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Brief Fact Summary.
PepsiCo (Defendant), advertised Pepsi related paraphernalia, which one could obtain by getting “Pepsi points” by drinking Pepsi. The commercial featured a youth arriving at school in a Harrier Jet and said the Harrier Jet was 7,000,000 Pepsi points. Plaintiff tried to obtain the Harrier Jet by sending fifteen Pepsi points and a check for the amount of money needed to obtain the Harrier jet. Defendant refused to deliver the harrier jet.
Synopsis of Rule of Law.
An advertisement, which a reasonable person would not take seriously and refers to other material, is not an offer.
Defendant ran an advertisement for a promotion in which people could obtain “Pepsi points” by drinking Pepsi and then use them to purchase items from a catalog. The back of the order form stated that a person could purchase Pepsi points for ten cents a point. The advertisement featured a Harrier Jet and said it cost 7,000,000 Pepsi points. Plaintiff filled out an order form, asked for the Harrier Jet, sent in fifteen Pepsi points and approximately $700,000.00 in a check drafted from his attorney’s trust account. Defendant sent a letter to Plaintiff saying the Harrier Jet is not part of the promotion. After some heated correspondence, between Plaintiffs attorney, Defendant and the advertising agency that produce the advertisement, Plaintiff filed suit in state court.
Was the advertisement an offer for a Harrier Jet?
• The commercial was not an offer because it referred to the catalog. The Harrier Jet was not in the catalog.
• The attitude of the advertisement would not lead a reasonable person to believe there was an offer.
• There was not writing to satisfy the Statute of Frauds.
This case presented an instance when an advertisement is not an offer. First, the advertisement referred to the catalog, where the true offer was. Second, the concept was ridiculous.
This case illustrates that when an advertisement that would normally be considered and offer, are so absurd that a reasonable person would not consider them to be serious, then there is no offer and there cannot be any acceptance. Also worth noting, is the fact that the advertisement referred viewers to the catalog of Pepsi products where Defendant did not list a Harrier Jet. This catalog was the true offer.