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What This Shanghai-Based Lawyer Wants American MLMs to Know About China

Podcast episode 38

Article by: Mark Schaub | Senior Partner, King & Wood Mallesons
Nancy Tobler
March 4, 2019

Is Your China Strategy Too Reckless? Too Timid? Nonexistent?

There’s good money in selling to Chinese consumers but the People’s Republic of China restricted direct sales to single-level sales commissions.

The Chinese economy is growing. Consumerism is on the rise. Word of mouth marketing is king in China. Are you going after this market?

Maybe you’re staying out of China entirely. Maybe you’re operating in China with a single-level compensation plan. Maybe you’ve been quietly selling your products into China with cross-border e-commerce—without making any changes to your compensation plan—and you’re looking the other way while distributors do whatever they do onshore. Is there a better way?

We reached out to MLM.com contributor Mark Schaub to find out. Mark is a lawyer who lives and works in Shanghai. On this episode of the MLM.com Podcast, Mark discusses the strategies he’s used to successfully navigate PRC law for MLM clients.

Listen in to learn:

  • Does the single-level route—used by Herbalife China and Amway China—make sense for smaller brands?
  • How safe is the popular offshore e-commerce strategy?
  • What were the real objectives behind Chinese MLM law?
  • Is there a way to navigate MLM Law and pay Chinese sales leaders for their work while operating onshore?

Full Transcript

Nancy Tobler: Welcome to MLM.com Podcast. This is Nancy Tobler. I’m guest hosting for Kenny Rawlins.

Today our guest is Mark Schaub. He has worked as a lawyer in Shanghai since 1993. He specializes in foreign direct investment and restructuring in China. He has advised on foreign investment projects in all major sectors in China, with a cumulative value exceeding USD $20 billion. He’s familiar with China issues faced by companies of all sizes and is a trusted advisor to many companies ranging from family-owned businesses to Fortune 500 companies. He is also the global co-head of King and Wood Mallesons consumer practice.

So, welcome, Mark!

Mark Schaub: Thanks, Nancy.

Nancy Tobler: So, we’re so excited to have you on the call. We get a lot of reader response when we talk about China and how to do business in China. I think, perhaps, the very first question that needs to be cleared up is that there’s a difference in how direct selling or network marketing, multi-level marketing occurs in China. Would you talk about that difference?

Mark Schaub: Sure. I think we’ll talk a bit later about the opportunity in China. Multi-level marketing or network marketing has a very big presence in China and it’s growing quickly. And I think it also really gels with Chinese culture. There’s a large domestic presence. But American companies do dominate the multi-level marketing. And they basically have three different ways they do it.

Single-Level Direct Sales—How MLM Titans Enter China

Mark Schaub: Perhaps the most traditional way is the direct sales model—so, companies like Amway or Herbalife, these kind of guys. They will actually get a direct license—a direct sales license. That’s the PRC (People’s Republic of China) alternative to traditional network marketing structures. The PRC has a total ban on having anything more than one level of commission. So, you need to have a direct sales license. For many companies it really has stopped them entering the Chinese market because the requirements to do it are very high.

So, you have to put in a security deposit of about three million U.S. dollars and this has to be adjusted to include about 15 percent of sales revenue each month. You have to hire the direct sales people directly. And the remuneration has to be paid monthly.

So, it takes away a lot of the flexibility which is attractive to a lot of people in network marketing.

And then you need a direct sales license which requires a minimum capital of about 12 million U.S. dollars. And there are a slew of other requirements…

But I think for many companies, unless they’re very big and they’re very confident about the Chinese model…

And it also doesn’t encompass all types of goods. It’s mostly for cosmetics companies, supplements, household type appliances. So, I guess it is a model, but it is quite inflexible and quite expensive. So, do you have any questions about the direct sales model?

How Growth in the Chinese Economy Dovetails with Direct Sales

Nancy Tobler: Maybe talk just a little bit more about what kind of growth they’ve seen in the Chinese market in the last 10-15 years. Has it been 15 years?

