WHAT TO DO How can the industry handle Zika warnings

Posted on 02/08/2016

As concerns about the Zika virus, both real and exaggerated sweep the industry, Ontario travel agents and tour operators are concerned that they are the ones being made responsible for alerting customers to potential dangers even when none might exist. “The Caribbean, Mexico, South and Central America all are suddenly suspect,” one industry professional told us, likening the situation to past warnings advising passengers, “don’t go to Vancouver because there’s a SARS outbreak in Toronto”.

A Duty To Warn Customers A TICO directive to agents and operators last week reminded registrants that they “have a duty to warn customers of the reports of Zika Virus”, and noted that, “a travel agent is obligated to inform customers of any safety concerns relating to their travel destination at the time of making the reservations, whether or not the Federal Government has issued a travel advisory in relation to that destination." TICO’s directive said, "Travel agents may also have a continuing obligation to inform customers of a deteriorating situation in the travel destination after the travel services have been reserved. Section 37 of the Regulation states that if, after a customer has purchased travel services, the registrant becomes aware of a change to any matter that is referred to in a representation and that, if known, might have affected the customer’s decision to purchase, the registrant shall promptly advise the customer of the change." Consistent With The Message Travel Industry Today asked TICO president and CEO Richard Smart about the onus being put on the industry and on individual agents. Smart emphasized first that, “TICO is the biggest fan of our registrants. We tell consumers to go to their travel agent because they “don’t know what they don’t know”. “Is our recent Zika Bulletin not entirely consistent with this message – consumers should be made aware, and who better to provide it than the professional agents who sell them their travel. “This is exactly why we tell consumers to always deal with a registered agent (and not an unregistered travel agent or OTA).” Smart says it is important to note that TICO has a history of issuing Registrar Bulletins and has done so regarding H1N1, Malaria, Swine Flu, Gastrointestinal viruses etc. as well as for similar bulletins for natural disasters (e.g. Asian tsunamis). TICO’s consumer protection mandate includes, he said, “(among other things) that travellers are kept informed throughout the process.” Keeping Up While that may be true, keeping up with, and keeping passengers advised of, natural disasters, medical emergencies and localized outbreaks in specific areas in numerous countries is a tricky, if not impossible task. Last week Florida Gov. Rick Scott declared a state of emergency in five counties after 12 people were diagnosed with the Zika virus in Florida. The five counties under a state of emergency are Broward, Miami-Dade, Hillsborough, Lee and Santa Rosa. Do 12 cases warrant agents warning travellers about travel to Florida?And now there is a case of Zika being sexually transmitted – how does an agent cope with that? Smart said that while the media reports vary on the health impacts of the Zika Virus, “As Registrar, it is my view that TICO has a duty to remind the industry that certain disclosures, pre and post bookings, are required under the Travel Industry Act (one could argue that TA should already be aware of these regulations without the Bulletin, and many registrants likely are). Since our registrants vary from very small operators to large enterprises, each registrant will need to determine those measures, reasonable under their own circumstances. “While I appreciate the challenges facing our registrants in today’s climate, I don’t see the same burden to our registrants as implied when it comes to the safe and informed travel of consumers. What Is Required? Smart says, “TICO is not expecting agents to be current on all medical advisories, and certainly not to give medical advice (this should only be provided by doctors and/or other qualified health practitioners). When a disease, like Zika, has captured international attention, its very prudent, in my view, for TICO to remind the industry of the legislation to ensure consumers make informed travel decisions.” But that is where the problem lies. This is not just a bulleting advising agents to be aware of the situation and advise passengers, under the directive TICO doesspecifically require travel agents to be current on medical advisories: “a travel agent is obligated (our italics) to inform customers of any safety concerns relating to their travel destination at the time of making the reservations.” So, not only are they required to know and advise customers of any safety concerns (and this is ambiguous at best), they “may also have a continuing obligation (our italics) to inform customers of a deteriorating situation in the travel destination after the travel services have been reserved.” That may work under normal conditions but surely this is an unusual circumstance where nobody is quite sure where, when, if, and how bad the situation might - or might not be - at any given destination. What Falls “Within Reason” TICO says, “Registrants understand the markets in which they are selling (within reason); this ought to include awareness of any significant health or other material issues/representations, regardless of the absence of a government advisory (the registrant does not need to look for problems, but rather, have taken reasonable measures).” So then, when Mexico issued a directive last week declaring, “there is no threat to tourists visiting Mexico,” is a travel agent safe in repeating that statement to customers – or must they note that Mexico has 34 confirmed cases of the Zika virus, though presumably they can add the caveat that, “all of these cases are Mexican nationals living in rural areas, far from the tourist destinations frequently visited by international tourists.” Yet a Reuters/Ipsos poll in the US found that of those aware of the virus, 41 percent said they were less likely to travel to Puerto Rico, Mexico or South America in the next 12 months because of Zika. What To Say We asked TICO how travel agents could comply with the directive and what happens if it comes down to an “I said/you said” situation. Should clients be required to sign a waiver? And how does an agent know whether a destination is at risk?/how much of a risk?/is the woman pregnant – or "planning on getting pregnant?” How, in fact, does an agent even ask such a question? Do agents have to keep an eye on minor changes at a destination (and where do they get such information and how do they determine accuracy) and update clients accordingly? And how do you warn customers about a slight - but potentially catastrophic risk (to pregnant women) in the Caribbean, Mexico, South or Central America and now Florida, without turning all potential travellers off the area completely? Because TICO has a wide range of diverse registrants across the province, the Registrar said, “it is not practical for the regulator to describe the “how to” when responding to the types of disclosures required under the legislation; registrants know their customers and markets far better than TICO. But, that is ducking the issue. If TICO demands industry compliance to rules it sets – surely it is incumbent on TICO to ensure those demands are feasible and can be realistically achieved. TICO says that “the regulations point to the “customer’s purchase decision” and whether the any information provided might affect that decision – this is different for every registrant and requires careful and thoughtful business judgment.” That is more than a little ambiguous and open to a great deal of interpretation. Some legal opinions we sought suggested that this directive has TICO setting negligence standards and determining a ‘Duty of Care’ for passengers rather than leaving it for the courts to determine. TICO said it could not “comment nor speculate on possible future legal ramifications, other than to note that similar registrar bulletins have been issued in the past and that registrants may want to consider the handling of these past scenarios, the industry’s response at that time and, more importantly, the reasonableness of measures undertaken with this bulletin.” Working On It Tour operators and travel agents tell us they have adopted various methods of compliance from adding information to their “Terms and Conditions” which the customer has to acknowledge before they can book (But do they actually read them?) to waiving fees for name changes, destination or date changes, to offering a full credit in the form of future travel, or providing a full refund for the pregnant travellers and their travelling companion. The Association of Canadian Travel Agencies (ACTA), which has seats on the TICO board, has posted information pertaining to Zika on their website  but it is simply a compilation of information put out by various regulators, tour operators, airlines and cruise lines. We were unable to get a response to our questions from ACTA prior to publication deadline. The Canadian Association of Tour Operators (CATO), also a TICO Board member, has a scheduled conference call of its members today to discuss the implications and ramifications of the TICO Registrar Bulletin regarding the presence of the Zika Virus in destinations.