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Medium: Internet (Company Website), Television
ASAI Code 7th Edition: 2.4(c), 3.3, 3.16, 3.20, 3.24, 4.1, 4.4, 4.9, 4.10, 4.11, 11.16
The television advertisement opened with an image of a syringe alongside a bottle containing a label with the word “VACCINE”. The on-screen text referred to the fact that:
“VACCINES ARE COMING” This text was accompanied by Ryanair’s logo.
The female voiceover referred to the following:
“Covid vaccines are coming, so book your Easter and Summer holidays today with Ryanair. One million seats on sale from €19.99 to sunshine destinations, in Spain, Italy, Portugal and Greece and many more, so vax and go.”
The voiceover was accompanied by images of a group of young adults (20-30 age bracket approx.) jumping into a swimming pool. Further images were also provided for the four destinations called out. The imagery provided for Italy featured a young couple having a drink at an outside table. On-screen text provided the following information:
“Book by 3rd January 2021. Travel April – October 2021. Fair difference applies to flight changes. Limited availability. For more go to Ryanair.com.”
The end frame containing on-screen text referred to the following:
“VAX & GO! 1 MILLION SEATS FROM €19.99. NO FLIGHT CHANGE FEE.” This text was once again accompanied by the Ryanair logo.
The advertising on the website included the following:
“Book summer”, “vaccines are coming” and “jab and go!”
59 complaints were received about the advertising which were themed by the ASAI Executive into the three issues below. The ASAI Executive raised an additional complaint issue, referred to below under Issue 4.
Most of the complainants challenged whether the advertising had the potential to mislead consumers and considered that there was no guarantee that they would be able to travel to the destinations referenced in the advertising by Easter 2021. They made particular reference to the age group featured as they considered that this age group were likely to be amongst the last group of people to receive the vaccine.
Some complainants queried the reference to the claim that “If your plans change so can your booking” and queried whether they would incur an additional cost to change their booking.
Complainants queried whether the advertisement conflicted with public health guidelines, which had the potential to change and whether it would be safe to travel at the time referenced in the advertising.
Some complainants considered that the advertising was irresponsible, insensitive and offensive and trivialised the effects which the pandemic was having on society and in particular front-line workers. They also challenged the reference to “Vax and go” and considered that it belittled the roll out of the vaccination process.
ASAI Executive raised Code Section 11.16 which provided that prescription only medicines may not be advertised to the public.
The advertiser provided a response in relation to complaints received.
The advertisers stated that the advertisement was factual and accurate and simply promoted bookings on short haul flights for "Easter" or "Summer" 2021(not Jan or Feb) on the basis that vaccines were coming (a fact confirmed by the Irish Government and An Taoiseach) and invited consumers to make bookings now for travel in these periods, safe in the knowledge that if they need to change these bookings no change fee would apply.
They stated that they believed there was no basis for any of the complaints of breach of the Code, including any of the Code provisions referred to by the ASAI Executive when investigating the complaints. The advertiser responded to issues grouped into four themes by the ASAI Executive.
They rejected what they described as these baseless and false claims. The advertisers said that the advertisement did not mislead, nor was it likely to do so. The advertisement made no representation, implicitly nor otherwise, to a "guarantee" that consumers would be able to travel. They did not believe a reasonable viewer would consider that the advertisement contained such a "guarantee" or that this was the probable effect of the advertisement when taken as a whole and in context. In this regard, they noted that, of the advertisement's total viewing audience approximately 0.001% complaints were received representing an extremely small minority. The views of those complainants could not and should not be taken as being representative of the views of the entire audience that the advertisement would have reached - the vast majority of whom had not complained to the ASAI.
The advertisement made no representation about who would be vaccinated by Easter or Summer 2021. The advertisement factually confirmed that “vaccines are coming” and made no claims concerning who would be vaccinated or by when they would be vaccinated.
The recent approval of a second vaccine (Moderna) and reported likely approval this month (January 2021) of a third vaccine (Oxford/AstraZeneca) would allow Ireland to accelerate the rollout of its vaccination programme, which commenced on 29 December 2020. It could therefore be assumed that a reasonable proportion of the population (certainly the high-risk category) would be vaccinated by Easter and early summer 2021.
Further, the Government had confirmed that the groups that would be prioritised included front-line workers and other key workers, and the advertisers stated that it could be argued that the demographic featured in the advertisement could fall into those categories.
With regards to the queries on the claim that “If your plans change so can your booking” and whether there were additional costs to change their booking, the advertisers referred the ASAI to the Advert’s on-screen legal text, which stated that “fare difference applies to flight changes”. They said that a copy of Ryanair's “Free Flight Change Fee” Terms and Conditions may be found at https://www.ryanair.com/gb/en/useful-info/nochange-fee and they said that they had enclosed a copy of same with their response for completeness.
