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Say I’ve got a business selling bananas, and I want you to sell bananas, too. Presumably, you’d want to know some details about this banana business opportunity, such as whether I’ve ever been sued for lying about my business, whether the amount of money I say you would earn is accurate, and what happens if, after selling for a while, you want to quit. Perhaps you’d want to take a week to think about it before signing on.
For most business opportunities in the United States, that’s the legal standard I would have to follow to get you on board. It doesn’t apply to multilevel marketing companies (MLMs), though. They’re exempt — at least for now.
A decade ago, the Federal Trade Commission (FTC) put in place the “business opportunity rule,” which basically describes a set of requirements for people trying to get others involved in a business opportunity, such as a work-from-home job (some of which are scams). The rule says that people offering such opportunities have to provide support for any income claims — if I tell you that you can make $1 million a year in my banana business, I have to prove it. They must also disclose whether they’ve been involved in certain legal actions (such as any involving fraud), and list them out if they have; detail their refund and cancellation policy (if they have one); and provide a list of at least 10 other people who have bought in, all seven days before the person they’re recruiting pays any money or signs anything.
There were plenty of people who believed that MLMs should be included in the FTC rule when it was enacted a decade ago, but they were granted an exception following massive pushback from the industry. “That’s the power of lobbying for you,” said Douglas Brooks, an attorney who specializes in MLMs.
That could be about to change. The FTC announced in June that it would review the business opportunity rule as part of a revised 10-year review schedule — and there is hope that, this time around, MLMs might be roped in.
Earlier this year, then-FTC Commissioner Rohit Chopra (who was recently confirmed as director of the Consumer Financial Protection Bureau), put out a statement urging that MLMs and gig-economy platforms be included in the rule. Now that Chopra’s at the CFPB, the other commissioners — including FTC Chair Lina Khan, a protégé of Chopra’s, and Noah Phillips, a Republican-appointed commissioner who has criticized MLMs in the past — are expected to take a look at the issue.
Outside the FTC, anti-MLM sentiment has been on the rise of late as people involved have felt more emboldened to speak out about the pitfalls of the business model and high-profile media projects have called attention to the issue.
MLMs are certain to push back against their inclusion. One lawyer I spoke to, who asked to withhold their name because they have clients in the industry, told me that the rule would be “disastrous” for MLMs and likely “decimate” the industry. Whether the FTC actually makes any changes to the rule is uncertain, and the process could take months or even years. But it’s a start.
MLMs lobbied their way out of regulation a decade ago. It’s not clear whether they’ll be so lucky now.
To back up a bit, multilevel marketing is a business model where sellers derive profits in two ways — by selling a product or service, and by recruiting other people to sell that product or service. Generally, the latter is more lucrative than the former.
It’s a big industry. The Direct Selling Association (DSA), a trade group representing MLMs, says it was worth $40 billion in 2020 and encompasses millions of sellers. It’s also a controversial one: The vast, vast majority of sellers make little, if any, money in MLMs (they often lose money), and consultants and companies have been caught on multiple occasions making misleading claims about earnings potential and product effectiveness. Critics say MLMs are in essence pyramid schemes, where only people at the top make money, and do so by constantly recruiting new members. MLMs reject this characterization, but at the very least, some MLMs have gotten into trouble with regulators for bad behavior, including Amway, AdvoCare, and Herbalife.
MLMs aren’t completely unregulated — the FTC and Securities Exchange Commission, for example, have some purview over them. But it’s hard not to wonder whether there could be more guardrails, including with something like the business opportunity rule, which MLMs have vociferously opposed.
First proposed in 2006 and finalized in 2011, the business opportunity rule is meant to protect consumers from “bogus business opportunities” by laying out some basic requirements about what potential recruits need to be told and when. When the rule was first proposed, the MLM industry went into overdrive to try to make sure it wouldn’t apply to them. As The Verge outlined in 2014, the DSA got over 17,000 people to send comment letters to the FTC opposing the then-forming rule being applied to MLMs. (By comparison, MLM critics sent under 200 letters.) MLMs also boosted lobbying expenditures and got dozens of members of Congress to write to the FTC urging it to let MLMs be.
“They just swamped the FTC with things basically saying, ‘If you do this to us, it’ll destroy the industry,’” Brooks said.
MLMs were successful: The FTC decided that they should be exempted from the rule, determining that it “would have imposed greater burdens on the MLM industry than other types of business opportunity sellers without sufficient countervailing benefits to consumers.” An FTC staff report said that some MLMs do engage in bad practices and are pyramid schemes, but that would better be determined on a case-by-case basis and the “record developed was insufficient as a basis for crafting MLM disclosures that would effectively help consumers make an informed decision about the risks of joining a particular MLM.”
Looking at how MLMs operate, critics have questioned whether the FTC’s decision was the right one — and hope they’ll decide differently now. There’s been increased scrutiny by the public on MLMs in recent years, and regulators have continued to take notice of their practices. The FTC has sent out warning letters to MLMs during the pandemic over their earnings and product claims (companies and sellers have taken advantage of the crisis). The regulator is currently enmeshed in a lawsuit against Neora, which sells skin care and wellness products, over allegations that it is a pyramid scheme.
