It’s no news that advertising is important for business. However, it is good to know that there are certain limits to what you may and may not claim in an advertisement. We will illustrate this by two recent rulings of the Advertising Code Authority on the claims “Unlimited Everything” and “All Inclusive” used in advertising by T-Mobile and Vueling.
T-Mobile “Unlimited Everything”
The first decision of the Dutch Advertising Code Authority (“ACA”) concerned a billboard of T Mobile stating “Always together with unlimited everything internet, phone calls & text messages*”.The asterisk referred to the small print under the picture that read: “After exceeding your monthly data credits, the speed will be reduced to 64 kb/s. Phone calls and text messages to national numbers, except paid numbers and services. For more information about the T-Mobile Unlimited Advantage Bundles go to t mobile.nl.”
The complainant was of the opinion that the suggestion was created in the advertisement that consumers can conclude a contract for a bundle with which they can make unlimited use of the internet, texting and calling. A limitation of the data limit (as appears from the small print), as a result of which no normal internet use can be made, would be in conflict with the “unlimited everything” claim.
T-Mobile defended itself by arguing that this was a teaser advertisement, in which consumers are attracted by a slogan. On the T-Mobile website and during the actual ordering process consumers would indeed be fully informed. By means of the asterisk the limitations are pointed out to consumers and reference is made to the website for more information. T-Mobile is of the view that it appears from case law that consumers may be expected to take cognizance of the information provided to them. The qualification in the small print and the reference to the website for more information are therefore sufficient, according to T-Mobile.
The ACA has a different opinion: also teasing communications may not put consumers on the wrong track. The ACA is of the view that the ‘unlimited internet’ offered is not without limitations. After all, when the data credits are exceeded, the internet speed will be reduced, as a result of which the various mobile internet services pertaining to normal internet use (“such as Youtube”) will not function properly any more.
The ACA ruled that this limitation has not become clear through the use of the asterisk and the subsequent text. Consumers will not understand that reducing the speed implies a limitation of the internet possibilities and that some services will actually become unusable. It is not relevant that the website provides more information. The billboard is an independent expression - apart from the website - and has to meet the requirements of the Dutch Advertising Code.
The ACA concluded that the claim “unlimited everything” is too absolute and recommends T Mobile not to advertise in such a manner any more.
Vueling “All Inclusive”
The ACA also reprimanded Vueling, a Spanish low-cost airline, for a similar advertisement. This time the text was: “Price per route, ALL INCLUSIVE” above a list of possible flight dates in which the ticket price was mentioned. However, not everything was included. First of all, the standard checked baggage (not hand luggage) also had to be paid for and, secondly, for each form of payment an additional amount was charged, except if the payment was made by ‘Visa Vueling’. The complainant was of the opinion that this is in conflict with the Advertising Code for Travel Offers which contains special (price) rules for, inter alia, airlines. Travel agencies must, for instance, use correct and clear prices in their advertisements.
The ACA considered that costs that are known, if inevitable at the time of publication, must be published by travel agencies, with or without a specification. Although the ACA held that standard checked baggage is not an inevitable cost, it still considered the challenged expression to be too broad. After all, not every airline charges costs for standard checked baggage. The complaint with respect to the costs for payment methods was also successful. In the Netherlands, ‘Visa Vueling’ is not a common means of payment and therefore not a relevant method of payment for Dutch consumers. The ACA recommends Vueling to cease its advertising in such a manner.
We may derive the conclusion from the above decisions that absolute claims can be adjudicated strictly by the ACA. According to the ACA, if there are any (actual) limitations or restrictive conditions, they must be sufficiently explained in the advertisement itself.