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There's also the old contract law chestnut of the guy who bought enough Pepsi points to theoretically earn a Harrier jet. The court said no, you don't get a je

There's also the old contract law chestnut of the guy who bought enough Pepsi points to theoretically earn a Harrier jet. The court said no, you don't get a jet. https://en.m.wikipedia.org/wiki/Leonard_v._Pepsico,_Inc https://en.m.wikipedia.org/wiki/Leonard_v._Pepsico,_Inc.

r00fus 7y ago
Its crazy that the ads still kept running after the ruling albeit with an adjusted point cost. How was the ad not “false advertising“? It should have had a disclaimer.
- tialaramex 7y ago
  It's never false advertising if a reasonable person wouldn't believe it. Irn Brew advertised that it is "Made in Scotland, from girders" but no reasonable person would conclude that a fizzy drink would be made from girders, so it isn't false advertising. Likewise Pringles says "Once you pop you can't stop" but it isn't false advertising because a reasonable person understands that they can actually stop. You can't have a fighter jet. It's not just "They are very expensive" they are not available. Sale is restricted to qualified purchasers. A reasonable person knows they can't have a fighter jet. The plaintiffs in that case knew it. They were just looking for a pile of cash. Too bad.
  - CamperBob2 7y ago
    In the US there would be no problem owning a fighter jet, and it would be entirely reasonable to expect Pepsi to deliver what it promised. Plenty of old Soviet hardware is in private hands over here, for instance. [1] You couldn't equip it with functioning machine guns or missiles with explosive warheads without the appropriate Federal Firearms License, but other than those narrow exceptions, party on. [1] E.g., https://www.popularmechanics.com/military/aviation/news/a28700/raptor-aviation-cold-war-fighter-jets/ https://www.popularmechanics.com/military/aviation/news/a287...
    - vidarh 7y ago
      > it would be entirely reasonable to expect Pepsi to deliver what it promised. It's presented in the ad in a totally ridiculous way, and that was part of the reason - it was considered to be effectively be puffery, because even if you believe that Pepsi might reasonably be able to make good on the offer, it's obvious they would not hand a fighter jet to a teenager for them to fly to school. It was fairly obvious from the ad that it was making an exaggeration. Puffery generally does not get sanctioned even when much more realistic claims are made than that. But the claim also fell down on other reasons - it wasn't taken to be an offer in the form it was presented, and the value (of the points, as per the cost of purchasing them) meant that a written contract would be required to pursue it as fraud.
      - sireat 7y ago
        I just rewatched the ad after 25 years and it still seems to me like a real offer. You see that the other offers(drink, shirt) are real and reasonable so the final one for the many points seems reasonable as well. There was no disclaimer no nothing. I know I was not alone at the time and we were young adults at the time. If the offer had said 70 bazzillion Pepsi points then sure, but 7_000_000 points seemed somehow... real.
        vidarh 7y ago
        I don't know what to say. To me it is very obviously a joke. Even if the amount was not a giveaway, a teenager flying a fighter jet to school makes it obvious. The court decision [1] includes a lengthy explanation of why the inclusion is obviously meant to be a joke. But note that even so the ridiculousness of it is as pointed out only one of three factors called out by the court as invalidating the claim. Even if the ad itself presented it entirely seriously that would not have bound Pepsi to provide one, because they did not make a binding offer. Importantly, the ad is a humorous ad for the "Pepsi Stuff" loyalty program. The catalog itself did not contain the jet or an order form for the jet. The court states [1] that "The general rule is that an advertisement does not constitute an offer." But the court goes on to cite precedent that even filling in an order form does not necessarily create a binding offer, and goes on to say: > Under these principles, plaintiff's letter of March 27, 1996, with the Order Form and the appropriate number of Pepsi Points, constituted the offer. There would be no enforceable contract until defendant accepted the Order Form and cashed the check. In other words, Pepsico did not make an offer. Plaintiff did, and because Pepsico didn't accept his order form and check, they did not enter into a contract with him to provide him with a jet. The court provided for an exception and explained why it did not apply: > The exception to the rule that advertisements do not create any power of acceptance in potential offerees is where the advertisement is "clear, definite, and explicit, and leaves nothing open for negotiation," in that circumstance, "it constitutes an offer, acceptance of which will complete the contract." but: > First, the commercial cannot be regarded in itself as sufficiently definite, because it specifically reserved the details of the offer to a separate writing, the Catalog.