The Coming Aporkalypse and Second Coming of the Carbolic Smoke Ball!

All this crazy talk about the Virulent Swine Flu - the coming Aporkalypse! - has put me in mind of one of the great cases in legal history and shows us that the more things change, the more they stay the same.

Walk into any Shoppers Drug Mart or London Drugs and there are signs everywhere - a Vitamin C product has a printed poster above it - "Perfect for Fighting Off the Flu!" - a hand sanitizer - "Frequent Use reduces Chances of Getting Swine Flu!". Sure, we may know more than we did in 1891 about preventing the flu, but really, when you get down to it, the fear of disease has always been used to promote the consuming of products.

In 1891, the Carbolic Smoke Ball Company made a product called the "smoke ball". It claimed to be a cure for the flu. The smoke ball was a rubber ball with a tube attached. It was filled with carbolic acid. The tube was then inserted into the user's nose. It was squeezed at the bottom to release the gases into the nose of the user. This would cause the nose to run, and hopefully flush out the cold. (In fact, we now know that the inflammation to the nasal passages caused by the device would have probably increased susceptibility to catching influenza - but they didn't know that in 1891!).

The Company published advertisements in theLondon newspapers on November 13, 1891, claiming that it would pay £100 to anyone who got sick with influenza after using its product according to the instructions set out in the advertisement.

“£100 (about $15, 000 today!!) reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks, according to the printed directions supplied with each ball.

£1000 is deposited with the Alliance Bank shewing our sincerity in the matter.

During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball.

One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, 10s. post free. The ball can be refilled at a cost of 5s. Address: “Carbolic Smoke Ball Company, “27, Princes Street, Hanover Square, London.”

Mrs Louisa Elizabeth Carlill saw the advertisement, bought one of the balls and used three times daily for nearly two months until she contracted the flu on January 17, 1892. She claimed £100 from the Carbolic Smoke Ball Company. They ignored two letters from her husband, a lawyer.

On a third request for her reward, they replied with an anonymous letter that if it is used properly the company had complete confidence in the smoke ball's efficacy, but "to protect themselves against all fraudulent claims" they would need her to come to their office to use the ball each day and checked by the secretary. Mrs Carlill brought a claim to court. The barristers representing her argued that the advertisement and her reliance on it was a contract between her and the company, and so they ought to pay. The company argued it was not a serious

The U.K. Court of Appeal unanimously rejected the company's arguments and held that there was a fully binding contract for £100 with Mrs Carlill. Among the reasons given by the three judges were (1) that the advert was a unilateral offer to all the world (2) that satisfying conditions for using the smokeball constituted acceptance of the offer (3) that purchasing or merely using the smokeball constituted good consideration, because it was a distinct detriment incurred at the behest of the company and, furthermore, more people buying smokeballs by relying on the advert was a clear benefit to Carbolic (4) that the company's claim that £1000 was deposited at the Alliance Bank showed the serious intention to be legally bound.

If only someone would advertise a miracle product in this way today!