Background
Summary of Council decision:
Five issues were investigated, of which three were Upheld and two were Not upheld.
Ad description
The website www.flightcentre.co.uk, which promoted a travel agent, made several claims about their pricing policies.
In the left-hand margin of the home page, text stated "How do I find the cheapest flights with the best airline? At Flight Centre we have access to a wide range of cheap flights at great prices ... With our Fly For Free Promise, if we can't find you a cheaper airfare in the same cabin you'll fly for free!1". A text box below was headed "Why book with us?" and displayed an image of a luggage tag bearing the text "FLY FOR FREE!". Smaller print within the tag was not legible. Text below stated "... Guaranteed cheapest scheduled airfares* ...". A click-through link labelled "Find out more" took the consumer to a page entitled "Why Book with us?"
A page entitled "Fly for Free", which was accessible from several parts of the website including the "Why Book with us?" page, stated in bold "If we can't find you a cheaper airfare in the same cabin†, you'll fly for free!1". The same claim was repeated in an image of a luggage tag beside the text. Further text stated "Why Book Anywhere Else? Our Fly for Free Promise is more than a marketing promise; it's our promise to you our valued customer.
As part of our Fly for Free^ Promise, if we can't find you a cheaper airfare in the same cabin†, you'll fly for free! Subject to availability, and offered for travel departing from the UK.
How it Works ...
1) You find a scheduled* airlines[sic] airfare that is available to the UK general public from another UK high street travel agent, on-line travel agent or call centre#.
2) Visit a Flight Centre store or call a Flight Centre travel consultant on the same day you receive the quote.
3) Show the Flight Centre travel consultant dated & printed confirmation of the airfare quote.
4) If Flight Centre is able to confirm that the airfare is still available to be booked in the same cabin† as per our competitors[sic] quoted itinerary, and we can't beat it, we'll give you the flight for free.
5) Full payment is required on the same day that Flight Centre is able to confirm that the airfare is still available in the same cabin† as per our competitors[sic] quoted itinerary.
6) If you wish to book with Flight Centre or require further information about Fly For Free, visit your nearest store or call [xxxxxxxxxxx]."
Smaller print stated "*Applies to scheduled airlines only and not Charter or Low Cost airlines (charter and low cost examples include easyjet, ryanair, flybe, aer lingus and monarch), for travel originating from the UK. #UK high street travel agent, on-line travel agent or call centre and is registered and licensed to sell travel in the UK and quoting in Pounds Sterling (GBP). †Cabin - a definition. Individual seats or groups of seats within each cabin i.e. economy, premium economy, business and first class. 1Fly for Free will be honored[sic] if there are seats or group[sic] of seats still available to be booked in the same cabin as per the itinerary contained on the competitor's quote".
Issue
The complainant challenged whether the claims "Fly For Free Promise" and "Fly for Free - If we can't find you a cheaper airfare in the same cabin†, you'll fly for free!1" were misleading and could be substantiated, because:
1. he understood that it was impossible to obtain a free flight, because Flight Centre's policy was to beat any quote presented;
2. he also understood that it was impossible to obtain a free flight, because Flight Centre required consumers to make full payment to the competitor airline before they would beat the quote;
3. he considered that the conditions of the price promise omitted material information relating to the timeframe within which Flight Centre would respond to quotes submitted under the promise; and
4. the price promise had not been honoured when he presented a competitor's lower price.
5. He also challenged whether the claim "Guaranteed cheapest scheduled airfares*" was misleading and could be substantiated, because he understood it was based only on Flight Centre's policy of beating any lower quotes presented to it.
Response
1. Flight Centre (UK) Ltd (Flight Centre) said their "Fly For Free" promise was a guarantee to their customers that if they were able to find a cheaper airfare elsewhere, Flight Centre would beat it. They stated that in many instances their prices were already below those of their competitors, and therefore it would not be necessary for their customers to make use of the promise. However, on some occasions they might not offer the lowest airfares in the market and so would beat a competitor's price presented to them under the guarantee. They stated that if they were unable to do that the customer would be awarded the flights for free. They explained that there was no central system for storing information about all applications made under the "Fly For Free" promise, so they did not have access to evidence of free flights having been awarded as a result of the policy around the time of the complainant's experience. However, they provided details of several free flights which had been awarded by their head office in 2010 and early 2011. The reasons they noted for having given free flights included consultant error in stating that flights were unavailable when they could still be booked on the competitor's website, and matching rather than beating the competitor quote provided.