The advertisers said that the ASAI would note from these Terms and Conditions:
• They applied to flights booked before 31Jan 2021for travel for any date before 30 Sept 2021
• Flight changes must take place at least 7 days before the original scheduled departure date
• The standard charge of €35 (dependent on route and travel date) levied by Ryanair as per the Table of Fees to make changes to the date of a flight was waived
• Any fare difference involved in making changes to the date of a flight remained payable as per Ryanair's standard flight change policy set out in its General Terms and Conditions of Carriage (available at https://www.ryanair.com/ie/en/useful-info/help-centre/terms-andconditions) and as clearly advertised in the “Free Flight Change Fee” banner published on the homepage and its landing page.
The advertisers did not consider that there was anything in the advertisement that would encourage people to disregard public health guidelines such as social distancing and other restrictions, which, in any event, were set in law and had been heavily publicised. They said the reasonable viewer would be well aware that travel restrictions constantly change and may operate to prevent customers from travelling. If that was the case, no travel would be possible. To protect customers against travel disruption, Ryanair was offering free flight changes to allow customers change their flight to a later date. This was explicitly stated in the advertisement's onscreen visuals, voiceover and legal superimposed footnotes.
The advertisers did not consider that the advertisement was irresponsible, insensitive or offensive, nor did it trivialise the effects of the pandemic on society or front-line workers. The advertisement made no reference to front-line workers nor to the effects of the pandemic. The advertisement was factually correct in reporting the Government and NPHET position that “vaccines are coming”. It ultimately encouraged travel after vaccination, which was aligned with the Government's policy of encouraging vaccination.
The advertisers said that the language used in the advertisement could not be described as insensitive or belittling to the rollout of the vaccination process. The advertisement made no comment in relation to the vaccination rollout other than referring to the established fact that “vaccines were coming”. The word "vax" was an accepted abbreviation of the word "vaccination". It was a well-known abbreviation and was not open to misinterpretation, nor was it insensitive or belittling. Furthermore, the copy, and specifically the use of the word "vax" was approved by RTE in advance of the advertisement first airing on 26 December 2020. On the contrary, the advertisers considered that the advertisement was uplifting, hopeful and encouraged people to consider a brighter future when restrictions were lifted and people could go on holiday with friends and family again in Easter or Summer 2021.
The advertisers said that this complaint was baseless and false. The advertisement was not an advertisement of prescription-only medicine, it was clearly an advertisement for Ryanair flights. The advertisement referred only to the fact that Covid “vaccines are coming” which aligned with the Government's policy of encouraging vaccination. The advertisement did not refer to, and it was not an advertisement of, any specific prescription-only medicine and/or any manufacturer of any such medicine. Therefore, the Advertisement did not breach rule 11.16.
In relation to the Code Sections that the ASAI Executive had indicated the advertisement would be assessed against, the advertisers noted that, in accordance with rule 2.4 of the Code, compliance with the Code must be assessed in the light of the advertisement's probable effect when taken as a whole and in context, and with particular attention being paid to the matters set out in rule 2.4(c) of the Code. When assessed in that manner, and for all the reasons set out in their response, the advertisers did not believe the advertisement breached the Code or any of the specific provisions indicated in the ASAI correspondence. In regard to the Code sections, they said:
• The factually accurate advertisement wasn't prepared without a sense of responsibility to consumers and to society.
• The relevance of rule 3.16 was unclear as the advertisement contained no humorous or satirical treatment of people or groups of people. No people or groups of people were portrayed in the advertisement in a way that was likely to cause grave or widespread offence, or to cause hostility, contempt, abuse or ridicule.
• The application of rule 3.20 was unclear as the advertisement did not exploit sexuality or use coarseness, undesirable innuendo, or offensive or provocative copy or images merely to attract attention. They did not believe the advertisement contained any potentially offensive material or that any of the advertisement offended public sensitivities.
• As regards rule 3.24(a), the advertisement did not encourage nor condone dangerous behaviour or unsafe practices. On the contrary, and as set out above, the advertisement ultimately encouraged people to get vaccinated, which was aligned with the Government's policy of encouraging vaccination.
• The advertisement did not mislead, nor was it likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise contrary to rule 4.1.
• Nor did the advertisement exploit the credulity, inexperience or lack of knowledge of consumers in breach of rule 4.4.
