A concerned bus driver filed a complaint with the Dutch Advertising Code Committee (ACC) about a Translink radio commercial. In this radio commercial, the attention was drawn to OVpay. This is a new form of payment in public transport in the Netherlands. You simply hold your debit card or your mobile against a card reader, and BEEP, you're checked in. The radio commercial referred to a website for more information: "Want to know how it works? Check out OVpay.nl". The bus driver noticed while working that over-65s who check in with OVpay usually do not know that they are not then traveling with a discount. That is why, according to him, the radio commercial should point out that you pay the full fare with OVpay.

The chairman of the ACC agreed with the complainant. The radio commercial does not clearly point out to consumers that they have to pay the full fare with OVpay, the chairman said. The reference "Want to know how it works? Check out OVpay.nl" does not make it clear that the website lists OVpay restrictions. And failure to state or not clearly state essential information (such as substantial limitations on the offer) is a misleading omission.

A chairman's decision is open to challenge before the full ACC. Translink lodged a challenge, and managed to overturn the chairman’s decision. According to the ACC, the content of the radio commercial is quite limited. The encouragement to visit the website makes clear - according to the ACC - to the average consumer that he can find on the website exactly how OVpay works, including any limitations. The radio commercial does not suggest that a discount is automatically processed when checking in and out with OVpay. According to the ACC, the average consumer will therefore not expect this. Unlike the chairman, the ACC rules that the commercial is not misleading, and rejects the complaint.

It is not that often that a chairman's decision is overturned by the ACC. But then, this is a case that can be viewed differently. The bottom line is that the chairman and the ACC have a different understanding of what the average consumer presumably expects after hearing the radio commercial. The presumed expectations of an "average consumer" are the starting point when evaluating a deception complaint. Those expectations must be true. The average consumer is a fictional figure that serves as a benchmark. Certain characteristics are attributed to the average consumer. For example, the average consumer is "reasonably informed, observant and circumspect". In addition, the average consumer is willing to delve into offered information. Determining the presumed expectations of the average consumer is not an exact science. The court (or in this case: the ACC) is reasonably free in doing so. But given the characteristics attributed to the average consumer, the average consumer is not easily fooled. 

Now that the radio commercial does not suggest anything about the tariffs that are applied when checking in and out with OVpay, and encourages to look at OVpay.nl for the exact operation of OVpay, the ACC rules that the average consumer is not misled. For the bus driver, this strikes me as an unsatisfactory outcome. I can well imagine (some) over-65s being misled. But not everyone who is misled in practice is also protected by the law. The benchmark is the relatively sharp "average consumer," not over-65s. 

Apparently, it will soon become possible to automatically process discounts when checking in and out with OVpay. This new feature apparently comes not a moment too soon.