from" price. The next stage of the customer journey featured small text stating “Limited availability. All prices and flight times shown are subject to change and accurate at the time posted. - please call for the current live price” above a list of package options. Further information was included in small print at the foot of the page. However, in the absence of sufficiently prominent statements in proximity to the package prices themselves, we considered that this information was insufficient to resolve the issue, particularly as the prices were not listed as "from" prices.
Because we considered consumers would understand the packages were available to purchase at the listed prices and there was no prominent information which managed the expectation that those prices were achievable if website visitors called to request a current live price, we concluded that the ads were likely to mislead consumers.
Notwithstanding that we considered the presentation of the price was misleading. We also looked at whether Teletext Holidays had substantiated that the holidays had been available for purchase at the listed prices at the point of the most recent update, and whether they had taken adequate action to withdraw the ad once those prices were 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 holidays were available to purchase at the prices listed at the times the three different packages were seen.
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. Furthermore, Teletext Holidays provided invoices showing that each of the holidays had been sold at the prices listed on the same days that the listings were seen. On that basis we considered that we had seen substantiation to demonstrate that the prices were accurate and achievable when they had last been updated.
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 understood that Teletext Holidays had engaged in a rapid removal process when they became aware that prices were no longer available. We considered that the steps taken by Teletext Holidays to withdraw the advertised price when they became aware that they were no longer available was sufficient.
However, for the reasons outlined above, we nonetheless considered that the ads were misleading and breached the Code.
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), 3.17 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) 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 ads must not appear again in the forms complained about. We told Truly Travel Ltd t/a Teletext Holidays to ensure that, where holiday prices were subject to change and had limited availability, that was made clear in a prominent statement, and that the date of the last update was also made clear. They should also ensure that such prices were described as “from” prices.