• In regards rules to 4.9 and 4.10, as set out above, the advertisement contained no guarantees in relation to travel, travel restrictions or vaccines. The advertisement was factually correct in stating that “vaccines were coming” and that flights could be booked for Easter and Summer 2021 to the destinations referenced in the advertisement. The advertisement otherwise contained no objective claims that were not true or that could not be substantiated.
• The relevance of rule 4.11 was unclear. The advertisement contained no claims that were portrayed as universally accepted in circumstances where there was significant division of informed opinion about the claim.
• The advertisement was not an advertisement for prescription-only medicines to the public so there was clearly no breach of rule 11.16.
In conclusion, the advertisers stated that, for the reasons set out in their response, Ryanair rejected what they described were these baseless complaints that the advertisement was in breach of the Code. Accordingly, they respectfully believed that the ASAI was not in a position to publish a report suggesting amendments or withdrawal of the Advertisement.
They did not believe these complaints were representative of the views of the large audience that the advertisement would have reached. The complaints failed to take into account a number of important factors, including the status of the pandemic and the Government vaccination rollout when the advertisement first aired, and constantly changing and evolving restrictions relating to international travel.
They stated that it should also be noted, as set out above, that Ryanair obtained pre-clearance for the advertisement from RTE prior to submitting it for broadcast. It could therefore be assumed that RTE also did not consider the advertisement to be in breach of the Code. They enclosed copies of the correspondence between their agents and RTE that confirmed this approval.
The ASAI Executive established that the television advertisement first aired on 26th December 2020 and last seen by some complaints circa 11th January 2020.
In the context of the matters raised in the complaints and the response (which covered matters including those such as travel restrictions and changes; safety to travel; vaccinations and associated plans; destination countries; public health guidelines), the ASAI Executive undertook research to collate data related to these matters, including as follows:
1. World Health Organisation COVID-19 Weekly Epidemiological Update Data
In the context of a prevailing global pandemic and the prevalence of the coronavirus in the period preceding the marketing communications concerned being published, the ASAI Executive researched information the general status. They noted that the World Health Organisation COVID-19 Weekly Epidemiological Update Data as received by WHO from national authorities included a table (20 December 2020) showing the number of COVID-19 cases reported commencing weekly in 2020 by the WHO European Region. The progression of case numbers were illustrated as being the following:
• Significantly below 500,000 from 2nd March 2020 to 1st September;
• in the region of 500,000 cases from 7th September;
• in the region of 1,000,000 cases from 12th October;
• in the region of 1,500,000 cases from 19th October;
• in the region of 2,000,000 cases from 2nd November;
• in excess of 1,500,000 from 9th November to 14th December.
COVID-19 Weekly Epidemiological Update: Data as received by WHO from national authorities, as of 6 December 2020, 10 am CET (extract by ASAI Executive)
Reporting Country/ Territory/ Area(I) New cases in last 7 days Cumulative cases Cumulative cases per 1 million population New deaths in last 7 days Cumulative deaths Cumulative deaths per 1 million population Ireland 2,006 73,948 14,976 49 2,099 425 Italy 145,459 1,709,991 28,282 5,151 59,514 984 Spain 35,761 1,684,647 36,032 767 46,252 989 Portugal 27,934 318,640 31,249 513 4,876 478
In the context of public health safety after vaccination, the ASAI Executive noted: Dr Tedros Adhanom Ghebreyesus, Director-General, WHO - opening remark, media briefing on COVID-19 - 21 August 2020
“A vaccine will be a vital… if we do have a vaccine, it won’t end the pandemic on its own. We must all learn to control and manage this virus using the tools we have now, and to make the adjustments to our daily lives that are needed to keep ourselves and each other safe.”
In the context of forecasts of the pandemic in Europe in proximity to Easter 2021, the ASAI Executive researched and noted the following published by the World Health Organisation:
Minimizing the COVID-19 risk: advice to individuals, communities and governments for the winter holidays – Press release 16 December 2020
“Despite some fragile progress, COVID-19 transmission across the European Region remains widespread and intense. There is a high risk of further resurgence in the first weeks and months of 2021, and we will need to work together if we are to succeed in preventing it”.
2. European Centre for Disease Prevention and Control
In the context of the availability of vaccination, the ASAI Executive researched and noted that the European Centre for Disease Prevention and Control (ECDC) stated on 21 December (2020), that the European Medical Agency recommended granting a conditional marketing authorisation for the vaccine Comirnaty, developed by BioNTech and Pfizer, to prevent coronavirus disease 2019 (COVID-19) in people from 16 years of age. On the same day, the European Commission granted market authorisation for EU-wide use.