Mark Schaub: I mean, the economy itself would have grown probably five times in the last 15 years. Supplements and cosmetics, they’re still the biggest part of MLM companies in China. And these are two of the hottest things growing at the moment.

So, even though the Chinese economy has slowed down to 6.5% [growth], supplements are still growing at a rate of about 12% to 20% and cosmetics are growing around 15%. There’s a lot of demand. And I’d say that China’s really the largest market for cosmetics. It’s not the largest one yet for supplements. But it’s a big market that’s still growing far faster than anywhere else. Also, I think direct sales is roughly growing at about 20%.

So, it is a very buoyant thing and when people look at the 6% or 7% growth that we’re seeing in China, it doesn’t really impact the retail sales. So, the Chinese government’s trying to push domestic consumption, and there’s a much bigger consumer base than maybe five years ago. So, now is probably the right time to come.

The Popular Offshore E-commerce Strategy

Mark Schaub: And maybe that would be a way to segue to the second model, which is a bit of a gray area, and it’s basically an offshore e-commerce model. And I’d say this only came about maybe five years ago, and it kind of shows you how new the Chinese consumer class is and how quickly it grew.

So, companies like Alibaba, Taobao, Tencent… all these companies really have grown a lot in the last five years through e-commerce. So, China has about 880 million Internet users. They do buy a lot online and e-commerce is basically where… say a US company will be operating offshore and then they will bring the products into China via cross-border e-commerce. And then they basically operate the business like they do in the States—having more than one level of commission.

And typically these businesses grow very very quickly.

We have seen a number of MLM clients where China was a secondary or third market or even a fourth market—wasn’t very interesting—but within a year, it grew bigger in the domestic market for them.

When you’re small, people won’t notice. But the problem is once you get larger, this e-commerce model—because it really is directly in breach of the Chinese regulations in respect of multi-levels of commission—it’s inherently fragile.

So, a lot of these companies might be deemed to be illegal pyramid schemes. This will perhaps damage the reputation at home. But it will definitely interrupt the operations in China. And, you know, the Chinese authorities can do all kinds of things. They can arrest your affiliates. They might block the marketing channels like your website, your WeChat account. And we’ve also seen cases where company executives get arrested once they get into China. And then the argument that, “Oh, we’re offshore” won’t really hold much water because They’ll say, “You might be offshore, but you’re operating in China in an illegal way.”

So, I think this is a very prevalent model in China, but I think it’s like building a castle on sand. You know, once the castle gets too big, it might fall apart.

Nancy Tobler: Yeah. An interesting model. And I think you’re right. I think there are a lot of companies that have gone that way.

A Better Way to Navigate Chinese MLM Law

Mark Schaub: So, what we’ve done recently is we’ve come up with a compliant model which we call the SOSO (sales offshore, service onshore) model. And, “so so” (at least in Chinese English) means, “not bad.” But it is a bit of a middle ground type thing where it combines the benefits of the offshore e-commerce model and the direct sales model.

So, we had a client that had tried the offshore e-commerce model, got into trouble, came to us. And then we had to put out the fires. But they still wanted to continue the business in China. And so, we came up with a more compliant model which was based on cross-border e-commerce but having the downline or the affiliates in China actually owning service companies and then being paid based on the number of people they service.

This model stood the test of at least 12 months.

Prior to instituting it, the client was having major problems with the Chinese authorities on a monthly basis, people being arrested, etc. And now we actually have not had any issues since we did that.

Yes, You Can Pay Chinese Sales Leaders Without Breaking the Law

Nancy Tobler: I think that the SOSO model, as you call it, is very interesting. So, people are paid to provide service on products that have been sold rather than being paid down many levels. They’re just paid for additional activities beyond the actual sale of the product.

Mark Schaub: Some of the MLM companies who are doing it more like a distributor basis. So, the more you buy, the cheaper the products. This actually isn’t that way, structured. So, basically the affiliates will have their own companies. So that’s another layer of protection for the MLM company.

Nancy Tobler: Right.

