What the legal system has to say about the health and fitness industry
The global health and fitness industry generated $94 billion in 2018 with 183 million memberships in the same period – most likely more. Nigeria also saw a growth by 1.01% in its Arts, Recreation and Entertainment Sector (which comprises the health and fitness sub-sector and others). The sector in Q1 2019 contributed 0.28% to GDP, up from 0.18% in Q4 2018.
This growth is likely going to continue given the apparent increase in health consciousness and the desire to live longer. With this growth will come more scrutiny by regulators and other stakeholders seeking to derive value from increased activity in the sector. As such, if you are looking to provide a product or service in the sector there are a few things you should look out for, from the legal standpoint.
Several elements come together to create the industry that is the health and fitness sector; sporting apparel and equipment, gyms, routines, to mention a few. Every one of these elements have legal aspects which inform rights and obligations that one must be cognisant off.
If you keep reading, you will see I have attempted a summary of key considerations for a person who offers or seeks to offer products or services in the health and fitness industry.
This refers to copyrights, trademarks, trade secrets and other incorporeal elements which are in play in the industry. Ranging from music played in gyms or used in instructional videos, to the information obtained from registering members, and the images used to advertise products and services, one must be cognisant of the rules that apply to the use of these elements.
Earlier this year, the National Music Publishers Association (NMPA) commenced a $150 million suit against Peloton, the American exercise equipment and media company that allows users stream classes through a monthly subscription service. The NMPA accused Peloton of copyright infringement because it played songs without obtaining the requisite sync licenses for some of the songs it played in the videos it streamed to its customers.
TV shows and films have traditionally had the most need to obtain sync rights, and with technology, publishers are better equipped to monitor the use of their works and are actively expanding their areas of surveillance.
On a different note, branding or good will is pertinent in the health and fitness industry and, a lot of effort is expended in building credibility and trust with customers/followers. As the owner of an established brand or, as one seeking to grow a brand, you should consider protecting the elements of your brand. To this end, you may consider registering trademarks for your products or service or, registering the design of your product (including apparel – a huge income stream in the health and fitness industry). Trademarked elements can be spun off into income streams by granting license for the use of your mark/design on other products or establishing a franchise.
Injuries and the Duty of Care
As a gym operator or as an instructor, you should be cognisant of the liability that lurks around, in the form of injuries suffered by persons who use your product/service. In the gym, it is recommended you put measures in place to warn users of volatile equipment. These may include placing instructions around such equipment and other areas in the gym. It is also recommended you make your members sign a waiver. This is a document which seeks to relieve the gym/club from liability resulting even from ordinary negligence of the gym/club. These do not avoid liability and in several scenarios have been rejected by the courts. However, when construed together with other measures taken by the gym/club, they have mitigated and in a few cases avoided liability.
Other measures which you should consider include employing trained personnel to be present at all times and ensuring that your equipment are maintained properly.
With the increasing demand for accountability in the collection and use of customer data, it is recommended that you put in place measures to protect the information which you collect from customers during registration (particularly online). These measures include requesting specific information and informing the customer of the purpose for which you are collecting the information. You should also ensure that the customer has access to his/her data in your custody and can demand that you delete them.
Labour & Employment
You must ensure that the staff you employ are capable and properly trained. In addition, you should consider putting measures in place that protect your business and your customers when the employee leaves your employ.
Dependent on the services and products which you offer and where you do business, it is necessary to check the regulatory provisions that apply to you. For example, in Nigeria, depending on these factors, the provisions of the National Health Act 2014 of the National Agency for Food and Drug Administration (NAFDAC) may apply. Certain states also have laws and regulations that apply to health and fitness industry.
Yet, please bear in mind that these considerations are not exhaustive and it is recommended that you employ the services of competent advisors to work with you.
Oyeniyi Immanuel is a Corporate and Transactions lawyer with Streamsowers & Kohn; a full service law firm with offices in Lagos, Abuja and Port Harcourt.