3. EU Commission
In the context of vaccination and associated requirements, the ASAI Executive researched and noted the following related the complaints subject matter:
President of the European Commission, Ursula von der Leyen, addressing the European Parliament Plenary said:
“…And finally, within a week, the first vaccine will be authorised, so that vaccinations can start immediately….to get to the end of the pandemic, we will need up to 70% of the population vaccinated. This is a huge task, a big task. So let us start as soon as possible with the vaccination,
4. Department of An Taoiseach
In the context of the prevalence of the coronavirus in the period preceding the marketing communications concerned being published and proximate to Easter 2021, the ASAI Executive researched information on the general status in Ireland against the background of prevailing waves/surges of the pandemic in Ireland.
Statement (Speech) by An Taoiseach, announcing Ireland’s move to Level 3 (extract below):
“….as of tomorrow (6 October 2020) at 12 midnight all parts of the country will move to Level Three of the government’s Framework for Restrictive Measures for a period of three weeks”
The ASAI Executive noted that the end of this period would be 27 October 2020
“The government has today agreed that from midnight on 24 December until 12 January, Level 5 restrictions will apply nationally.” Published on 22 December 2020
Meaning of Level 5
In the context of the press release and the reference to Level 5 restrictions being imposed on the public in Ireland, the ASAI Executive noted the meaning of Level 5 as follows:
At Level 5, the public health risk means that you will be asked to stay at home, except for travel for work, education or other essential purposes, or to take exercise within 5km of home. There will be no gatherings other than small numbers at funerals and weddings.
5. Department of Foreign Affairs
In the context of travel restrictions and changes, the ASAI Executive researched the Department of Foreign Affairs advices on travel; an extract is transcribed below:
“On 13 October, Member States adopted the EU Recommendation on a coordinated approach to travel restrictions in the context of COVID-19. This ‘traffic lights’ approach provided for regions across the European Union (EU) and European Economic Area (EEA) to be categorised as green, orange, red or grey, on the basis of the risk levels associated with COVID-19. A combined indicator map would be published each week by the European Centre for Disease Prevention and Control (ECDC), based on agreed criteria, including the 14-day cumulative incidence rate, testing rate and testing positivity rates. In line with the EU Recommendation, there would be no entry restrictions on passengers travelling from green regions. Each Member State decided what entry restrictions it applied to passengers travelling from red, orange and grey regions.”
The ASAI Executive researched the ‘combined indicator map’ showing the colour coding meanings, as follows:
Source (grid): https://dfa.ie/travel/travel-advice/eu-traffic-lights-approach/
The ASAI Executive noted the following in relation to the application of the ‘combined indicator map’:
“Each Member State will decide what restrictions or requirements it applies for travellers from red, orange and grey regions.”
In the context of travel restrictions prevailing, the ASAI Executive researched and noted ECDC data for the week related to 13th December 2020. They noted that it appeared that all EU countries outside Ireland were categorised as ‘red’ (using the ‘traffic light’ approach referred to elsewhere), bar some areas in the Scandinavian and Baltic regions, Iceland, North-West France and Corsica.
In the context of travel restrictions prevailing, the ASAI Executive noted the following:
Government Briefing on COVID-19, 11 December 2020 extract:
“As you all know, Government is following the EU traffic lights approach to travel, which applies to countries in the European Union/European Economic Area and to the UK. The government’s current advice for travel to the 30 countries within the traffic light system is to “exercise a high degree of caution”. The general advice for any other overseas travel remains to “avoid non-essential travel”. More information on international travel is available on gov.ie.”
6. Department of Health
In the context of public health guidelines, the ASAI Executive researched and noted the content below:
‘Urgent appeal to protect lives and our community from the HSE (and others)’ - Press release 3rd December 2020
“The most important action we can take to protect ourselves and others from Covid-19 is to follow the public health advice:
• ensure regular hand washing
• practice good respiratory hygiene
• keep 2m between yourself and other people
• avoid touching your eyes, nose, or mouth
• wear a mask where indicated in indoor public spaces
• and download the Covid Tracker App”
In the context of public safety status, the ASAI Executive researched information on the status of the coronavirus in the period immediately before the advertising was published:
Briefing 21 December 2020
Professor Philip Nolan, Chair of the NPHET Epidemiological Modelling Group stated the following at the Department of Health briefing, 21 December 2020:
“We’re clearly now in a third wave of this pandemic with very rapidly rising case numbers”
In the context of the pending vaccination programme for Ireland, the ASAI Executive researched information on the programme roll out and timelines, and noted the following:
Stephen Donnelly, TD, Minister for Health, Dáil Eireann, 13 January 2021 in addressing the House, stated the following (text extracts copied by the ASAI Executive):
“We are planning on receiving enough vaccines to be able to inoculate 700,000 people by the end of March. Critically, this will vaccinate the top three groups on the prioritisation list. that is, those in long-term residential care - namely, staff and residents - front-line healthcare workers and people over 70 years of age. We are further planning to be able to vaccinate more than 1.5 million people in quarter 2 and more than that again in quarter 3. …these numbers are highly provisional. They include estimates for delivery schedules for vaccines that are still be approved.”