Mark Schaub: And the concept is, the more people you have in your downstream the more services you provide. So, there’s things like the social media aspect, providing these people with education on how to do it…

And, you know, we had devised a way that there would be perhaps… if you have more people in the downstream, and then they have people in the downstream, it could be argued that you would also have to provide services to those people.

But that actually has not arisen. So, in practice it actually has stuck at one level of commission. And the affiliates… I mean, this was not like a brand-new thing. What we had was a client that—obviously I won’t say who the company was—but the really bad day was in 2013, where the police came, raided a rally, arrested 53 people and put most of them in jail, seized all the computers. There what we had to do was stop the bleeding. We had to get a PR firm to help with reputational damage. And then we had to recalibrate the model.

So, it’s not easy.

They had a very big business in China. They had a lot of affiliates who were working that way, were familiar with the business. And, you know, we were able to implement this new model and that was back in 2013. Now, 2019, it’s actually been running for six years without any hiccups. And even the affiliates seem very happy.

Nancy Tobler: Yeah. That’s fascinating. I think our listeners will be very interested to know of this different approach and they certainly, I assume, can contact you if they want more information.

Three Powerful Reasons Why Network Marketing Thrives in China

Nancy Tobler: You talked just a little bit about this in your in your opening, but let’s talk just a little bit about culture and why direct selling does so well in China.

Mark Schaub: At the moment, the Chinese consumers—especially for anything you ingest or put on your skin—there’s still quite a large preference or a strong preference for imported goods. So, you know, typically, most of the MLM goods are either imported or they may be just the packaging or the bottling of the cosmetic companies like the last stage of it. So, I think that’s one cultural thing that people may not be aware of is that there’s a lot of cachet in having imported goods.

Secondly, I think the Chinese social system, now over many generations, is a relatively low trust society. People have a network of their friends, their family, and, you know, it’s interlinked communities. And people really trust each other rather than perhaps, outside sources. So, I think if somebody was going to buy something, it’s not that they would go on and check a consumer choice magazine and the ratings. They will ask people they know what they think of the product. We call it “guanxi.” It’s connection. And so, I think this is something which has been culturally there for a long time. They like to have these communities and reach out within their networks.

And I guess the other thing, which is not really a cultural thing—well, it’s a new cultural thing—is how the Internet and mobile devices have exploded here. And so, I’m spending a little bit more time overseas now and so I’ve come up across this “WhatsApp.” In China, everybody uses WeChat. And the only thing I have to say about WeChat is it’s 100 times better than WhatsApp. So, you know, it’s the statistics on it are crazy. WeChat is basically… you communicate, text people, you do 100 different things on WeChat. And there’s 880 million people using it. And I think the average hours of use per day—and you’ve got to think, “Well, this can’t be right,” but it is—6.5 hours.

Nancy Tobler: Wow.

Mark Schaub: So, people are constantly on their WeChat. And so, WeChat has just instituted this WeChat sells, which is an application that allows users to sell via WeChat with a commission base. So, I think these are the three things. Firstly, having a network and using your network is a very normal thing in China. Secondly, the fact that people want imported goods. And then thirdly, this ability to connect to more people quicker.

Nancy Tobler: People trust that social media, WeChat? Is that working in their favor?

Mark Schaub: Well, I think the thing is they probably don’t trust talking heads. Even though KOLs are very important—key opinion leaders are important—they’re probably less important than in the west.

So, I think very often, people will have focus groups… So, we had one client that was targeting pregnant women or women who just gave birth—supplements for women who just had given birth. And there it was more important to them to actually have mothers who were actually just experiencing it. So, I think the real experience is more important.

Nancy Tobler: Yeah. That’s fascinating.

Lost in Translation—the Objectives Behind Chinese MLM Laws

Nancy Tobler: I’d love for you to talk about the crackdown that happened in 2017. And maybe you’ve really already discussed it, but what kinds of things got companies in trouble in 2017? And is that sort of waning now and not happening as much? What’s your opinion on that?

Mark Schaub: That 2017 crackdown was a total… was totally unrelated to US MLM companies. You know, the media picked it up. And it did affect some of these MLM companies’ share prices. But it was actually very unfair.