The public has taken more notice of MLMs and the business model as well. For a long time, many people who were involved in MLMs and failed (which most do) didn’t talk about it — they were embarrassed, or they felt guilty over roping their friends and family into it, too. Former sellers and experts say that MLM culture is one where leaders place blame for failure fully on the shoulders of the individual. Sellers are told that if it doesn’t work out, it’s their fault and their fault alone. But there has been an explosion of growth in anti-MLM communities on the internet, and there seems to be a greater awareness of the drawbacks the business model brings with it.
In other words, the FTC won’t just be flooded with comments from the pro-MLM community this time around, it’s also likely to hear more from the anti-MLM community as well.
“I would expect that there are going to be many comments, and I would expect that the MLM industry will gather its troops,” said Bonnie Patten, executive director of Truth in Advertising, a consumer advocacy nonprofit.
The FTC’s exact timing here is unclear. Patten said she expects action to begin in December, though she acknowledges it’s a bit of an “informed guess.” Even then, there’s a long road ahead, as the FTC will have to solicit public comments, send notices to lawmakers, and could hold arguments regarding changes. “This is a slow and laborious process,” Patten said.
Now that Chopra is at the CFPB, there have been some doubts among MLM critics as to how efforts to include MLMs in the business opportunity rule will proceed at the FTC. Chopra was the commissioner who had explicitly mentioned including MLMs under the rule, and now, the FTC has four commissioners instead of the usual five, so votes could come down to a two-two split. Still, Patten said she’s relatively optimistic. “If we’re focused on MLM, I think of all the deceptive marketing issues in a deck of cards, MLM is the one that it appears all commissioners agree is an issue,” she said.
The FTC declined to comment on the matter, noting that they generally don’t speak publicly about rule-making processes as they are underway.
People should know what they’re getting into with MLMs
When you watch something like the LuLaRoe documentary or listen to a podcast like The Dream, it’s sometimes hard not to land in the same spot: How in the world can this be legal? Or at the very least, why isn’t more being done to look out for people before they get sucked in?
Most people don’t make money; plenty lose money. Some companies make earnings disclosures available, but they’re generally really difficult to read and understand. Even if it’s relatively clear that eight in 10 consultants make less than $10 a month, recruits are sold on the hope that they’ll be one of the lucky few to make $100,000.
Many MLMs don’t really know where their products go once they arrive at the sellers, who are often encouraged to buy in order to stay active in the company and show their commitment. (Their uplines, the people above them, make money when they buy.) Whether sellers are actually offloading those lotions or essential oils or earrings to other people, or just piling them up in their garage, the corporate office often is unaware.
Including MLMs in the business opportunity rule wouldn’t be a panacea, but at the very least, experts say it could be a good start. “All this rule would have required were some pretty basic disclosures and a seven-day cooling-off period, and you’re saying this is going to destroy the industry?” Brooks, the MLM attorney, said. “What’s going on here? Why would that be so destructive?”
A sample disclosure form on the FTC’s website doesn’t look that complex. Yet, Brooks said he expects it to be a “knock-down, drag-out” fight if it looks to the industry like MLMs will get included in the business opportunity rule. “I don’t doubt that they will go to Congress and try to get a law passed that will sort of preempt that effort,” he said. Indeed, there is a direct selling caucus in Washington, DC, with more than three dozen members, Republican and Democrat alike.
In a statement to Vox, Joseph Mariano, president and CEO of the DSA, said the organization “looks forward to a constructive engagement with the FTC on any prospective rule-making that might apply to direct sellers.” He said the DSA “has a long history of encouraging self-regulation and consumer protection as a complement to appropriate and reasonable government regulation” and pointed to the DSA’s code of ethics, which member companies and sellers must abide by, and the DSA’s self-regulatory council.
Brooks thinks efforts to curb MLM activity should go further than the business opportunity rule and other tools currently in the FTC’s toolbox. (Earlier this year, the Supreme Court curbed some of the FTC’s ability to seek monetary relief, which has prompted some of the conversation around the business opportunity rule.) In his view, regulators need to have harder lines around what MLMs can and can’t do in the first place.
“The FTC should prohibit certain types or aspects of MLM compensation plans, because the real problem with these companies is in the compensation plans, it’s the whole structure of the thing,” Brooks said. “People end up spending thousands and tens of thousands of dollars having thought that this was originally a $50 investment.”
So back to my banana business. At the very least, many experts say, I should have to tell you if the banana sellers under me are making $1 or $1 million a month. If I promise you that you’ll be a banana billionaire, I should have proof, and also tell you if there was a banana-related fraud lawsuit in my past, and give you a few days to decide if you want to get in on the bananas — whether I’m an MLM or not.
The harder question — and one the FTC isn’t looking at now, but perhaps should — is whether I should be able to get you in on the banana business at all if I know you’re almost sure to fail. If 99 of 100 sellers are in banana bankruptcy, just how hard can I sell you on the 1 in 100 dream of being a banana billionaire? That’s a question for another day.