The Carbolic Smoke Ball – Pic of the Week

Our picture of the week comes to us from the Library’s historical newspaper database,
Chronicling America. It is an advertisement for a Carbolic Smoke Ball. You might ask – what is a Carbolic Smoke Ball and what does it have to do with law?

A Carbolic Smoke Ball was a 19th century version of a neti pot, and if you think back to your contracts class, you might remember the English case Carlill v. The Carbolic Smoke Ball Company. The Carbolic Smoke Ball Company placed an advertisement that claimed their product would prevent its user from contracting influenza, and if they did contract it, Carbolic would pay the user 100 pounds. The advertisement in question was placed in an English paper, though the above ad is from a newspaper in Indianapolis.

Louisa Carlill, a Smoke Ball owner, contracted the flu and requested her 100 pounds. Carbolic Smoke Ball declined, claiming their advertisement was not a binding offer. The British Court of Appeal disagreed, holding that the advertisement was in fact a binding offer. This case appears in many contracts textbooks, and was later cited as authority in Leonard v. Pepsico, a case in which a Pepsi advertisement displayed a Harrier Jet as though it was available in exchange for seven million Pepsi Points (you could purchase additional Pepsi Points for cash if you were not able to drink seven million points worth of Pepsi). As the U.S. District Court for the Southern District of New York explained in its opinion:

Inspired by this commercial, plaintiff set out to obtain a Harrier Jet. Plaintiff explains that he is “typical of the `Pepsi Generation’ … he is young, has an adventurous spirit, and the notion of obtaining a Harrier Jet appealed to him enormously.” (Pl. Mem. at 3.)

In that case, the Court found that the advertisement was not a binding offer, the ad was tongue in cheek, so that a reasonable person could not believe that Pepsi was giving away a Harrier Jet, and there was no writing between the parties that would satisfy the Statute of Frauds.

And the moral of the story? Let us know in the comments.