What it was targeting was that these Chinese [MLMs]—and I would use the term MLM very loosely. They were more like cults. And they were doing things that were absolutely illegal, much more Illegal than just pyramid schemes. They were basically kidnapping people, sleep depriving them, and making them sell product this way.

It really was something totally beyond, you know, even perhaps the most vehement opponent of MLM. Nobody would actually categorize what they were doing as “being MLM.” They were basically criminal gangs.

And so, I think the western media either knowingly—or just didn’t understand the context—misunderstood what the crackdown was about. So, I don’t think it was really something that was directed at foreign MLM companies at all.

Nancy Tobler: Okay, great. Well, I think that’s—that will clear it up a lot. In fact, I still see, periodically, a news article that will talk about the crackdown on pyramid schemes. That’s usually what they call it. But people in the US equate pyramid schemes with MLMs a lot. Whether or not that’s… It’s not a good comparison obviously.

Mark Schaub: Well, I think that’s not fair.

Nancy Tobler: Yeah. It’s not fair.

Mark Schaub: I would say that’s not fair. But, I think, you know, legitimate network marketing companies in America, I think the short of it is, as far as I know, none of the major ones who were here were involved in the crackdown or suffered. And I think their share prices recovered quite well. So, I think it was misinformation, misunderstood.

Nancy Tobler: Yeah.

Yes, You Can Operate Your MLM in China Without Breaking the Law

Mark Schaub: I think legitimate MLM companies, they just have to realize it’s a different system in China, and you’ve got to work out how you want to act in a compliant fashion. Because otherwise you might do great business here but someone might destroy it very quickly. So you probably want a compliant, long-term business rather than something that just won’t work, you know, in the long term.

Nancy Tobler: Well, I want to thank you for spending some time with us this morning. Well, it’s afternoon there, but it’s morning for us still. I haven’t had enough caffeine yet, really. Anything else you want to share with us this morning?

Mark Schaub: No… China is a big opportunity. But I think most of the risks can be mitigated with just some commonsense measures. And, we’re very happy with any of your listeners… we’re happy to have a chat or send them some information. You know we just want to make people… demystify China and let them think about it. And they may decide not to come here or not to come right now. But, you know, it’s probably better to have an informed decision rather than rely on media or other reports which may you know paint a, you know, inaccurate situation.

Nancy Tobler: Good. Well, I think you’ve dispelled a couple of myths today as well as enhanced our understanding. I think your SOSO model is very interesting. I think our listeners will be very interested in how you’ve put together this, as you say, sort of a middle approach. And again, thank you for your expertise. We appreciate you and we appreciate your articles, there are a couple of them on MLM.com and we look forward to future work with you.

Mark Schaub: Right. Well, thanks very much!

Nancy Tobler: All right. Thank you so much. Goodbye.

Mark Schaub: Thanks Nancy. Bye!

Nancy Tobler: This has been the MLM.com Podcast. Today’s guest has been Mark Schaub. His offices are in London and he works in China. And he has explained to us some fascinating things about culture there as well as the legal climate and their model and how they approach direct selling in China. And it’s been a fascinating lesson. I hope you enjoyed it. If you like what you hear here we want you to share it. And we’d love to have you comment. And we’d love to know topics that you’d be interested in. We’ll try to find an expert to interview. Thanks again for joining us at MLM.com Podcast.


Did we get to the topics you wanted to hear about? If you have questions you’d like us to ask Mark—or his colleagues—in a later episode, please let us know!

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How to Run a Direct Sales Company, International Direct Sales Business, The MLM.com Podcast

Mark Schaub | Senior Partner, King & Wood Mallesons

Mark Schaub has worked as a lawyer in Shanghai since 1993. He specializes in foreign direct investment, M&A and restructuring in China. He has...

Read more Articles by Mark Schaub

Nancy Tobler

Nancy Tobler has a PhD in communication from the University of Utah. She specializes in research on how organizations change,...

Read more Articles by Nancy Tobler

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