The ASAI Executive noted from the above that the total population planned to be vaccinated by 30 September 2021 was 3.7 million.
7. ‘Covid-19: Curfews, lockdowns and travel limits in place across Europe amid fears of Christmas surge’ -The Journal, 16 December 2020
In the context of the advertisement promoting booking flights to European destinations from Easter 2021, the ASAI Executive researched relevant status prevailing in a range of European countries, in the period of circa two weeks prior to the publication of the marketing communications. The ASAI sourced and summarised the digital article as follows:
Italy: effectively banned travel between regions from 21 December to 6 January, with tighter controls for Christmas Eve and Christmas Day on local travel. A curfew will also be in force across the country.
Germany: new restrictions from 16 December 2020 to until at least 10 January 2021 with the closure of schools and non-essential shops. The country also reported 27,728 new coronavirus cases in the last day
The Netherlands: Effective during the week commencing 14 December 2020, a new five-week lockdown
France: 6 week lockdown ceasing 15 December and with a curfew then running from 8.00pm. to 6.00am
Belgium and Luxembourg: introducing curfews and requested to limit Christmas dinners gatherings
Spain: indoor gatherings limited and restrictions on travel; new infections risen and exceeding 10,000 a day
8. National COVID-19 Vaccination Programme
In the context of the imminence of the vaccinations for Ireland, the ASAI Executive researched the details of both the ‘National COVID-19 Vaccination Programme: Strategy’ (December 11th, 2020) and the ‘National COVID-19 Vaccination Programme: Implementation Plan’ (undated; included “Unknown variable on December 11 2020”, page 33) and both jointly published by the Government of Ireland, the Health Service Executive and the Department of Health. The documents were noted on the Gov.ie website as ‘Published on 15 December 2020; Last updated on 15 December 2020’.
The ASAI Executive noted that the latter document contained a graph entitled ‘High level programme deliverable chart illustrating key activity to prepare for Day 1 Vaccination’ (“as 10 December 2020”) which the ASAI Executive identified as the information most relevant to the marketing communications under review and to the timings of the vaccination programme in Ireland. The graph is replicated below.
National COVID19 Vaccination Implementation Delivery Plan
9. Immunity after the COVID-19 vaccine
In the context of safety and travel, the ASAI Executive researched information from the Health Service Executive (HSE) noted the following on the HSE website:
“Vaccines teach your immune system how to protect you from diseases. It is much safer for your immune system to learn how to protect you from COVID-19 through vaccination than by catching the virus.
We do not know yet how long immunity will last. Clinical trials are ongoing to find this out.
The vaccine has been tested on people aged 16 and older. The current evidence is that the vaccine protects 95% of people who get it. The results show the vaccine works well in adults of any age.
If you have a weakened immune system, it may not work as well for you but there is no extra risk in getting it.
There is a small chance you might still get COVID-19 even if you have the vaccine.
We do not know yet if having the vaccine stops you from spreading COVID-19 to other people.
The HSE, Department of Health and the World Health Organization recommends that you get the COVID-19 vaccine when it is offered to you.
Even after you get the vaccine, continue to follow public health advice on how to stop the spread of the virus. For example, social distancing, wearing a face covering and washing your hands properly and often.”
(text extracted was last updated: 11 January 2021 at 7.40pm)
10. Provisional Vaccine Allocation Groups
In the context of the vaccination programme being implemented across population categories, the ASAI Executive noted that the Provisional Vaccine Allocation Groups from Department of Health, published on 8 December 2020 (last updated on 13 December 2020 and applicable at the time of the Complaints Committee’s adjudication) provided for the provisional order in which people in Ireland will be vaccinated against COVID-19, as follows:
1 People aged 65 years and older who are residents of long-term care facilities (likely to include all staff and residents on site)
2 Frontline healthcare workers
3 People aged 70 and older
4 Other healthcare workers not in direct patient contact
5 People aged 65-69
6 Key workers
7 People aged 18-64 with certain medical conditions
8 Residents of long-term care facilities aged 18-64
9 People aged 18-64 living or working in crowded settings
10 Key workers in essential jobs who cannot avoid a high risk of exposure
11 People working in education sector
12 People aged 55-64
13 Other workers in occupations important to the functioning of society
14 Other people aged 18-54
15 People aged under 18 and pregnant women
11. Travel protocols
In the context of travel restrictions and changes, the ASAI Executive undertook desktop research to identify any readily available information in the general public domain on any plans to reduce or lift the travel protocols across Europe and prevailing during the pandemic. They did not identify readily identifiable information in their research.