2. Flight Centre noted that the terms and conditions for their "Fly For Free" promise stated "Full payment is required on the same day that Flight Centre is able to confirm that the airfare is still available in the same cabin as per our competitors[sic] quoted itinerary". They said that referred to the requirement that the customer pay Flight Centre on the same day that they were able to verify the competitor quote presented, rather than meaning that it was necessary to book the competitor's flights before making an application under the Fly For Free promise.
3. Flight Centre stated that, although they asked their customers to present them with the relevant competitor quote on the same day it was received, there was no obligation on their part to confirm to the customer within that same day what action they would take in response. They said in most cases they would beat the price and finalise the flight details on the same day that the competitor’s quote was provided. However, that was not always possible because of their opening hours and those of an airline. They said that where it was not possible to complete the transaction on the same day, the delay was not usually longer than 24 hours. Flight Centre provided e-mail correspondence between a consultant and a customer as evidence that the booking was discussed and completed over the course of one day.
4. Flight Centre noted that the complainant had entered into correspondence with their company and had been provided an initial quote for a round trip from London to Los Angeles on 21 October 2012; on 22 October he had been in frequent contact by e-mail with one particular staff member regarding the possibility of obtaining cheaper flights. Over the course of that day, he had provided two competitor quotes eligible for consideration under the price promise; the staff member had beaten the price of the flights shown in the former, but had had to leave the office at around 6 pm before he could respond to the latter, which was the cheapest provided by any party up to that point. The staff member had advised the complainant to phone the store to finalise the transaction. Flight Centre stated that the complainant was still in discussions with other staff members regarding the booking over the course of 23 October, and that they had offered him a price lower than that shown in the second competitor’s quote he had provided. However, they said he had not been willing to make that booking and so had been asked numerous times to provide a better quote which they would again investigate. He made a complaint to the customer services department on 23 October and they again offered to help him book the flights, but he did not provide the necessary details or the relevant competitor quotes.
Flight Centre explained that the contact between the complainant and their staff after 6pm on 22 October in which the second competitor quote had been bettered was not documented because it was done over the phone and in person. They noted that the complainant had confirmed his booking reference number to the customer services department on 24 October and had stated he was interested in the flights stored under that number. They provided a screenshot of the information held on their systems under that booking reference, dated 24 October. That showed flights which they acknowledged had not featured in any of the documented correspondence between the complainant and Flight Centre staff relating to the price promise. They said the complainant had chosen not to book those flights. Flight Centre stressed that they had repeatedly indicated to the complainant that they would be happy to beat any valid competitor quote provided.
5. Flight Centre stated that their marketing department conducted regular price analysis of their competitors' prices in order to ensure that their own prices remained in line with the market leading airfares. They acknowledged that the claim "Guaranteed cheapest scheduled airfares*" contained an asterisk which appeared not to link to any other part of their website. They said that should have linked to text at the bottom of the page which stated "Flight Centre confirms availability by searching based on the exact itinerary, booking class & conditions as per the competitors[sic] quote" and linked to the Fly For Free page. They said neither their print nor their paid-for internet advertising included the claim "guaranteed cheapest", and their website stated that the main reason to book with Flight Centre was their Fly For Free promise, with the claim "Guaranteed cheapest scheduled airfares*" being one of several further supporting points.
Flight Centre explained that not all of the competitor analysis they conducted was trackable, but that it would include: weekly reviews of the weekend press; a weekly comparison against their main competitors' (both on- and offline) lowest advertised prices on popular destinations and on destinations selected for their weekend airfare sales; and a daily review of their own most popular airfares on their pay-per-click advertising. They provided a spreadsheet showing the latest data for the latter two categories.
Assessment
1. Not upheld
The ASA understood that Flight Centre's policy in implementing their "Fly For Free" promise was to beat valid competitor quotes wherever possible, and that consequently it was rare for free flights to be awarded to customers making applications under the promise. We noted, however, that Flight Centre had awarded free flights on occasions where they had failed to beat a valid competitor’s quote.
