EasyJet airline faced scrutiny after advertising that customers could add a carry-on bag “from £5.99”, despite being unable to produce evidence that such a price was genuinely available across a significant proportion of routes and dates. It is a useful reminder that seemingly attractive headline offers can be undermined by onerous terms and conditions, particularly where availability, qualifying criteria, or hidden restrictions make the promise hard to access in practice.
According to the Advertising Standards Authority (ASA), consumers were likely to understand the “from £5.99” claim as meaning that a large cabin bag could be purchased at that price on many flights. However, research from Which? found that the typical price was considerably higher. ASA stated the price to be misleading and EasyJet subsequently amended the wording after Watchdog advised to refrain from using such price representations in future. The criticism from ASA against EasyJet serves as a timely reminder of the legal importance of price transparency and the proper incorporation of contract terms at the point of formation.
This is increasingly relevant to businesses operating online in relation to whether price‑related terms have been properly incorporated into a contract and whether the overall pricing structure is sufficiently transparent at the outset.
Incorporation of terms in online transactions
Contractual terms can be incorporated by signature, by notice, or through a consistent course of dealings. In online consumer contracts, this typically occurs when customers click an “agree to terms and conditions” button before proceeding to payment. Disputes frequently arise where price‑related terms were not sufficiently brought to the customer’s attention. If a business seeks to rely on a term that introduces additional charges or varies a price, the question becomes whether that term was incorporated effectively and whether it was sufficiently prominent and transparent at the point of contract formation.
Courts are slow to enforce terms that appear unexpected, or buried in small print. Even if terms exist explaining that prices may vary, they may be held unenforceable if headline pricing created a different reasonable expectation. The EasyJet example underlines this point. Even if terms exist in the small print explaining that prices vary, businesses must ensure that headline pricing claims do not mislead and that any additional charges are made apparent early in the purchasing process.
Price transparency and the Digital Markets, Competition and Consumers Act 2024
The Digital Markets, Competition and Consumers Act 2024 strengthens consumers’ rights by imposing obligations on traders to provide clear, upfront information about a product and its price. Practices such as “drip pricing” (where undisclosed fees are added only after the consumer has begun the purchase journey) are at particular risk of breaching these transparency obligations.
As ASA’s finding demonstrates, if a customer disputes a price‑related term, the business must be able to show not only that the term existed, but that it was presented in a way that was clear, fair, and prominent. If the business cannot do so, the term may be struck out as unfair, which could erode consumer trust, and expose businesses to regulatory action and reputational damage.
Key takeaway for businesses
Before updating online pricing or advertising structures, businesses should critically assess whether their pricing claims are accurate, evidence‑based, and sufficiently prominent. Clear communication surrounding any variations reduces legal risk and prevents consumer challenges.
