The time Pepsi got sued for a $33m fighter jet
April 1, 2022 7:27 PM Subscribe
In 1996, Pepsi ran a promotion that jokingly suggested entrants could win a military aircraft. One man took it very seriously. “HARRIER FIGHTER … 7,000,000 PEPSI POINTS” flashes across the screen as the music crescendos into a fade-out. Leonard v Pepsico case brief and Yale's course on contract law.
From my early days on Mefi, I’m reminded of this story of a man who took one of those junk mail “checks” to a bank who proceeded to cash it for having met the basic criteria for negotiability. Never ceases to amaze when marketing blows up in the advertisers faces.
posted by dr_dank at 8:15 PM on April 1, 2022 [6 favorites]
posted by dr_dank at 8:15 PM on April 1, 2022 [6 favorites]
Re Pepsi and military hardware: Pepsi also almost became a significant (though not the sixth largest often claimed) Naval power in a ships for syrup trade deal.
posted by Mitheral at 8:18 PM on April 1, 2022 [2 favorites]
posted by Mitheral at 8:18 PM on April 1, 2022 [2 favorites]
It’s extremely weak that this guy just sent in 15 Pepsi points and a check backed by a cadre of investors and not 7,000,000 Pepsi points.
posted by silby at 8:29 PM on April 1, 2022 [18 favorites]
posted by silby at 8:29 PM on April 1, 2022 [18 favorites]
I've always found it a little bit circular that advertisers are allowed to blatantly lie under the reasoning that it isn't deceptive advertising because reasonable people understand that advertisers blatantly lie.
posted by Pyry at 8:36 PM on April 1, 2022 [49 favorites]
posted by Pyry at 8:36 PM on April 1, 2022 [49 favorites]
My childhood memory -- this was one of the first news stories I remember hearing -- was that he bought the points. I guess sending the check was buying the points? Anyway, I never knew how the story ended and always assumed he got a settlement for at least a fraction of the value of the jet. I'm kind of bummed to hear how it turned out.
posted by grandiloquiet at 8:37 PM on April 1, 2022 [1 favorite]
posted by grandiloquiet at 8:37 PM on April 1, 2022 [1 favorite]
Pepsi also ran a contest in 1992 in the Philippines where bottle caps with numbers were worth prizes "...because of a computer error, 800,000 regular bottle caps had also been printed with the number 349 (but without the security code). Theoretically, these bottle caps were cumulatively worth US$32 billion" ... "Pepsi Number Fever ... led to riots and the deaths of at least five people" ... "About 22,000 people took legal action against PepsiCo; at least 689 civil suits and 5,200 criminal complaints for fraud and deception were filed"... "The suit would reach the Supreme Court, which in 2006 ruled that `PCPPI is not liable to pay the amounts printed on the crowns to their holders. Nor is PCPPI liable for damages thereon`",
posted by ecco at 8:47 PM on April 1, 2022 [10 favorites]
posted by ecco at 8:47 PM on April 1, 2022 [10 favorites]
reasonable people understand that advertisers blatantly lie
Ah yes, the Fox "news" is entertainment defence.
posted by Mitheral at 8:48 PM on April 1, 2022 [8 favorites]
Ah yes, the Fox "news" is entertainment defence.
posted by Mitheral at 8:48 PM on April 1, 2022 [8 favorites]
Jetsi Blue.
posted by clavdivs at 8:59 PM on April 1, 2022 [7 favorites]
posted by clavdivs at 8:59 PM on April 1, 2022 [7 favorites]
Lazlo Hollyfeld would have figured out how to get the jet.
posted by Halloween Jack at 9:06 PM on April 1, 2022 [16 favorites]
posted by Halloween Jack at 9:06 PM on April 1, 2022 [16 favorites]
He was never going to get his jet, but his claim still had merit and went back to foundational principles. We may snicker at the claim itself, but it did a lot of good exposition work on the law.
posted by Capt. Renault at 10:54 PM on April 1, 2022 [4 favorites]
posted by Capt. Renault at 10:54 PM on April 1, 2022 [4 favorites]
I've always found it a little bit circular that advertisers are allowed to blatantly lie under the reasoning that it isn't deceptive advertising because reasonable people understand that advertisers blatantly lie.
The reasoning isn't so much that it's not deceptive advertising, just that it's not an offer of a contract.
posted by howfar at 11:29 PM on April 1, 2022 [1 favorite]
The reasoning isn't so much that it's not deceptive advertising, just that it's not an offer of a contract.
posted by howfar at 11:29 PM on April 1, 2022 [1 favorite]
The reasoning isn't so much that it's not deceptive advertising, just that it's not an offer of a contract.
