Disclosure Requirements and Prohibitions Concerning Franchising, 9051-9053 [2019-04466]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 84, Number 49 (Wednesday, March 13, 2019)]
[Proposed Rules]
[Pages 9051-9053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04466]


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FEDERAL TRADE COMMISSION

16 CFR Part 436


Disclosure Requirements and Prohibitions Concerning Franchising

AGENCY: Federal Trade Commission.

ACTION: Regulatory review; request for public comment.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') is 
requesting public comment on its Trade Regulation Rule entitled 
``Disclosure Requirements and Prohibitions Concerning Franchising'' 
(``Franchise Rule'' or ``Rule''). The Rule makes it an unfair or 
deceptive act or practice for franchisors to fail to give prospective 
franchisees a Franchise Disclosure Document providing specified 
information about the franchisor, the franchise business, and the terms 
of the franchise agreement. The Rule also prohibits related 
misrepresentations by franchise sellers. The Commission is soliciting 
comments about the efficiency, costs, benefits, and regulatory impact 
of the Rule as part of its systematic review of all current Commission 
regulations and guides. All interested persons are hereby given notice 
of the opportunity to submit written data, views, and arguments 
concerning the Rule.

DATES: Written comments must be received on or before May 13, 2019.

ADDRESSES: Interested parties may file a comment online or on paper by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Franchise Rule 
Regulatory Review, 16 CFR part 436, Matter No. R511003,'' on your 
comment and file your comment online through https://www.regulations.gov. If you prefer to file your comment on paper, mail 
your comment to the following address: Federal Trade Commission, Office 
of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex B), 
Washington, DC 20580, or deliver your comment to the following address: 
Federal Trade Commission, Office of the Secretary, Constitution Center, 
400 7th Street SW, 5th Floor, Suite 5610 (Annex B), Washington, DC 
20024.

FOR FURTHER INFORMATION CONTACT: Christine M. Todaro, Division of 
Marketing Practices, Bureau of Consumer Protection, Federal Trade 
Commission, Constitution Center, 400 7th Street SW, 8th Floor, Suite 
8528, Washington, DC 20024, (202) 326-3711, ctodaro@ftc.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Commission issued the original Franchise Rule pursuant to its 
authority under Section 5 of the Federal Trade Commission Act to 
proscribe unfair or deceptive acts or practices.\1\ The primary purpose 
of the Rule is to provide prospective purchasers of franchises the 
material information they need in order to weigh the risks and benefits 
of such an investment by providing disclosure requirements in a uniform 
format that facilitates comparison shopping.\2\ The Commission adopted 
the Rule on December 21, 1978, and it became fully effective on July 
21, 1979.\3\
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    \1\ Section 5(a) of the Federal Trade Commission Act, 15 U.S.C. 
45(a), prohibits ``unfair or deceptive acts or practices in or 
affecting commerce.''
    \2\ Original Franchise Rule Statement of Basis and Purpose 
(``Original SBP''), 43 FR 59614 (Dec. 21, 1978).
    \3\ Id.
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    In 1995, the Commission announced a regulatory review of the 
Franchise Rule.\4\ That proceeding, which concluded that the Rule was 
still needed but could be improved, led to amendments to the Rule 
issued in 2007 (the ``Amended Rule''), which took effect on July 1, 
2008.\5\ The Amended Rule sought, among other changes, to reduce 
inconsistencies between federal and state pre-sale disclosure 
requirements and established a set of uniform disclosure requirements 
in a Franchise Disclosure Document (``FDD''). Commission staff has 
continued to work closely with the North American Securities 
Administrators Association, as well as individual state franchise 
regulators, to promote uniformity regarding franchise disclosure 
requirements.
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    \4\ 60 FR 17656 (Apr. 7, 1995).
    \5\ Amended Franchise Rule Statement of Basis and Purpose 
(``Amended Rule SBP''), 72 FR 15444 (Mar. 30, 2007).
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    The Amended Rule requires franchisors to provide prospective 
franchisees with their FDD at least 14 calendar days before they make 
any payment or sign a binding agreement in connection with a proposed 
franchise sale.\6\ The FDD provides prospective

