Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A press ad for flights with Lufthansa, seen in late April and May 2013, stated "Europe one way from £59*. Book online. All inclusive, no hidden taxes". The asterisk linked to small print running vertically up the side of the ad which stated "Economy Class one-way fare to selected German destinations, including taxes, fees and charges. For other European destinations, please check the respective fares and conditions on lufthansa.com. Some payment methods are subject to a handling fee".
Issue
Easyjet challenged:
1. the availability of flights to Europe at the advertised price of £59; and
2. whether the ad was misleading because it did not state the departure and destination points and the travel period relevant to the quoted fare, which they considered was material information.
Response
1. Deutsche Lufthansa AG, trading as Lufthansa German Airlines, (Lufthansa) stated that £59 was a year-round fare available for travel to selected destinations in Germany, but which did not relate to a particular travel period or period of sale. Lufthansa provided a screenshot from their systems dating from 22 April 2013 which showed the combined availability of the fare on six routes between the UK and Germany for a period of 12 months. They said that showed that availabilities were widely above 10% in the long term and also when averaged across the entire 12-month period. They said in future they would change the claim to state "Germany from £59".
2. Lufthansa stated that the small print of the ad provided qualification to the effect that the £59 fare was available to selected German destinations, and referred to their website, which contained further information such as the departure and destination points for the featured £59 fare. They said the fare was valid year-round and was not linked to a promotion or selling period, so no travel period was stated in the ad.
Assessment
1. & 2. Upheld
The ASA noted that the availability data related to flights from the UK to some German destinations over the following 12 months. However, we considered that, because the ad stated "Europe one way from £59", consumers would expect the fare to be available for flights from the UK to a range of European countries, and that Lufthansa would therefore need to substantiate the claim by way of availability data relating to flights to multiple countries within Europe. Although we acknowledged that the claim was linked by an asterisk to small print which stated "Economy Class one-way fare to selected German destinations ...", we considered that that contradicted the impression given by the reference to "Europe" and that the headline claim should have referred to fares to Germany alone. We welcomed Lufthansa's assurance that the claim would be amended in that manner.
We noted that the data supplied by Lufthansa showed the combined availability of the £59 fare across six routes on a monthly basis, dating from the time when the ad had appeared. From July 2013 onwards, the fare had been available in quantities of over 10% (and in some months substantially more) of all reservable seats on the routes. However, the availability levels had been less than 10% in the preceding two months. We considered that many consumers would be interested in booking a low-cost fare for a last-minute break and, as such, would expect a reasonable level of availability of the £59 fare around the time the ad appeared. We were therefore concerned that the low availability of the fare during the first two months of the campaign was material information which should have been clearly stated in the ad.
We further noted that, because the data supplied by Lufthansa showed the combined availability of the fare across six routes, availability could have been extremely limited on some routes, but that would not be shown. Whilst we acknowledged that the ad did not state specific departure and destination points, we considered that consumers would expect a reasonable level of availability of the fare on all qualifying routes, and that to substantiate the claim Lufthansa therefore needed to provide evidence relating to the availability on each individual route.
We understood that Easyjet believed that the ad should have stated the travel period relevant to the £59 fare. However, such information would not need to be included in an ad unless its omission was likely to affect consumers' understanding of, and response to, the promoted fare. Because no travel period was stated, we considered that consumers would expect the £59 fare to be available at any time they saw the ad. Lufthansa had explained that the ad related to a year-round fare and therefore, were it not for our concerns regarding the availability evidence supplied (and particularly in relation to the first two months after the ad's appearance), we were satisfied that the omission of a stated travel period would not materially affect the consumer's response to the ad.
Easyjet had further commented that the ad should have stated the departure and destination points for the advertised fare. We considered that, whilst the omission of such information was not necessarily misleading, consumers seeing the ad as it stood would expect to be able to book tickets for £59 from and to airports in a variety of locations. As noted above, we considered that the headline claim should have referred to fares to Germany, rather than Europe, and that the small print was not an appropriate medium through which to clarify the country to which the advertised fare applied. However, having considered the availability data, we were satisfied that the fare was available to a reasonable distribution of German destinations and that a claim to offer fares to "Germany" (rather than "Europe") would be acceptable. We understood that the ad had appeared only in the national press within England and considered that the data supplied demonstrated availability of the fare for departures from a reasonable distribution of English airports. We therefore concluded that, although the omission of any specific stated departure and destination points was unlikely to have influenced consumers' response to the revised claim "Germany one way from £59", the availability data supplied had not been sufficient to support the claim "Europe ... from £59".
Because the claim stated "Europe ... from £59", but the availability data only related to flights to Germany and because we had not seen evidence that a sufficient proportion of seats had been available even on the qualifying routes, we concluded that the ad was misleading.
The ad breached 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.
(Material information),
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
3.22
3.22
Price claims such as "up to" and "from" must not exaggerate the availability or amount of benefits likely to be obtained by the consumer.
(Prices).
Action
The ad must not appear again in its current form. We told Lufthansa to ensure they held data demonstrating sufficient levels of availability for advertised fares on each qualifying route, and to make clear any significant travel periods for which availability was limited.