We also noted that the first reference to the price promise on the Flight Centre home page stated "With our Fly For Free Promise, if we can't find you a cheaper airfare in the same cabin you'll fly for free!". We considered that consumers would understand from that claim that Flight Centre's primary aim in dealing with applications made under the price promise would be to respond to valid competitor quotes by providing a cheaper alternative in the same cabin. The text box located beneath that claim stated "Why book with us?" and included a list of benefits offered by Flight Centre. A luggage tag graphic was shown in the corner of the text box, which stated "FLY FOR FREE!". Although we acknowledged that smaller print beneath that claim was illegible, we considered that consumers were likely to nevertheless understand that some conditions would apply to the claim. The text box immediately above outlined the most significant of those and full details were included on a separate page located either one or two clicks away, depending on the user's navigation of the site. On that basis, we considered that the website provided sufficient information to consumers to indicate that the "Fly For Free" policy was primarily a price-beat promise and that instances of free flights being awarded would be rare. In addition, the complainant understood that Flight Centre might only beat competitor quotes by £1 and believed that that was material information which should be stated on the website. However, we noted that none of the claims on the site stated or implied that quotes would be beaten by a significant margin and considered that consumers would understand that they might only be offered a small saving against the competitor’s quote they submitted.
Because we were satisfied that Flight Centre had awarded free flights where the terms of the "Fly For Free" promise had not been honoured, and that consumers would understand that that would only occur where it had not been possible for Flight Centre to beat the quote they presented, we concluded that the claims "Fly For Free Promise" and "Fly for Free - If we can't find you a cheaper airfare in the same cabin, you'll fly for free!" were unlikely to mislead as to the likelihood of obtaining a free flight.
On that point, we investigated the claims 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),
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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
and
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification) and
8.2
8.2
Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.
(Sales promotions), but did not find them in breach.
2. Not upheld
The complainant had believed that the statement, listed in the instructions for the "Fly For Free" promise on the website, "Full payment is required on the same day that Flight Centre is able to confirm that the airfare is still available in the same cabin as per our competitors[sic] quoted itinerary" meant that customers would need to purchase tickets from the competitor before Flight Centre would consider an application made under the price promise. We understood, however, that that was not the case, and we considered that most consumers would understand from the statement that they would have to pay Flight Centre on the same day that Flight Centre beat the competitor quote submitted. We therefore concluded that the claims "Fly For Free Promise" and "Fly for Free - If we can't find you a cheaper airfare in the same cabin, you'll fly for free!" did not mislead on that point.
On that point, we investigated the claims 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),
3.23
3.23
Marketing communications must make clear the extent of the commitment the consumer must make to take advantage of a "free" offer.
(Free) and
8.2
8.2
Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.
(Sales promotions), but did not find them in breach.
3. Upheld
We noted that the website did not contain any information regarding the timeframe within which Flight Centre would respond to competitor quotes submitted under the price promise. Prices in the travel industry were volatile and could fluctuate greatly over a short period of time; we therefore noted that consumers submitting quotes to Flight Centre were at risk of missing the opportunity to purchase the tickets from the competitor at the current price if they subsequently discovered that Flight Centre could not, or would not, beat the quote. On that basis, we considered that consumers would expect Flight Centre to respond to submitted quotes in a timely manner.
Flight Centre stated that they aimed to respond to quotes on the same day that they were submitted, and where that was not the case the delay did not normally exceed 24 hours. We considered that that timeframe was likely to be in line with most consumers' expectation. However, we noted that Flight Centre did not centrally record information relating to each application made under the price promise and were therefore unable to provide evidence showing how long it took them to respond to each competitor quote submitted. In the absence of such data, we considered that the ad should have made clear that applications made under the "Fly For Free" promise could take longer than 24 hours to be processed, because that was material information which would inform a consumer's decision as to whether to respond to the offer. Because that information was omitted, we concluded that the claims "Fly For Free Promise" and "Fly for Free - if we can't find you a cheaper airfare in the same cabin, you'll fly for free!", and associated conditions, were misleading.
On that point, the claims 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.
(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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) and
8.2
8.2
Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.
(Sales promotions).