[[Page 9052]]

franchise purchasers with 23 items of information material to their 
investment decision, including the initial fees and estimated initial 
investment required; the litigation and bankruptcy history of the 
franchisor, its officers, and key executives; the financial performance 
of existing company-owned and franchised outlets; contact information 
for current and former franchisees; and financial statements reflecting 
the ability of the franchisor to provide promised services and support. 
The FDD also requires disclosure of any restrictions on the sources of 
goods and services and any required purchases; a franchisee's 
contractual obligations in the establishment and operation of the 
franchise; the terms of any financing offered by the franchisor; the 
training and assistance provided by the franchisor; the extent to which 
the franchisee's outlet is protected from competition by the franchisor 
and other franchisees; any restrictions on what the franchisee may 
sell; the circumstances in which the franchise may be prematurely 
terminated or in which the franchisee's sale or renewal of the 
franchise may be refused by the franchisor; how and where any disputes 
will be resolved; any restrictions on the franchisee's ability to 
engage in the same or similar business during and after the termination 
of the franchise; and the number of outlets created, sold, and closed 
during the past three years. In addition, if the franchisor makes a 
financial performance representation, the representation must be 
disclosed in the FDD.
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    \6\ 16 CFR 436.2(a).
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II. Regulatory Review

    The Commission reviews its rules and guides periodically to seek 
information about their costs and benefits and their regulatory and 
economic impact. The information obtained assists the Commission in 
identifying rules and guides that may warrant modification or 
rescission.
    As part of this review, the Commission is seeking comment on a 
number of issues, as outlined in the questions posed in Section III 
below, including the continuing need for the Amended Rule, its economic 
impact, the effect of the Rule on the unfair and deceptive practices it 
was designed to prevent, and the interaction of the Rule with other 
regulations. The Commission believes that this review is important to 
determine whether the Rule continues to serve a useful purpose and, if 
so, how it could or should be improved.

III. Issues for Comment

    The Commission requests written comments on any or all of the 
following questions. Interested parties are invited to comment on any 
relevant issue, regardless of whether it is identified below. Where 
comments advocate a change to the Rule, please be specific in stating 
the unfair or deceptive act or practice to which the change relates, 
provide evidence of the pervasiveness of the act or practice, and 
describe the suggested change and any potential costs or benefits the 
change might have on prospective franchisees, franchisors, and 
franchise sellers, including those that are small businesses. The 
Commission requests that responses to its questions be as specific as 
possible, include a reference to the question being answered, and cite 
to empirical data or other evidence wherever available and appropriate.
    1. Is there a continuing need for the Rule? Why or why not?
    2. What benefits, if any, has the Rule provided to prospective 
franchisees, including small businesses? What evidence supports the 
asserted benefits?
    3. What modifications, if any, should be made to the Rule to 
increase its benefits to prospective franchisees, including small 
businesses?
    a. What evidence supports the proposed modifications?
    b. How would these modifications affect the costs the Rule imposes 
on franchisors and franchise sellers, including small businesses?
    c. How would these modifications affect the benefits to prospective 
franchisees?
    4. What impact has the Rule had on the flow of truthful information 
and on the flow of deceptive information to prospective franchisees?
    5. What significant costs, if any, has the Rule imposed on 
prospective franchisees, including small businesses? What evidence 
supports the asserted costs?
    6. What modifications, if any, should be made to the Rule to reduce 
any costs on prospective franchisees, including small businesses?
    a. What evidence supports the proposed modifications?
    b. How would these modifications affect the benefits provided by 
the Rule?
    7. What benefits, if any, has the Rule provided to franchisors and 
franchise sellers, including small businesses? What evidence supports 
the asserted benefits?
    8. What modifications, if any, should be made to the Rule to 
increase its benefits to franchisors and franchise sellers, including 
small businesses?
    a. What evidence supports the proposed modifications?
    b. How would these modifications affect the costs the Rule imposes 
on franchisors and franchise sellers?
    c. How would these modifications affect the benefits to prospective 
franchisees?
    9. What significant costs, if any, including costs of compliance, 
has the Rule imposed on franchisors and franchise sellers, including 
small businesses? What evidence supports the asserted costs?
    10. What modifications, if any, should be made to the Rule to 
reduce the costs imposed on franchisors and franchise sellers, 
including small businesses?
    a. What evidence supports the proposed modifications?
    b. How would these modifications affect the costs the Rule imposes 
on franchisors and franchise sellers?
    c. How would these modifications affect the benefits to prospective 
franchisees?
    11. What evidence is available concerning the degree of industry 
compliance with the Rule?
    12. What modifications, if any, should be made to the Rule to 
account for changes in relevant technology or economic conditions? What 
evidence supports the proposed modifications?
    13. Provide comment on any overlap or conflict with other federal, 
state, or local laws, or regulations.
    a. What evidence supports any asserted conflicts?
    b. With reference to asserted conflicts, should the Rule be 
modified? If so, why or why not?

