Funeral Industry Practices Rule, 66096-66116 [2022-23832]
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66096
Proposed Rules
Federal Register
Vol. 87, No. 211
Wednesday, November 2, 2022
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
FEDERAL TRADE COMMISSION
16 CFR Part 453
Funeral Industry Practices Rule
Federal Trade Commission.
Advance notice of proposed
rulemaking; request for comment.
AGENCY:
ACTION:
The Federal Trade
Commission (‘‘FTC’’ or ‘‘Commission’’)
is considering whether to initiate a
rulemaking proceeding to amend its
Trade Regulation Rule entitled ‘‘Funeral
Industry Practices Rule’’ (‘‘Funeral
Rule’’ or ‘‘Rule’’). The Rule defines
unfair and deceptive practices in the
sale of funeral goods and services and
prescribes preventative requirements to
protect against these practices. All
interested persons are hereby given
notice of the opportunity to submit
written data, views, and arguments
concerning the Rule.
DATES: Comments must be received on
or before January 3, 2023.
ADDRESSES: Interested parties may file a
comment online or on paper by
following the instructions in the
Instructions for Submitting Comments
part of the SUPPLEMENTARY INFORMATION
section below. Write ‘‘Funeral Rule
ANPR, Project No. P034410’’ on your
comment, and file your comment online
at https://www.regulations.gov. If you
prefer to file on paper, mail your
comment to the following address:
Federal Trade Commission, Office of the
Secretary, 600 Pennsylvania Avenue
NW, Suite CC–5610 (Annex B),
Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT:
Melissa Dickey, (202) 326–2662,
mdickey@ftc.gov, or Rebecca Plett, (202)
326–3664, rplett@ftc.gov.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
I. Background
The Commission is publishing this
document pursuant to Section 18 of the
Federal Trade Commission (‘‘FTC’’) Act,
15 U.S.C. 57a, and the provisions of Part
1, Subpart B of the Commission’s Rules
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of Practice, 16 CFR 1.7 through 1.20,
and 5 U.S.C. 553. This authority permits
the Commission to promulgate, modify,
and repeal trade regulation rules that
define with specificity acts or practices
that are unfair or deceptive in or
affecting commerce within the meaning
of Section 5(a)(1) of the FTC Act, 15
U.S.C. 45(a)(1).
The Commission issued the Funeral
Rule on September 24, 1982, and it
became fully effective on April 30,
1984.1 The Funeral Rule’s goals are to
lower barriers to price competition in
the funeral goods and services market
and to facilitate informed consumer
choice.2 The Rule helps to achieve these
goals by ensuring that: (1) consumers
have access to sufficient information to
permit them to make informed
decisions; (2) consumers are not
required to purchase goods and services
that they do not want and are not
required by law to purchase; and (3)
misrepresentations are not used to
influence consumers’ decisions.3
Among other things, the Rule
specifies that it is an unfair or deceptive
act or practice for a funeral provider to:
(1) fail to furnish accurate price
information disclosing the cost to the
purchaser for each of the specific
funeral goods or services used in
connection with the disposition of
deceased human remains; 4 (2)
condition the furnishing of any funeral
good or funeral service upon the
purchase of any other funeral good or
funeral service or charge a fee as a
condition to furnishing any goods or
services, such as a ‘‘casket handling’’ fee
to consumers who provide their own
casket; 5 or (3) embalm the deceased for
a fee without authorization when
1 Portions
of the Rule became effective on January
1, 1984, and others became effective on April 30,
1984. 48 FR 45537, 45538 (Oct. 6, 1983); 49 FR 564
(Jan. 5, 1984). Several funeral providers challenged
the Rule, but it was upheld by the Fourth Circuit.
Harry and Bryant Co. v. FTC, 726 F.2d 993 (4th
Cir.), cert. denied, 469 U.S. 820 (1984). The Rule
was amended on July 19, 1994 (59 FR 1592 (Jan.
11, 1994)), and the Third Circuit upheld the
amended Rule following a challenge. Pennsylvania
Funeral Directors Ass’n, Inc. v. FTC, 41 F.3d 81, 83
(3d Cir. 1994). On March 14, 2008, the Commission
completed a regulatory review and concluded that
the Rule was still needed and should be retained.
73 FR 13740 (Mar. 14, 2008).
2 Original Funeral Rule Statement of Basis and
Purpose, 47 FR 42260 (Sept. 24, 1982).
3 Id.
4 16 CFR 453.2(a).
5 16 CFR 453.4(b).
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embalming is not required by law.6 The
Rule also specifies that it is a deceptive
act or practice for a funeral provider to
misrepresent certain legal or cemetery
requirements, including those for
embalming, caskets, or burial
containers, or any other funeral good or
service.7
The Rule sets forth preventative
requirements in the form of itemized
price and information disclosures to
ensure funeral providers do not engage
in the unfair or deceptive acts or
practices described in the foregoing
paragraph. First, the Rule requires
funeral providers to give persons
inquiring in-person about funeral goods
or services a General Price List (‘‘GPL’’)
to keep, which lists the goods and
services they offer and their itemized
prices, along with specific disclosures.8
Second, the Rule requires funeral
providers to show persons inquiring inperson a Casket Price List (‘‘CPL’’)
identifying the caskets and alternative
containers they carry, and an Outer
Burial Container Price List (‘‘OBCPL’’)
listing the vaults and grave liners they
offer, along with specific disclosures.9
Third, funeral providers are required to
tell persons ‘‘who ask by telephone
about the funeral provider’s offerings or
prices . . . any accurate information’’
from the GPL, CPL, or OBCPL, ‘‘and any
other readily available information that
reasonably answers the question.’’ 10
Fourth, the Rule requires funeral
providers to give an itemized statement
showing all the items a customer has
selected and the itemized and total costs
for those goods and services, along with
other specific disclosures, at the
conclusion of the discussion of
arrangements.11
II. Regulatory Review of the Funeral
Rule
On February 14, 2020, the
Commission initiated a review of the
Rule.12 The Commission solicited
comments on, among other things: (1)
6 16
CFR 453.5(a).
16 CFR 453.3 through 453.5 (listing
additional unfair and deceptive acts and
preventative requirements).
8 16 CFR 453.2(b)(4).
9 16 CFR 453.2(b)(2)-(3).
10 16 CFR 453.2(b)(1).
11 16 CFR 453.2(b)(5).
12 Rule Review 2020, 85 FR 8490 (Feb. 14, 2020),
available at https://www.federalregister.gov/
documents/2020/02/14/2020-02803/funeralindustry-practices-rule.
7 See
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the economic impact of, and the
continuing need for, the Funeral Rule;
(2) the Rule’s benefits to consumers; and
(3) the burden it places on industry
members subject to the requirements,
including small businesses. The
Commission also asked specific
questions about a number of topics,
including whether funeral providers
should be required to post their price
list information online.
The Rule Review generated significant
interest, receiving 785 comments.13 The
vast majority (689 comments) came from
individuals. Most commenters
expressed support for the Rule.14
Commenters credited the Rule with
improving consumers’ ability to make
informed decisions.15 Two associations
stated that the Rule facilitates consumer
choice.16 Another commented that the
Rule ‘‘level[s] the playing field’’ for
funeral providers, protects consumers
from bad actors, and ‘‘serves as an
enforcement mechanism.’’ 17
Commenters also reported that the Rule
facilitates price transparency, gives
consumers ‘‘a clearer idea of the
services they are purchasing’’ and the
prices for those services, and allows
consumers to select only the items they
13 All Rule Review comments are on the public
record and are available for inspection at: https://
www.regulations.gov/docket/FTC-2020-0014. The
commenters included consumers, consumer
advocates, individual businesses, industry groups,
government agencies, and other organizations. The
comments are cited as: [Commenter] RR [page
number]. Individual commenters are identified by
their first initial and last name. Companies and
organizations are identified by abbreviated names.
14 See, e.g., New York State Funeral Directors
Association (‘‘NYSFDA’’) RR at 2; International
Cemetery, Cremation and Funeral Association
(‘‘ICCFA’’) RR at 4; Select Independent Funeral
Homes (‘‘SIFH’’) RR at 5; Funeral Consumer
Alliance of the Virginia Blue Ridge (‘‘FCA VABR’’)
RR at 1; Funeral Consumer Alliance of Western
Massachusetts (‘‘FCA WMA’’) at 1; Funeral
Consumer Alliance of Pennsylvania (‘‘FCA PA’’) at
1; Consumer Action (‘‘CA’’) RR at 1; Funeral
Consumer Alliance of Connecticut (‘‘FCA CT’’) RR
at 1; Funeral Consumers Alliance of Arizona (‘‘FCA
AZ’’) RR at 1; Carriage Service (‘‘Carriage’’) RR at
1; The Consumer Federation of America (‘‘CFA’’)
RR at 1 Consumer Checkbook (‘‘CC’’) RR at 1;
Unitarian Universalist Fellowship of Visalia
(‘‘UUFV’’) RR at 1; National Funeral Directors
Association (‘‘NFDA’’) RR at 79. 157 consumers also
explicitly expressed support for keeping the Rule.
Two individual commenters said they did not see
a continuing need for the rule, and one additional
individual generally opposed the Rule. B. Small RR
at 1 (many provisions in the Funeral Rule are
appropriate, but this should be regulated by the
states); B. Barcheers RR at 1 (Funeral Rule is no
longer needed as ‘‘the public is more aware now’’);
M. Matos RR at 1 (Funeral Rule is ‘‘antiquated’’ and
there is no need to single out the funeral industry).
15 CA RR at 1; see also Funeral Consumers
Alliance (‘‘FCA’’) RR at 3; CFA RR at 2–4; N.
Leyden-Morffi RR at 1.
16 SIFH RR at 5; ICCFA RR at 5.
17 NYSFDA RR at 2.
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want to buy.18 One group also claimed
that the Rule acts as a restraint on price
gouging.19 In addition, one trade group
stated that the Rule encouraged funeral
providers to become better businesses
by forcing them to ‘‘examine their costs,
prices, and profits.’’ 20
Based on the comments received in
response to the Rule Review, along with
the prior rulemaking records and the
Commission’s experience enforcing the
Rule, the Commission has determined
the Rule continues to serve a useful
purpose and should be retained. The
Commission now seeks additional
comment on possible modifications to
the Funeral Rule.
III. Advance Notice of Proposed
Rulemaking
The Commission publishes this
advance notice of proposed rulemaking
(ANPR) pursuant to FTC Rule § 1.10, 16
CFR 1.10. The notice identifies areas of
inquiry under consideration, the
objectives the Commission seeks to
achieve, and possible regulatory
alternatives.
After carefully reviewing all of the
submitted comments,21 the Commission
is seeking additional input regarding the
following seven topic areas: (1) whether
and how funeral providers should be
required to display or distribute their
price information online or through
electronic media; (2) whether funeral
providers should be required to disclose
third party crematory or other fees on
the GPL; (3) whether the Rule’s
requirements regarding reduced basic
services fees should be amended; (4)
whether the Rule should be amended to
account for new forms of disposition; (5)
whether the Rule’s embalming
disclosure requirements should be
amended; (6) whether the Rule should
be changed to improve the readability of
the price lists; and (7) whether changes
should be made to the Rule to avoid
negatively impacting underserved
communities.
18 CFA RR at 2; AARP RR at 1; CA RR at 1; UUFV
RR at 1; Service Corporation International (‘‘SCI’’)
RR at 14.
19 CFA RR at 2.
20 NFDA RR at 16. Almost all of the Rule’s
supporters asked for the Rule to be updated,
modernized, amended, or changed. However, some
industry advocates asked the Commission to keep
the Rule as is. See Cremation Association of North
America (‘‘CANA’’) RR at 2; ICCFA RR at 5–8;
Carriage RR at 1; SCI RR at 1; Florida Cemetery,
Cremation, and Funeral Association RR at 1–2
(advocating that further regulation should be left to
the states).
21 The Commission appreciates the commenters’
submissions. All of the Rule Review comments are
noticed and are part of the record.
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66097
A. Online and Electronic Price
Disclosure
The Review elicited a large number of
comments about whether to require
funeral providers to post their itemized
price lists online or to distribute price
information electronically.22 Because
the Rule was enacted 40 years ago,
before websites, email, or social media
were widely used, it only requires
funeral providers to give price lists to
in-person visitors. Funeral providers are
not required to display or distribute
their price information via any of these
media.23
As discussed in more detail herein,
since the Rule was enacted, consumers
have changed how they shop and obtain
price information, and some funeral
providers have started selling or
advertising their services and goods
online.24 In addition, the pandemic
highlighted that some consumers are
unable to visit funeral providers to
obtain the price lists required by the
Rule, including the
immunocompromised, older adults,
disabled individuals, individuals
located in different states, the grieving,
and individuals without access to a
vehicle.25 Yet, commenters almost
universally report that many funeral
providers are not making their price
lists available electronically or on their
websites, even when requested by
consumers.26 The FTC is therefore
seeking further comment about whether
the method by which price lists are
distributed should be updated and the
benefits and costs to consumers and
22 527 comments filed by individuals (many of
whom appear to be members of funeral consumer
advocacy organizations) urged the Commission to
require that at least some price information be made
available online.
23 At least two states, California and Oregon, have
some requirements for funeral providers that
maintain websites. Cal. Bus. & Prof. Code
§ 7685(b)(1) (‘‘Each licensed funeral establishment
that maintains an internet website shall post on its
internet website the list of funeral goods and
services that are required to be included in the
establishment’s general price list, pursuant to
federal rule, and a statement that the general price
list is available upon request.’’); Or. Admin. R. 830–
040–0050(6) (if a funeral establishment lists a price
on its website, it must link to its General Price List).
24 See infra notes 47–49.
25 See infra notes 38–46. Under the Rule, funeral
providers are required to tell persons ‘‘who ask by
telephone about the funeral provider’s offerings or
prices . . . any accurate information’’ from the GPL,
CPL, or OBCPL, ‘‘and any other readily available
information that reasonably answers the question.’’
16 CFR 453.2(b)(1). The Rule does not require
funeral providers to give out the GPL, CPL, or
OBCPL to consumers who call them. And some
commenters commented that receiving price
information over the telephone is not equivalent to
or as helpful as receiving a written GPL. See infra
note 33.
26 See infra notes 34–37.
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businesses if the Rule is updated in
such a manner.
1. Summary of Comments
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A. Comments Generally Supporting
Online and Electronic Disclosure
Many commenters urged the
Commission to update the Rule to
require funeral homes to post their GPLs
online, or at a minimum require
providers to send the itemized price
information electronically to persons
who request it.27 They argued that the
incredible stress caused by a loss of a
loved one,28 consumers’ limited
27 See, e.g., Attorneys General of the District of
Columbia, Arizona, California, Colorado,
Connecticut, Delaware, Hawaii, Iowa, Maine,
Maryland, Michigan, Minnesota, Nevada, New
Jersey, New Mexico, New York, North Carolina,
Oregon, Pennsylvania, Rhode Island, Virginia, and
Wisconsin (‘‘AG’’) RR at 2; AARP RR at 2; House
Energy and Commerce Committee (‘‘House
Committee’’) RR at 2; Cleveland Memorial Society—
M. Binning (‘‘CMS’’) RR at 1; Memorial Society of
Georgia—T. Beale (‘‘MSGA’’) RR at 1; Funeral
Consumer Alliance of Utah—J. Mitchell (‘‘FCA
UT’’) RR at 1; Truth in Advertising, Inc. (‘‘TINA’’)
RR at 2–3; Last Rights of Central Pennsylvania—L.
