Over the holidays, I enjoyed watching Pepsi, Where’s My Jet?, the Netflix four-episode documentary about John Leonard’s attempt to claim a Harrier fighter jet through the “Pepsi Stuff” promotion during the 1990s. Pepsi ultimately prevailed in the litigation that ensued when the soft-drink company denied Leonard’s claim. See Leonard v. Pepsico, Inc., 88 F. Supp.2d 116 (S.D.N.Y. 1999). Here are four thoughts that I had on the series as someone who practices consumer litigation.
The Pepsi Stuff promotion allowed consumers to collect “Pepsi Points” that could be redeemed for Pepsi merchandise. Pepsi ran a commercial in conjunction with the promotion that featured a teenager going about his morning routine with various Pepsi merchandise and the corresponding Pepsi Point totals for that merchandise. The commercial ends with the teenager landing a Harrier jet at school and showing — in the original version — “7,000,000 PEPSI POINTS” . . . with no disclaimers or other fine print.
John Leonard, a college student at the time, realized that the promotion allowed points to be purchased for 10 cents each, so he could pay $700,000 for seven million points. He found a backer to pay the $700,000 and attempted to claim the jet. Pepsi rejected the claim and ultimately prevailed in the litigation because the commercial was “evidently done in jest” and no reasonable, objective person would have understood the commercial as actually offering consumers a Harrier jet.
1) Humor in advertisements shouldn’t give rise to liability.
First, Pepsi Where’s My Jet serves as a reminder that obvious humor in advertisements is not an actual offer. The court opinion quotes Corbin on Contracts’ statement that an offer “must be an expression of will or intention,” and as a result, an offer does not include “acts evidently done in jest or without intent to create legal relations.”
I remember the commercial, and I remember thinking the Harrier jet at the end was funny. The notion of a teenager (or of any individual for that matter) owning a fighter jet, which according to the court opinion cost roughly $23 million, was just absurd. The opinion also notes that to accumulate seven million Pepsi Points would require drinking approximately 190 Pepsis per day for 100 years, further indicating that there was no actual offer for the Harrier.
2) That said, disclaimers and terms and conditions help.
While Pepsi ultimately prevailed in the litigation, a disclaimer in the commercial would have gone a long way toward avoiding a dispute in the first place. The series’ interviews with Leonard’s financial backer and legal team indicate that, while there was some internal debate regarding the validity of Leonard’s claim, the lack of a disclaimer on the ad was a major reason they were willing to pursue it.
3) Some consumers will take unreasonable views on things.
Leonard’s attempt to claim the Harrier jet brought to mind other litigation involving consumers with an unreasonable view of corporate marketing. For example, the people who filed a putative class action against Kellogg’s because the company’s Froot Loops cereal does not contain any actual fruit. See McKinnis v. Kellogg USA. As the opinion dismissing that case said, “[n]o reasonable consumer would view the trademark ‘FROOT LOOPS’ name as describing the ingredients of the cereal.”
More recently, someone sued the maker of Diet Dr. Pepper, claiming that the use of the word “diet” in the product name was misleading because it suggested that the drink promised weight loss or weight management even though it contains aspartame, which has been shown to cause weight gain. Becerra v. Dr. Pepper/Seven Up, Inc., 945 F.3d 1225 (9th Cir. 2019). In that case, the court held that “no reasonable consumer would assume that Diet Dr. Pepper’s use of the term ‘diet’ promises weight loss or management” because “[i]n context, the use of ‘diet’ in a soft drink’s brand name is understood as a relative claim about the calorie content of that soft drink compared to the same brand’s ‘regular’ (full-caloric) option.”
There have also been several suits claiming that labeling for ice-cream bars dipped in chocolate was misleading because the chocolate coating contains vegetable or coconut oil, such as Puri v. Costco Wholesale Corp. (N.D. Cal. 2021). In granting the motion to dismiss in that case, the court noted that “a reasonable consumer would know that chocolate must be mixed with some significant amount of fat or oil to create a coating that would solidify around an ice cream bar.”
4) The district court judge receives some unfair treatment.
The last episode in the series discusses in general terms the court’s opinion that granted summary judgment to Pepsi. Expressing some sour grapes, the members of Leonard’s team call District Judge Kimba Wood (whom President Clinton considered nominating for Attorney General) a “corporate judge,” suggesting that she ruled for Pepsi because she favors businesses.
But the Second Circuit affirmed Judge Wood in a four-paragraph, per curiam opinion. Leonard v. Pepsico, Inc., 210 F.3d 88 (2d Cir. 2000). The appellate opinion does not contain any real legal analysis; it simply states that it is “affirm[ing] for substantially the reasons stated in Judge Wood’s opinion.” If Judge Wood’s opinion was as tenuous as Leonard’s team suggests, one would have expected that at least one judge would have dissented or that the Second Circuit would have provided its own legal analysis.