[6] The commercial itself made no mention of the steps a potential offeree would be required to take to accept the alleged offer of a Harrier Jet. .. and: > Second, even if the Catalog had included a Harrier Jet among the items that could be obtained by redemption of Pepsi Points, the advertisement of a Harrier Jet by both television commercial and catalog would still not constitute an offer. As the Mesaros court explained, the absence of any words of limitation such as "first come, first served," renders the alleged offer sufficiently indefinite that no contract could be formed. See Mesaros, 845 F.2d at 1581. "A customer would not usually have reason to believe that the shopkeeper intended exposure to the risk of a multitude of acceptances resulting in a number of contracts exceeding the shopkeeper's inventory." Farnsworth, supra, at 242. There was no such danger in Lefkowitz, owing to the limitation "first come, first served." Interesting because of how it relates to Hoovers infamous campaign is that they'd likely have been in less problems in the US, possibly dependent on the state, both for the above reason, and because of this: > Fifth, the number of Pepsi Points the commercial mentions as required to "purchase" the jet is 7,000,000. To amass that number of points, one would have to drink 7,000,000 Pepsis (or roughly 190 Pepsis a day for the next hundred years an unlikely possibility), or one would have to purchase approximately $700,000 worth of Pepsi Points. The cost of a Harrier Jet is roughly $23 million dollars, a fact of which plaintiff was aware when he set out to gather the amount he believed necessary to accept the alleged offer. (See Affidavit of Michael E. McCabe, 96 Civ. 5320, Aug. 14, 1997, Exh. 6 (Leonard Business Plan).) Even if an objective, reasonable person were not aware of this fact, he would conclude that purchasing a fighter plane for $700,000 is a deal too good to be true.[13] This is part of the argument for why it is clear that the offer was made in jest, and was mere puffery. Basically: If something that appears to you to be an offer looks too good to be true, don't expect the other side to be held to making an offer unless they've actually made a very precise offer with sufficient limitations to make it clear. This alone should stand out in the ad - it is free of the kind of statements of various limitations typical of ads that are less humorous and clearly intended to be taken seriously tend to have in the US. [1] https://law.justia.com/cases/federal/district-courts/FSupp2/88/116/2579076/ https://law.justia.com/cases/federal/district-courts/FSupp2/...
  - sokoloff 7y ago
    Fighter jets are not nearly as restricted as you might think. Paul Allen owned a Mig-29 Fulcrum: https://www.thedrive.com/the-war-zone/29292/you-can-buy-paul-allens-mig-29-fulcrum-jet-fighter https://www.thedrive.com/the-war-zone/29292/you-can-buy-paul...
  - nradov 7y ago
    Art Nalls privately owns a Harrier fighter jet. It is legally registered in the US. http://artnalls.com/about-nalls-aviation/the-sea-harrier/ http://artnalls.com/about-nalls-aviation/the-sea-harrier/
  - CJefferson 7y ago
    As a child I always believed irn bru was made from girders. An extremely trace amount obviously, to add iron.
  - dazc 7y ago
    '..but no reasonable person would conclude that a fizzy drink would be made from girders.' I remember the ad and did believe the claim at the time. I was pretty young then though, maybe 5 or 6?
    - delinka 7y ago
      Are 5/6 year olds considered “reasonable people”?
      - ollie87 7y ago
        Not in my experience.
    - EpicEng 7y ago
      >I was pretty young then though, maybe 5 or 6? So, not a reasonable person.
  - NullPrefix 7y ago
    Sign up for $200 broadband package and ignore the bill, because $200 for internet is completely unreasonable.
  - hrnnnnnn 7y ago
    "Though the ‘girders’ were often thought to be a reference to the ‘rust’ colour of the drink, Irn Bru does have 0.002 per cent ammonium ferric citrate listed among its ingredients – a food additive containing iron hydroxide." https://foodanddrink.scotsman.com/drink/16-facts-about-irn-bru/ https://foodanddrink.scotsman.com/drink/16-facts-about-irn-b...