Mulvey (‘‘LRCPA’’) RR at 1; Funeral Consumers
Alliance of California, Advisory Committee for
Cemetery & Funeral Bureau, Dept of Consumer
Affairs, CA—J. Okuye RR at 1; Funeral Consumer
Alliance of North Carolina—H. Williams (‘‘FCA
NC’’) RR at 1; Funeral Consumers Alliance of
Greater Kansas City (‘‘FCA GKC’’) RR at 1; FCA of
Eastern Massachusetts (‘‘FCA EMA’’) RR at 1;
Funeral Consumers Alliance of Greater Rochester
(‘‘FCA GR’’) RR at 1; Peoples Memorial Association
(‘‘PMA’’) at 1; FCA PA RR at 1; Funeral Consumers
Alliance of South Carolina—O. Ganong (‘‘FCA SC’’)
RR at 1; Funeral Consumers Alliance of Maine—
Anthony Antolini (‘‘FCA ME’’) RR at 1; CA RR at
1; CFA RR at 6–10; Funeral Consumers Alliance of
Central Texas—N. Walker (‘‘FCA CTX’’) RR at 1;
Funeral Consumers Alliance of the Finger Lakes—
W. Sinclair RR at 1; Funeral Consumers Alliance of
Princeton—N. McCarty (‘‘FCAP’’) at 1; FCA CT RR
at 1; Chicago Consumer Coalition (‘‘CCC’’)—D.
McCurry RR at 1; FCA RR at 3–9; CC RR at 1;
Consumer Reports (‘‘CR RR’’) at 2–3; FCA AZ RR
at 1–2; Funeral Consumers Alliance of Minnesota
(‘‘FCA MN’’) RR at 1; Texas Appleseed RR at 1;
Balance for Life and Death—Neidra RR at 1;
Imperial Caskets—D. Perkins (‘‘Imperial Caskets’’)
RR at 1; Funerea Ltd. Company—M. Hamilton
(‘‘Funerea’’) RR at 1; Out of the Box Funeral
Planning—Susan Mackey (‘‘OBFP’’) RR at 1; Peace
of Mind—C. Andrews RR at 1; Charter Funerals—
S. Minich (‘‘Charter Funerals’’) RR at 1; Cindys List
Funeral Concierge & Inheritance Protection—C. Ivey
RR at 1; Homesteaders Life Co.—M. Lacey (‘‘HLC’’)
RR at 1; On the Record Advance Planning—A.
Praskac (‘‘OTR’’) RR at 1; Givens Estates, Inc. and
FCA NC—E. Hillman (‘‘Givens Estate’’) RR at 1;
UUFV RR at 1; Borderland, a Community Ministry
in Knoxville, TN—J. Arthur (‘‘Borderland’’) RR at 1;
Burmese American Buddhist Corp.—I. Timm RR at
1; Diversity Collaborative—L. Lusardo (‘‘DC’’) RR at
1; Morristown Beard School—J. Farhat (‘‘MBS’) RR
at 1; Kansas City Hospice & Palliative Care—R.
Valdovino RR at 1; S. Della Valle RR at 1 (funeral
home owner). As one commenter said, ‘‘[t]his is
simply updating the Rule for the current age.’’
Borderland RR at 1.
28 FCA RR at 2, citing https://www.stress.org/
holmes-rahe-stress-inventory (‘‘The Holmes and
Rahe Stress Scale, an index of stressful life events,
rates the death of a spouse as the most stressful
event a person will experience.’’); see also TINA RR
at 1 n. 2.
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experience with planning funerals,29
and the need to quickly make decisions
about what to do with a dead body 30 —
‘‘combine to put the funeral consumer
in a uniquely disadvantaged
position.’’ 31
Some commenters noted at least some
funeral providers are willing to provide
itemized price lists to consumers only
when required by the Rule (which
currently only requires itemized price
lists to be provided during in-person
meetings).32 Numerous commenters
reported funeral providers refused to
provide their itemized price lists in
response to requests by mail, email, fax,
over the phone, or by using the contact
form on the provider’s website.33
29 CR
RR at 1; FCA RR at 3.
example, the Funeral Consumer Alliance of
Utah noted that ‘‘[i]n hospitals, when death occurs,
families are ordered to call a funeral home to come
immediately. Social Workers in hospitals I’ve
spoken to typically don’t assist grieving families in
price comparing. Families tell us that the Social
Workers just google ‘closest funeral home to [name
of city]’.’’ FCA UT RR at 1; see also TINA RR at 1
n. 3 (noting that a ‘‘2007 AARP survey found that
only 34 percent of those 50 years or older have
‘engaged in some [funeral] preplanning.’ Lona ChoiAllum, ‘Funeral and Burial Planners Survey,’ AARP
(November 2007). Surveys by the [NFDA] found the
percentage of adults of all ages who have
preplanned funerals is even lower. See, e.g.,
‘Consumer Awareness and Preferences Study,’
National Funeral Directors Association (Apr. 2019),
at 8.’’).
31 FCA RR at 3; see also TINA RR at 1; CC RR
at 1 (‘‘Although the funeral homes that receive
ratings on our surveys are overall rated fairly highly
compared to many other services we evaluate, we
receive an inordinate number of complaints about
high costs. A common complaint from families we
survey is that they paid a lot more than they
expected for their loved ones’ funerals; sometimes,
they report funeral directors coaxed them into
spending more than they would have liked.’’); J.
Wilson RR at 1 (discussing how she was present
while a funeral provider played on the emotions of
her grieving friend to get a larger sale by saying
things like ‘‘your husband deserved better than
that’’).
32 AARP RR at 2; see also MSGA RR at 1 (‘‘[M]y
experience over the past few years is that 50–75%
of Funeral Homes will NOT candidly and promptly
follow through on a simple request for pricing
information.’’). Indeed, FTC enforcement
experience and has shown that some do not even
comply with the current Rule’s requirement to
timely distribute price lists. See FTC Releases
Funeral Home Compliance Results, Offers New
Business Guidance on Funeral Rule Requirements,
FTC Press Release (June 8, 2020) (FTC investigators
found failures to disclose timely itemized pricing
information, as required by the Funeral Rule, in 17
of the 90 funeral homes visited since 2018). In
addition, the FCA and the CFA found that 28 out
of 126 GPLs they examined violated the Rule
because they lacked legally required consumer
options or offered only packaged options. CFA RR
at 8 (citing Joshua Slocum, Stephen Brobeck, The
Relationship between Funeral Price Disclosure and
Funeral Prices: A California Case Study, report from
Consumer Federation of America/Funeral
Consumers Alliance (February 2021).
33 FCA VABR RR at 2 (20% of the homes
surveyed refused to provide price information in
response to a letter); FCA UT RR at 1 (‘‘Many
funeral homes that we’ve requested a GPL from over
30 For
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Commenters also reported many
funeral providers do not make their
price lists available online, even if they
have a website or other online
presence.34 A 2018 survey by the
the phone and by email fail to send one’’); CC RR
at 3 (‘‘Often, our researchers had to call several
times to request [the GPL]. With many (we estimate
it was about one-third of homes that didn’t list
GPLs online), our shoppers had to persuade funeral
directors to email or fax GPLs by claiming to live
out of town and therefore couldn’t visit in person
over the next few days. Some funeral homes—about
10 percent—refused to provide GPLs to our
undercover shoppers. They required us to visit in
person to learn about their prices.’’); FCA CT RR at
1 (In 2019, they were only able to get a 57%
response from funeral homes, after sending two
letters, and working with local volunteers and
members who phoned, wrote or visited those still
not responding); MSGA at 1 (‘‘Time after time I
have also tried to help people who contacted a local
Funeral Director to request pricing in writing and
was told that it would be sent to them, but it never
showed up.’’); M. Klein RR at 3–4 (‘‘Numerous
funeral homes have point-blank refused to give me
prices over the phone. Others did not to return
phone calls within a few days, and required
multiple requests. And others never responded at
all. The phone requirement is hard to ‘police’ since
it is personal communication, whereas violations of
an internet requirement would be readily apparent
and the rule enforceable.’’); R. Alexander RR at 1
(stating that he requested pricing information using
the contact form on 10 funeral homes’ websites, 4
sent the requested information, 2 never responded,
and the other 4 would not send the GPL but wanted
to talk by phone); R. Zeldin RR at 3 (recalling that
when she assisted an Arizona resident planning an
out of state funeral 29% required three or more
email and phone calls before sending pricing
information, and 20% homes never responded;
when she assisted a Pennsylvania resident, 67%
ignored or refused her request for information); E.
Menkin RR at 1 (when mother died, commenter had
to drive to funeral homes when funeral providers
refused to email or mail her a price list). Some
commenters also point out that the current
requirement to provide price information over the
telephone when asked by callers is not the same as
getting a written GPL. MSGA RR at 1 (when
information is provided over the phone, there is
‘‘no record of the conversation or proof that prices
were given’’); see also C. Reid RR at 2 (stating that
‘‘[a] document with the funeral homes’ letterhead
and their itemized lists is far more valuable than
what I heard over the phone from ‘Mary Sue’ who
was filling in the day when I called in regarding the
price lists.’’).
34 FCA WMA RR at 1 (‘‘Almost all of the 85
funeral homes in our area (4 counties of western
Massachusetts) do have websites, but very few
reveal prices online. In 2016 only 1 funeral home
had its GPL online. In 2018, we found 4 with prices
online.’’); FCA RR at 7–8 (a February 2020 survey
of California funeral homes found that those that
charged the highest prices were most likely to opt
out of putting their pricing online); Texas
Appleseed RR at 2 (‘‘in a recent search of funeral
homes in Austin, Texas, only one of the 15 homes
surveyed posts their price list online’’); FCA AZ RR
at 1 (many funeral providers in Arizona do not post
pricing information online); D. Stimpert RR at 1
(‘‘Of the 300 or so funeral homes in Northeast Ohio,
I have found only 12 that post a full General Price
List (GPL) on their website.’’); UUFV RR at 1
(‘‘[T]he Dignity Memorials website for our local
Visalia-based funeral home website requires a
consumer to divulge one’s personal email address
to them in order to download a PDF document
identified as a ‘price guide.’ Upon receipt, it turns
out that this document is just an advertising
brochure, not an actual price list. The only costs
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Consumer Federation of America
(‘‘CFA’’) and the Funeral Consumers
Alliance (‘‘FCA’’) found only 16 percent
of the funeral homes they surveyed
posted their GPLs on their websites.35
Consumer Checkbook similarly reported
‘‘fewer than 25 percent—had posted
their GPLs online.’’ 36 Further,
according to one commenter, even when
pricing information is available on a
website, the prices may be out of date.37
Commenters discussed how difficult
it can be for many funeral purchasers to
personally visit funeral homes to pick
up price lists,38 including emotionally
distraught families,39 families who live
identified in the document are framed in the phrase
‘National median cost’ rather than providing the
specific price of the local funeral home’’ and a large
funeral home in area has an expensive website, but
it does not disclose prices on that website); M.
Bern-Klug RR at 2 (University of Iowa study found
that, in 2016 study of three markets in Iowa, ‘‘7 of
the 48 funeral homes did include their GPLs on
their website. We checked again the first week of
June 2020 and determined an improvement: 13
funeral homes had posted their GPL (eight of the
28 funeral homes in Des Moines and five of the 23
funeral homes in the Cedar Rapids/Iowa City
area)’’); H. Lee RR at 3, citing Robert Benincasa, You
Could Pay Thousands Less For A Funeral Just By
Crossing The Street (Feb. 7, 2017), NPR, https://
www.npr.org/2017/02/07/504020003/a-funeralmay-cost-you-thousands-less-just-by-crossing-thestreet (last visited Apr. 16, 2020) (most funeral
homes omit to post prices on websites); C. Reid RR
at 3 (‘‘In my area all the funeral homes have a
website. Some share quite a bit of information
except for prices. You are told to call in and stop
by to pick up the price lists you want. . . . A
sample [of funeral providers] showed that the city
of Los Angeles, (73%), to the lowest Alameda
County (27%) posted prices conspicuously.
California-Funeral-Home-Pricing-Report-9–30–
19docx Funeral Consumers Alliance, Inc.’’); A
Rector RR at 1 (only 25% of funeral homes in Maine
list the GPL on their websites); J. Bates RR at 1 (of
the 200 funeral retailers in the Dallas-Ft. Worth
area, less than 10 post any pricing online); but see
FCA UT RR at 1 (‘‘Quite a few Utah funeral homes
are now posting their prices online on their own,
so it should not be a problem for the sneaky ones
to do so as well.’’). Additionally, on June 21, 2022,
the Funeral Consumers Alliance (FCA) and
Consumer Federation of America (CFA) issued a
report that outlining their May 2022 survey of 1,046
funeral provider websites. The survey found that
only 191 of these homes (18%) posted their price
lists online. Joshua Slocum, Stephen Brobeck,
Online Price Posting At More Than 1,000 Funeral
Homes in 35 State Capitals (June 2022).
35 CFA at 3–4 (citing Joshua Slocum, Stephen
Brobeck, A Needle in a Haystack—Finding Funeral
Prices Online in 26 State Capitals, report from
Funeral Consumers Alliance/Consumer Federation
of America (January 2018) (also noting that in
twelve cities, no funeral providers posted their
prices online).
36 CC RR at 3.
37 FCA WMA RR at 1.
38 CFA RR at 3, citing James W. Gentry et al, ‘‘The
vulnerability of those grieving the death of a loved
one: Implications for public policy,’’ Journal of
Public Policy and Marketing, v. 14, n. 1 (Spring
1999); see also, e.g., Texas Appleseed RR at 1.
39 AARP RR at 2; S. Henderson RR at 1 (after the
sudden death of his 15 year old stepson, it was too
hard for his family to visit multiple funeral
providers to price shop); A. Nickerson RR at 1
(recounting her experiences in planning for the
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in different states,40 the disabled, ill,
and homebound elderly consumers,41
those lacking access to transportation,42
and rural consumers, who often have to
drive long distances to reach the nearest
funeral home.43 One commenter
reported that ‘‘[w]hen my wife was
taken to the hospital, the doctors told
burial of a family member, a ‘‘time of distress and
grief’’, and explaining that the process would have
been easier if prices were available online); R.
Robertson RR at 1 (describing how out of state
relatives had to step in to help grief stricken niece
plan a funeral); S. Alleger RR at 1 (discussing the
impact on family members when they had to be
physically present to discuss funeral arrangements
‘‘while emotionally raw,’’ and explaining that they
agreed to charges they did not want just to get out
of the situation). See also FCA CTX RR at 1 (‘‘[E]ven
when a death is expected, spouses and children are
overwhelmed with shock and grief. They have a
lengthy list of tasks and decisions to make without
delay. Seldom do they have the time, energy, or
mental clarity to call or visit more than one funeral
home. If, however, price lists were available online,
information about goods and services could be
collected by a family member, neighbor or friend
who is not emotionally distraught.’’).
