L9.0 Commercial Participators L9.0 Commercial Participators
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Note: MUST* and MUST NOT* (with asterisk) denotes legal requirement
MUST and MUST NOT (without asterisk) denotes requirement of the Code of Fundraising Practice
This section applies to fundraising organisations which are charities.
L9.2 England and Wales- Definition of Commercial Participator
The relevant law is set out in the Charities Act 1992 (as amended) (“the 1992 Act”) and the Charitable Institutions (Fund-Raising) Regulations 1994.
Broadly speaking a “Commercial Participator” is any person who carries on a business and in the course of that business represents that it will make donations to a charity. For example, a manufacturer that advertises washing powder with the promise that a contribution will be made to charity for each packet sold would be a commercial participator.
The full definition is in Section 58(1) of the 1992 Act. Fundraising businesses and charity trading subsidiaries are excluded.
L9.3 Scotland- Definition of Commercial Participator
The relevant law is set out in the Charities and Trustee Investment (Scotland) Act 2005 (“the 2005 Act”) and the Charities and Benevolent Fundraising Regulations (Scotland) 2009.
A “Commercial Participator” is defined in section 79 of the 2005 Act as any person who carries on for profit a business other than a fundraising business, and, in the course of that business, engages in any promotional venture in which a representation is made that benevolent contributions are to be given to or applied for the benefit of a benevolent body or (in an extension of the position in England and Wales) are to be applied for charitable, benevolent or philanthropic purposes, but it does not include a company connected with the benevolent body.
For example, a manufacturer that advertises tissues with the promise that a contribution will be made to support children in disadvantaged areas for each packet sold would be a commercial participator.
L9.4 England and Wales – Commercial Participator Solicitation Statement
a) Commercial participators MUST* make a statement every time they represent money will be paid to a charity or an institution which is established for benevolent or philanthropic purposes.
L9.5. Scotland- Commercial Participator Solicitation Statement
a) In Scotland, the rules regarding solicitation statements apply to and MUST* be followed by Professional fundraisers making solicitations, Commercial participators making representations and benevolent fundraisers (other than volunteers) carrying out benevolent fundraising.
L9.6 Requirement to have an agreement in place
a) It is unlawful for a commercial participator to represent as part of a promotional venture that it will give money to a charity (or an institution established for benevolent or philanthropic purposes) unless it is done in accordance with a written agreement with the organisation it is raising funds for. The agreement MUST* be in writing and signed by or on behalf of both the commercial participator and the organisation it is raising funds for.
The agreement MUST* specify:
- The names and addresses of all the parties to the agreement;
- The date on which each party signed and the duration of the agreement;
- any terms dealing with early termination or variation;
- a statement of the principal objectives of the agreement and the methods to be used to achieve those objectives;
- the proportions in which each charity will benefit in cases where the money is to be divided between more than one charity;
- what proportion of the price of the goods or services will be given to the charity or what sums will be donated by the commercial participator in connection with the sale or supply of the goods or services;
- and any amount the commercial participator will be paid as remuneration or expenses.
b) Fundraising agreements between Charities registered in England and Wales and professional fundraisers MUST* include:
- details of any voluntary regulatory fundraising scheme or standard that the professional fundraiser undertakes to be bound by;
- how the commercial organisation will protect the public from unreasonable intrusion on a person’s privacy, unreasonably persistent approaches or undue pressure to give; and
- how compliance with the agreement will be monitored by the charity, as specified within section 13 of the Charities (Protection and Social Investment) Act 2016.
L9.7 England and Wales: Other Requirements
a) A commercial participator who has an agreement with a charity MUST* on request make its books, documents and records relating to that charity available for inspection and MUST*, subject to a reasonable excuse, pass on funds to the charity as soon as reasonably practicable and within a maximum of 28 days.
L9.8 Scotland: Other Requirements
a) A professional fundraiser/commercial participator MUST* pass on funds to the charitable institution/benevolent body in accordance with the Regulations. In Scotland, the funds MUST be passed on as soon as reasonably practicable and in any event within a maximum of 28 days of receipt. Scots law does not permit the parties to agree otherwise, nor does it make an exemption where there is a reasonable excuse.