12. Social distancing, face masks, COVID-19 virus testing and quarantine rules
In the context of public health guidelines, the ASAI Executive researched social distancing, face masks COVID-19 virus testing and quarantine rules prevailing across Europe when the advertisements aired and noted these to be social distancing of 1-2 metres, wearing masks in certain settings, negative virus testing 72 hours prior to travel and quarantining for 10 to 14 days at the destination and that travellers should be subject to the same regulations or recommendations as applied to the local population.
The ASAI Executive research included viewing the ‘Guidelines for COVID-19 testing and quarantine of air travellers – Addendum to the Aviation Health Safety Protocol’. 2 December 2020. ECDC: Stockholm; 2020/EASA: Cologne; 2020. © European Centre for Disease Prevention and Control/European Union Aviation Safety Agency 2020
The ASAI Executive’s research concerned did not identify any significant indication that these protocols were planned to be eased or discontinued.
13. Population of Ireland
In the context of Ireland’s vaccination programme, the ASAI Executive established that the population of Ireland was estimated to be 4.98 million in April 2020. The reference to the Department of Health’s plan of 3.7 million vaccinations by Q3 2021 represents 74% of the population figure concerned.
14. Easter 2021
In the context of the proximity of the advertisements to Easter 2021, the ASAI Executive researched the dates for Easter 2021 which was noted to cover the period of Friday 2 April to Monday 5 April.
The Complaints Committee considered the detail of the complaints and the advertisers’ response. The Committee noted that the television advertisement used the phrase “vax and go” while the website advertising used “jab and go”.
The Committee noted that the response to the complaints referenced that it was not believed these complaints were representative of the views of the large audience that the advertisement would have reached and that complaints failed to take into account a number of important factors. In this context and a preliminary matter, the Committee noted Code Appendix 1 (Part A – General Complaints Procedure: How to make a complaint) that the ASAI accepted complaints from any person (or body) who considered that a marketing communication may be in breach of the Code. They further noted that the provisions of the Code required that setting out in a reasonable detail the grounds for the complaint was sufficient to submit a complaint for consideration under the Code. The Committee concluded therefore that a single complaint or number of complaints submitted on a personal basis may be considered on their merits by the Committee without any requirement of a complaint(s) needing to be representative. Additionally, they noted that the requirement to set out grounds for the complaint in reasonable detail did not impose an obligation to take account of any particular factors, of importance or otherwise.
Issue 1(a) – Complaints Upheld.
The Committee noted that the television advertisement referenced sunshine destinations in four European countries and with flights to “many more”. They considered that consumers were likely to consider that the other destinations were in the same geographical region.
The Committee considered that the combination of terms in the television advertising, “vaccines are coming”; “so book ….today”; “vax and go” and “Book summer”, “vaccines are coming”, “jab and go” in the website advertising when interpreted together implied that members of the general public could avail of vaccination in time for at least Easter 2021 and that pan-European travel restrictions would permit such travel. In particular, they considered that it was likely that consumers would interpret the phrase “vax and go”/ “jab and go” as an unequivocal endorsement of vaccinating and travelling unconditionally.
The Committee noted that the WHO data showed a continually prevailing high infection rate in Europe in Q4 2020, a circa threefold increase on the Q1 data. In the two weeks prior to the television advertisement being aired, the ECDC ‘traffic lights’ approach on travel restrictions for regions across the EU and the EEA were predominantly categorised as red, including the four countries named in the television advertisement. The announcement of Ireland entering a third wave of COVID-19 was announced five days prior to the television advertisement first airing.
They noted that the response to the complaints expressed that an assumption had been made that a reasonable proportion of the population, certainly the high-risk category, would be vaccinated by Easter 2021 and early summer 2021. The Committee noted that authorisation for EU-wide use of the first of a number of specified vaccines had only been authorised one week before the television advertisement first aired and that Ireland’s vaccination implementation plan did not appear to yet incorporate the public at large being vaccinated by 31 March 2021. Accordingly, the Committee considered that Ireland’s vaccination plan did not support the perception created in the marketing communications of people being capable of being vaccinated if they wished in sufficient time to travel by Easter, circa 14 weeks after the television advertisement first aired.