  - elliekelly 7y ago
    I wonder what ever happened to that guy. If I remember correctly he was a college student at the time and somehow managed to raise almost a million dollars to send a certified check to Pepsi to buy enough "Pepsi points" to redeem for the jet. Whatever your opinion of the lawsuit, to be able to raise that kind of cash in the 90's without the help of the internet is pretty impressive.
  - benj111 7y ago
    Are you saying Nigerian 'princes' have a possible valid defence by claiming that no reasonable person would believe they actually were princes with a lot of money they needed help with?
    - yesbabyyes 7y ago
      Different jurisdiction. "419" is actually the criminal code for fraud in Nigeria. Nearby countries with a significant presence of similar activity have similar legislation (also see the "sakawa boys" of Ghana). Naturally, collaborators in other countries such as the victim's (or "client", as they are typically referred to by 419ers themselves) would presumably be charged under local jurisdiction. That said, some of the scams, like those common a few years ago about immense sums of cash in Afghanistan or Iraq could be viewed as less unrealistic--I mean, all of those dollars US shipped over there and "lost" must have ended up somewhere, right?
      - benj111 7y ago
        Perhaps I should have added inverted commas to the 'Nigerian' bit also, I envisioned them getting tried in a western court.
        yesbabyyes 7y ago
        In my experience, most work out of Nigeria or Ghana. One reason Nigerians tend to catch a bad rep in Gh. Perhaps other countries in the region as well. The scam is way older though, it used to be known as Spanish Letters or Spanish Prisoner in the 18th century.
  - jdietrich 7y ago
    It's considerably less unreasonable when you consider the fact that, less than a decade previously, Pepsi briefly commanded the sixth largest navy in the world. https://www.atlasobscura.com/articles/soviet-union-pepsi-ships https://www.atlasobscura.com/articles/soviet-union-pepsi-shi...
    - dentemple 7y ago
      In an alternate universe, Pepsi utilized this navy to enforce the dominance of its brand.
  - xenocyon 7y ago
    "A reasonable person knows they can't have a fighter jet." I'm not sure I buy this argument. A reasonable person knows they can't have a billion dollars for winning a silly game. Yet, a billion dollars is indeed (sometimes) the Powerball award, and you can't deny the award to the winner saying "obviously you should have known we wouldn't actually give you the billion dollars at the end". The lesson should have been for Pepsi: don't do the promo if you can't afford the prize. Instead, they were happy to get the free advertising and yank the prize away at the end.
    - EpicEng 7y ago
      >I'm not sure I buy this argument. A reasonable person knows they can't have a billion dollars for winning a silly game. Yet, a billion dollars is indeed (sometimes) the Powerball award, and you can't deny the award to the winner saying "obviously you should have known we wouldn't actually give you the billion dollars at the end". How is that unreasonable? How do they 'know' that considering lotteries absolutely do pay out? It's perfectly reasonable to expect that a state/Nationwide lottery will pay out what it says it will pay out. The entire point of a lottery is that many pay and a few win. A barrier jet as a prize is not in any way reasonable.
  - throwanem 7y ago
    That's not exactly true. Some fighter and fighter-trainer jets, such as the F-5 (a light supersonic fighter with some strike capability) and the T-38 (a related trainer), have multiple examples in private hands in the US right now. They are very expensive to purchase, of course, and almost as expensive to maintain - thoroughbreds are a pauper's diversion by comparison - but that's not the same as saying it is impossible to own one, and depending on the specific mark of Harrier in question, I wouldn't necessarily see it as unreasonable to believe Pepsico could fulfill that claim.
  - parliament32 7y ago
    It's pretty cool what they can get away with in this respect too. Coca-Cola recently successfully argued that "no reasonable person could be misled into thinking Vitaminwater was a 'healthy drink'".
- dragonwriter 7y ago
  > How was the ad not “false advertising“? It was, literally, but the US mostly doesn't prohibit false advertising and the claim at issue wasn't false advertising but breach of contract. Whether something is false advertising and whether it forms a offer that can be accepted to form a legally binding contract are two different questions, and the case illustrates that contract law is not a substitute for regulation of false advertising.
koboll 7y ago
Among other claims made, Leonard claimed that a federal judge was incapable of deciding on the matter, and that instead the decision had to be made by a jury consisting of members of the "Pepsi Generation" to whom the advertisement would allegedly constitute an offer. Incredible.
