Ad description
A search listing for a package holiday in December 2017, seen on www.tui.co.uk in March 2017, stated "787 Dreamliner".
Issue
The complainant, who said that the website indicated he would be flying on a Dreamliner aircraft throughout the booking process but whose return flight was on a different type of plane, challenged whether the ad was misleading.
Response
TUI UK Ltd (TUI) stated that there were many elements to a package holiday, and all of these elements had the potential to change due to unforeseen circumstances, though the risk of such changes occurring was minimal. On rare occasions, changes of aircraft took place due to circumstances outside their control. In the instances where this did happen, TUI notified customers as soon as they became aware of the situation. They stated that the complainant’s flight was changed at the last minute due to operational reasons and this was communicated to all affected passengers in a letter prior to departure. Their package terms and conditions stated, “Occasionally it may be necessary to change the aircraft type for your flight which may mean that some facilities such as in-flight entertainment or the advertised seat pitch may not be available”.
TUI stated that between November 2016 and October 2017, 2.1% of Dreamliner flights were changed due to unforeseen circumstances. They considered that this was a very small percentage and as such no further qualification was necessary in their ads regarding the availability of Dreamliner flights, whether on the destination pages, accommodation pages or flight pages. TUI believed that due to the relative rarity of flight changes, any additional qualification would be disproportionate and misleading to customers.
Assessment
Not upheld
The ASA noted that there were references to the Dreamliner throughout the booking process for an individual long-haul package holiday, and we considered that consumers would understand that their flights would be on a Dreamliner aircraft. However, we considered that consumers would reasonably understand that there was always a possibility that the aircraft might have to be changed at the last minute due to circumstances beyond the control of the holiday package provider, such as health and safety concerns. We noted that information to this effect was provided in the package terms and conditions and on the website FAQs. We noted that in the year prior to the complainant’s holiday, only 2.1% of Dreamliner flights had been changed due to unforeseen circumstances, and we considered that this was a very low percentage. We also noted that customers were not charged an additional supplement to fly on the Dreamliner. While we acknowledged that those occasions when a Dreamliner was not available could result in customer disappointment, given the very low incidence of such occasions, and the fact that they only occurred in circumstances that were beyond TUI’s control, we concluded that the ad was unlikely to materially mislead consumers.
We investigated the ad under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
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.
(Qualification), but did not find it in breach.
Action
No further action required.
