Ad description
A website, www.lycamobile.co.uk, included descriptions of various "ALL IN ONE" bundles. Each ad stated "Unlimited UK calls & texts ... Unlimited UK data ... Unlimited Lyca to Lyca calls & texts ... Unlimited international calls & texts to: ...". The ad then listed various countries. Small print stated "Unlimited usage is subject to a fair usage of 3000 minutes/texts/MB per month per SIM. Usage in excess of your fair usage allowance will be charged at standard rates".
Issue
The complainant challenged whether the "Unlimited" claims were misleading.
Response
Lycamobile UK Ltd (Lycamobile) said the bundle offers were displayed in a clear, legible and unambiguous manner and contained material information which enabled consumers to make an informed decision whether or not to purchase the product. Lycamobile said although the promotion was titled 'Unlimited', that would not be interpreted literally when in combination with a fair use policy (FUP), which they did not believe was an undue restriction. They said all customers would receive unlimited calls, texts and data up to the FUP. Lycamobile said the text "Unlimited usage is subject to a fair usage of 3000 minutes/texts/MB per month per SIM. Usage in excess of your fair usage allowance will be charged at standard rates" provided consumers with important information. Lycamobile said the text informed consumers of what they could expect from the offer and what happened once the offer expired. Lycamobile said it was reasonable to expect the average consumer would take note of the fair use text before making a decision to purchase. They said because the use of unlimited claims together with a FUP was common in the telecommunications industry, consumers would be aware unlimited elements of a package would be subject to a FUP.
Lycamobile said that 2.72% of their customers who purchased an all in one bundle used the product up to the fair use cap.
Assessment
Upheld
The ASA noted the small print stated that additional charges would be incurred at standard rates if call minutes, texts and MBs exceeded 3000. We noted Lycamobile's assertion that consumers would understand unlimited claims had a FUP attached. However, we considered that "unlimited" was a strong claim about the characteristics of the product and that consumers were likely to expect that services, or features of services, described were not subject to undue restrictions. We noted that the claim "Unlimited" featured several times in the description of each bundle which we considered emphasised there were no restrictions on users' calls, texts or data download, in terms of additional charges.
We noted Lycamobile's assertion that only 2.72% of their users reached their allotted restrictions. However, because those customers had exceeded the minutes, text and data thresholds and had been subject to additional charges, we considered the service could not be described as "unlimited". We therefore considered that the information in the small print about the FUP contradicted the "Unlimited" claims, and we concluded 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.
(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
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).
Action
The ad must not appear again in its current form. We told Lycamobile not to make "unlimited" claims if additional charges applied as a consequence of exceeding a usage threshold associated with a FUP.