40 FCA CTX RR at 1; CCC RR at 1 (‘‘Those facing
death and their out-of-town relatives planning
funerals simply cannot visit several funeral homes
to pick up price lists. And if they did, the
likelihood of their visiting the homes offering the
best value is unlikely.’’); FCA AZ RR at 2 (quoting
consumer having difficulty making out of state
funeral arrangements, ‘‘I live in Florida and a
Medical Examiner in Arizona just called to tell me
that my nephew there died. I can’t find out from
the funeral homes online how much it will cost to
ship his body here or have him cremated and
shipped. Do you have any pricing information or
how do I get it?’’) (emphasis in original); B. Girling
RR at 1 (‘‘had to make funeral arrangements for
family located out of state, many funeral homes
would not give prices over the phone’’); L. Lew RR
at 1 (recounting how, in her experience as a
Veterans Hospital employee, it is so stressful for out
of state families to obtain funeral price information,
and noting that posting prices online would do
much to ‘‘eas[e] the emotional and financial stress
involved in making needed funeral arrangements’’);
J. Wilson RR at 1 (describing difficulties in
arranging for out-of-state funeral for his mother, and
explaining that an online price list would have
made things much easier); see also CFA RR at 3,
citing HwaJung Choi, et al, Spatial Distance
Between Parents and Adult Children in the United
States (September 2018 report funded, in part, by
the National Institute on Aging) (‘‘According to data
from the 2013 Panel Study of Income Dynamics,
one-quarter (25%) of parents do not have an adult
child living within 30 miles of them.’’).
41 See, e.g., K. Dvorak RR at 1 (wheelchair bound
consumer noted that online posting of prices would
make it easier to find prices); M. Klein RR at 1
(stating that when he had a medical condition and
could not drive and walk, he had to rely solely on
the handful of GPLs posted on the internet); V.
Thorp RR at 1 (as an elderly home-bound
individual with an elderly home-bound spouse, she
feels a ‘‘special burden when contemplating the
need to put my affairs in order’’); J. Singler RR at
1 (an eighty-year old consumer with hearing issues
reported that ‘‘[d]riving some places or making
several phone calls does not work for us’’).
42 M. Scrudder RR at 1; N. Leyden-Morffi RR at
6.
43 A. Rector RR at 1 (noting that it is not
uncommon for Maine residents to drive 40 miles or
more to reach a funeral home, but only 25% of the
funeral homes in Maine post their GPL on their
website).
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me she had only days to live. Turned
out to be four. I shouldn’t have had to
choose between spending her last days
with her or collecting funeral
information.’’ 44 Another reported that
when his 4-year-old son died suddenly,
he had to make arrangements quickly
and transfer his son’s body to a funeral
home right away without knowing its
prices. He said he ‘‘had a crushing level
of grief when I walked into that funeral
home and I had absolutely no way to
negotiate when they handed me their
proposed price. How is that fair? They
already had possession of my son’s
body, so it was not like I could walk out
and begin shopping.’’ 45 The pandemic
has heightened such difficulties, as
many people have been reluctant or
unable to leave their homes to obtain
itemized price lists from funeral
providers.46
Many commenters urged the
Commission to modernize the Rule to
require funeral providers to post their
itemized price information online
because it would greatly benefit
consumers shopping for funeral
services.47 Some argued online
shopping is widely available now,48 and
many consumers want funeral prices to
be posted online.49 Others noted that
online posting will make it easier for
consumers to obtain price information
and provide better opportunities for
44 J.
Brown RR at 1.
Drapczuk III RR at 1. Another commenter
reported when his stepson died in a car accident,
they only visited one funeral provider because ‘‘the
thought of having to visit more than one Funeral
Home was unbearable.’’ S. Henderson RR at 1.
46 FCA NC RR at 1; FCA EMA RR at 1; PMA RR
at 1; CCC RR at 1; House Committee RR at 2; TINA
RR at 2 n. 12.
47 CFA RR at 7–8; OBFP RR at 1; Imperial Caskets
RR at 1; Funerea RR at 1; LRCPA RR at 1; CA RR
at 2; FCA SC RR at 1; Texas Appleseed RR at 1; FCA
RR at 5–9; FCA CT RR at 1; TINA RR at 2. One
commenter argued that the current language of the
Rule ‘‘implicitly encourage funeral homes to
exclusively use printed format, in an age where
almost everything (e.g., bills, receipts, invoices,
bank statements, etc.) has become paperless.’’ H.
Lee RR at 3.
48 CFA RR at 6, citing Nielsen Global Connected
Commerce Survey, (‘‘a large majority of consumers
now use the internet as part of their online search
for products, and a significant number of these
online searchers compare online price’’) and
Janssen, Morage-Gonzalez, Wildenbeest, ‘‘Consumer
Search and Pricing Behavior in internet Markets’’
(online 2009) (consumers especially compare online
prices when products are relatively expensive);
OTR RR at 1 (‘‘according to 10 Online Shopping
Statistics You Need to Know in 2020 (article by
Maryam Mohsin on Oberlo dated 30 Oct 2019), 63%
of shopping occasions begin online.’’).
49 CFA RR at 10 (a 2017 CFA-commissioned
landline and cable phone survey undertaken by
Opinion Research Corporation of 1,004
representative adult Americans found that 79% of
respondents agreed that ‘‘[i]f the funeral home has
a website, should it also be required to make this
price information available on its website?’’ and
only 18% disagreed).
45 A.
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consumers to meaningfully price shop
and view the Rule’s mandatory
disclosures earlier in the process.50 And
some stated that online posting could
lead to more price competition among
funeral providers.51
Commenters offered various ideas for
how an online price requirement should
be implemented. Almost all agreed that
funeral providers that maintain websites
should be required to prominently and
conspicuously post their price lists on
their websites.52 Supporters of this view
noted that the cost to these funeral
providers would be minimal.53
50 TINA RR at 2; CFA RR at 2–7; AG RR at 2; see
also CA RR at 2 (a February 2020 CFAcommissioned Engine Group online survey of 1,000
representative adult Americans showed that 91%
would be likely to make price comparisons online
if funeral homes posted their price lists on their
website, and 61% would be ‘‘very likely’’ to do so).
51 FCA EMA RR at 1. See also CC RR at 1; TINA
RR at 2; Prof. J. Perloff RR at 1. Commenters argued
that amending the Rule to include an online price
requirement will ‘‘[i]ncrease competition and
encourage funeral homes to offer the best possible
pricing, particularly [] in local markets where there
are large price differences between many funeral
homes.’’ AARP RR at 2; see also S. Della Valle RR
at 1 (funeral owner requesting online posting of
GPL, CPL, and OBCPL; he states that his competitor
will not hand out GPL on request, instead the
competitor uses his GPL and then sets his prices
accordingly); CA RR at 1; CCC RR at 1; RW
Alexander RR at 3 (noting that in his area of
Northern Utah, there is a 223% difference in prices
for a full funeral); FCA RR at 8–9 (noting that the
prices for funeral services vary widely and the price
variation is not due to differences in quality
‘‘because prices vary even for cremations and direct
burials, which involve generally the same service.’’
Instead, ‘‘the problem is that Providers know that
most families are not aware of this huge price
variation. . . So, even a very high price is
categorized in the consumer’s mind as ‘normal, and
just what funerals or cremations cost’’’); CC RR at
4 (‘‘We also find that [funeral home] prices are not
related to service quality. Funeral homes that
receive high marks from their surveyed customers
for service quality are actually slightly less likely to
charge high prices compared to funeral homes that
receive low scores from their surveyed customers.’’)
(emphasis in original).
Commenters also cited to a recent study that
found that funeral providers in California who
voluntarily disclose their prices on their websites
charged consumers lower rates. FCA RR at 7–8
citing Joshua Slocum and Stephen Brobeck, The
Relationship between Funeral Price Disclosures and
Funeral Prices: A California Case Study—February
2020. Accessed at: https://funerals.org/wpcontent/
uploads/2020/02/California-Funeral-Home-PricingReport-2-10-20.docx (noting that ‘‘[p]rice-hiders
charged a median price 31 percent higher for a
direct cremation ($1,695) than those who
prominently disclosed their prices online ($1,295),
Price-hiders charged a median price 37 percent
higher for an immediate burial ($2,595) than
prominent disclosers ($1,900), and Price-hiders
charged a median price 36 percent higher for the
basic services of funeral director and staff ($1,835)
than prominent disclosers ($1,348)’’).
52 See, e.g., UUFV RR at 1; FCA RR at 9; AG RR
at 2–3; CA RR at 1; CR RR at 2. One commenter
stated that funeral providers should only have to
post a GPL online, and not the OBCPL and CPL. D.
Stahlhut RR at 1.
53 FCA RR at 5; AG RR at 2–3; CA RR at 1; CR
RR at 2; CFA RR at 10; FCA AZ RR at 2–3; MSGA
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Similarly, one commenter urged the
Commission to mandate that if a funeral
provider has a business or ‘‘official’’
account on social media services, ‘‘they
should be required to post their [p]rice
list information on that social media
service.’’ 54
Commenters disagreed, however,
about whether funeral providers that do
not maintain a website should be
required to post their prices online. One
commenter argued all providers should
make pricing information available
electronically, because setting up a
website can be done with little cost.55
Some commenters asserted funeral
providers without a website should
have to promptly email itemized price
lists in response to consumer requests.56
Others argued that email delivery was
not an acceptable substitute, because
email would often be too slow for the
time sensitive decisions at issue,57 and
requiring funeral homes to respond to
emails in a timely fashion could be too
RR at 1; UUFV RR at 1; see also C. Tregillus RR at
2 (‘‘With computers and printers/copiers now
essential to all businesses, the costs of preparing,
revising, and printing the required disclosures are
negligible, even for small, low-volume funeral home
businesses. Although some funeral providers, of
course, may elect to spend more than the Rule
requires on their price lists by, for example, sending
them out for professional multi-color printing, the
prices they choose to pay for such services are not
required by the Rule, and thus are not real
compliance costs. Any claims about the high cost
of compliance would likely reflect such costs that
are not required by the Rule.’’). Indeed, some
argued that online pricing may save funeral
providers money, as they will save on printing and
staff costs, and electronic files can be changed
quicker and easier than print files. FCA RR at 5;
FCA VABR RR at 2.
54 UUFV RR at 2.
55 AARP RR at 2. But see K. Kaczmarek RR at 3,
citing How Much Should a website Cost?, WebFX
(2020) (setting up a website can cost thousands of
dollars). One commenter asked that funeral
providers in parts of the country with no or limited
internet should be exempted from any online
disclosure requirements. FCA VABR RR at 3–4.
56 CR RR at 2; see also MSGA RR at 1 (sending
pricing info via email should be ‘‘a very simple
thing’’); R. Zeldin RR at 1 (information must be
emailed within 24 hours of receiving the request);
M. Ludlum RR at 3 (noting that websites should not
be mandatory now, but that he anticipates that all
funeral providers will have a website in the next
few years because ‘‘of the many benefits of having
a funeral home website’’). One commenter also
suggested that the Rule be updated to require
‘‘providers responding to telephone requests for
price lists [to] give consumers the option of
receiving emailed electronic copies, and otherwise
provide the GPL’s required affirmative disclosures
orally.’’ C. Tregillus RR at 3.
57 C. Tregillus RR at 7 (requiring consumers to
request emailed prices will ‘‘cause at least some
delay’’ which may ‘‘prevent consideration of the
information’’ particularly where ‘‘consumers may
feel under pressure to make rapid arrangements’’);
see also FCA AZ RR at 3; M. Klein RR at 4. One
commenter argued that funeral providers should be
given 48 hours to respond to any emailed request
for price lists, given that the email could be sent
over a weekend or late at night. D. Stahlhut RR at
1.
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burdensome given that at least some
homes have only a handful of
employees.58 Some commenters noted
the collection of email addresses by a
funeral provider could raise privacy and
spam concerns.59 Among those
commenters who supported online
disclosures, some also asked that the
Rule be amended to contain guidelines
for how online disclosure should be
made,60 such as requiring ‘‘online GPLs
be updated in a reasonable timeframe
when prices change’’—so consumers are
not misled by out of date prices.61
Regardless of how the Commission
might implement an online or electronic
distribution requirement, commenters
urged the Commission to amend the
Rule to require that, no matter how a
purchase is ultimately made (in person
or via phone call, email, or texting, etc.),
a funeral provider must provide a copy
of the GPL, CPL, and OBCPL before a
consumer makes any selections.62
B. Comments Generally Opposing
Online and Electronic Disclosure
Some commenters argued the Rule
should not be amended to require all
funeral providers to post their itemized
GPLs, CPLs, or OBCPLs online.63 Citing
58 RW Alexander RR at 7 (website disclosures
would be less burdensome to small businesses that
requiring them to respond to email).
59 UUFV RR at 1 (some of its members have
reported receiving ‘‘spam’’ email and phone calls
from funeral providers); R. Doremus RR at 1
(consumer was contacted by a funeral home for six
months after providing her information); CFA RR at
3 (some funeral providers use provided contact
information to ‘‘aggressively market their services,
including repeated calls’’).
60 For example, some suggested that the FTC
consider requirements for language, type size, and
placement in any required online disclosures, as
well as requirements that the posting be
conspicuous and easy to see, and that the GPL or
a link to the GPL be visible on the landing page of
the funeral home’s website. CFA RR at 10; FCA MN
RR at 1; M. Ludlum RR at 4–5; RW Alex RR at 16.
61 FCA WMA RR at 1. One commenter advocated
instead that funeral providers only be allowed
update their prices once a year, on 60–90 days’
notice to consumers. N. Finkle RR at 1.
62 FCA AZ RR at 3. Several attorney generals
argued that if the arrangements are made without
an in-person meeting, then the ‘‘funeral provider
should be required to provide electronic copies of
its itemized GPL, CPL, or OBCPL prior to the
consumer making any selections’’ and ‘‘post all
prices on their websites.’’ AG RR at 3. Another
commenter stated that ‘‘digital delivery of [GPL,
CPL, and/or OBCPL] should constitute ‘physical
delivery,’’’ but the burden will be on the provider
to prove, ‘‘through technological means such as
digital footprint tracking and other such methods,
that a consumer has reviewed and received the’’
price list. HLC RR at 1.
63 SCI RR at 3, 16; Funeralocity RR at 1–2;
NYSFDA at 3; CANA RR at 2; SIFH RR at 11–12;
ICCFA RR at 9–26; NFDA RR at 44–52; Carriage RR
at 2. See also the almost identical comments
submitted by the Kentucky, South Dakota, Utah,
Iowa, Michigan, and Rhode Island Funeral Directors
Associations, the New Hampshire Funeral Director
and Embalmer Association, the Hawaii Funeral &
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industry surveys, they argued
consumers are not currently being
harmed by not having funeral prices
online, so a Rule amendment would not
be appropriate.64 They argued the
current Rule ‘‘provides consumers with
complete and accurate pricing
information that they can digest and
utilize to develop funeral arrangements
that meet their unique needs and
circumstances’’ 65 and ‘‘[i]f a consumer
does not want to step inside a funeral
home . . ., they do not have to do so
and are free to shop over the telephone
or by visiting a funeral home and taking
its price list with them when they
leave.’’ 66 Some of these commenters
stated many funeral providers already
post price information online (although
no commenters provided data about
what price information is available or
how widespread the practice is),67 and,
Cemetery Association, and the Arizona Funeral
Cemetery & Cremation Association (the ‘‘State
FDAs.’’) The Indiana Funeral Directors Association
reports that 80.5% of 144 licensed funeral providers
in Indiana feel website/virtual inclusion should not
be mandated in the Rule. Indiana Funeral Directors
Association (‘‘IFDA’’) RR at 3.