This is right about part of the judgment, but the finding around the "reasonable person" part was grounded in puffery law, which is exactly what Pyry was stating, and applies in slightly different ways both in contracts and in advertising (and a few other areas). Puffery is a lingering remnant of common law merged in a somewhat unholy way with first-amendment rights that keep it from going away, that essentially says that if certain kinds of speech are exaggerated enough or opinion-like enough (where that line is very hard to draw), it's on the hearer to reject it and the generator of that speech is not responsible. Here's a very interesting law review article that goes into a fair amount of detail with many examples.
posted by advil at 3:57 AM on April 2, 2022 [6 favorites]
This is right about part of the judgment, but the finding around the "reasonable person" part was grounded in puffery law, which is exactly what Pyry was stating, and applies in slightly different ways both in contracts and in advertising (and a few other areas). Puffery is a lingering remnant of common law merged in a somewhat unholy way with first-amendment rights that keep it from going away, that essentially says that if certain kinds of speech are exaggerated enough or opinion-like enough (where that line is very hard to draw), it's on the hearer to reject it and the generator of that speech is not responsible. Here's a very interesting law review article that goes into a fair amount of detail with many examples.
posted by advil at 3:57 AM on April 2, 2022 [6 favorites]
Hey, puffery!
I got into my LLM (Master's in Law) program wanting to use puffery as my general topic for exploration, but my thesis supervisor felt it was "settled" law in the sense that it just kind of... works, generally, and there isn't an urgent problem to be addressed.
As advil says above, it's not "advertisers get to lie because people know advertisers lie", the general principle is oriented more around the idea of reasonable personhood*, and the idea that you can state something so outrageous that a reasonable person would not believe it.
This is why there are no court cases where people are suing Skittles because they bought and opened a bag of Skittles and a unicorn did not run into the room and touch their couch with its horn and turn it into Skittles like in the ad. It's why a pizza joint on the radio can say they have the best slice in town without having to present 40 pages of quantitative data first defining "best" in the context of pizza and then what exactly makes their pizza "the best."
But there's a thin edge to puffery; recent examples include an attempted class action suit because Hawaiian potato chips are not made in Hawaii, or an attempted class action suit that TGI Fridays potato skin chips are not made from potato skins but seasoned like the restaurant's potato skin dish.
(I swear puffery is not all potato chip law, I just found the Hawaiian thing while struggling to recall the TGIF thing).
Like howfar says, its roots are in contract law (like the Pepsi example above, or pretty much any time an end consumer brings suit) but legal issues over puffery often cross over into competition law or advertising regulatory bodies where companies will go after each other because they feel another company's puffery is edging over into falsehood instead of easily recognizable exaggeration.
I regret not being allowed to pursue it as an LLM topic, but (as I have learned, slowly and with great pain) good legal writing tends to be more about an imminent problem in law that requires an urgent solution and some ideas on how to address it, and not just pointing at weird stuff and going "hey, that sure is weird." Puffery is weird! But it's not a problem that the courts traditionally have a problem dealing with; it comes down to some judgment calls among the judiciary and sometimes judges get things wrong, but on the whole it's a pretty understood area that's relatively easy to navigate.
*but "reasonable personhood" is an amazing topic for exploration, because immense amounts of law rely on this vague cultural idea of "the man on the Clapham bus", and it's only in the last couple of decades that people have started to really look at that and go "wow, that's a super colonial, neurotypical, able-bodied framing that kind of sucks." If you want a great read on the subject, Rethinking the Reasonable Person is a dynamite monograph by Mayo Moran that meticulously unpacks so much that is horribly wrong with how reasonable personhood is constructed.
posted by Shepherd at 5:22 AM on April 2, 2022 [54 favorites]
I got into my LLM (Master's in Law) program wanting to use puffery as my general topic for exploration, but my thesis supervisor felt it was "settled" law in the sense that it just kind of... works, generally, and there isn't an urgent problem to be addressed.
As advil says above, it's not "advertisers get to lie because people know advertisers lie", the general principle is oriented more around the idea of reasonable personhood*, and the idea that you can state something so outrageous that a reasonable person would not believe it.
This is why there are no court cases where people are suing Skittles because they bought and opened a bag of Skittles and a unicorn did not run into the room and touch their couch with its horn and turn it into Skittles like in the ad. It's why a pizza joint on the radio can say they have the best slice in town without having to present 40 pages of quantitative data first defining "best" in the context of pizza and then what exactly makes their pizza "the best."
But there's a thin edge to puffery; recent examples include an attempted class action suit because Hawaiian potato chips are not made in Hawaii, or an attempted class action suit that TGI Fridays potato skin chips are not made from potato skins but seasoned like the restaurant's potato skin dish.
(I swear puffery is not all potato chip law, I just found the Hawaiian thing while struggling to recall the TGIF thing).
