All lawyers will remember that in their introduction to contract law the first case referred to was Carlill v Carbolic Smoke Ball co. The case involved a a new wonder drug, a flu remedy called the Carbolic Smoke Ball. The manufacturer’s advert stated any buyer not cured would receive £100, then a very significant figure.
The company was sued by Mrs Louisa Carlill who purchased a packet of smoke ball, used it three times a day for 3 months but still had an attack of influenza. The company argued the the offer of the £100 reward was a ‘mere puff’ and no one could have interpreted it as being legally binding.
The Court of Appeal disagreed, ruling that the advert was an offer to the world, to anyone who accepted by purchasing and using the product.
Mrs Carlill received the compensation of £100 and lived to a ripe old age of 96, dying of old age (and influenza).The case is a warning to exercise caution in advertising products and services and legal consequences may follow if claims and promises are made which are not fulfilled by what is delivered.
In more modern times, consumers and clients have considerable protection embodied in legislation such as the Trade Descriptions Act 1968, 1972 and numerous consumer protection regulations.
Clearly greater care is now exercised which is not only to prevent against prosecution and civil claims but also to demonstrate fairness and ethical awareness of the duty to be honest and truthful to the public.
Professing to produce the best of anything brings its own risk. Remember that Carlsberg are careful to claim only that their lager is ‘probably the best lager in the world’ whilst Heineken professes that its lager ‘refreshes the parts other beers cannot reach’. No legal claims on these as yet, or in relation to Domestos killing 99% of all household germs.
Retailers try to protect their reduction claims of ‘50% off’ by the addition, in tiny lettering, of the words ‘up to’, whist radio and television adverts frequently include a garbled ‘Ts and C’s apply’.
Businesses should take a firm look at all claims in advertising material. Is what they are offering genuinely professed and do they honestly expect it to be delivered?
Tesco can legitimately claim to beat Lidl or Aldi on selected items but does this mean a saving on the weekly shop. Interestingly John Lewis plan to drop their long-standing promise of being ‘Never Knowingly Undersold’. Is this from conscience or ethics – or because it was just costing too much?
Honest advertising means possessing a strong disposition for telling the truth or at least avoiding lies or deception in producing advertisements. This is most likely to instil trust in customers, reduce disappointment and avoid litigation.
Barry Speker – Director NIBE