Ad description
A poster for a train operator, seen on 19 October, stated "IT'S CHEAPER BY TRAIN THAN BY PLANE THIS AUTUMN ... We checked and 79% of flights had a cheaper East Coast train alternative". The small print stated "2,643 flights were checked on 24 August 2011, for flights from Edinburgh to London. 2,095 of these flights (79.3%) had a cheaper rail alternative arriving into London King's Cross within 1 hour of the flights scheduled arrival time. Travel dates checked were from Thursday 25 August to Friday 11 November 2011 inclusive. The following dates were excluded due to the rail timetable not being finalised: Sat/Sun 29-30 October, Sat/Sun 5-6 November 2011. All London airports and applicable airlines are in included in the comparison".
Issue
easyJet Airline Company Ltd challenged whether the basis of the comparison, which included all flights from all airlines rather than the cheapest available flight option, meant that the claim "IT'S CHEAPER BY TRAIN THAN BY PLANE THIS AUTUMN ... We checked and 79% of flights had a cheaper East Coast train alternative" was likely to mislead consumers about the comparative cost of train and air travel from Edinburgh to London.
Response
East Coast Main Line Company Ltd (East Coast) said the ad formed part of a campaign that ran from September to December 2011 and included outdoor posters, taxi body wraps, press advertisements, digital advertisements and leaflets. They explained that the claim "We checked and 79% of flights had a cheaper East Coast train alternative" was based on the results of a fares comparison exercise that used a price comparison tool to compare airline and train fares for journeys from Edinburgh to London. They stated that the tool searched all the available flights that could be found on 24 August 2011 for travel between one and 84 days from the day of the search. They said it searched across an extensive range of websites including generic booking sites and operators' own sites and returned the cheapest fare for each flight and each rail service available on the internet at that time. They said the results returned only live fares and therefore represented the pricing and availability at the time the search was done.
They said customers’ online searching habits would vary dramatically but that it was more likely that a customer's starting point when considering a journey from Edinburgh to London would be air travel, because the majority of customers who travelled from Edinburgh to London chose to fly, and that the fares comparison exercise had therefore selected flights as the starting point. They stated that they looked at each flight returned by the search, took the cheapest price available on that flight and compared this with the cheapest train fare available within the same arrival window, which the ad explained was designated as within one hour of the flight arrival time. They stated that the fares comparison only looked at the advertised flight fare which included taxes but excluded all other charges, such as baggage charges, handling fees or payment card options. They provided the raw data, which included all the flights and all the rail fares included in the search, which they believed demonstrated that, from the total of 2,643 flights, 2,095 had a cheaper rail alternative, which equated to 79.3%.
East Coast said the 21% of flights that did not have a cheaper East Coast rail alternative was made up of flights from all airlines. They believed it was valid to class all airlines into one block, because they were comparing their prices with the prices of all air travel alternatives, not one specific airline. They stated that the price comparisons were done on a like-for-like basis across all parameters; including class of travel, time of booking and time of travel and that no flights had been excluded from the comparison, other than those for which there was no train arriving within the relevant two-hour window. They said certain dates had been excluded because the rail timetable had not been completed for those dates, but they pointed out that this was explained in the small print. They believed they had made a perfectly valid comparison and that the basis of that comparison had been made clear by the claim "We checked and 79% of flights to London had a cheaper East Coast rail alternative" and the small print text.
Assessment
Upheld
The ASA considered that there were only a small number of airlines that ran services between Edinburgh and London and we therefore considered that, although it had not directly referred to those airlines, the ad made a comparison with identifiable competitors. We understood easyJet's concern that, by comparing East Coast's fares against those of all flights from all airlines and presenting a figure that represented the proportion of all flights that had a cheaper rail alternative, the ad gave a distorted impression of the number of occasions on which a consumer who wished to arrive in London at a certain time would be able to find a flight that was cheaper than the East Coast train fare. Although we understood that the comparison, which looked at every flight from every airline that arrived in London within an hour of an East Coast train, may not reflect the habits of consumers who compared rail and flight options based on price alone (because those consumers would only compare the cheapest rail fare with the cheapest flight option, not with all flight options), we considered that the claim "We checked and 79% of flights had a cheaper East Coast train alternative" and the small print text made the nature of the comparison clear.
We noted that the information used for both train and air fares was for the cheapest standard class fares, that the air fares had not included any charges other than the ticket price and mandatory taxes and that they included both peak and off-peak travel. We understood that dynamic pricing models meant the price of an air fare may be more heavily influenced by the level of advanced booking than rail fares, but we considered that the comparison, which included arrivals in London between one and 84 days from the search date, took suitable account of the prices both for short notice and advanced purchase fares. However, we understood that the data did not include flights available from one airline that offered regular services from Edinburgh to London. We received additional data for a different travel period that provided a price comparison with the airline that had been inadvertently excluded from the original search. However, we considered that its omission from the original search meant that the small print text "All London airports and applicable airlines are included in the comparison" incorrectly stated the basis of the comparison. Because the comparison had not included all of the relevant data, we considered that it was not possible to verify whether the claim "We checked and 79% of flights had a cheaper East Coast train alternative" was accurate and we therefore concluded that it was likely to mislead consumers.
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),
3.7
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),
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration),
3.33
3.33
Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
(Comparisons with identifiable competitors) and
3.39
3.39
Marketing communications that include a price comparison must make the basis of the comparison clear.
CAP has published a Help Note on Retailers' Price Comparisons and a Help Note on Lowest Price Claims and Price Promises.
(Price comparisons).
Action
The ad must not appear again in its current form. We told East Coast to ensure all relevant data was included in future price comparisons.