64 NFDA RR at 44–45 (NFDA’s Consumer Survey
found that ‘‘slightly over 90% of consumers do not
even look for price information when selecting a
funeral home. Secondly, of those who do seek out
price information, 65.4% do it by visiting the
funeral home and 24.8% by telephoning the funeral
home’’); see id. at 48 (‘‘Given the fact that less than
10% of funeral consumers seek price information
before selecting a funeral home and that an
overwhelming majority of those 10% prefer to visit
the funeral home (65.4%) or telephone the funeral
home (24.6%), there is scant reason to believe that
requiring all funeral homes to post price lists would
benefit any consumers. However, to require the
nation’s 20,000 funeral homes to post all their price
lists on their websites and to add updates thereto
would involve substantial initial and ongoing
costs.’’); Funeralocity at 1 (‘‘We do not see a
transparency problem in funeral provider prices. As
the NFDA 2019 consumer survey shows, in 83.2%
of the time, families call only one funeral home in
their times of need. And they can get the prices in
that call—even in a grief-stricken state. We see no
reason to change the Funeral Rule regarding GPL
disclosure. There is no problem to remedy’’); ICCFA
RR at 10 (noting that only one commenter said
pricing information was unavailable).
65 SCI RR at 16. See also NFDA RR 48 (‘‘Even for
the less than 1% of funeral consumers who do use
the internet to price shop, there is no evidence that
they have any problem accessing funeral price
information on the internet. As NFDA’s Funeral
Consumer Survey evidence showed, of the small
minority of consumers who do price comparison
shop, over 87% of them reported it was very easy,
easy, or somewhat easy to obtain the price
information they wanted.’’)
66 Carriage RR at 3. But see discussion infra
footnotes 29–30, 37–42 regarding reported
difficulties with getting price lists or with visiting
a funeral home.
67 New Jersey Funeral Directors Association
(‘‘NJSFDA’’) RR at 4 (‘‘Many NJSFDA funeral
providers voluntarily make GPLs available on their
websites. Others utilize and subscribe to Funeral
Matters. . . . Funeral Matters is a contemporary and
transparent online pricing tool that allows
consumers the ability to price and compare accurate
charges with information available on the websites
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they point to third-party online services
that collate funeral price information
and offer it to the public.68
Some commenters argued most
consumers are satisfied with the current
status quo 69 and the market should
dictate whether funeral homes make
prices available online.70 Some of these
commenters stated that, unlike many
products, consumers consider more
than price when purchasing funeral
services,71 and visiting funeral homes is
beneficial to consumers.72
of 26 subscribing funeral providers. . . . In 2019,
an average of 1,700 unique consumers performed
pricing research on the subscribing funeral
providers’ websites each month, representing
27.5% of the funerals performed every month in NJ
(74,159 deaths/12 months = an average of 6,180
deaths each month.).’’); NYS FDA RR at 3 (‘‘While
empirical data show that this medium still lags as
a tool for consumers in seeking out funeral pricing
information, it is a fact that a growing number of
funeral homes continue to choose to voluntarily
place their price lists on their websites’’); ICCFA RR
at 10, citing FuneralOne, https://
www.funeralone.com (last visited June 9, 2020);
Consolidated Funeral Services, https://runcfs.com
(last visited June 9, 2020); and Frazer Consultants,
https://www.frazerconsultants.com (last visited
June 9, 2020).
68 ICCFA at 11; see also NFDA RR at 50. One
service, Funeralocity, commented stating that it
‘‘spend[s] many thousands of dollars obtaining and
updating GPLs every year. If prices were available
online, we would save a lot of money. But we
would lose some of the uniqueness that we offer in
displaying the prices of virtually every funeral
provider in the US online. . . We are updating
prices constantly . . .. While our updating process
cannot be done in real time with the GPL changes
at each individual provider, we are very accurate.
And when we are not, the price is only off slightly.
The packages we create are for sampling the
provider’s prices and the pricing profiles are still
valid especially when comparing to a competitor
funeral home’s pricing.’’ Funeralocity RR at 2. But
one commenter noted, however, that this
information, while well-intended, quickly becomes
‘‘outdated and inaccurate (at no fault of each
funeral provider) and often results in consumer/
funeral provider conflict.’’ NJSFDA RR at 3.
69 NFDA RR at 46 (NFDA’s 2019 and 2020 funeral
surveys showed that 19.54% of consumers found it
to be very easy to obtain price information, 34.9%
found it to be easy, 32.75% found it to be somewhat
easy, 10.85% said it was not very easy, and 2.05%
said it was not easy at all); SCI RR at 2, 8, 9
(summarizing results of a JD Power’s survey).
70 NFDA RR at 49; CANA RR at 2; Carriage RR
at 2–3; State Directors FDA RR at 1 (‘‘Additionally,
our member funeral homes know very well the
clientele they serve. If families want price
information posted on the funeral home’s website,
the funeral home will post it.’’); ICCFA RR at 10,
20–21 (‘‘Having that choice allows the funeral home
to present and inform the consumer in the manner
that is fair to the consumer and most appropriate
for the business. If the Funeral Rule were to
mandate that all prices must be made available
online through a funeral home website, it takes
away the business’ right to choose where it
conducts business.’’).
71 NFDA RR at 10–11, 49. As one funeral provider
said, ‘‘Price simply does not tell the story’’ of what
a consumer is buying when it comes to funeral
service arrangements—‘‘the ‘look and feel’ of the
facilities matter.’’ SCI RR at 13–14.
72 NYSFDA RR at 3 (‘‘Indeed, there is also infinite
value for a consumer to speak with a funeral
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Some critics of an online disclosure
requirement argued such a requirement
would be burdensome to funeral
providers, including small businesses
who ‘‘lack[] the budget, expertise, and
staff to create and maintain a
website,’’ 73 although they did not
quantify this burden or offer evidence to
support their position. They further
argued the proposed requirement is
especially problematic for rural funeral
homes, because many do not have a
website due to lack of local technology
infrastructure.74 Some commenters
argued mandating website price
disclosures would put small business at
a competitive disadvantage 75 and
potentially cause them to be subject to
unaffordable penalties for law
violations.76 They argued funeral homes
are already subject to state regulation,
and adding an additional layer of
regulation (which, they argued, might
conflict with state laws) ‘‘is not only
unnecessary but will create
confusion.’’ 77
Some commenters argued a
requirement to post prices online would
be unfair since no other industry is
mandated by federal law to post prices
online, except for a ‘‘new Department of
Health and Human Services regulation
which mandates that hospitals post
prices for certain procedures online.’’ 78
director, preferably in person, so as to better
understand his or her funeral home’s specific
offerings and to review and explain price lists and
the various options that are available. Consumers
are best served when they can factor into their
decisions both price AND service.’’).
73 SIFH RR at 11–12; see also ICCFA RR at 21
(‘‘Many funeral homes are small facilities that have
limited resources and limited access to technology.
Having to modify a website; keep it current; and
also make it consumer-friendly, are things small
providers may not be able to do.’’); Funeralocity RR
at 2 (‘‘In our opinion, funeral directors are not
typically tech savvy, so these changes will have to
be implemented by outside resources.’’).
74 IFDA RR at 3–4 (adding that some providers
use social media or instant messaging rather than
having a website).
75 ICCFA RR at 21 (‘‘Potentially, larger or more
tech-savvy providers could dominate on the pricing
presentation and consumers could be misled
thinking that these were better providers—merely
because now, potentially, all shopping would be
done online.’’).
76 ICCFA RR at 24. The ICCFA was also
concerned about costs to educate funeral homes
concerning the rule changes, including the costs to
mortuary schools which will have to update
references, books and materials on the current
Funeral Rule and to states which would have to
update its testing materials. Id.
77 Carriage RR at 3; see also SCI RR at 15–16. But
see OTR RR at 1 (noting that Texas exercises
minimal oversight over the funeral industry).
78 NFDA RR at 47; State FDAs RR at 1. See also
ICCFA RR at 20 (‘‘[o]ther industries regulated on the
Federal level have disclosure requirements, which
each provide a trigger point, but none are
promulgated solely upon the existence of a
website. . . For example, U.S. air carriers must
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One commenter argued that ‘‘[g]iven the
rapid pace of technologic change, in
another decade the online world will
likely look just as different. . . . Many
funeral homes are engaging with the
public on social media platforms, such
as Facebook, Twitter, and Instagram.
These website alternatives do not lend
themselves well to posting a GPL.’’ 79
Another commenter argued requiring
only funeral providers that maintain a
website to post a GPL online, ‘‘could
lead to some funeral homes removing
their websites in order to avoid the
requirement.’’ 80
Some commenters who argued against
requiring all funeral providers to
provide electronic or online delivery of
itemized price lists, did support more
limited modifications to the Rule. First,
several commenters opined all funeral
providers that offer consumers the
option to make funeral arrangements
online must post an itemized price list
online, so consumers can review this
price information before making a
purchase.81 As one commenter said,
‘‘[c]onsumers who choose to shop
online deserve the same protections as
those who arrange a funeral or
cremation in person—and certainly
deserve to receive itemized pricing
information ‘prior to any selection or
determination’ of funeral goods and
services.’’ 82 Second, the National
Funeral Directors Association (‘‘NFDA’’)
proposed the Rule be updated to
include ‘‘permissible options’’ to
transmit GPLs to consumer via new
‘‘information distribution systems’’ that
have emerged since the Rule was
enacted—‘‘including personal delivery,
U.S. Mail, electronic mail, telefax, or by
posting a link to its GPL on the funeral
home web page with the word[s] ‘price
information.’ ’’ 83 Third, one commenter
disclose various fee information, including baggage
fees, to consumers. However, the disclosure is only
required upon the ‘website of U.S. air carriers that
have a website accessible for ticket purchase by the
general public’. . . Similarly, a depository
institution must provide certain account disclosures
to consumers before an account is opened. If the
account is opened through electronic means, such
as through a website, ‘‘the disclosures required . . .
must be provided before the account is opened or
the service is provided.’’ Again, the notice is not
deemed to be necessary simply because the bank
has a website—but is tied to the creation of an
account, and further tied to the time period right
before the service is provided.’’) (emphasis in
original) (internal cites omitted).
79 SIFH RR at 11.
80 ICCFA RR at 21.
81 ICCFA RR at 19; NFDA RR at 40; NYSFDA RR
at 4; SIFH RR at 9, 11, 12; CANA RR at 2.
82 SIFH RR at 12.
83 NFDA RR at 40. The Indiana Funeral Director’s
Association noted that 71.5% of the respondents in
a recent survey ‘‘felt the mandatory inclusion of
requiring funeral homes to fax, email, mail GPLs
when requested did not further protect the
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asserted the Commission should offer a
safe harbor from undercover shopping 84
for funeral providers that make GPLs
available on a conspicuous place on
their websites.85
2. Commission Staff Review of Funeral
Provider websites
Commission staff conducted a review
of almost 200 funeral provider websites
from a cross-section of geographical
areas and sizes.86 As described below,
the review showed robust website use
by those funeral providers to promote
their goods and services. Yet, most
websites did not provide any pricing
information. Fewer than half (40%) of
the sites reviewed provided any
information about the price of the goods
or services offered.87 Only about 24% of
the websites contained an itemized
price list or GPL and just over 10%
displayed only starting prices or
package prices.88 Moreover, of the
websites that contained pricing
information, only some prominently
displayed the GPLs or other price
information on their website’s home
page or on the drop-down menus
present on that page.89
Staff’s review found funeral providers
were using websites for many aspects of
their business.90 For example, almost all
of the reviewed websites posted
obituary information about the deceased
persons in their care, as well as
consumer, and increased the potential cost
confusion if a face-to-face requirement to obtain a
GPL were made optional.’’ IFDA RR at 4.
84 Commission staff has historically conducted
such shopping as part of its efforts to ensure
compliance with the Rule.
85 NJSFDA RR at 4 (FTC undercover price
shoppers should not target funeral providers who
have GPLs conspicuously disclosed on the website);
NYSFDA RR at 3–4 (suggesting that instead of
changing the Rule, the FTC encourage providers to
post their GPLs online by providing a ‘safe harbor’
from undercover shopping for such providers since
the GPLs are available at any time). One consumer
suggested that the Rule should allow providers who
choose to post price information online to include
a ‘‘waiver in the contract for services stating that the
consumer has seen all of the required disclosures
online and has waived their right to receive them
in person.’’ L. Northcutt RR at 2. The NYSFDA also
asked that the FTC allow ‘‘adequate time’’ of one
year before implementing any website disclosures,
to give the industry time to comply. NYSFDA RR
at 3–4.
86 Shopping for Funeral Services Online: An FTC
Staff Review of Funeral Provider websites (Oct.
2022) (‘‘Report’’). The full Report is available at
https://www.ftc.gov/reports/shopping-funeralservices-online. While not based on a statistical
sample, the review looked at a diverse group of
funeral providers that are employing websites in
their businesses. The results offer broad insights
into the information providers of differing sizes and
in areas with different population densities make
available online.
87 Report at 5.
88 Id. at 5–6.
89 Id. at 6.
90 Id. at 4–5.
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information about any related funeral,
graveside, or memorial services. These
websites provided dedicated pages for
each of the deceased persons in their
care, many of which could be shared
electronically with others. The web
pages also offered visitors the
opportunity to post condolences for the
family and others to see on the website
and many offered ways to send flowers
to the families of the deceased.
Two-thirds of the websites reviewed
listed an email address to contact the
provider and almost all offered online
forms web visitors could submit to
contact the funeral providers.91 A
handful appeared to offer visitors the
ability to chat online with the funeral
provider, and almost 10% of the
reviewed websites appeared to offer
visitors the ability to make online
selections of their funeral arrangements
on the providers’ websites, without
visiting the physical location.92 Almost
80% of the websites indicated an
association with a third party company
to create, design, or host the funeral
providers’ websites.93
3. Objectives and Alternatives
The record shows funeral providers
typically use websites and electronic
communication to communicate with
the public about a variety of
information, ranging from their contact
information, obituaries, information
about any funeral, graveside, or
memorial services, pictures of caskets,
and descriptions of the services they
offer. Most, however, appear not to use
such technology to share their prices
with consumers. The record also shows
that, given the growth of the internet
and electronic communication, adding
electronic media as means to display
and distribute price information would
greatly benefit consumers by providing
access to accurate itemized prices with
arguably minimal costs to funeral
providers who already have websites.
Such an amendment appears to fit
squarely with the original purpose of
the Rule and will make the Rule more
in tune with how consumers generally
obtain price information today.
Therefore, the Commission wishes to
explore how it could revise the Rule’s
preventative requirements regarding the
distribution of price information to
include new technologies. The
Commission is particularly interested in
suggestions about how to tailor changes
in ways that facilitate the ability of
small businesses to comply with the
Rule using new technologies.
91 Id.
at 4.
at 4.
93 Id. at 9.
92 Id.
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First, the Commission seeks comment
on whether it should change the Rule’s
price list disclosure provisions to
require funeral providers to prominently
display either their GPLs or a
prominently labeled link to their GPLs
on their websites. The Commission is
particularly interested in whether such
a provision should apply to all funeral
providers, all providers with a website,
or only providers who sell funeral goods
or services online.
