The website for First Choice, seen in January 2011, included an entry for Tropicana Sea Beach Splash Resort, Sharm El Sheikh. Text stated "How do you go about improving on a hotel that's already got huge bedrooms with air-con and satellite TVs? How do you get better than being seconds from the beach? Answer - you build a waterpark next door and then give guests unlimited access to it. It's exactly what they've done at the Tropicana Sea Beach, where you'll now find all sorts of slides and chutes that rack up full marks on our Splash-O-Meter. In terms of white knuckles, get ready for speed and bowl slides, a twister, black hole and the fearsome Sting Ray. And on a calmer note, you're looking at a family slide, wave pool and lazy river, as well as an area just for kids".
The complainant, who had booked a holiday at the resort and subsequently found that the waterpark was not yet completed, challenged whether the ad was misleading.
First Choice said the waterpark should have been completed in time for the first summer 2011 holidays and so they believed the phrase "you build a waterpark next door ..." was accurate at the time of going to print. They said it had been unforeseeable, however, that civil unrest in Egypt early in the year would delay delivery of building supplies and the construction work. They said that when a holiday was going to be affected by, for example, major building works, the ABTA Code of Conduct required them to continue with a customer's holiday, cancel and refund it, or transfer it. They said those three options would have had been offered to the complainant. For customers booking holidays, they said their website and retail booking systems warned before a transactional decision was made that the waterpark was unavailable. They believed it was standard practice in the travel industry to advertise hotels or hotel features that were in the process of being built if they were expected to be ready for the period they were advertised for. They supplied a page from the hotel's own website which showed the slides as already available for use.
The ASA noted that the waterpark was advertised with the expectation that it would be complete in time for the first holidays of the season but, because of circumstances that arose subsequently, that turned out not to be the case. We also noted the system First Choice had put in place to warn customers when booking holidays that the waterpark would not be available until a certain date. We noted, however, that the complainant, who had booked her holiday before the issues that delayed construction had arisen, would not have received that warning at the time of booking. We considered the ad the complainant had seen, which featured photographs of what appeared to be the waterpark in operation at the hotel and which gave no indication that it was under construction for summer 2011, gave the impression that the waterpark was already up and running. We accepted that First Choice would not have been able to foresee the events that led to the delays in construction but noted that the ad did not correct the impression (by stating, for example, that it was under construction for summer 2011 or that the photographs were of similar facilities elsewhere) that the waterpark was not already up and running. Because we considered the ad suggested the waterpark was already up and running when that was not the case, we concluded that the ad 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 3.7 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).
The ad must not appear again in its current form. We told First Choice to ensure that their ads did not suggest that facilities were already complete and in operation if that was not the case.