LEGAL EAGLE: Can firms claim whatever they want in adverts?

The famous Smoke Ball advert from the 1891 test case.
The famous Smoke Ball advert from the 1891 test case.
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I have heard it said that companies can say what they like in adverts and if the claims they make turn out to be wrong you can do nothing about it because it is only advertising. Is this true?

The case of Carlill v Carbolic Smoke Ball Company was decided in the Court of Appeal in the 1890s. It is still relied upon today.

This famous case looked at what you need to prove to show that you have a binding contract on which you can rely. It considered advertising among other things.

The company put an advertisement in the Pall Mall Gazette on November 13th 1891 (the 13th – unlucky for some – in this case the company).

The ad was about its “smoke ball”, a rubber ball with a tube attached. The ball was filled with carbolic acid (also called phenol).  

The user was to insert the tube up his – or in the case of Mrs Louisa Elizabeth Carlill her – nose and then squeeze the ball causing the nose to run so “flushing out” infections.

The advert stated: “£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza colds, or any disease … having used the ball three times daily for two weeks ...”.

Mrs Carlill used the smoke ball as per the instructions, but unfortunately on 17th January 1892 she got the flu anyway so she asked for her £100 reward. (Or rather her husband did – Mr Carlill was a solicitor, as it happened).

The company refused to pay up partly because it was only a bit of advertising in their view.

The three judges in the Appeal Court disagreed.  

In its advert the Company had said that to show it was sincere about paying the hundred pounds it had deposited with a named bank the sum of one thousand pounds.

Lord Justice Bowen noted that and remarked in light of the deposit: “…it cannot be said that the statement that £100 would be paid was intended to be a mere puff. I think it was intended to be understood by the public as an offer which was to be acted upon”.

So whether an advert is just a bit of fun or not really depends a lot on the way it is phrased and how people seeing or reading it can reasonably be expected to react to it – advertisers should be careful. (I do hope readers will agree with me that this is probably the best legal column in the world …).