Second, the Commission seeks
comment on whether it should change
the Rule’s CPL and OBCPL distribution
requirements to require funeral
providers to prominently display either
their CPLs and/or OBCPLs on their
websites, or a clearly labeled link to
these price lists.94 The current Rule
requires funeral providers to present
their CPLs and OBCPLs before
discussing or showing these items or
pictures of these items.95 This possible
modification could apply to all
providers, or just those providers who
show pictures and/or descriptions of
caskets, alternative containers, or outer
burial containers.
Third, the Commission could
consider a Rule change to require all
funeral providers that maintain websites
to display a prominent statement that
users can request the providers’ GPLs,
CPLs, and OBCPLs with a link, button,
or email address for people to use to
request the price list or lists.96 The
Commission also seeks comment on
whether to include a requirement that
funeral providers must respond to
online requests for price lists within a
particular time frame. The Commission
notes the current Rule does not require
the CPL or OBCPL to be in a specific
format, stating ‘‘[i]n lieu of a written list,
other formats, such as notebooks,
brochures, or charts may be used if they
contain the same information as would
the printed or typewritten list, and
display it in a clear and conspicuous
manner.’’ 97 Commission staff have seen
CPLs and OBCPLs in the form of
binders, catalogs, and brochures in
addition to written lists. Thus, the
Commission seeks input as to whether
94 The Rule currently requires funeral providers
to either include the information contained in their
CPLs or OBCPLs on their GPLs, or list the price
ranges for caskets, alternative containers, and outer
burial containers on their GPLs. 16 CFR
453.2(b)(4)(iii). Thus, this provision would only be
necessary for those providers that only include the
price ranges for caskets, alternative containers, and
outer burial containers on their GPL.
95 16 CFR§ 453.2(b)(2)(i) and 453.2(b)(3)(i).
96 Funeral providers could also be required to
state on the GPL that the CPL and OBCPL are
available upon request via one of these electronic
methods.
97 16 CFR 453.2(b)(2)(i).
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a requirement that the CPL and/or
OBCPL be in a format that can be shared
electronically provides any benefits to
consumers or presents any challenges or
costs for compliance, particularly for
small business.
Fourth, the Commission is also
considering whether to include social
media pages or other new technological
or electronic communication methods
within the scope of covered websites for
the purposes of any Rule modifications.
For example, the Commission could
require a funeral provider with a social
media page to link to the provider’s
main website or provide an email
address or other online mechanism for
a user to request price list information.
On a related note, the Commission seeks
input on ways to amend the Rule to
embrace new platforms and
technologies as they develop so that
both providers and consumers can
benefit from new distribution methods
without requiring a Rule change.
Fifth, the Commission seeks comment
on whether the Rule should be modified
to require all funeral providers
(regardless of whether they maintain
websites) to offer to send their GPLs,
CPLs, or OBCPLs electronically to any
persons who ask about the providers’
goods and services, including those who
ask for a copy of any of its price lists.
This could include requests by
telephone, text, email, weblink, social
media, fax, U.S. Mail, or other new
communication methods that may
emerge in the futures. Providers would
be required to send the information
within a certain timeframe, unless the
consumer declines to receive this
information or does not provide an
email address or other method for
receiving the information. The
Commission could also make an
exception to this proposed requirement
if a funeral provider prominently makes
either its GPL, CPL, and OBCPL, or
clearly labeled links to these
documents, available on its website.98
Sixth, another approach the
Commission is considering would
require all funeral providers to give
electronic copies of their GPLs at the
beginning of any arrangement
98 Funeral providers would still be required to
answer questions of persons who ask over the
telephone about the providers’ offerings or prices.
Note that the change considered would not require
a funeral provider to affirmatively send or offer to
send price list information electronically unless a
person first asks about its offerings or prices. This
approach is consistent with the Commission’s prior
decision to repeal the original Rule’s requirement
that providers affirmatively state price information
over the telephone even when a caller did not ask
for the information. See 1994 Statement of Basis
and Purpose, 59 FR 1592, 1600–1602 (Jan. 11,
1994).
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66103
discussion or process that does not take
place in-person unless a hard copy has
already been provided. For example, if
the arrangements are discussed on the
telephone, the provider would need to
send an electronic copy of the GPL to
the consumer before continuing the
conversation (if the consumer has not
yet received the information). If the
consumer is making selections online,
the provider would need to offer a
prominent link to its GPL before
allowing the consumer to proceed with
selections. Electronic copies of the CPLs
and OBCPLs would also need to be
provided if showing or discussing those
items or their prices, or if consumers are
making selections of those items online.
Seventh, if electronic distribution is
required, the Commission is considering
whether the Rule should include a
requirement concerning how often
providers should update the electronic
GPLs, CPLs, and OBCPLs. The current
Rule requires a funeral provider to list
an effective date on its price lists. To be
in compliance with the Rule, the price
list must be accurate. Therefore, funeral
providers must update their lists
regularly as their prices change. The
costs to businesses of updating
electronic lists would seem quite
minimal and further the goal of
providing consumers with accurate
itemized information. Should the
Commission set a specific time frame for
updating online information?
Eighth, the Commission is
considering another potential
modification to the Rule’s preventative
requirements to include electronic
means for distribution of the statement
of funeral goods and services selected.
Currently, the Rule requires funeral
providers to give an itemized written
statement for retention to each person
who arranges a funeral or other
disposition of human remains, at the
conclusion of the discussion of
arrangements.99 When the arrangements
discussions take place in person, the
statement is provided at the end of the
meeting. When consumers make
arrangements via the telephone or
online, the funeral provider could be
required to immediately send an
electronic copy of the statement of
goods and services selected, rather than
giving the list to consumers in a less
timely way, for example by sending the
statement via U.S. Mail. Electronic
distribution of the statement could
provide tremendous benefits to
consumers by providing more timely
access to the total cost of funeral
99 16
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arrangements and appears to present
minimal costs to providers.
B. Disclosure of Crematory Fees and
Other Costs
The Review also elicited comment
about whether to require funeral
providers to disclose on their GPLs
information about all crematory-related
fees, including third party fees, and
other costs, such as fees for death
certificates and local permits. The Rule
currently requires funeral providers to
list the prices for 16 items (if offered),
including the prices for the direct
cremation services offered, with
separate prices for direct cremation with
or without an alternative container, and
a description of the services and
container included in each price.100 A
funeral provider may include the use of
its crematory or a third party’s
crematory in its GPL’s description of the
services and costs for direct cremation
services. Funeral providers who do not
operate their own crematories and have
not included the cremation fees in the
price for direct cremation on the GPL
must list the fees charged by an outside
crematory, or a good-faith estimate of
those fees, along with additional
crematory-related fees as ‘‘cash
advance’’ services in the statement of
goods and services selected.101
1. Summary of Comments
Several commenters asked that the
Rule be changed to require funeral
providers to disclose all crematory fees
on the GPL, including third party
crematory fees, as well as any additional
crematory-related fees such as
crematory transportation fees.102 These
commenters argued it is deceptive not to
include these additional fees on the GPL
100 16
CFR 453.2(b)(4).
with the Funeral Rule, FTC
Business Compliance Guide available at https://
www.ftc.gov/system/files/documents/plainlanguage/565a-complying-with-funeral-rule_2020_
march_508.pdf.
102 CFA RR at 10–11; LRCPA RR at 1; FCA VABR
RR at 1, 3; FCA GKC RR at 1; FCA PA RR at 1; FCA
GR RR at 1; FCA SC RR at 1; FCA RR at 9–10; CR
RR at 3; FCA AZ RR at 3–4; FCA MN RR at 1; FCA
CT RR at 2; TINA RR at 3–4; Paige Hetherington,
GraceFull Dying RR at 1; MBS RR at 1; C. Tregillus
RR at 9–10; Imperial Caskets RR at 1; Charter
Funerals RR at 1; Diversity Collaborative RR at 1;
Borderland RR at 2; SIFH RR at 12; AARP RR at 3;
M. Klein RR at 6–7. Some commenters complained
that funeral providers do not always disclose all of
their own fees or third party fees on the GPL. See,
e.g., AG RR at 4 (noting that some funeral providers
list a fee for the death certificate in the GPL, but
others do not, and ‘‘it can be upsetting for
consumers to be asked to pay additional amounts
they are not aware of’’); FCA CT at 2 (stating that
some funeral homes omitted required items and
idiosyncratic fees from the GPL, including the price
of the container, the mandatory Medical
Transportation Fee, and unlisted transportation
fees).
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101 Complying
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when listing the price for cremation
services.103 They asserted a reasonable
consumer would expect a fee for
‘‘cremation services’’ reflects the full
cost of the cremation, even if it is
performed by a third party crematory,104
and may not learn until it is time to pay
the bill they also have to pay additional
third party crematory fees.105
According to these commenters, while
most funeral homes appear to
voluntarily disclose all third party
crematory fees on their GPL, a
substantial minority do not.106 For
example, a 2016 survey by the FCA and
CFA of 142 representative funeral
homes nationwide found 22 percent did
not disclose third party crematory fees
on the GPL.107 Consumer Checkbook
found 40 percent of ‘‘funeral homes
don’t disclose crematory fees on their
GPLs, or even note that such a fee might
exist.’’ 108 Commenters reported third
party crematory fees can range from
$250 to $600.109
Several commenters said requiring
third party crematory fees to be
included on the GPL would ‘‘help[]
ensure that consumers have accurate
pricing information,’’ and ‘‘create a
fairer ‘playing field’ for all funeral
103 FCA
of VABR RR at 3; CMS RR at 1; FCA RR
at 9–10; SIFH RR at 12.
104 FCA PA RR at 1 (‘‘No normal person would
ever think that the advertised price of a cremation
does not include the actual crematory fee(s)...’’);
FCA RR at 9–10.
105 FCA RR at 9–10.
106 CFA RR at 10–11; see also SIFH RR at 12
(Many online only providers ‘‘advertise a very low
price for a ‘‘direct cremation,’’ but then charge the
consumer a number of add-on fees that
substantially raise the actual price of the service’’);
FCA CT RR at 2 (2019 survey found that some
funeral homes and many cremation providers
which touted ‘‘inexpensive cremation’’ failed to
include the price of the container, the required
Medical Examiner’s charge, or an unlisted
transportation fee to the ME’s or the crematory to
pack up the ashes); FCA WMA RR at 1 (reporting
that consumers are surprised to discover that the
GPL cremation fee does not include the actual
cremation or the required $200 medical examiner
fee).
107 FCA RR at 9–10, citing Joshua Slocum,
Stephen Brobeck, ‘‘Cremation Services: Highly
Variable and Misleading Pricing, Lack of
Disclosure, and Violation of Federal Rules,’’
Funeral Consumers Alliance and Consumer
Federation of America (September 2016), at 3,
https://funerals.org/wp-content/uploads/2020/02/
2016-9-12-FCA-CFA-Cremation-Report.pdf; see also
CFA RR at 10–11.
108 CC RR at 4.
109 TINA RR at 3–4 citing Joshua Slocum, Stephen
Brobeck, ‘‘Cremation Services: Highly Variable and
Misleading Pricing, Lack of Disclosure, and
Violation of Federal Rules,’’ Funeral Consumers
Alliance and Consumer Federation of America
(September 2016), at 3, https://funerals.org/wpcontent/uploads/2020/02/2016-9-12-FCA-CFACremation-Report.pdf. See also CFA RR at 10–11;
FCA RR at 9–10.
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homes.’’ 110 Some asked that the Rule be
amended to mandate the full disclosure
of all crematory fees.111 Others felt
funeral homes who use a variety of third
parties should only have to disclose a
price range,112 and some suggested a
disclaimer that a crematory fee is not
included is one option to avoid harm to
consumers.113
Some commenters were opposed to
amending the GPL requirement to
require the disclosure of third party
crematory fees on the GPL.114 Some
contended that over 70% of funeral
providers use a third party crematory to
perform their cremations,115 and these
funeral providers have no control over
the amount charged by third party
crematories.116 Some commenters
reported many funeral providers work
with multiple crematories that charge
different fees,117 and it would be unduly
burdensome to require providers to
constantly monitor all of these fees
charged by separate businesses, and
then update and re-print the GPL each
time the third party fees changes.118
2. Objectives and Alternatives
The Commission is considering
whether to amend the Rule to provide
better disclosure for consumers about
110 CFA RR at 10–11 (stating ‘‘those that do not
disclose have an unfair advantage over those that
do’’).
111 CR RR at 3 (‘‘The price list should be required
to include any products and services to be obtained
from third parties and treated as ‘cash advance’
items by the funeral home. It should include
crematory fees, and other fees and charges of
whatever kind that the consumer would pay to the
funeral home. . .’’); FCA GKC RR at 1; AARP RR
at 3; SIFH RR at 12; C. Tregillus RR at 10.
112 TINA RR at 3–4; FCA RR at 10. But see C.
Tregillus RR at 9–10 (a price range would not be
helpful as it would create unnecessary confusion
for consumers).
113 FCA PA RR at 1. See also FCA VABR RR at
3 (the Rule could either require the third party
crematory to be included on the GPL or it could
require a disclaimer identifying the crematory
provider who will be charging an additional fee).
But see FCA AZ RR at 3–4 (providing real-life
examples of disclosures that would not be helpful;
such as price lists that contained ‘‘low-ball pricing’’
that is not reflective of what consumers will have
to pay, that included only a ‘‘fine print’’ disclosure
that crematory or medical examiner fees are not
included in that pricing). Consumer Reports asked
that the GPL ‘‘include any products and services to
be obtained from third parties and treated as ‘cash
advance’ items by the funeral home. . ., [including]
fees and charges of whatever kind that the
consumer would pay to the funeral home.’’ CR RR
at 3; see also FCA VABR RR at 3 (the newspaper
obituary fee should be listed in the GPL).
114 NFDA RR at 60–61; NJSFDA RR at 5; NYSFDA
RR at 4–5.
115 NFDA RR at 60 (‘‘According to the 2019 NFDA
Member General Price List Study, over 70% of
funeral homes use a third-party crematory to
perform their cremations.’’).
116 Id.; NJSFDA RR at 5; NYSFDA RR at 4–5.
117 NFDA RR at 60.
118 NJSFDA RR at 5; NYSFDA RR at 4–5.
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third-party crematory-related fees, as
well as other costs not required to be
listed on the GPL. The Commission
seeks comment on a whether funeral
providers should be required to list any
applicable third-party crematory fees on
the GPL in close proximity to the
description and price for direct
cremation. Another approach would be
to require a funeral provider that does
not include the cost of the third-party
crematory fees in the price for direct
cremation to include a statement on the
GPL that the cremation fee does not
include third party crematory fees,
along with a typical price range for
these fees. Such a statement would need
to be placed in close proximity to the
price for cremation.
In addition to third-party crematory
fees, the Commission wishes to explore
whether the Rule should be clarified to
state when other fees, not included in
the price of the services, should be
disclosed on the GPL.119 For example,
these other fees may include separate
charges for the weight of the deceased,
removal of a medical device, storing
remains, expedited cremation or burial,
death certificates, county permits,
medical examiner permits, and supplies
and procedures related to infectious
disease control. The Commission seeks
comment on whether these or other
costs related to direct cremations or
immediate burials not included in the
price of those services should be added
to the items required to be disclosed on
the GPL, and whether such items should
appear in close proximity to the price
for direct cremations and immediate
burials. Another approach to address
concerns about other costs not currently
required to be listed on the GPL would
require a funeral provider to include on
the GPL a statement in close proximity
to the price for direct cremation that
lists the additional fees the funeral
home knows consumers may have to
pay, along with a typical price range for
those fees. Alternatively, funeral
providers could be required to include
a statement in close proximity to the
prices for direct cremation and
immediate burial simply stating
additional fees may apply.
