We all know that the Fair Trading Act bans traders from engaging in advertising that is misleading or deceptive. So how come so many advertisers seem to get away with it?
The disappointing truth is that wearing a particular brand of deodorant won’t make you irresistible to the opposite sex, that toilet cleaning agents don’t transform into planes that shoot anthropomorphised germs and that drinking a popular energy drink will not, in fact, give you wings.
The fact is that the law recognises that consumers anticipate some exaggeration by advertisers. Accordingly, they are neither misled nor deceived by obvious hyperbole.
Leonard v PepsiCo, Inc.
Not that this has stopped enterprising punters from trying – like John Leonard, the New Yorker who took on Pepsi in what has become known as the Pepsi Points Case.
The case related to a scheme run by the soft-drink maker whereby the purchase of its products would earn you ‘Pepsi Points’ which you could accumulate and then redeem for various items.
A television advertisement was commissioned to illustrate the benefits of the system. In it, a typical American teenager was shown getting ready for school while sporting a t-shirt he had earned by redeeming 75 Pepsi Points. Next, he went outside wearing a cool leather jacket and aviator sunglasses, worth 1450 and 175 Pepsi Points respectively.
Then, in the final scene, we see him flying to school in a Harrier jump jet – which we were told he had acquired for 7,000,000 Pepsi Points.
Of course, nobody could drink that much fizzy drink without going into a diabetic shock, so Pepsi probably thought the chances of anyone trying to cash in their points for a fighter jet were unlikely.
Unfortunately, part of the promotion was that you could purchase additional Pepsi Points at 10 cents apiece. Sensing a bargain, Mr Leonard took the 15 Pepsi Points he had collected through his purchases and combined them with a cheque for $700,008.50 to cover the balance (which included the $10 shipping and handling fee).
This was sent to Pepsi headquarters along with a demand for delivery of his $23 million piece of advanced military hardware.
Why Leonard didn’t get his jet
In the inevitable lawsuit, the judge resisted what must have been tremendous temptation and ruled in favour of Pepsi. Reasonable people could not be expected to believe Pepsi were actually offering the jet, she reasoned.
Among other reasons given for this opinion, she explained that, ‘The teenager’s comment that flying a Harrier Jet to school ‘sure beats the bus’ evinces an improbably insouciant attitude toward the relative difficulty and danger of piloting a fighter plane in a residential area.’
Using hyperbole in your own exaggerations
If Pepsi can get away with a little puffery in their advertising then so can your business – provided you exercise a little caution about it.
Here’s what you need to know:
- Any exaggeration needs to be sufficiently outlandish so as to ensure that no normal person will take it literally. Saying your prices are ‘out of this world’ is one thing, saying they are the ‘lowest in town’ is quite another.
- Stick to things which are subjective. Claims which are clearly opinions are less likely to mislead than assertions of fact. It is safer to claim to be ‘the best’ at something than to say you are ‘the fastest’.
- In any marginal decision, don’t hesitate to contact your law firm for advice. Skilled and trained in matters of consumer law, your lawyers will be able to give you the answer. And if they can’t, they’ll buy you a jet.