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Washington Report
September 1999
FTC Receives Public Comments
on Funeral Rule Review
by Robert M. Fells, Esq., General Counsel
Last month's column reviewed the ICFA comments submitted to the Federal Trade Commission (FTC) opposing the expansion of the Funeral Rule to cemeteries. Since then, a total of 140 comments have been submitted to the FTC by the August 11th filing deadline, of which 74 were available for public inspection at this writing. This number is significantly lower than the hundreds of documents submitted during the first Funeral Rule review proceeding in 1988.
One factor may have affected the comparatively few comments received during the current review: In discussions with AARP staff, the ICFA learned that the consumer group did not initiate a mass letter-writing campaign among its members as it had done in earlier years. Perhaps as a result, relatively few of the 74 available comments came from consumers; most originated from industry groups and related individuals. The ICFA is in the process of receiving and reviewing the comments filed by organizations such as AARP and the National Funeral Directors Association and will review them in next month's column.
A number of comments were filed by casket retail stores that support the Funeral Rule and urge a strengthening of the Rule in several areas. Typical among them was the comment filed by Consumer Casket USA Inc., which called for: 1) prohibiting the non-declineable service fee currently permitted under the Funeral Rule; 2) maintaining the Rule's prohibition on casket handling fees charged by funeral homes when a family buys the casket from a source other than the funeral home; 3) prohibiting funeral homes from imposing a "reversible discount" to take business from local competitors; and 4) expanding the Rule to all sellers including cemeteries.
A number of memorial societies filed comments, though the submission from the Funeral and Memorial Societies of America (FAMSA) is not yet available. It had been rumored that the FAMSA comment would include boxes of consumer complaints against cemeteries. FAMSA already has gone on record as favoring expansion of the Funeral Rule to all sellers and prohibition of the nondeclineable service fee, among other things.
A former FTC attorney, Arthur R. Angel, who was instrumental in the development of the Funeral Rule during the 1970s, filed comments supporting the continuing need for the Rule but opposing expansion of the Rule to cemeteries. Instead, Angel states, "There is probably a genuine need for price disclosures and other substantive protections with regard to cemeteries, however, cemeteries are different from funeral homes and they present different issues and problems. If anything, there should be a separate cemetery rule...."
The National Funeral Directors and Morticians Association (NFD&MA) commented that the Rule should be expanded to include cemeteries, memorial and cremation societies, casket stores and others who sell funeral goods. The NFD&MA supports the restoration of a limited casket handling fee to compensate funeral homes for labor time in receiving the casket and the retention of the nondeclinable service fee.
A few letters from Catholic Archdioceses were submitted highlighting the constitutional separation of church and state that precludes extending the Funeral Rule to religious cemeteries. In particular, the Catholic cemeteries' comments explain that the burial of the dead and the related ceremonies are among the sacramentals of the Church and should be exercised freely without undue interference from civil authorities. These comments also pointed out that there is no substantial evidence to show that religious cemeteries engage in widespread unfair or deceptive sales practices.
The North American Cemetery Regulators Association (NCRA) supports the Funeral Rule but stated, "It is our general observation that while most issues involved with funerals and burials tend to be local in nature, trends in the death care industry are spreading faster than ever before. As a result, we believe that local regulation will be the most effective and targeted." The NCRA comments contained the following recommendation: "We hope you will consider the possibility that creation of a disclosure brochure that vendors must provide to prospective consumers may be of greater benefit to cost-conscious consumers or consumers who want to do comparison shopping than a general price list."
Comments submitted to the FTC on the Funeral Rule may be viewed at www.ftc.gov/bcp/rulemaking/funeral/comments/index.html.
Following an internal review period, the FTC is expected to announce the dates of a public workshop conference whereby interested parties may make presentations and question other parties on their comments. ICFA members will be kept informed of important developments.
Copyright ICFA 1999.
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