IV. Instructions for Submitting Comments

    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before May 13, 2019. 
Write ``Franchise Rule Regulatory Review, 16 CFR part 436, Matter No. 
R511003,'' on your comment. Your comment, including your name and your 
state, will be placed on the public record of this proceeding, 
including, to the extent practicable, on the https://www.regulations.gov website.
    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online through the https://www.regulations.gov/ website.
    If you file your comment on paper, write [``Franchise Rule 
Regulatory Review, 16 CFR part 436, Matter No. R511003''] on your 
comment and on the envelope and mail your comment to the following 
address: Federal Trade Commission, Office of the Secretary, 600 
Pennsylvania Avenue NW, Suite

[[Page 9053]]

CC-5610 (Annex B), Washington, DC 20580, or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610, 
Washington, DC 20024. If possible, please submit your paper comment to 
the Commission by courier or overnight service.
    Because your comment will be placed on the publicly accessible 
website at https://www.regulations.gov/, you are solely responsible for 
making sure that your comment does not include any sensitive or 
confidential information. In particular, your comment should not 
include any sensitive personal information, such as your or anyone 
else's Social Security number; date of birth; driver's license number 
or other state identification number, or foreign country equivalent; 
passport number; financial account number; or credit or debit card 
number. You are also solely responsible for making sure that your 
comment does not include any sensitive health information, such as 
medical records or other individually identifiable health information. 
In addition, your comment should not include any ``trade secret or any 
commercial or financial information which . . . is privileged or 
confidential''-- as provided in Section 6(f) of the FTC Act, 15 U.S.C. 
46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)--including in 
particular competitively sensitive information such as costs, sales 
statistics, inventories, formulas, patterns, devices, manufacturing 
processes, or customer names. As a matter of discretion, the Commission 
tries to remove individual's home contact information from comments 
before placing them on www.regulations.gov.
    Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular, 
the written request for confidential treatment that accompanies the 
comment must include the factual and legal basis for the request and 
must identify the specific portions of the comments to be withheld from 
the public record. See FTC Rule 4.9(c). Your comment will be kept 
confidential only if the FTC General Counsel grants your request in 
accordance with the law and the public interest. Once your comment has 
been posted publicly at www.regulations.gov--as legally required by FTC 
Rule 4.9(b)--we cannot redact or remove your comment, unless you submit 
a confidentiality request that meets the requirements for such 
treatment under FTC Rule 4.9(c), and the General Counsel grants that 
request.
    Visit the FTC website to read this Notice and the news release 
describing it. The FTC Act and other laws that the Commission 
administers permit the collection of public comments to consider and 
use in this proceeding as appropriate. The Commission will consider all 
timely and responsive public comments that it receives on or before May 
13, 2019. For information on the Commission's privacy policy, including 
routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

    By direction of the Commission.
April J. Tabor,
Acting Secretary.
[FR Doc. 2019-04466 Filed 3-12-19; 8:45 am]
 BILLING CODE 6750-01-P