119 Some
staff advisory opinions address this
issue. See Funeral Rule Advisory Opinion 11–1
(2011), available at https://www.ftc.gov/legallibrary/browse/advisory-opinions/opinion-11-1 and
Advisory Opinion 13–1 (2013), available at https://
www.ftc.gov/legal-library/browse/advisoryopinions/opinion-13-1; and Advisory Opinion 16–
2, available at https://www.ftc.gov/legal-library/
browse/advisory-opinions/opinion-16-2. The
Commission believes additional clarity on this issue
will provide benefits to industry and consumers.
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C. Reduced Basic Services Fee
The Rule currently allows funeral
providers to charge only one nondeclinable fee, for the ‘‘services of the
funeral director and staff’’ (or ‘‘the basic
services fee’’).120 This fee ‘‘grew out of
the Rule’s unbundling provisions,
which required funeral providers to
itemize prices. These unbundling
requirements meant funeral providers
could no longer sweep into the price of
a funeral package their fee for the basic
services they perform in connection
with planning a funeral.’’ 121 In
recognition that ‘‘irrespective of the
combination of goods or services [a
consumer selects], the very process of
selection itself will involve use of the
funeral provider’s services,’’ the
Commission permitted funeral
providers to charge a basic services
fee.122 The Commission intended,
however, that this fee should include
only the charges for a funeral provider’s
basic services associated with arranging
and planning a funeral (and a portion of
overhead, if the provider chooses to
include it), and not the services
associated with providing the other 16
declinable items for which itemization
is required on the GPL.123
In the 2008 Rule Review, divided
commenters asked the Commission to
consider eliminating the fee entirely or
reformulating it. The Commission
declined to do so, stating as follows:
The purpose of the Rule is not to regulate
prices. . . . Regardless of the particular
funeral arrangements a consumer seeks, there
are a number of fixed costs related to funeral
arrangements for which funeral providers are
entitled to seek payment when their services
and facilities are used. Prior to the adoption
of the Rule, all costs were bundled into one
package, none of which consumers could
decline. By allowing a basic services fee, the
Rule ensures that consumers get the benefit
of choosing goods and services among a
variety of options—including the option to
purchase goods from the funeral provider’s
competitors—and paying for common costs
only once.124
The current Rule Review solicited
comment on whether to change the
Rule’s requirement that funeral
providers can charge only one basic
services fee in most instances, and
whether two of the exceptions to the
120 The basic services fee is defined as ‘‘[t]he basic
services, not to be included in prices of other
categories in § 453.2(b)(4), that are furnished by a
funeral provider in arranging any funeral, such as
conducting the arrangements conference, planning
the funeral, obtaining necessary permits, and
placing obituary notices.’’ 16 CFR 453.1(p).
121 73 FR 13740, 13746 (Mar. 14, 2008).
122 Id.
123 Id.; see also 1994 Statement of Basis and
Purpose, 59 FR 1592, 1607–1609.
124 73 FR 13740, 13747 (Mar. 14, 2008).
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basic services fee provision should be
amended to permit some common
limited additional services without the
funeral provider having to charge its full
basic services fee.
1. Summary of Comments
Commenters again were divided on
whether the Commission should
eliminate or reformulate the basic
services fee or maintain the status quo.
Some favored eliminating the fee.125
They said the basic services fee, which
has no cap and is charged by almost all
funeral homes, confuses consumers.126
Moreover, to these commenters, the
basic services fee can be exorbitant.127
The House Committee of Energy and
Commerce said if the Commission
determines a non-declinable basic
services fee is necessary, then
consumers should be made aware of
what they are being charged for, by
requiring funeral providers ‘‘to provide
detailed descriptions’’ of the fee,
including the total amount and what
services are covered by it.128 It also
asked the Commission to cap the basic
services fees.129
Several industry groups and State
Attorneys General argued funeral
providers should be permitted to charge
a variable fee, based on the service
provided,130 or a reduced service fee for
consumers requesting a limited viewing
or visitation.131 To these commenters,
the funeral landscape has changed
where, funeral providers ‘‘offer a wide
variety of different service levels—
memorial services, visitations, private
viewings, full catered events, and
more,’’ and charging one basic services
fee for all of these services penalizes
cash-strapped consumers and asks them
125 CFA RR at 11; FCA WMA RR at 2; FCA RR
at 11–12; CR RR at 4; M. Bern-Klug RR at 2–3; M.
Klein RR at 8. The NJFSDA and another commenter
recommended the Commission remove from the
Rule the option to incorporate the basic service fee
into the price of caskets. NJSFDA RR at 5–6 (noting
that ‘‘consumer trends’’ are ‘‘moving away from
disposition options that require the use of caskets’’);
see also C. Tregillus RR at 4 (16 CFR 453.2(iii)(C)(2)
should be deleted as no longer needed, unless
‘‘there is opposition from the funeral industry based
on evidence that there are still funeral providers
that inflate their casket prices to cover their
unallocated overhead costs and provide a profit
(rather than charging a non-declinable basic
services fee’’).
126 FCA RR at 11–12; M. Bern-Klug RR at 2–3.
127 FCA RR at 11; CFA RR at 11. ‘‘According to
2017 data released by the NFDA, the median basic
services fee was $2,100, which is close to the price
of a casket.’’ CFA RR at 11. See also M. Bern-Klug
RR at 2 (University of Iowa collected 48 GPLs in
2016; the basic services ranged from $245–$3,750).
128 House Committee RR at 2 (‘‘[If] they are
charged a fee, consumers should know what they
are paying for.’’)
129 Id.
130 NFDA RR at 66–70.
131 AG RR at 5.
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to subsidize the overhead involved in a
‘‘full-service, traditional funeral with all
the bells and whistles.’’ 132 Allowing a
variable fee or reduced basic services fee
also ‘‘would help increase consumer
choice, provide transparency, and allow
for cost-savings,’’ 133 and ‘‘allow lower
costs for simpler services, free funeral
homes to offer innovative options and
more choice for consumers, and
maintain the basic price structure the
FTC designed when it developed the
Funeral Rule.’’ 134 Another industry
group, however, argued a variable basic
services fee has a ‘‘potential for abuse
practices’’ as it ‘‘creates an opportunity
for funeral providers to manipulate the
content of a ‘minimum service’ in such
a way that could induce purchasers to
utilize their firm (because of the
published low price) and then lead
purchasers into making other added
purchases not included in the
‘minimum service.’’ 135
Finally, one consumer advocacy
group and one individual asked the
Commission to preserve the status
quo.136 The consumer advocacy group
asserted funeral providers provide a
‘‘true service’’, and the basic services fee
‘‘support[s] the continued health of
132 SIFH RR at 12–13. See also IFDA RR at 4
(noting that 68.75% of Indiana funeral providers
‘‘were in favor of a partial non-declinable fee as
alternative forms of services and dispositions
become available . . . [T]he overall general feeling
is the consumer will be paying for services more
representative of what they receive professionally
rather than a ‘catch all’ fee which is what the nondeclinable has become over time’’).
133 AG RR at 5.
134 Id. at 5. The NFDA argues that if ‘‘the Funeral
Rule is modified to allow a variable basic services
fee, the mandatory disclosure in Section
453.2(b)(4)(iii)(C)(1) should be revised.’’ NFDA RR
at 71. NFDA’s suggested language is as follows: ‘‘A
fee for our basic services will be added to the total
cost of the funeral arrangements you select. (This
basic services fee is already included in our charges
for direct cremations, immediate burials, and
forwarding or receiving of remains).’’ Id.
One commenter thought a ‘‘separate cost of a
family viewing should be allowed without
triggering a basic services charge.’’ See Givens
Estate RR at 1. Another argued that the FTC should
not ‘‘expand the definition of direct cremation and
immediate burial to allow the addition of other
services without charging the full basic services
fee,’’ because providers ‘‘are really seeking relief
from a very real marketplace constraint on how
high their regular basic services fees can be without
making their prices uncompetitive. Consumers
faced with a full basic services fee increase of a
thousand dollars or more just for adding a memorial
service to a direct cremation are likely to take their
business to a provider with a lower basic services
fee, or find another location or provider for a
separate memorial service.’’ C. Tregillus RR at 12.
135 NJSFDA RR at 3.
136 FCA VABR RR at 4; C. Tregillus RR at 11. The
NFDA also argued against eliminating the basic
services fee: ‘‘From a practical standpoint, ‘it is
virtually impossible to eliminate the non-declinable
nature of the basic service fee’ ’’—as all consumers
are using the services of the funeral director and
staff. NFDA RR at 66–70.
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these businesses.’’ 137 The fee ‘‘assures
the consumer that there are specific
expectations for minimal costs and
insures the funeral home that their
service can be adequately
compensated.’’ 138 The individual
argued banning the fee ‘‘is likely to have
unintended and undesirable
consequences. Not the least of these
would be a return to embedding basic
services fee costs in the prices of
caskets, and now, the prices of urns,
leading to greater resistance by
providers to accepting lower-cost thirdparty caskets and urns, and thereby
creating new enforcement challenges for
the FTC.’’ 139
2. Objectives and Alternatives
The Commission does not believe the
basic services fee should be eliminated,
for the reasons set forth in the 2008
Regulatory Review Notice. The
Commission, however, is interested in
exploring whether consumers and
businesses could benefit from a limited
expansion of two of the basic services
fee provisions—direct cremation and
immediate burial. Commission staff has
opined the Rule currently permits
funeral providers to charge a lower basic
services fee for these two types of
services, as well as for forwarding and
receiving remains, if they wish because
of the limited use of the funeral
provider’s facilities and staff time
generally associated with those
services.140 The definitions for both
direct cremation and immediate burial
exclude situations when a customer also
wants a formal viewing or a visitation,
even if it is a limited viewing or
visitation.141 If a customer wants to add
a brief visitation to a direct cremation,
the funeral provider must charge its full
basic services fee. Thus, clarifying in the
Rule concerning when a reduced basic
services fee may be charged may
provide benefits for providers and
customers. While not a ‘‘variable basic
services fee,’’ this approach would
effectually give consumers a few more
options in the reduced fee structure.
137 FCA
VABR RR at 4.
at 1.
139 C. Tregillus RR at 11.
140 See, e.g., Funeral Rule Advisory Opinion 09–
6 (2009), available at https://www.ftc.gov/sites/
default/files/documents/advisory_opinions/
opinion-09-6/opinion09-6.pdf. The Commission
intends to make this position unambiguously clear
in this rulemaking
141 16 CFR 453.1 (g) (defining a ‘‘direct
cremation’’ as a ‘‘disposition of human remains by
cremation, without formal viewing, visitation, or
ceremony with the body present’’); 16 CFR 453.1(k)
(defining ‘‘immediate burial’’ as a disposition of
human remains by burial, without formal viewing,
visitation, or ceremony with the body present,
except for a graveside service’’).
138 Id.
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Therefore, the Commission is
considering clarifying in the Rule that
funeral providers may charge a lower
basic services fee for forwarding and
receiving remains, immediate burial,
and direct cremation, if they wish,
because of the limited use of the funeral
provider’s facilities and staff time
generally associated with those services.
In addition, the Commission is
considering modifying the definition of
direct cremation and immediate burial
to allow those offerings to include
limited viewings or visitations or other
additional services, and seeks comments
on whether this modification should be
made and, if so, how. Funeral providers
who wish to could offer these additional
services as options, listing the add-on
costs for the additional services on the
GPL, along with the basic services fee
charge due if the limited visitation
option is selected. Thus, for example, a
funeral provider would list on its GPL
the price it charges for direct cremation,
describing the services included and
giving the price with and without a
cremation container, as well as the
additional cost if a purchaser wanted to
add a limited visitation or viewing at its
facility, describing the limits for that
visitation, such as the amount of time or
number of guests, and the associated
basic services fee. The Commission
seeks comment on how this change
would impact both consumers and
businesses, and how to clearly disclose
the additional options for these two
reduced basic services on the GPL.
D. New Forms of Disposition
The Review elicited some comments
about methods of human disposition
that have changed since the Rule was
enacted. The Rule currently defines
‘‘cremation’’ as ‘‘a heating process
which incinerates human remains,’’ 142
but does not mention whether newer
techniques for disposition of human
remains, such as alkaline hydrolysis and
natural organic reduction,143 are
included in this definition. Such
services do not fit within the definition
of direct cremation or immediate burial
but are still subject to the Rule. The
Commission is considering
modifications to clarify application of
the Rule for providers of new forms of
142 16
CFR 453.1(e).
organic reduction is a new type of
disposition that became legal in the State of
Washington as of May 1, 2020, and was scheduled
to be offered to funeral providers as soon as March
2021. This process differs from green burial
interments because it transforms the deceased into
soil in 4–6 weeks. See H.B. 2574—Natural Organic
Reduction—Q&A, https://www.oregonlegislature.
gov/marsh/Documents/HB2574_Natural_Organic_
Reduction.pdf?ID=43 (last visited August 17, 2022).
143 Natural
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disposition and consumers considering
these options.
Few commenters provided input on
whether the Rule should be updated to
reflect new alternative methods of
disposition. One commenter suggested
the Commission amend the Rule to add
‘‘natural organic reduction process’’ and
‘‘green burials’’ as additional methods of
disposition, rather than incorporated
under the umbrella definition of
‘‘cremation.’’ 144 To the commenter, the
natural organic reduction process is
different from cremation: for example,
unlike with a cremation, the use of
alternative containers is not needed.145
Another commenter agreed natural
organic reduction processes should not
be included in the definition of
‘‘cremation’’ in the Rule, but argued that
because these methods of disposition
are not available in most of the country,
the Rule does not need to be altered to
address them.146
An alternative funeral provider
commented to ask to be allowed to
charge ‘‘a uniform price’’ for disposition
via natural organic reduction, because
‘‘it is neither practical nor either feasible
for [the provider] to itemize the
individual services that will be available
for all decedents and next of kin as part
of the [natural organic reduction]
process as piecemeal offerings, unlike
the way this may be done for the
traditional disposition methods of direct
burial and cremation.’’ 147
The Commission is considering
modifying the Rule to explicitly include
new methods of disposition, such as
alkaline hydrolysis and human natural
organic reduction. The Rule could then
clarify that such providers could offer
direct or immediate services with a
reduced basic services fee. The
Commission is also considering
updating the Rule to adapt to new
methods of disposition, for example the
Rule requirements to offer and provide
disclosures about alternative containers
for direct services. The Commission
wants to ensure the Rule does not stifle
innovation and believes the proposed
changes help level the playing field for
providers of new alternative methods.
144 Recompose RR at 2–4. One commenter
suggested that the FTC define ‘‘green burial’’ to
‘‘make clear that the term applies not only to
provider arrangements for casketed burials in green
cemetery plots, but also to arrangements using
mushroom burial suits, biodegradable tree urns, and
body pods in lieu of caskets.’’ C. Tregillus RR at 10–
11. Another commenter asked that, if a funeral
provider offers green burials, what ‘‘this includes
and the requirement for the burial board or
container should be specifically stated.’’ S.