The Committee noted that each Member State decided what restrictions or requirements it applied for travellers from red, orange and grey regions. They considered therefore that it remained unknown at the time of the advertising and during and ongoing pandemic what would be prevailing at the time of travel for flight destination countries for Easter or Summer 2021. It was also noted that there were no indications available that travel restrictions would change or that quarantine rules at European destinations would change for vaccinated air passengers. There were also no indications from the research made available to the Committee that travel restrictions, in the context the prevailing levels of the pandemic at the time of the marketing communications, would change sufficiently by Easter to accommodate air travel within the circa 14-week period concerned.
The Committee further considered that conclusions that the Committee had reached would have been reasonably foreseeable from the publicised data which had informed the Committee, and which was published prior to the marketing communications being aired and posted. The Committee appreciated that the circumstances prevailing with the pandemic at a given time were subject to change, substantial or otherwise, and considered that this factor would therefore have needed to have been particularly taken into account when preparing a national promotional campaign, referencing a pandemic, prior to publication. To this end, they noted the breath and
volume of published data in the public domain in the period preceding the marketing communications being published.
The Committee believed that the public data was highly indicative of a strong prevalence of a seriously infectious virus in Europe and they considered by virtue of the levels prevailing at the time of the marketing communications and lengthy vaccination roll out, that it was misleading to invite prospective passengers to vaccinate and go to European destinations from Easter 2021.
They also considered that the combined factors described in their conclusion were highly indicative of it not being reasonably possible for the general population to be vaccinated in time to travel by Easter. Accordingly, they considered that it was misleading to suggest that prospective passengers could vaccinate in time for travel from Easter 2021.
The Committee also noted the age group of those featured in the television advertising and considered that the overall impression created by it was that young people would be able to travel to the destinations referenced, once they were vaccinated. As the age group featured were currently in one of the final categories of the vaccination programme, the Committee considered that, from the HSE vaccination implementation plan issued prior to the publication of the marketing communications, the likelihood of this cohort generally being vaccinated in time to avail of the holidays as advertised was highly unlikely.
Finally, the Committee noted that the advertising omitted to include any statement/qualification to the effect that it was possible/likely that members of the public may not receive the vaccine in time for the Easter/summer periods for which they were invited to “vax and go” / “jab and go”.
They considered, therefore, that the advertising was misleading and in breach of Sections 4.1, 4.4, 4.9 and 4.10 of the Code.
Issue 1(b) – Complaints not Upheld.
The Complaints Committee noted that the premise of ‘fares’ in the advertising related to actions consumers could avail of if their plans changed. They noted that the advertising included the statement that ‘Fare differences apply to flight changes” and directed consumers to their website for more information. The advertising also referred to ‘No flight change fee’ and it was noted that the standard charge levied by the carrier to make changes to the date of a flight was waived.
The Committee considered that it was clear that consumers could change their booking without incurring a flight change fee but that, as stated in the advertising, a fare difference may apply. In the circumstances they did not consider this part of the advertising was in breach of the Code on the basis suggested by the complainants concerned.
Issue 2 – Complaints Upheld.
On considering complaints related to public health guidelines, the Committee noted the ‘traffic lights’ approach provided for 30 countries in regions across the EU/EEA and that each Member State would decide what restrictions or requirements it applied for travellers from red, orange and grey regions. They noted that when the marketing communications were published that the Irish Government’s advice was to exercise a high degree of caution to EU/EEA destinations.
The Committee noted a range of quarantine requirements at destinations across the EU/EEA and that travellers should be subject to the same regulations or recommendations as applied to the local population. The Committee considered that local quarantine requirements would be clearly unknown if booking flights several months prior to travel and there was no research information made available to the Committee to suggest that being vaccinated obviated the need for quarantine.
The Committee noted the HSE advice, post-vaccination, to continue to stop the spread of the virus including by exercising social distancing and wearing a face covering. They also noted the HSE statement that they did not know yet if having the vaccine stopped people from spreading COVID-19 to others.
The Committee also noted the age group of those featured in the television advertising, which showed activity people would typically enjoy at a pool on sun holidays. They noted that the group jumping into the pool did not reflect social distancing which, taking account of the HSE post-vaccine advice, would still be required post-vaccination.
The Committee considered, taking account of the above, that the advertising content had the potential to exploit the credulity, inexperience or lack of knowledge of consumers and was not prepared with a sufficient sense of responsibility to consumers and to society and found that the advertising breached Sections 3.3 and 4.4 of the Code.
On considering complaints related to safety to travel by summer, the Committee noted both the contracted virus levels prevailing in Ireland in the month that the marketing communications were published and also what would be considered to be high new case numbers reported in the four named European countries for the same period.