Like howfar says, its roots are in contract law (like the Pepsi example above, or pretty much any time an end consumer brings suit) but legal issues over puffery often cross over into competition law or advertising regulatory bodies where companies will go after each other because they feel another company's puffery is edging over into falsehood instead of easily recognizable exaggeration.
I regret not being allowed to pursue it as an LLM topic, but (as I have learned, slowly and with great pain) good legal writing tends to be more about an imminent problem in law that requires an urgent solution and some ideas on how to address it, and not just pointing at weird stuff and going "hey, that sure is weird." Puffery is weird! But it's not a problem that the courts traditionally have a problem dealing with; it comes down to some judgment calls among the judiciary and sometimes judges get things wrong, but on the whole it's a pretty understood area that's relatively easy to navigate.
*but "reasonable personhood" is an amazing topic for exploration, because immense amounts of law rely on this vague cultural idea of "the man on the Clapham bus", and it's only in the last couple of decades that people have started to really look at that and go "wow, that's a super colonial, neurotypical, able-bodied framing that kind of sucks." If you want a great read on the subject, Rethinking the Reasonable Person is a dynamite monograph by Mayo Moran that meticulously unpacks so much that is horribly wrong with how reasonable personhood is constructed.
posted by Shepherd at 5:22 AM on April 2, 2022 [54 favorites]
Lazlo Hollyfeld would have figured out how to get the jet.
They set up the rules, and lately he's come to realize that he has certain materialistic needs.
posted by BlueDuke at 6:33 AM on April 2, 2022 [5 favorites]
They set up the rules, and lately he's come to realize that he has certain materialistic needs.
posted by BlueDuke at 6:33 AM on April 2, 2022 [5 favorites]
Mayo Moran lecture on 'Rethinking the Reasonable Person'
posted by snuffleupagus at 7:53 AM on April 2, 2022 [4 favorites]
posted by snuffleupagus at 7:53 AM on April 2, 2022 [4 favorites]
I was amused by the policy reasoning as to why advertisements aren't offers in the video. "There'd be lots of of lawsuits and it might have a chilling effect on advertising."
I think a lot of us would be OK with that.
posted by mark k at 7:56 AM on April 2, 2022 [9 favorites]
I think a lot of us would be OK with that.
posted by mark k at 7:56 AM on April 2, 2022 [9 favorites]
the general principle is oriented more around the idea of reasonable personhood
I'm reminded of Vitamin Water's claim that "no consumer could reasonably be misled into thinking vitaminwater was a healthy beverage." They eventually settled and removed the claim "vitamin + water = all you need" from their labels.
posted by msbrauer at 8:39 AM on April 2, 2022 [3 favorites]
I'm reminded of Vitamin Water's claim that "no consumer could reasonably be misled into thinking vitaminwater was a healthy beverage." They eventually settled and removed the claim "vitamin + water = all you need" from their labels.
posted by msbrauer at 8:39 AM on April 2, 2022 [3 favorites]
There is a Dilbert cartoon (which I'm unable to find and have started thinking doesn't exist) where Dilbert says he can't be called out for lying if his statement is obviously untrue. I've reflected on that a lot the last few years as obvious batshittery "truth" has circulated.
posted by Mitheral at 9:11 AM on April 2, 2022
posted by Mitheral at 9:11 AM on April 2, 2022
Most telling in my mind is not that Pepsi updated the ad to add the words "Just Kidding" to the end. It's that they also increased the number of points required from 7,000,000 to 700,000,000. Which would raise the size of the cheque needed to buy the points from ~700,000 to ~70,000,000, roughly *twice* the cost of a Harrier jet at the time.
Which makes me wonder if they were hedging their bets that a better legal argument from someone else may succeed, and they'd want to have enough money to actually buy one if it ever came to that.
posted by Snowflake at 9:21 AM on April 2, 2022 [3 favorites]
Which makes me wonder if they were hedging their bets that a better legal argument from someone else may succeed, and they'd want to have enough money to actually buy one if it ever came to that.
posted by Snowflake at 9:21 AM on April 2, 2022 [3 favorites]
I've always found it a little bit circular that advertisers are allowed to blatantly lie under the reasoning that it isn't deceptive advertising because reasonable people understand that advertisers blatantly lie.
well i mean the foundational principle of america is that everyone is trying to fuck you at all of the times. the struggle is to know this, yet not become an ass as a result.
posted by wibari at 9:52 PM on April 2, 2022
well i mean the foundational principle of america is that everyone is trying to fuck you at all of the times. the struggle is to know this, yet not become an ass as a result.
posted by wibari at 9:52 PM on April 2, 2022
the struggle is to know this, yet not become an ass as a result
The struggle is real.
posted by kneecapped at 4:44 PM on April 3, 2022
The struggle is real.
posted by kneecapped at 4:44 PM on April 3, 2022
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posted by If only I had a penguin... at 7:42 PM on April 1, 2022 [5 favorites]