Regulation of Franchising
The United Kingdom remains one of the few countries which contains no
franchise regulations. Successive governments believe that self regulation
through the British Franchise Association is the most effective
way of regulating franchising.
Background
The most popular areas of business activity for franchising in the United Kingdom include:
- Fast food/Restaurant/Catering, Retail Shops, Business Services/ Computers, Health/ Leisure and Distribution/ Delivery Services.
Generally franchising in the United Kingdom is less heavily orientated towards retail concepts than in continental Europe.
The most recent NatWest BFA Franchise Survey indicates that the annual turnover of business format franchising in the United Kingdom was approximately £9.65 billion, 695 systems were in existence with a total of 33,800 franchised units.
Pyramid Selling
Franchising was incorrectly associated with pyramid selling or multi-level distributorships in the late 1960’s. Pyramid selling occurs when “franchisees” are encouraged, or find it more remunerative, to seek other sub-franchisees (who in turn are encouraged to find sub-sub-franchisees) to sell the goods or services which are allegedly the subject of the “franchise”.
Sections 118 to 123 of the Fair Trading Act 1973 (“the Act”) regulate pyramid selling by regulating three aspects namely:
- The control of advertising
- The imposition of a “cooling off” period
- The control of contractual provisions
These provisions have been amended by the Trading Schemes Act 1996 and Regulations published in 1997.
The Act only applies to “a trading scheme” as defined in Section 118(8), but a very wide definition is given to "trading schemes" so that the term is likely to include virtually all franchise systems.
It should be noted that the legislation does not prevent pyramid selling and provided a promoter of such a scheme takes care to comply with the requirements of the Act and the regulations made thereunder, a pyramid selling scheme can be operated.
Franchise Disclosure
Some countries have introduced legislation to protect franchisees by requiring franchisors to make certain disclosures to prospective franchisees. The British Franchise Association (“the BFA”) has, however, been hostile to the introduction of such laws. Instead the BFA applies the European Code of Ethics to its members. Article 3.3 of the European Code provides:
“In order to allow prospective Individual Franchisees to enter into any binding document with full knowledge they shall be given a copy of the present Code of Ethics as well as full and accurate written disclosure of all information material to the franchise relationship within a reasonable time prior to the execution of these binding documents.”
The requirements of the European Code of Ethics do not have any statutory backing and, of course, franchisors who are not members of the BFA do not have to comply with the Code.
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