The Committee noted the European statistics for the pandemic prevailing in December 2020, and for the same period, both narratives describing lockdown in Ireland (third wave) and experiences in some European countries to where passengers could consider travelling to avail of the promotion. The Committee did not observe any information referenced which would be indicative of further lockdowns per se arising across Europe.
The Committee particularly noted the extent of the pan-European vaccination programme alluded to by the EU Commission (11th December 2020) and the associated challenges expressed, including the high take-up level requirements referenced. They also took account of the WHO commentary (21st August 2020), on post-vaccine indicators, that vaccinations would not end the pandemic on its own and there was a need for all to learn to control and manage this virus using the tools available to keep individuals and one another safe.
While the Committee noted that there was a provision made of free flight changes in the event of travel disruption, they considered that this was a contractual term and condition which was secondary to the primary invitation of a suggestion to travel in the public knowledge of significant uncertainties at the time of booking promotion.
The Committee considered that the advertising invited consumers to book travel for a later period on the basis of the expectation of being vaccinated, when the fact that vaccination itself did not obviate the need for compliance with public health guidance and the advertising content was therefore in conflict with the guidance concerned.
While it was not for the Committee to determine whether it would be safe to travel at any given point, the Committee noted the public health information in relation to vaccination and the vaccination rollouts. They considered that the advertising had implied that it would be safe to travel because of the fact of vaccination itself. As evidence to support this contention of safety had not be submitted, they considered that the advertising had not been prepared with a sense of responsibility to consumers and society and was therefore in breach of Code section 3.3.
Issue 3 – Complaints Upheld.
On considering the complaints related to irresponsible advertising, the Committee noted that there had been three lockdowns in Ireland up to and including the time of the marketing communications. They also noted lockdown type regimes, leading into December 2020, reported to be in some of the advertised destination countries. While the advertisement included a contingency for flight changes “No flight change fee”, given the potential seriousness of the virus on personal health and safety during a global pandemic, it was noted no content was included for intended passengers to take account of or consider the pandemic levels in the four destination countries prior to booking.
The Committee noted that while there was a State vaccination implementation plan in place, at the time of the marketing communications, projections for the roll out of the plan across the groups was not in the public domain. Potential passengers would therefore have been unlikely to have been in a position to make an informed decision on whether to proceed with a booking, regardless of the after-purchase entitlement to change flights. Additionally, the apparent target audience as portrayed in the television advertisement were very unlikely to be vaccinated by the earliest flight departure schedules.
The Committee considered that the advertising’s invitation to “vax and go” / “jab and go” would be interpreted by consumers as indicating that once vaccinated it was appropriate to travel without restriction, to the EU destinations advertised. On the contrary, the Committee considered that, from the information available, a multi-disciplinary approach to travel was required. They further considered that the advertising did not take sufficient account of the multi-faceted factors of the pandemic.
Noting that there was no evidence of planned changes to prevailing protocols for social distancing in the context of an ongoing pandemic and underpinned by the WHO data on the infection levels in Q3 and Q4 2020, the Committee considered that the advertisement lacked sufficient responsibility in the portrayal of how people may be able to interact on holiday as early as Easter 2021.
The Committee considered the use of the term “vax and go” / “jab & go” in the context of the seriousness of the prevailing pandemic in Ireland alone, and recognising the general national effort required at many levels to address and counteract the effects of the pandemic. The Committee considered that that use of the term, while possibly intended to have been positive and/or light-hearted messaging, was not reflective of good taste. They were of the view that the communication airing during a pandemic, and making reference to it through vaccination, did not pay sufficient regard for prevailing public sentiment, illnesses suffered, or mortality and its tone was inappropriate.
The Committee noted that the vaccination project was one of the most significant public health interventions undertaken by the State and that the first publicised commentary available to the Committee in relation to its completion indicated that it would be September 2021 before 3.8 million of the population (74% of the total population) had the opportunity for vaccination.
In light of these factors, they considered that advertising which lightly suggested that one could just “vax and go” or “jab and go”, had not been prepared with a sense of responsibility to consumers and to society and was in breach of Section 3.3 of the Code.
Issue 4 – Complaint not Upheld.
The Complaints Committee noted that the primary purpose of the advertising was to promote the purchase of airlines seats to various destinations. They noted that the advertisement advocated that consumers could make the purchase because vaccines were ‘coming’, which was factually correct at the time. They also noted that only a generic term of ‘vaccination’ was used. In the circumstances the Committee did not consider that a prescription-only medicine was being directly advertised to the public.
The advertising should not run in its current format again.