I must say I was a bit miffed to read that this year’s ‘flu vaccine is ineffective. All that queuing up at my local medical centre, breathing in from the communal germ pool, feigning enormous interest in the home-made fairy cakes and pots of raspberry jam in the hallway and, finally, gritting my teeth as the needle went in – all for nothing.
It seems we can develop innumerable kinds of medication to treat the common ailments of fruit flies and mice, but we’re no nearer finding a completely reliable means of preventing influenza in our own species.
In fact this winter I might have been much better off purchasing one of Mr Frederick Roe‘s famous Carbolic Smoke Balls, inserting the tube into my nasal passages and breathing in the vapour from the carbolic acid contained within the rubber ball. Alas the company was wound up in 1896, so regrettably there won’t be any carbolic smoke balls available in my local Boots The Chemist any time soon.
Now ok, the ‘flu jab is available free of charge …
Having said that, I did invest quite a bit of time to have that needle stuck in my upper arm.
But I wonder what would have happened if we lived in a Britain where the jab wasn’t supplied free by the NHS but as a paid-for service by a private company? What if it was marketed as “SURE FIRE DEFENCE AGAINST ‘FLU”, with TV and magazine advertising fronted by some rapacious millionaire celebrity, keen to earn another huge payday? I can think of a few who’d be keen to get a starring role.
This year’s jab is working in only 3% of cases. If people had paid for it in hard cash, I reckon there might have been a court case or two when the truth emerged. Trade Descriptions Act? Certainly the Advertising Standards Authority would have had something to say about it, we can be sure of that.
Judges like the ones in Carlill v Carbolic Smoke Ball Company  EWCA Civ 1 wouldn’t have stood for a 3% success rate. Mrs Louisa Elizabeth Carlill bought the medicament in all good faith (I feel a certain empathy with Mrs Carlill). The copywriters at Mr Roe’s agency – I’m making some assumptions here, of course – positioned the product as one which “WILL POSITIVELY CURE” all manner of ailments, and influenza figured prominently on the list. Indeed, the company offered to pay a reward of £100 “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”.
Thinking ahead, the company also offered refills at five shillings a time; quite a wheeze – even in the late nineteenth century, the concept of hardware and software was being put to use!
Unfortunately for Mr Roe, although Mrs Carlill used one of the balls she nonetheless contracted influenza. She sued the company for her £100 – and the judges found in her favour.
Over the last 115 years or so, the case has become one of the most famous in the history of common law and, as I know from personal experience, is often one of the first case studies taught to students of English Law. It demonstrates quite clearly the principle of unilateral contract, although it opened up many new avenues of legal debate and its principles have redounded on the world of advertising.
The central point was the reference to the moneys which the company had deposited at the bank. This was cited as proof that the Carbolic Smoke Ball Company intended to create legal relations with each of its customers. So the ad. was no mere “advertising puff”, not intended to be taken as an invitation to make a contract. The court found in favour of the plaintiff because in purchasing the smoke ball she had accepted an offer to make a unilateral contract with the company.
But that wasn’t the end of the matter. After having compensated Mrs Carlill by paying her the £100, Mr Roe closed down the Carbolic Smoke Ball Company – and promptly re-launched it, this time as a limited liability enterprise and offering a reward of £200 to those who caught influenza whilst using the product. The new ad. pointed out that although the smoke ball had been used by many thousands of people, only three had claimed the £100 reward – ample proof, said the advertisement, of the efficacy of the smoke balls.
Ironically, the new campaign failed, not through any problem with the product but, apparently, because it wasn’t advertised heavily enough (advertisers will never learn …). In another twist to the story, Mrs Carlill lived to the ripe old age of 96, dying in 1942 – mainly of old age, though a contributory factor was influenza …
Maybe if she’d had her ‘flu jab – what d’you think?
Images: public domain