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.
It worries me that neither the advertisement, the catalog, or the order form would constitute an offer. I do understand that the harrier jet did not exist in the catalog or offer form, but the general point is what scares me
What would a consumer have to verify when they are placing an order to ensure they are not submitting to a practical joke?
If they can't be held liable for false advertising, would they have a case for a civil suit around lost opportunities or something?
I'm not sure how this individual came up with 7,000,000 pepsis worth of points; maybe that's not worth a harrier jet, but surely this individual wouldn't have bothered gathering them if not for the commercial.
Any of them can constitute an offer. The point is that they don't automatically constitute an offer.
For there to be a contract there needs to be a meeting of minds. To rely on a unilateral offer then, the terms stated needs to be such that there is no need for negotiating unstated terms - e.g. the other side has stated a sufficiently complete set of terms so that it is only down to accepting or rejecting it on your side.
When an offer is made in an open ended way like that, the court points out that in past cases leaving out things like what will happen if you run out of stock makes the "offer" sufficiently indeterminate that it is not reasonable to consider it binding. You can solve that by adding a statement such as "first come, first serve" or "as long as stocks last" or similar. The point being that until you have confirmed that there is an actual intent to offer you something, whether you specifically or any taker without qualification, you should not rely on an ad as a guarantee of an offer, but as a statement of a willingness to issue an offer or accept an offer, and if you need a definite offer you will need to contact the entity stating the intent and obtain a clear offer.
> What would a consumer have to verify when they are placing an order to ensure they are not submitting to a practical joke?
That there was an actual intent to enter into a binding agreement.
In this case, the catalog set out specific terms and may well have qualified as an offer for the other items that were mentioned in it, assuming they had suitably specific language. When then seeing there was no jet listed the step to take would have been to contact Pepsico and ask for a confirmation that there was an offer prior to relying on it. At which point you'd have been told no.
> I'm not sure how this individual came up with 7,000,000 pepsis worth of points; maybe that's not worth a harrier jet, but surely this individual wouldn't have bothered gathering them if not for the commercial.
He sent a check. He didn't bother gathering them. The rules allowed him to buy them for 10 cents per point.
This was treated by the court as him making an offer, and Pepsico rejecting his offer by not stating any acceptance of the order form and not cashing his check, given that Pepsico had not made an offer in advance, so sending back an order for with extra stuff written on it and a check could not constitute accepting an offer.
If he had actually spent a lot of time or money on this prior to suing I'd have been slightly more sympathetic, but he kept his money until he started burning it on lawyers.
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/...