On August 25, 2004, the FTC released its long-awaited Staff Report
on the proposed amendments to the FTC Franchise Rule. This staff
report, which consists of 400-plus pages, contains the staffs
recommendations on the pending amendments to the Franchise Rule.
The Staff Report is based on the rulemaking record created during
the FTCs Advance Notice of Proposed Rulemaking issued in 1997
and the Notice of Rulemaking Proceeding issued in 1999. The staff
report consists of: (i) a discussion and analysis of the issues
and comments appearing in the rulemaking record; and (ii) the text
of the proposed amended rule whose adoption the staff is prepared
to recommend to the Commission.
The proposed amended rule reflects evolutionary rather than revolutionary
changes to a rule which has not changed in the nearly 25 years since
it became effective on December 21, 1979. These changes affect both
the form and content of the disclosure documents provided to prospective
franchisees, as well as the procedures by which disclosures are
made. Indeed, it will alter--for all franchisors--the manner in
which they offer and sell franchises in the United States.
This release describes some of the most notable proposed changes.
A. Proposed Changes to Persons and Transactions Covered by the FTC
1. International sales are excluded from coverage. The proposed
rule is limited to offers and sales of franchises that will be located
in the United States, its territories, or possessions. Franchises
to be located outside of the U.S., no matter where the offer is
made or whether the franchisor or proposed franchisee is a U.S.
company or resident, would not be covered by the Rule.
2. The business opportunity definition is eliminated
and, as a result, businesses previously covered only by the Rules
business opportunity definition are no longer covered. The Commission
is considering issuing a separate business opportunity
3. The bona fide wholesale price exemption is expanded to include
payments made for inventory that is leased; the current rule exempts
only payments made for inventory that is purchased for resale.
4. Four exemptions have been added:
a. Franchise relationships covered by the Petroleum Marketing
Practices Act. This exemption codifies the prior exemption granted
in a special exemption proceeding under Section 18(g) of the FTC
b. Transactions in which the franchisees estimated investment
totals at least $1 million (excluding: (i) any financing received
from the franchisor or an affiliate; and (ii) real estate costs),
as long as the prospective franchisee signs an acknowledgement
verifying the grounds for the exemption.
c. Franchisees (and their parents or any affiliates) that have
been in the business for at least five years and have a net worth
of at least $5 million.
d. Insider transactions in which one or more individuals
who own at least 50 percent of a new franchisee and who have had
(within 60 days prior to their franchise purchase) either a management
association with the franchisor or who own at least a 25 percent
ownership interest in the franchisor.
5. Four current exclusions are eliminated, although the FTC staff
indicates that it reflects no substantive changes since these relationships
never were covered. These exclusions are employer/employee and general
partnerships, certification and testing services, cooperative associations,
and single trademark licenses.
B. Proposed Changes in the Disclosure Document
The rarely-used FTC disclosure document format is abandoned. The
proposed rule uses the existing UFOC Guidelines as the basic template,
both in terms of organization and content. From that template, the
FTC staff has recommended numerous changes. Many changes are modest,
but some are significant. In any case, it is likely that franchisors
will need to make changes in most, if not all, of their disclosure
Items in order to comply with the disclosure document format required
under the proposed rule. Here is a brief list of some (but not all)
of the more notable proposed changes.
1. Item 2. Disclosures about franchise brokers are no longer required.
2. Item 3.:
a. Litigation disclosures must include the franchisors
parent if the parent guarantees the franchisors performance.
b. Litigation disclosures are required for material civil actions
in the prior fiscal year where the franchisor was a plaintiff
and where the action involves contractual obligations between
the franchisor and a franchisee relating to the franchise business
operations. The proposed rule, however, allows disclosure about
these types of action in a much more summary manner than other
c. Litigation disclosures concerning currently effective injunctive
or restrictive orders involving government entities and relating
to a franchise or certain other enumerated actions are expanded
to include any affiliate that has offered or sold a franchise
in any line of business within the past ten years.
d. No litigation disclosures about franchise brokers are required.
3. Item 6. Disclosure is required about payments required to be
made directly to third parties.
4. Item 8. Disclosure is required about any suppliers in which
an officer of the franchisor owns an interest.
5. Item 11. Detailed disclosures about computer specifications
have been eliminated.
6. Item 12.
a. Franchisors that do not offer an exclusive territory must
insert a required caveat that mentions potential competition from
the franchisor and/or other franchisees.
b. Disclosures are required about any restrictions on the franchisee
from soliciting or accepting orders from consumers located outside
of the exclusive territory as well as the franchisees right
to utilize other channels of distribution to offer goods and services,
such as Internet or catalog sales.
7. Item 19.
a. All franchisors must include a mandatory preamble describing
the franchisors options and obligations with respect to
making earnings claims, whether or not the franchisor makes an
b. Information about costs and expenses is no longer treated
as earnings information for purposes of disclosure in Item 19.
8. Item 20.
a. The tables used to present information on franchise and company
outlet size and turnover are revised; the new drafting instructions
are designed to avoid double-counting.
b. The list of franchisees terminated after the prior fiscal
year-end is fixed at 10 weeks prior to the date of issuance of
the disclosure document, rather than on a floating date based
on the date of application.
c. Disclosure is required about the existence of confidentiality
agreements and, if such agreements are used, a special caveat
d. Disclosure is required about the existence of and contact
information for certain trademark-specific franchisee organizations
associated with the franchise system.
