Legislation and Regulation

I begin this column by stating where I am going with this piece. I am going to put franchise sales legislation and regulation under the microscope, and ask the penetrating question of whether it is, or is not, necessary. (Similar questions should be asked about franchise relationship legislation, but I will leave that for a future column.)

Financing is the lifeblood of expansion for franchisors and multiunit owners alike. Whether for advertising and marketing to sell additional franchises, or whether to remodel or build more company stores, without financing there is no growth and development. And, despite the rapid growth of new concepts and new units in the aftermath of the dot.com crash in 2000 and 2001, many forecasts of the economic climate and its effect on business growth in 2008 range from gloomy to dim--especially when it comes to credit and lending.

The franchise industry is having an increasingly large impact on the Canadian economy, with franchised businesses accounting for 40 percent of all retail sales. Provincial legislators are taking note of this growing industry and, in response, are introducing and passing legislation that addresses many of the perceived issues that arise between franchisors and franchisees. Most recently, the Province of New Brunswick passed franchise legislation (the “New Brunswick Act”), making it the fourth Canadian province to adopt such legislation, after Alberta, Ontario, and Prince Edward Island.

On January 31, 2007, the State Council of the People's Republic of China adopted the "Regulations on the Administration of Commercial Franchise," scheduled to take effect on May 1, 2007 ("2007 Franchise Regulations"). With promulgation of the 2007 Franchise Regulations, China entered the last phase of a long and difficult process that started in 1997 to create a legal structure for the franchise business model in China.

During the last few years, franchising has experienced an impressive growth in Spain, from 634 franchise systems in 2002 to almost 900 in January 2006, with over 54,000 franchised outlets now open. Accordingly, having access to accurate and relevant information regarding franchisors is very important for a growing number of prospective franchisees, consumers and future franchisors.

Last year, while many Canadians and Americans alike were considering a summer vacation to experience all that Canada's Atlantic Coast has to offer, legislators in Prince Edward Island and New Brunswick, two of Canada's maritime provinces, were setting their minds to franchising.

On January 25, 2006, an amendment ("Amendment") to the Mexican Industrial Property Law ("IPL") was published in the Federal Official Gazette. The Amendment was published after a long discussion initiated by Congress in early 2005, and became effective on January 26, 2006. The Amendment's final provisions were the result of a very effective lobbying campaign by major players in the franchising sector and, fortunately for the industry, Congress eliminated many of the overly restrictive aspects of the initial bill that could have unnecessarily hampered the industry. In the end, Congress' objective of providing more protection to franchisees was well balanced with the legitimate rights of franchisors. For example, certain ultra-protectionist provisions for franchisees originally contained in the bill, such as certain rights of first refusal in franchisees' favor and the right to request cancellation of registration of franchisor's trademarks in certain cases, were not incorporated into the Amendment.

If adopted, the recently published Unfair Contract Terms Bill ("UCTB") will significantly change the way franchise agreements are viewed by English courts and could create headaches for franchisors with franchises in the United Kingdom ("UK"). The UCTB was published by the Law Commission in draft form earlier this year. The bill will not become effective unless it is formally adopted, but the draft reflects the views of the current government so it is likely that the bill will be adopted sometime in 2006.

The Mexican Congress is reviewing a bill ("Bill") intended to amend the Mexican Industrial Property Law ("IPL") to regulate franchise agreements and to add new disclosure procedures. It is still uncertain whether the Congress will approve the Bill. Currently, the IPL franchise regulations are very limited, and do not regulate the content of franchise agreements. The Bill adopts a very different approach in order to protect franchisees from perceived franchisor abuses.

The IMPI is an agency of the Federal government created in 1993 which has its own assets, personality and budget. IMPI has over a 1,000 employees in Mexico, most of them are concentrated in our headquarters in Mexico City, but we also have regional offices in Guadalajara, Mérida, Monterrey and León. In terms of our human resources, around 63% of our employees have a bachelor degree, 25% have technical education, and 2% masters or PHD degrees which allows us to provide high-quality services to users.