Ad description
The Tastecard app, for a discount club, seen on 6 May 2022, listed several cinema venues. Text stated “Up to 40% off”.
Issue
The complainant, who found that in some circumstances a Tastecard reduced the price of a cinema ticket by less than £1 and that a 40% reduction was not available at some venues, challenged whether the claim “Up to 40% off” for cinema tickets was misleading and could be substantiated.Response
Taste Marketing Ltd said they conducted regular reviews to ensure tickets bought with a Tastecard were generally sold at the advertised discount rate or better. They said cinemas’ own promotional activities were not under Taste Marketing’s control, and that they therefore compared against peak usage periods only, which were generally weekends. They said the extent of the saving obtained with a Tastecard would therefore vary according to location and ticket type, and that tickets could in some instances be more expensive if a cinema was running its own promotion. They said their analysis showed that 48% of customers who purchased a ticket received a discount of 40% or more against the average price of each ticket type at each chain, which they believed showed a significant proportion receiving the maximum saving.
They believed customers were offered an even distribution of savings – at one cinema chain, all tickets received 40% or more discount; 72% of customers who bought tickets at another chain received 50% discount and 19% of customers who purchased tickets at two further chains received 40% or more discount.
Taste Marketing said they used average pricing as the basis of comparison because the cinema chains used dynamic pricing to vary ticket prices by location, by ticket type and by day. They said it was operationally unsustainable for them to review all those pricing variables but that their review process gave them the best way to understand the pricing fluctuations and to be able to offer competitive discounts on cinema tickets.
Assessment
Upheld
The ASA considered consumers would understand the claim “Up to 40% off” to mean that a significant proportion of cinema tickets bought with a Tastecard membership would have the maximum 40% discount against the usual selling price. We considered they would understand that not all tickets would be reduced by 40% but would expect to be able to find tickets with the maximum 40% discount across a range of films, dates and venues.
Taste Marketing provided a spreadsheet which listed the different cinema chains they worked with; the price of peak time tickets at each chain; and the average proportion of discount received by Tastecard members for particular types of ticket. For one chain, the average level of discount was above 40% for every type of ticket, ranging from 43% to 54%. For the remaining five chains, however, the average level of discount was below 40% for every type of ticket, apart from adult tickets at one of the chains, for which the spreadsheet showed that customers received an average of 50% discount against average prices.
We noted that Taste Marketing had used average rather than actual figures as the basis of their savings claim. We acknowledged the reasons they had given for doing that. Nevertheless, we considered that, to be able to establish that a significant proportion of cinema tickets bought with a Tastecard membership had the maximum 40% discount against the usual selling price, it was first necessary for Taste Marketing to demonstrate the usual selling price of tickets and then to demonstrate the discounted price of individual tickets rather than the average price for each type of ticket. Because the ad stated a specific amount of discount (“Up to 40% off”), we considered it was also necessary to be able to see that there was roughly an even distribution of the maximum 40% discount across different films, dates and times at individual venues. We considered the use of average pricing prevented Taste Marketing from being able to demonstrate that. Because Taste Marketing had not supplied information that explained or demonstrated the usual selling price of tickets and the proportion and distribution of the maximum 40% discount, we concluded that the ad breached the Code.
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) and 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. 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 the form complained of. We told Taste Marketing Ltd that when making “Up to x% off” claims they needed to hold evidence that demonstrated the usual selling price of individual products (in this case, cinema tickets) and which showed that a significant proportion of them, roughly evenly distributed across, in this case, films, dates, times and venues, were discounted by the maximum 40%.