9. Item 21.
Noteworthy here is the staffs pullback from the financial
statement disclosures proposed in its 1999 Notice of Proposed Rulemaking.
Those disclosures could have imposed onerous financial reporting
requirements on non-U.S. companies as well as U.S. subsidiaries
of non-U.S. companies.
a. Audited financial statements must be prepared according to
US GAAP, or as permitted by the Securities and Exchange Commission,
or as revised by any future government-mandated accounting principles.
b. No financial statements from the franchisors parent
are required unless the parent commits to perform post-sale obligations
for the franchisor or guarantees the franchisors obligations.
If a guarantee is used, a copy of the guarantee must be included
in the disclosure document.
C. Proposed Changes in the Timing and Method of Making Disclosures
1. Disclosures must be made to a prospective franchisee at least
14 calendar days before the prospective franchisee signs a binding
agreement or makes a payment to the franchisor or an affiliate in
connection with the proposed franchise sale. The franchisor must,
however, provide the disclosure document at an earlier date if a
prospective franchisee reasonably requests it.
2. The 14 calendar day period begins the day after disclosure is
made, which means that, in practical terms, 15 calendar days must
elapse from the day of disclosure to the day of sale/payment.
3. No separate five business day period is required to review the
completed franchise agreements, but if the franchisor unilaterally
makes material changes to the terms of the basic franchise agreement
(but not if the franchisor negotiates changes with the prospective
franchisee), the franchisee must have the new agreements at least
seven calendar days before a sale/payment can be made.
4. Disclosures may be made electronically as long as the prospective
franchisee may store, download, print, or otherwise maintain the
disclosure documents for future reference. Electronic versions may
include scrollbars, internal links, and search features. All other
features are prohibited.
a. Sample copies of each materially different disclosure document
version must be kept for three years after the close of the fiscal
year when it was used.
b. Signed disclosure document receipts must be kept for three
years after each completed franchise sale. The definition of signed
has been expanded to also include various forms of electronic
methods of identity authentication.
6. Annual updates to disclosure documents may be made within 120
days from the fiscal year-end, an extension from the current 90-day
7. Previously disclosed prospective franchisees who are still in
the sales pipeline must be redisclosed with any revised or updated
disclosure document. A franchisor also must notify a prospective
franchisee about any material changes in any financial performance
information contained in the disclosure document.
D. Enumerated List of Prohibited Practices
The proposed rule would prohibit certain practices. These include:
1. Making any claim or representation, orally, visually, or in
writing, that contradicts the information required to be disclosed
by the rule.
2. Using shills to provide bogus endorsements.
3. Disseminating any financial performance representations to prospective
franchisees, except in the manner required in Item 19.
4. Failing to provide, to either prospective franchisees or the
FTC upon request, written substantiation for any financial performance
representations made in Item 19.
5. Failing to furnish a copy of the franchisors disclosure
document to a prospective franchisee earlier in the sales process
than the 14-day period required by the rule if a prospective franchisee
reasonably requests earlier disclosure .
6. Failing to furnish existing disclosures to a prospective purchaser
of an existing franchised outlet, upon reasonable request.
7. Failing to furnish a copy of the franchisors most recent
disclosure document and any quarterly updates to a prospective franchisee,
upon reasonable request, before the prospective franchisee signs
a franchise agreement.
8. Asking a franchisee to sign a franchise agreement containing
terms and conditions materially different from those appearing in
the disclosure document, unless the franchisor informs the prospective
franchisee of the differences within a reasonable time before execution.
9. Disclaiming or requiring a prospective franchisee to waive reliance
on any representation made in the disclosure document or in its
exhibits or amendments, except that a prospective franchisee may
voluntarily waive specific contract terms and conditions set forth
in his or her disclosure document during the course of franchise
10. Failing to return any funds or deposits in accordance with
any conditions disclosed in the franchisors disclosure document,
franchise agreement, or any related document.
E. Whats Next
1. The Staff Report will be published in the Federal Register this
2. The public will have an opportunity to file comments on the
Staff Report during the 75-day period after the Federal Register
publishes the Staff Report.
3. The staff will review the public comments and thereafter make
a final recommendation to the Commission. There is no required time
frame within which the staff must report to the Commission after
the public comment period concludes.
4. The Commission will make a final determination about whether
and, if so, how to amend the Rule. The Commission is not required
to follow the staffs recommendations in whole or in part.
There is no required time frame within which the Commission must
act after it receives the Staff Report.
5. Once the Commission promulgates the newly revised rule, there
is likely to be a phase-in period so that franchisors can prepare
to comply with the new rule. In addition, the FTCs expectation
is that the state franchise examiners will accept the new FTC disclosure
document format for use in their states.
The FTC staff has clearly made a deliberate, thorough, and thoughtful
review of the rulemaking record and listened carefully to all viewpoints.
The staffs conclusion appears to be that the basic regulatory
rationale and requirements of the original Franchise Rule are sound
and should be kept essentially intact, with changes focused on modifying
the timing and content of disclosures to respond to marketplace
needs and technological changes.
Interested persons have one more opportunity to present their views
by filing their comments on the Staff Report between now and mid-November.
will be filing comments. Please feel free to contact us if you have
any questions or comments regarding these proposed changes and how
they may impact you.