Robinson RR at 1.
145 Recompose RR at 2–4.
146 NFDA RR at 64–65.
147 Recompose RR at 1, 3.
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E. Embalming Disclosure
The Commission also elicited
comments about whether to modify the
Rule’s current disclosure related to
whether embalming may be required.
The Rule currently requires funeral
providers to include on the GPL a
disclosure that states ‘‘[e]xcept in
certain special cases, embalming is not
required by law. Embalming may be
necessary, however, if you select certain
funeral arrangements, such as a funeral
with viewing. If you do not want
embalming, you usually have the right
to choose an arrangement that does not
require you to pay for it, such as direct
cremation or immediate burial.’’ 148
1. Summary of Comments
Several commenters asked the
Commission to clarify the embalming
disclosure, although they disagreed on
how it should be clarified.149 No
commenter asked the Commission to
keep the current disclosure as is.
Several consumer advocates,
government agencies, and one
individual asked the Commission to
either eliminate the embalming
disclosure requirement or amend it to
indicate ‘‘that the requirement is only
that of the funeral home, not that of the
state,’’ to avoid consumer confusion.150
They said no state requires that viewed
bodies be embalmed, although some
‘‘require embalming only in situations
where refrigeration is not available or
when burial/cremation cannot happen
with a ‘reasonable’ or defined period of
time.’’ 151 When consumers ‘‘are told by
a funeral home that they will not permit
viewing without embalming,’’ 152
consumers mistakenly assume this
embalming is mandated by law and the
‘‘only way to avoid embalming is to
choose direct cremation or immediate
148 16
CFR 453.3(a)(2)(ii).
RR at 12–13; CFA RR at 11; NFDA RR
at 71–73; TINA RR at 4; FCA WMA RR at 2; CR RR
at 3; C. Tregillus RR at 13; AG RR at 5; UUFV RR
at 2; Borderland RR at 2.
150 CFA RR at 11; see also FCA RR at 12; TINA
RR at 4; FCA WMA MA RR at 2; CR RR at 3; C.
Tregillus RR at 13; AG RR at 5; Borderland RR at
2. FCA also recommended that ‘‘Funeral providers
should also be required to provide a numerical or
statutory citation if there are legal requirements in
the provider’s state that mandate embalming in any
circumstance.’’ FCA RR at 12.
151 FCA RR at 13 (compiling statistics from
Slocum and Carlson, Final Rights: Reclaiming the
American Way of Death. 2011 Upper Access
Publishers); see also CFA RR at 11.
152 UUFV RR at 2 (‘‘at least one funeral home in
Visalia, California have told potential purchasers
that embalming and purchasing a casket is
‘required’ by their funeral home as a matter of ‘our
policy’ rather than as a legal requirement. . .. The
salesman I talked to claimed it was a liability issue
for them, asserting that an un-embalmed body could
theoretically make them subject to lawsuits or
embarrassment.’’).
149 FCA
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burial.’’ 153 Modifying the disclosure
will also ‘‘clarify persistent questions
raised by the growing segment of funeral
providers who do not offer embalming
at all’’ due to their religious traditions
or because they only offer simple
arrangements.154
The NFDA agreed the embalming
disclosure should be amended, but for
different reasons.155 It argued
embalming may be required under state
law: ‘‘37 of 50 states require that
deceased human remains either be
embalmed or refrigerated within a
certain time span following death’’ and
‘‘46% of funeral homes do not have
refrigeration facilities.’’ 156 To the
NFDA, the current disclaimer is
misleading ‘‘in that it implies to the
consumer that embalming is rarely
required by law.’’ 157 The NFDA
suggested the Rule be amended to
plainly explain to consumers
embalming is not required in 13 states,
and, in the other 37 states, embalming
may be required. Funeral providers can
then ‘‘explain the requirements of state
law at the end of the mandatory
disclosure.’’ 158
2. Objectives and Alternatives
The embalming disclosure is a
preventative requirement enacted
because of deceptive acts or practices by
funeral providers that generated
‘‘substantial consumer confusion about
what the law requires about
embalming.’’ 159 The Commission is
considering changing the language of
this disclosure and seeks comment on
how the disclosure can be improved to
educate consumers accurately on the
limited circumstances when embalming
may be required under the laws of some
states.
For example, one option the
Commission wishes to explore is
153 FCA
RR at 12.
at 12–13.
155 NFDA RR at 71–73. The NFDA also asked that
the Rule be modified to only require providers that
offer embalming to use the embalming mandatory
disclosure. Id.
156 Id.
157 Id. at 71.
158 Id. The NFDA proposed that the Rule be
amended to state that ‘‘except as may be noted
below, embalming may not be required by law’’ and
that ‘‘The phrase ‘except as may be noted below’
shall not be included in this disclosure if state or
local law in the area(s) where the provider does
business does not require embalming under any
circumstances. If state law does require embalming
in some circumstances, the funeral provider may
explain the state law requirements for embalming
following this disclosure. This disclosure only has
to be placed on the general price list if the funeral
provider offers embalming.’’ Id.
159 47 FR 42260, 42275 (1982) (finding that ‘‘most
funeral directors d[id] not disclose that embalming
is optional’’ to consumers, and ‘‘a significant
number of funeral providers have affirmatively
misrepresented state laws regarding embalming’’).
154 Id.
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modifying the language of the
embalming disclosure to require the
funeral provider to state the relevant
requirements in its jurisdiction. Thus, if
the provider operates in a state that
never requires embalming by law, the
provider must state: ‘‘Embalming is not
required by law in__(name of state)__.’’
If the provider operates in a state that
requires embalming by law under
certain circumstances, the provider
must state those circumstances:
‘‘Embalming is required in __(name of
state)__when__(list the state’s legal
requirement).’’ If the provider operates
in multiple states with different
requirements for embalming, the
provider would list the requirements for
each state in which the provider
operates. If the provider has its own
policy of requiring embalming for
visitations, it could then state that on
the GPL as long as it is clear it is the
establishment’s policy.
F. Price List Readability
The Commission elicited comments
about issues with the format and
readability of the itemized price lists.
The Rule currently requires the GPL to
list the itemized prices for 16 specific
goods and services, if offered,160 as well
as several mandatory disclosures and
placement requirements for those
disclosures.161 Other than those
requirements, the Rule currently does
not mandate a specific format for the
GPL.
1. Summary of Comments
Several commenters urged the
Commission to modify the Rule’s
provisions regarding price lists.162 Many
argued the price lists are confusing to
read,163 often ‘‘lack important
information on some fees,’’ 164 and
sometimes contain inconsistent
description of fees, such as the
inclusion or exclusion of death
certificate fees, which makes it hard for
consumers to compare prices.165 For
160 16
CFR 453.2(b)(4).
e.g., 16 CFR 453.3(b)(2).
162 AG RR at 4; FCA VABR RR at 1; CFA RR at
11; FCA RR at 14; FCA WMA RR at 1; CA RR at
2; FCA SC RR at 1; FCA CT RR at 1; CR RR at 3–
4; TINA RR at 4; M. Turner, Full Cycle of Living
and Dying RR at 1; House Committee RR at 2;
Borderland RR at 2; M. Bern-Klug RR at 2–3; M.
Klein RR at 5–6; NYSFDA RR at 4.
163 CC RR at 4; see also K. Griffith RR at 1.
164 CC RR at 4; see also AG RR at 4 (noting that
a survey of GPLs conducted by the DC Attorney
General found that some funeral providers do not
list a separate charge for viewings or visitations).
165 AG RR at 4; House Committee RR at 2; see also
CC RR at 4 (‘‘Another common problem is that our
researchers must compare a la carte pricing listed
on GPLs with packages sold by many funeral
homes. It’s usually quite complicated to determine
whether our hypothetical family would be ‘better
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example, one commenter stated one
GPL he reviewed contained four pages
of direct cremation options, and ‘‘you
practically need a Ph.D. to parse out the
differences and see what meets your
specific needs.’’ 166 Similarly, the DC
Attorney General conducted a survey
that found many inconsistencies in how
DC funeral providers disclosed prices
on their GPLs, including inconsistencies
in how visitation and viewings prices
and death certificate fees were
disclosed.167
Commenters also pointed out some
funeral providers structure the GPL to
make it harder for consumers to notice
the mandatory disclosures, such as by
putting them after information about
packaged funerals,168 listing ‘‘itemized
goods and services only after 5–10 pages
of packages in . . . a clear attempt to
distract the consumer,’’ and using ‘‘8point type or similar font’’ for the
mandatory disclosures, ‘‘knowing that it
will be overshadowed by the large type
and attractive lay-out with which they
offer packages.’’ 169
Several Attorney General offices
encouraged the Commission to adopt a
standardized GPL format through
consultation with funeral homes,
consumers, consumer advocates, and
government agency representatives.
They stated a standardized format will
inhibit funeral homes from imposing
illegal charges or otherwise violating the
Funeral Rule,170 and benefit businesses,
by providing certainty and lowering
compliance risks.171 Other commenters
agreed and argued a standardized
itemized price list, if done ‘‘with the
off’ buying a package.’’); FCA EMA RR at 1 (‘‘As
things stand now, price and service lists vary
considerably in how what is available is arranged
and described. This makes comparisons among
funeral homes difficult at best, even when
consumers shop and plan in advance of need
. . . ’’).
166 M. Klein RR at 5–6.
167 AG RR at 4.
168 TINA RR at 4; FCA RR at 14.
169 FCA RR at 14; see also R. Zeldin RR at 4 (‘‘SCI
DBA Dignity Memorial provides overbearing price
lists designed to overwhelm and confuse the
consumer and burying the itemized list at the end.
These price lists are known to be over 50 pages long
so as to include each and every possible package
deal they could come up with!’’).
170 AG RR at 4; FCA RR at 14; see also TINA RR
at 4.
171 House Committee RR at 2; L. Northcutt RR at
3 (‘‘If funeral homes decide to post their disclosures
online, it would be helpful to consumers if that
information was provided in a standardized format.
This requirement will impose limited burdens on
businesses who are choosing to move this
information online and greatly assist consumers
who want to be able to compare services online
from their homes.’’); AG RR at 4 (‘‘A standard form
could lay out the specific disclosures, making it
easier for funeral homes to assess whether their lists
satisfy regulatory requirements. Standardization
would therefore streamline both compliance and
enforcement.’’).
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appropriate level of clarity. . . ., [will]
significantly facilitate funeral home
compliance,’’ 172 minimize consumer
confusion,173 make it easier for
consumers to compare prices between
funeral homes.174
Commenters expressed diverse views
about what a standardized disclosure
should look like. Ideas ranged from
consulting with advocates, plain
language experts, and government
agency representatives to draft a
standard disclosure,175 creating a
standard, machine-readable document,
which would ‘‘make the information
more easily available through the use of
accessibility devices,’’ 176 and
mandating that ‘‘the list should begin
with clear and prominent introductory
statements.’’ 177 Others commented the
GPL should be ‘‘organized in a
consumer-friendly way’’ 178 or with a
‘‘plain English explanation of its
contents,’’ 179 that the mandatory
disclosures should appear on the GPL
before other goods, services, or
packages,180 the Rule should mandate
that the GPL not contain any
172 NFDA
RR at 4.
e.g., L. Bramble RR at 1 (‘‘Mortgage
lenders are required to use a standardized HUD1
statement to make fees easier to understand and
compare; standardized terms and forms make it
easy for a person who is already overwhelmed to
make a knowledgeable and confident decision.’’).
174 AG RR at 4; House Committee RR at 2; FCA
SC RR at 1.
175 AG RR at 4–5; see also C. Tregillus RR at 13
(suggesting copy testing of key disclosures). The
AGs also encouraged the Commission to include
unconventional burial services in the GPL and
noted that ‘‘[p]eriodic revisions will be necessary.’’
AG RR at 4–5.
176 House Committee RR at 2.
177 CR RR at 3 (the GPL should begin with the
following statements: ‘‘• that the consumer has the
right to choose among options and to choose
individual products and services separately, • that,
unless specified otherwise, no product or service is
required by law, and • that any product or service
that is required by law will be accompanied with
a specific reference to the statute or ordinance that
requires it, and a clear and specific description of
the circumstances under which it is required’’)
(emphasis in original).
178 Id. at 3. Other ideas included (1) requiring the
right-of selection disclosure to be prominently
displayed and the ‘‘itemized price lists to be listed
in at least as conspicuous a manner as the package
deal,’’ see TINA RR at 4; (2) the use of standard
definitions of services to enable cost comparisons,
see FCA EMA RR at 1; M. Bern-Klug RR at 2–3; C.
McTighe RR at 1; (3) ‘‘the addition of a disclaimer
as to what are extraneous services and which
services legally require the participation of a funeral
home,’’ see FCAP RR at 1; and (4) that the GPL be
amended to include whether the facility offers body
donation or eye/cornea donation, or green burial,
see Eye Bank Ass’n of Am. RR at 1; M. Bern-Klug
RR at 4.
179 See, e.g., D. O’Brien RR at 1.
180 CFA RR at 11; FCA VABR RR at 2–3 (noting
that ‘‘regulations of the state of Virginia include a
recommendation of a sample GPL in which the
Basic services fee listing is first, after the required
disclosure statement’’).
173 See,
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information not expressly required or
permitted by the Rule,181 and the
Commission should create a fill-in-the
blank GPL, if feasible, that summarizes
all unbundled services and their prices
and lists the Rule’s mandatory
disclosures.182 One commenter also
recommended ‘‘the inclusion of a ‘safe
harbor’ provision for funeral homes’’ to
incentivize funeral home compliance.183
Three commenters argued against a
standardized GPL.184 The NFDA argued
‘‘a standardized price list is not needed
[] to foster comparison shopping or to
increase consumer comprehension’’ as
‘‘the only empirical evidence submitted
on consumer understanding of price
lists shows a very high comprehension
level.’’ 185 It further argued that it would
be ‘‘impossible to design a standardized
price list without limiting funeral
options and innovation’’—given the
many different types of funeral homes
in the country.186 Alternative funeral
provider Recompose argued ‘‘the goods
and services offered in connection with
all forms of disposition are not uniform
such that [a standardized price list]
would be practical, particularly when it
comes to natural organic reduction.’’ 187
The New Jersey State Funeral Directors
Association argued a standardized GPL
is ‘‘an overly prescriptive approach’’
that leaves little room ‘‘for adaption to
individual funeral practices and everchanging consumer changes, preference
and trends.’’ 188 It also argued a
standardized GPL would create an
undue hardship to funeral homes,
because the ‘‘minimum out of pocket
compliance cost for this change alone
could cost NJ funeral providers up to
$364,000, not including labor, delivery
and overhead.’’ 189
2. Objectives and Alternatives
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The Commission is interested in
obtaining additional comment on how
181 C. Tregillus RR at 3–4 (‘‘Such a prohibition
would be essential for a standardized format price
list that could facilitate comparison shopping for
consumers, academic research and online thirdparty pricing guides that could consequently be
kept up-to-date and accurate.’’).
182 Id. at 9.
183 NYSFDA RR at 4.
184 Recompose RR at 1–2; NJSFDA RR at 4–5;
NFDA RR at 56–58.
