When is a joke not a joke? In the wake of recent U.S. cases and Advertising Standards Canada decisions, advertisers may be legally required to underestimate the public’s sense of humour. If your ad contains a joke which could be misconstrued, you might be inviting a lawsuit. Or a complaint to Advertising Standards Canada.
In the mid 1990s, Pepsi launched a loyalty program called Pepsi Points. The program offered the usual rewards for collecting on-pack "points": mid-priced merchandise like mugs and jackets. The ad campaign included a television commercial which explained the program and ended with a shot of a Harrier jet with the exact astronomical number of "points" required to claim it; several hundred million or billion.
Incredibly, someone (through a great deal of Internet trading) managed to acquire the requisite number of points. They claimed the Harrier jet. It must have been an interesting moment for Pepsi’s lawyers. Their response was not one taught in law schools: "Just kidding."
The consumer maintained that this was a simple case of offer and acceptance, that Pepsi had a contractual obligation to provide the Harrier jet. They sued and the case was settled out of court. Interestingly, when the same advertisement was aired in Canada, the legal disclaimer "Just Kidding" had been added. Pepsi’s Canadian lawyers were either abundantly cautious or prescient.
In a similar case, an insurance company lost a jury trial in St. Louis. The plaintiff claimed that the insurer had offered a real Mercedes-Benz as a contest prize. The company claimed that the prize, in fact, was a model car. In the jury’s view, the facetious nature of the "real" Mercedes offer wasn’t clear. The plaintiff got the $70,000 car. Another expensive joke.
Where does one draw the line. (If your ad claims that "the sky’s the limit", do you have to add a disclaimer: "Just a figure of speech"?). Common sense and the lowest common denominator theory should prevail. Your risk is likely low if you allow for the least literate consumer. Could anyone possibly construe your joke as a promise or an offer? If so, consider a disclaimer.
A different risk arises from Section 15 of the Canadian Code of Advertising Standards. This section prohibits advertising which offends generally prevailing standards of taste and public decency. It is difficult to define these standards. If one consumer complains to ASC that he/she does not share your sense of humour, your ad could be found to contravene Section 15 of the Code.
For example: a pair of car dealer newspaper ads: A man in a bathing suit portrayed from behind with the headline "We specialize in rear ends." A woman in a bathing suit, same positioning, similar headline. (At least there was gender equality). A few consumers complained to ASC.
On the basis of 10 complaints about the female ad and one about the male, ASC found these ads "offensive to generally prevailing standards". And what of the silent majority, the thousands of consumers who didn’t complain? There is no real threshold here. All it takes is one complaint, one hyper-sensitive consumer.
So, again, the lowest common denominator theory applies. Would the easily offended take offence?
You cannot always base your marketing plans on the few legalistically minded or puritanical consumers who might be waiting in ambush. You should, however, be aware of the risks.
Susan Vogt is a Partner in the Toronto Gowlings office. She can be reached by e-mail at firstname.lastname@example.org.
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