They called it the "carbolic smoke ball": a rubber sphere small enough to fit into the palm of a hand, with a large nozzle to inhale from.
Created in the 19th century, the ball was billed by its creator, Frederick Augustus Roe, as a miracle cure that would prevent its users from contracting an epidemic-causing disease.
Roe proclaimed that the contents of his device – a white substance known as carbolic acid – would prevent its users from contracting influenza.
According to its patent, when the ball was compressed, carbolic acid powder would "be forced out in infinitesimally small particles resembling smoke". This would prevent diseases.
However, carbolic acid is harmful. Since at least the 1890s, doctors attempted to ban the substance.
In 1893, British MP John Macdona begged for greater restrictions on carbolic acid, citing 230 deaths between February 1892 and November 1893.
Today carbolic acid is used in surface cleaners.
But, while the carbolic smoke ball's so-called curative functions haven't aged well, the device was the catalyst for a better understanding of legal contracts and what can and can't be said in advertising and marketing. And it exemplifies some of the questions raised around supposed cures touted by the wellness industry to this day.
Exceptional timing
During the winter of 1889, the Russian flu began spreading through Britain. As the country endured the second and third waves, the British economy struggled and citizens worried about infection.
"It also struck, and eventually killed, leading figures – important figures," Dr Michael Bresalier, a medical historian from Swansea University, tells ABC RN's An Object in Time.
"And this began to invoke worries and concerns among not just among public health people but also among the public."
The less scrupulous sensed an opportunity. Dr Bresalier says many began selling products said to prevent disease-causing microorganisms.
"Among the most common [products] would be things that address the symptoms associated with influenza, including things like opium, quinine and others that aim to bring down the fever."
Dr Bresaslier says part of the reason for the success of these products was because there was a lack of universal healthcare in Britain. Unless the sufferer was one of the few with access to a doctor, Russian flu treatment consisted of self-medication, with advice and information from pharmacists or retailers.
Consequently there was no end of supposed treatments being advertised.
Roe's carbolic smoke ball was one, and it claimed to treat influenza, asthma, bronchitis and whooping cough. It was a claim Roe said he was willing to put money on.
A hundred pounds
After the launch of the carbolic smoke ball and the associated company, Roe began advertising his new product. He included a guarantee, which stated that if anyone contracted the Russian flu, or any disease from a cold, despite using the device three times a day for two weeks, they would be entitled to a reward of £100. That's around $2,300 today.
"What's really key about this advertisement is that the company indicates that they have banked money," Katherine McMillan, a professor of private law at King's College London, says.
"[It says] that they will pay a reward if you use this ball and contract influenza and that they have banked money, as they said, to show [their] sincerity in the matter."
After its release, thousands of carbolic smoke balls were sold. The invention was a roaring success – that is, until Louisa Elizabeth Carlill entered Roe's life.
Carlill inhaled the carbolic acid from the rubber ball three times a day as instructed, until she began to notice the first symptoms of influenza.
Then she remembered the advertisement for a £100 reward, so she wrote to Roe. She was told she needed to have used the carbolic smoke ball under supervision in his office.
The tension between Carlill and Roe grew. Even after her husband also wrote letters, Roe didn't budge.
So Carlill commenced legal action.
Carlill v Carbolic Smoke Ball Co
Carlill's argument, according to her lawyers, was that the promise of a reward amounted to a contract.
"They had argued that there was a contract essentially that the Carbolic Smoke Ball Company had made an offer of £100 to anyone who used the product and ended up coming down with the flu," Erica Chamberlain, the dean of the law school at Canada's Western University, says.
Roe and his lawyers clutched at excuses, saying there was no evidence that the carbolic smoke ball had been used correctly and that the deal was actually a wager.
"In those days, wagers were not legally enforceable. So his argument was saying the equivalent of this was, 'I will bet you 100 pounds against your 50 pence that you will not get influenza'," Chamberlain explains.
Roe lost the case, and then later lost his appeal.
Carlill v Carbolic Smoke Ball Co marked a change in the understanding of contract formation in England, and Australia by extension. It marked a turning point in how a product's effects could be exaggerated in marketing.
The case reminded advertisers that there is a legal boundary they can't cross when it comes to advertising. And while the case is over a century old, there are modern parallels.
"When you think about the kind of wellness industry that we have now, we have plenty of treatments that are equally silly looking, or will be silly looking 100 years from now," Chamberlain says.
"And I guess with respect to the pandemic, you have people who are scared and are desperate and want to do whatever they can to prevent themselves from getting some kind of possibly fatal disease or infection."
As with Russian flu, people are willing to try miracle cures, Chamberlain says.
"And it seems to be that there are always going to be people who take advantage of that and try to sell the quickest, fastest 'miracle cure' that they can."
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