- mywittyname 7y ago
  Your honor, the marketing wanks clearly understood the likes of my client to be imbeciles, as such, they should have known better than to offer them a Harrier jet in bad faith.

r00fus 7y ago

Its crazy that the ads still kept running after the ruling albeit with an adjusted point cost. How was the ad not “false advertising“? It should have had a disclaimer.

tialaramex 7y ago
It's never false advertising if a reasonable person wouldn't believe it. Irn Brew advertised that it is "Made in Scotland, from girders" but no reasonable person would conclude that a fizzy drink would be made from girders, so it isn't false advertising. Likewise Pringles says "Once you pop you can't stop" but it isn't false advertising because a reasonable person understands that they can actually stop. You can't have a fighter jet. It's not just "They are very expensive" they are not available. Sale is restricted to qualified purchasers. A reasonable person knows they can't have a fighter jet. The plaintiffs in that case knew it. They were just looking for a pile of cash. Too bad.
- CamperBob2 7y ago
  In the US there would be no problem owning a fighter jet, and it would be entirely reasonable to expect Pepsi to deliver what it promised. Plenty of old Soviet hardware is in private hands over here, for instance. [1] You couldn't equip it with functioning machine guns or missiles with explosive warheads without the appropriate Federal Firearms License, but other than those narrow exceptions, party on. [1] E.g., https://www.popularmechanics.com/military/aviation/news/a28700/raptor-aviation-cold-war-fighter-jets/ https://www.popularmechanics.com/military/aviation/news/a287...
  - vidarh 7y ago
    > it would be entirely reasonable to expect Pepsi to deliver what it promised. It's presented in the ad in a totally ridiculous way, and that was part of the reason - it was considered to be effectively be puffery, because even if you believe that Pepsi might reasonably be able to make good on the offer, it's obvious they would not hand a fighter jet to a teenager for them to fly to school. It was fairly obvious from the ad that it was making an exaggeration. Puffery generally does not get sanctioned even when much more realistic claims are made than that. But the claim also fell down on other reasons - it wasn't taken to be an offer in the form it was presented, and the value (of the points, as per the cost of purchasing them) meant that a written contract would be required to pursue it as fraud.
    - sireat 7y ago
      I just rewatched the ad after 25 years and it still seems to me like a real offer. You see that the other offers(drink, shirt) are real and reasonable so the final one for the many points seems reasonable as well. There was no disclaimer no nothing. I know I was not alone at the time and we were young adults at the time. If the offer had said 70 bazzillion Pepsi points then sure, but 7_000_000 points seemed somehow... real.
      - vidarh 7y ago
        I don't know what to say. To me it is very obviously a joke. Even if the amount was not a giveaway, a teenager flying a fighter jet to school makes it obvious. The court decision [1] includes a lengthy explanation of why the inclusion is obviously meant to be a joke. But note that even so the ridiculousness of it is as pointed out only one of three factors called out by the court as invalidating the claim. Even if the ad itself presented it entirely seriously that would not have bound Pepsi to provide one, because they did not make a binding offer. Importantly, the ad is a humorous ad for the "Pepsi Stuff" loyalty program. The catalog itself did not contain the jet or an order form for the jet. The court states [1] that "The general rule is that an advertisement does not constitute an offer." But the court goes on to cite precedent that even filling in an order form does not necessarily create a binding offer, and goes on to say: > Under these principles, plaintiff's letter of March 27, 1996, with the Order Form and the appropriate number of Pepsi Points, constituted the offer. There would be no enforceable contract until defendant accepted the Order Form and cashed the check. In other words, Pepsico did not make an offer. Plaintiff did, and because Pepsico didn't accept his order form and check, they did not enter into a contract with him to provide him with a jet. The court provided for an exception and explained why it did not apply: > The exception to the rule that advertisements do not create any power of acceptance in potential offerees is where the advertisement is "clear, definite, and explicit, and leaves nothing open for negotiation," in that circumstance, "it constitutes an offer, acceptance of which will complete the contract." but: > First, the commercial cannot be regarded in itself as sufficiently definite, because it specifically reserved the details of the offer to a separate writing, the Catalog.