4. Upheld
The ASA noted from the e-mail correspondence supplied that a total of three competitor quotes had been submitted by the complainant over the course of 22 October 2012. The first had been considered ineligible for the "Fly For Free" promise because it did not meet the criteria specified in the ad, which the staff member had explained to the complainant. The same staff member had beaten the price shown in the second quote provided, but had left the office before responding directly to the third quote. We noted that by that point the complainant had supplied the quote twice, but the staff member had not directly acknowledged it in either case and had first advised the complainant to provide a copy of the best offer he could find, and then to call the store to continue the discussion with other staff members. The complainant stated that he did call the store as requested, but was not given a revised quote. Flight Centre stated that from that point there were ongoing verbal discussions between the complainant and staff members, later also conducted through e-mails with their customer services department; that repeated efforts were made to establish which flights the complainant was interested in booking; and that a price lower than that shown in the second competitor quote was eventually offered to the complainant, but in an undocumented manner.
We acknowledged that correspondence dating from 22 October onwards consistently demonstrated that Flight Centre staff had expressed a willingness to look into any competitor quotes provided and an assurance that they would beat the prices shown in the event that the quotes were found to meet the "Fly For Free" promise criteria. However, we also noted that the complainant had twice submitted a competitor quote cheaper than the price previously offered by Flight Centre, and that there was no documented evidence that that quote had been beaten, or otherwise responded to, by Flight Centre.
We considered that the wording of the "Fly For Free" promise on the website implied that Flight Centre would beat any competitor’s quote supplied meeting the qualifying criteria, or offer a free flight in its place. Because there was no evidence to show that Flight Centre had responded to the third competitor quote supplied by the complainant, and in the absence of evidence showing that they did consistently honour the terms of the advertised price promise (and thus indicating that his experience was an isolated instance of poor customer service), we concluded that the claims "Fly For Free Promise" and "Fly for Free - If we can't find you a cheaper airfare in the same cabin†, you'll fly for free!1" had not been adequately substantiated and were therefore misleading.
On that point, the claims 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) and 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. (Sales promotions).
5. Upheld
We noted that the claim "Guaranteed cheapest scheduled airfares" was intended to link to information about the "Fly For Free" promise. We considered, however, that the claim was distinct from stating that Flight Centre would beat cheaper competitor quotes provided to it, within specified parameters, and instead implied that Flight Centre would always offer cheaper scheduled airfares than their competitors. It was therefore necessary for Flight Centre to demonstrate that they consistently monitored the market and adjusted their prices to ensure they were offering the cheapest scheduled airfares. Having examined the spreadsheet provided by Flight Centre, which covered only a small selection of destinations and competitors and did not provide source information, we concluded it was insufficiently thorough to support the claim "Guaranteed cheapest scheduled airfares".
We also noted that Flight Centre offered a price-beat promise for occasions where their competitors' prices for scheduled flights were cheaper than their own. We considered that such a policy would not necessarily be incompatible with a claim to offer the cheapest scheduled airfares if the advertiser were able to demonstrate that it was only used in exceptional circumstances where their monitoring had failed to capture a particularly low price offered by a competitor. However, we understood that it was not uncommon for Flight Centre to beat competitor quotes through the price-beat promise, and considered that that fact indicated that they would not reliably offer the cheapest scheduled airfares.
Although we acknowledged that the claim "Guaranteed cheapest scheduled airfares" was not entirely based on the policy of beating lower competitor quotes presented under the price promise, we considered that Flight Centre had not provided evidence of sufficiently thorough market analysis to substantiate the claim, and therefore concluded that it was misleading.
On that point, the claim 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), 3.32 3.32 Marketing communications must not mislead the consumer about market conditions or the possibility of finding the product elsewhere to induce consumers to buy the product at conditions less favourable than normal market conditions. (Availability) and 3.38 3.38 Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage. (Other comparisons).
Action
The claims investigated and found to be in breach of the Code must not appear again in their current form. We told Flight Centre (UK) Ltd to state that it might take more than 24 hours to respond to competitor quotes if they were not able to demonstrate that such an omission was unlikely to materially affect consumers' behaviour in regard to the promise, and to ensure they held evidence demonstrating how they responded to each application made under the "Fly For Free" promise. We also told them not to make the claim "Guaranteed cheapest scheduled airfares" unless they were able to show that they regularly conducted a thorough market analysis and adjusted their prices accordingly.
CAP Code (Edition 12)
3.1 3.10 3.23 3.3 3.32 3.38 3.7 3.9 8.2