[6] The commercial itself made no mention of the steps a potential offeree would be required to take to accept the alleged offer of a Harrier Jet. .. and: > Second, even if the Catalog had included a Harrier Jet among the items that could be obtained by redemption of Pepsi Points, the advertisement of a Harrier Jet by both television commercial and catalog would still not constitute an offer. As the Mesaros court explained, the absence of any words of limitation such as "first come, first served," renders the alleged offer sufficiently indefinite that no contract could be formed. See Mesaros, 845 F.2d at 1581. "A customer would not usually have reason to believe that the shopkeeper intended exposure to the risk of a multitude of acceptances resulting in a number of contracts exceeding the shopkeeper's inventory." Farnsworth, supra, at 242. There was no such danger in Lefkowitz, owing to the limitation "first come, first served." Interesting because of how it relates to Hoovers infamous campaign is that they'd likely have been in less problems in the US, possibly dependent on the state, both for the above reason, and because of this: > Fifth, the number of Pepsi Points the commercial mentions as required to "purchase" the jet is 7,000,000. To amass that number of points, one would have to drink 7,000,000 Pepsis (or roughly 190 Pepsis a day for the next hundred years an unlikely possibility), or one would have to purchase approximately $700,000 worth of Pepsi Points. The cost of a Harrier Jet is roughly $23 million dollars, a fact of which plaintiff was aware when he set out to gather the amount he believed necessary to accept the alleged offer. (See Affidavit of Michael E. McCabe, 96 Civ. 5320, Aug. 14, 1997, Exh. 6 (Leonard Business Plan).) Even if an objective, reasonable person were not aware of this fact, he would conclude that purchasing a fighter plane for $700,000 is a deal too good to be true.[13] This is part of the argument for why it is clear that the offer was made in jest, and was mere puffery. Basically: If something that appears to you to be an offer looks too good to be true, don't expect the other side to be held to making an offer unless they've actually made a very precise offer with sufficient limitations to make it clear. This alone should stand out in the ad - it is free of the kind of statements of various limitations typical of ads that are less humorous and clearly intended to be taken seriously tend to have in the US. [1] https://law.justia.com/cases/federal/district-courts/FSupp2/88/116/2579076/ https://law.justia.com/cases/federal/district-courts/FSupp2/...
- sokoloff 7y ago
  Fighter jets are not nearly as restricted as you might think. Paul Allen owned a Mig-29 Fulcrum: https://www.thedrive.com/the-war-zone/29292/you-can-buy-paul-allens-mig-29-fulcrum-jet-fighter https://www.thedrive.com/the-war-zone/29292/you-can-buy-paul...
- nradov 7y ago
  Art Nalls privately owns a Harrier fighter jet. It is legally registered in the US. http://artnalls.com/about-nalls-aviation/the-sea-harrier/ http://artnalls.com/about-nalls-aviation/the-sea-harrier/
- CJefferson 7y ago
  As a child I always believed irn bru was made from girders. An extremely trace amount obviously, to add iron.
- dazc 7y ago
  '..but no reasonable person would conclude that a fizzy drink would be made from girders.' I remember the ad and did believe the claim at the time. I was pretty young then though, maybe 5 or 6?
  - delinka 7y ago
    Are 5/6 year olds considered “reasonable people”?
    - ollie87 7y ago
      Not in my experience.
  - EpicEng 7y ago
    >I was pretty young then though, maybe 5 or 6? So, not a reasonable person.
- NullPrefix 7y ago
  Sign up for $200 broadband package and ignore the bill, because $200 for internet is completely unreasonable.
- hrnnnnnn 7y ago
  "Though the ‘girders’ were often thought to be a reference to the ‘rust’ colour of the drink, Irn Bru does have 0.002 per cent ammonium ferric citrate listed among its ingredients – a food additive containing iron hydroxide." https://foodanddrink.scotsman.com/drink/16-facts-about-irn-bru/ https://foodanddrink.scotsman.com/drink/16-facts-about-irn-b...
- elliekelly 7y ago
  I wonder what ever happened to that guy. If I remember correctly he was a college student at the time and somehow managed to raise almost a million dollars to send a certified check to Pepsi to buy enough "Pepsi points" to redeem for the jet. Whatever your opinion of the lawsuit, to be able to raise that kind of cash in the 90's without the help of the internet is pretty impressive.
- benj111 7y ago
  Are you saying Nigerian 'princes' have a possible valid defence by claiming that no reasonable person would believe they actually were princes with a lot of money they needed help with?
  - yesbabyyes 7y ago
    Different jurisdiction. "419" is actually the criminal code for fraud in Nigeria. Nearby countries with a significant presence of similar activity have similar legislation (also see the "sakawa boys" of Ghana). Naturally, collaborators in other countries such as the victim's (or "client", as they are typically referred to by 419ers themselves) would presumably be charged under local jurisdiction. That said, some of the scams, like those common a few years ago about immense sums of cash in Afghanistan or Iraq could be viewed as less unrealistic--I mean, all of those dollars US shipped over there and "lost" must have ended up somewhere, right?
    - benj111 7y ago
      Perhaps I should have added inverted commas to the 'Nigerian' bit also, I envisioned them getting tried in a western court.
      - yesbabyyes 7y ago
        In my experience, most work out of Nigeria or Ghana. One reason Nigerians tend to catch a bad rep in Gh. Perhaps other countries in the region as well. The scam is way older though, it used to be known as Spanish Letters or Spanish Prisoner in the 18th century.
- jdietrich 7y ago
  It's considerably less unreasonable when you consider the fact that, less than a decade previously, Pepsi briefly commanded the sixth largest navy in the world. https://www.atlasobscura.com/articles/soviet-union-pepsi-ships https://www.atlasobscura.com/articles/soviet-union-pepsi-shi...
  - dentemple 7y ago
    In an alternate universe, Pepsi utilized this navy to enforce the dominance of its brand.
- xenocyon 7y ago
  "A reasonable person knows they can't have a fighter jet." I'm not sure I buy this argument. A reasonable person knows they can't have a billion dollars for winning a silly game. Yet, a billion dollars is indeed (sometimes) the Powerball award, and you can't deny the award to the winner saying "obviously you should have known we wouldn't actually give you the billion dollars at the end". The lesson should have been for Pepsi: don't do the promo if you can't afford the prize. Instead, they were happy to get the free advertising and yank the prize away at the end.
  - EpicEng 7y ago
    >I'm not sure I buy this argument. A reasonable person knows they can't have a billion dollars for winning a silly game. Yet, a billion dollars is indeed (sometimes) the Powerball award, and you can't deny the award to the winner saying "obviously you should have known we wouldn't actually give you the billion dollars at the end". How is that unreasonable? How do they 'know' that considering lotteries absolutely do pay out? It's perfectly reasonable to expect that a state/Nationwide lottery will pay out what it says it will pay out. The entire point of a lottery is that many pay and a few win. A barrier jet as a prize is not in any way reasonable.
- throwanem 7y ago
  That's not exactly true. Some fighter and fighter-trainer jets, such as the F-5 (a light supersonic fighter with some strike capability) and the T-38 (a related trainer), have multiple examples in private hands in the US right now. They are very expensive to purchase, of course, and almost as expensive to maintain - thoroughbreds are a pauper's diversion by comparison - but that's not the same as saying it is impossible to own one, and depending on the specific mark of Harrier in question, I wouldn't necessarily see it as unreasonable to believe Pepsico could fulfill that claim.
- parliament32 7y ago
  It's pretty cool what they can get away with in this respect too. Coca-Cola recently successfully argued that "no reasonable person could be misled into thinking Vitaminwater was a 'healthy drink'".
dragonwriter 7y ago
> How was the ad not “false advertising“? It was, literally, but the US mostly doesn't prohibit false advertising and the claim at issue wasn't false advertising but breach of contract. Whether something is false advertising and whether it forms a offer that can be accepted to form a legally binding contract are two different questions, and the case illustrates that contract law is not a substitute for regulation of false advertising.

koboll 7y ago

Among other claims made, Leonard claimed that a federal judge was incapable of deciding on the matter, and that instead the decision had to be made by a jury consisting of members of the "Pepsi Generation" to whom the advertisement would allegedly constitute an offer. Incredible.

mywittyname 7y ago
Your honor, the marketing wanks clearly understood the likes of my client to be imbeciles, as such, they should have known better than to offer them a Harrier jet in bad faith.