185 NFDA RR at 57 (citing an AARP
commissioned Gallup poll in anticipation of the
first review of the Funeral Rule which ‘‘reported
that 92% of funeral consumers surveyed
‘understood all of the terms on the price list used
to describe the funeral service’ ’’).
186 Id.
187 Recompose RR at 1–2.
188 NJSFDA RR at 4.
189 Id. (suggesting instead that ‘‘standardization
should be pursued at the state level as most price
comparisons are conducted between providers
located in the same state’’).
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the itemized price lists could be
improved to maximize consumers’
access to accurate itemized price
information in ways that minimize the
burden on funeral providers,
particularly small providers.190 One
alternative under consideration would
require all information that must be
included on the GPL—such as the
required prices for 16 products and
services (if offered) and all mandatory
disclosures — to appear before any nonrequired information, such as details
about packages or bundles, caterings, or
cemeteries. Under another approach, the
Rule would specify ways to make sure
the mandatory disclosures are clear
including requirements that they be in
the same font, color, and size as the rest
of the content in the price lists. One
other option under consideration would
require any price list posted online or
conveyed electronically be in machinereadable format so third parties could
collect and aggregate this information.
Finally, even if the Commission
declines to mandate a standardized
form, it could issue new templates for
the itemized price lists based on the
input received on how to improve
readability and consumer
comprehension, as an optional tool for
businesses to help them comply with
the Rule.
G. Impact on People in Underserved
Communities
The Commission is interested in
receiving comment on the Rule’s effect
on the purchase of funeral goods and
services in historically underserved
communities.191 For example, do any of
the Rule’s provisions create hardships
or benefits for consumers in low-income
communities, those with limited or no
English proficiency or from recent
immigrant communities, or those living
in communities of color? In another
example, several programs exist that can
help families of veterans and lowincome consumers cover funeral
expenses. The Commission is interested
in knowing whether there are any
particular issues or concerns related to
the disclosure of price information
when consumers make arrangements
190 The Commission believes that the broad
variety of products and services offered by funeral
homes across the nation likely makes a fully
standardized price list unfeasible.
191 Historically underserved communities include
Black Americans, Latinos, Indigenous/Native
American persons, Asian Americans/Pacific
Islanders or other persons of color, members of
religious minorities, lesbian, gay, bisexual,
transgender, and/or queer persons, persons with
disabilities, persons who live in rural areas, and
persons adversely affected by persistent poverty or
inequality.
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using such benefits to cover some or all
funeral costs.
H. Other Issues
The Rule Review elicited comments
on a variety of other topics and concerns
related to funeral goods and services.
The Commission appreciates these
comments and has carefully considered
them, but is not inclined to consider
proposals beyond those laid out in the
prior sections. Nevertheless, the
Commission will briefly respond to
three additional topics discussed in the
Rule Review comments.
1. Cemeteries
Many commenters, including
consumer advocates, industry groups,
and consumers, asked the FTC to
expand the Rule to cover cemeteries.192
These commenters argued the factors
that disadvantage consumers when
dealing with funeral providers are also
present during consumers’ interactions
with cemeteries,193 and some cemetery
operators are not transparent about their
fees,194 refuse to disclose prices on
paper to consumers or researchers,195
misrepresent legal and sales
requirements,196 and only offer bundled
services.197 Some commenters said
192 NFDA RR at 76–77; LRCPA RR at 1; FCA
VABR RR at 1; FCA GKC RR at 1; FCA WMA RR
at 2; FCA GR RR at 1–2; FCA ME RR at 1; FCA SC
RR at 1; PMA RR at 1; FCA CTX RR at 1; CR RR
at 4; FCA AZ RR at 4; FCA MN RR at 1; DC RR
at 1; House Committee RR at 2; Charter Funerals RR
at 1; UUFV RR at 2; Borderland RR at 2; SIFH RR
at 11 n. 15; C. Reid RR at 4–7; M. Klein RR at 10;
IN FDA RR at 3 (87% of its 144 licensed
respondents ‘‘believed that including cemeteries in
The Rule application was a logical progression in
The Rule evolution’’). See also FCA RR at 16–20
(asking the Commission to conduct an investigation
into whether cemeteries should be regulated); J.
Blackman RR at 13–14 (same). The New York
Funeral Directors Association asked that the Rule’s
applicability be extended to all sellers of funeral
goods or services, including cemeteries. NYSFDA
RR at 2.
193 FCA RR at 18–20.
194 FCA ME RR at 1 (Prices are not available
online for cemeteries); UUFV RR at 2 (same). Other
complaints included difficulties transferring
cemetery rights to other buyers, see Funeral
Consumer Alliance of Houston RR at 1, and
complaints concerning burying family members in
the same mausoleum. See FCA GR RR at 2 (noting
that ‘‘to tell a family member who just interred one
parent in a mausoleum, the other parent would not
be able to be placed in the same vault days after
the internment is unconscionable and heartless’’).
195 FCA RR at 18.
196 Id. at 19; NFDA RR at 76–77 (1999 NFDA
Membership survey found that ‘‘over 30% of the
cemeteries imposed a fee whenever a consumer had
chosen to purchase goods or services from a thirdparty’’).
197 NFDA RR at 76–77 (1999 NFDA comments
reported results of NFDA survey, composed of
3,436 response, found that ‘‘49.6% of the funeral
homes reported that cemeteries in their areas
required consumers to purchase goods and services
only from the cemetery’’); FCA RR at 18–20; E.
Livshits RR at 1.
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consumers are disadvantaged in their
negotiations with cemeteries, ‘‘because
deceased family members are already
buried there,’’ which adds additional
emotional hurdles.198 Further, more
than half of all funerals involve
cemeteries,199 and cemetery services are
expensive.200 Amending the rule would
allow consumers to compare prices
‘‘across the entire funeral service
landscape,’’ 201 protect consumers from
deception and manipulation,202 and
provide ‘‘a needed and long overdue
level of fairness and marketplace equity
to funeral firms, which are subject to the
Rule’s provisions all while these other
sellers are not.’’ 203 Some of these
commenters recognized the FTC may
have jurisdictional challenges regulating
not-for-profit cemeteries, but they
argued Commission action would still
be beneficial.204
Two commenters, the International
Cemetery, Crematory, and Funeral
Association (‘‘ICCFA’’), and Carriage
Services, Inc. (‘‘Carriage’’), opposed
regulating cemeteries under the Rule.205
They pointed out a large number of
cemeteries are non-profits, which fall
outside the scope of the Commission’s
jurisdiction,206 and nothing has changed
198 FCA
RR at 17.
(‘‘Though cremation recently passed the 50
percent mark, about 49 percent of households
experiencing a death have to do business with a
cemetery each year.’’) (emphasis in original).
200 Id. (‘‘Cemetery fees commonly add $2,000 to
$3,000 to the final bill for the death of a loved
one.’’).
201 NYSFDA RR at 2–3.
202 PMA RR at 1–2.
203 NYSFDA RR at 1; see also SIFH RR at 11 n.
15. One commenter also noted that ‘‘[m]aking
things more complicated is the existence of
businesses that constitute a corporate-owned megaportfolio of around 1,500 funeral homes and several
hundred cemeteries. This means that funeral homes
may have arrangements with certain cemeteries that
enable businesses to include costs related to the
cemetery as a package, enabling funeral businesses
to still overcharge consumers by solely disclosing
prices related to funeral homes while
surreptitiously increasing cemetery-related costs.
Moreover, with more and more families opting for
cremation, cemeteries will have greater incentives
to make up for losses by overpricing services and
goods related to their services.’’ H. Lee RR at 4.
204 One said that ‘‘[a] robust rule in this regard for
all cemeteries within its jurisdiction will aid the
entire cemetery industry, non-profit, as well as forprofit, to undertake ‘best practices’.’’ UUFV RR at
2; see also C. Tregillus RR at 14–15 (encouraged the
Commission to hold a workshop to ‘‘explore the
possibility of developing voluntary industry-wide
price list disclosure standards.’’)
205 ICCFA RR at 26–29; Carriage RR at 3–4.
206 ICCFA RR at 27–28 (pointing out that there are
over 9,000 reported 501(c)(3) cemeteries, as well as
additional exempt religious or charitable cemeteries
and that ‘‘some states still prohibit for-profit
cemeteries, including Connecticut, Massachusetts,
Maine, New Jersey and New York’’ (citing Conn.
Gen. Stat. § 19a-296 (1959); Mass. Ann. Laws ch.
114, § 1A (2008); Me. Rev. Stat. Tit. 13, § 1303
(1937); New Jersey Cemetery Act, 2002, 2002 Bill
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in the cemetery industry since the
Commission decided in 2008 to not
regulate cemeteries under the Rule.207
ICCFA argued the data shows relatively
few consumer complaints about
cemetery issues,208 and ‘‘more and more
states have developed their own internal
process to report, review and also
resolve cemetery issues.’’ 209 Carriage
also argued because cemeteries and
funeral homes operate differently, it is
not practical or necessary to expand the
Rule to cemeteries.210
In the 2008 Regulatory Review, the
Commission declined to embark on a
proceeding to expand the Rule to cover
cemeteries because ‘‘the substantial
portion of cemeteries that are not-forprofit entities [are] outside the
jurisdiction of the FTC Act, and there is
insufficient evidence that commercial
cemeteries, crematories, and third-party
sellers of funeral goods are engaged in
widespread unfair or deceptive acts or
practices.’’ 211
The Commission’s position on this
issue remains the same. No evidence of
changed circumstances has been
submitted that would warrant a fresh
look at this issue. The Commission
encourages companies or individuals
with knowledge of unfair or deceptive
practices by cemeteries to submit a
complaint with the Commission at
reportfraud.ftc.gov.
2. The State Exemption
Some commenters urged the
Commission to ‘‘re-open’’ the state
exemption provision contained in Rule
Section 453.9.212 Rule Section 453.9
allows a state agency to apply to the
FTC for a state exemption from the
Funeral Rule.213 If the Commission
determines (1) ‘‘there is a state
requirement in effect which applies to
any transaction to which this rule
applies; and (2) that state requirement
affords an overall level of protection to
consumers which is as great as, or
greater than, the protection afforded by
this rule; then the Commission’s rule
will not be in effect in that state to the
extent specified by the Commission in
its determination, for as long as the
Text NJ A.B. 3048 (2002); N.Y. Not-for-Profit Corp.
Law § 1501 (1977)); Carriage RR at 4.
207 ICCFA at 26.
208 Id. (noting that the ‘‘FTC Sentinel Report
identified only 1,105 complaints in funeral service
out of 3,200,000’’ and that ICCFA’s Cemetery
Consumer Service Council only received 104
complaints in 2009, which led to the disbandment
of the Council).
209 Id.; see also Carriage RR at 3–4.
210 Carriage RR at 4.
211 73 FR 13740, 13742–45 (Mar. 14, 2008).
212 NFDA RR at 41–42; ICCFA RR at 12–18; IFDA
RR at 4; State FDAs RR at 1.
213 16 CFR 453.9.
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State administers and enforces
effectively the state requirement.’’ 214
The Commission does not believe any
amendments to Rule Section 453.9 are
necessary. States have had and continue
to have an option to apply for an
exemption to Section 453.9, if they are
interested in doing so, and the
Commission will evaluate all such
applications.
3. The Funeral Rule Offender Program
Several commenters asked the FTC to
either publish the names of all the
funeral homes participating in the
Funeral Rule Offender Program
(FROP) 215 or drop the program
entirely.216 The ‘‘FROP allows funeral
homes that have been found to be in
violation of the Funeral Rule to attend
educational courses offered by the
NFDA instead of being subject to
regulatory action.’’ 217 Critics of the
FROP stated it ‘‘is unbalanced and
unfair because it has little or no
transparency for consumer complaints’’
and ‘‘consumers cannot really see who
did what, and see the consequence.’’ 218
They also claim no evidence shows the
FROP has improved compliance.219 ‘‘In
comparison, if the FTC published the
names of violators, that would
significantly increase the cost of a
violation and likely persuade a much
higher percentage of funeral homes to
give compliance a much higher
priority.’’ 220
Others supported keeping the
FROP.221 These commenters said the
FTC should have ‘‘an interest in
encouraging voluntary compliance by
offering compliance training to first
offenders whose Rule violations may
have resulted from inadequate training
or inattention.’’ 222 They argued most
participants in the FROP program ‘‘did
not intentionally violate the Funeral
Rule. In nearly every case, it was simply
a case of employee carelessness or
confusion.’’ 223 And, commenters
214 Id.
215 CFA RR at 11–12; FCA WMA RR at 2; Funeral
Consumers Alliance of North Texas (‘‘FCA NTX’’)—
J. Bates RR at 1; FCA RR at 14–16; CR RR at 4; TINA
RR at 4.
216 FCA RR at 14–16.
217 Id. at 14.
218 FCA NTX—J. Bates RR at 1.
219 Id.
220 CFA RR at 11–12. Some commenters noted
that the fees paid to the FROP could provide a
revenue stream that could be used for enforcement.
FCA RR at 15. However, any civil penalty funds
collected from FTC actions do not go into the FTC’s
budget. Such funds go to the U.S. Treasury.
221 C. Tregillus RR at 14; ICCFA RR at 24–25;
NFDA RR at 74–75.
222 C. Tregillus RR at 14; see also NFDA RR at 74–
75 (‘‘the point of the Program was education, not
punishment’’).
223 NFDA RR at 74–75.
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contend, the program works: ‘‘Currently,
there are 42 funeral homes in the FROP
Program. . . . Of the several hundreds
of funeral homes that have graduated
from the Program over its 25 year
history, NFDA has a record of only three
of them subsequently being cited by the
FTC for additional Funeral Rule
violations.’’ 224 Further, ‘‘[t]he program
is a valuable resource for funeral
providers, because without it, many
smaller funeral providers could be put
out of business with just one
violation.’’ 225
The Commission agreed to establish
the FROP in 1996. The program has
served the purpose of bringing into
compliance with the Rule, through a
compliance review and training, those
funeral providers found in violation of
the price disclosure provisions. Funeral
providers in the program, many of
whom are small businesses, make a
voluntary payment to the U.S.
Treasury 226 and pay a fee to the NFDA
that manages the program. These
amounts are typically less than the
maximum Civil Penalty amounts
(currently up to $46,517 per violation)
set by statute for violations of the
Funeral Rule.227 At the same time, the
FROP allows the Commission to focus
its limited resources on a broad test
shopping program that has checked the
compliance of thousands of providers
through the years, and on business and
consumer outreach and education
efforts.
The Commission would like to thank
all the commenters for their thoughtful
feedback about the FROP. While the
program is not codified in the Rule and
therefore not officially a part of any
proposed rulemaking, this feedback will
help the Commission weigh the pros
and cons of continuing the program, or
potentially modifying it, as it re-assesses
its enforcement program.
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IV. Issues for Comment
The Commission invites members of
the public to comment on any issues or
concerns they believe are relevant to
this ANPR. Commenters need not resubmit any comments submitted in
response to the regulatory review issued
February 14, 2020, as those comments
are already part of the public record, but
may submit additional comment, data,
224 Id.
225 ICCRFA
RR at 24–25.
a condition of entering FROP, the funeral
provider must make a voluntary payment to the
U.S. Treasury or a State Treasury in an amount
equal to 0.8% of the funeral provider’s average
gross annual sales revenue for the proceeding three
years.
227 Federal courts have broad discretion in setting
this penalty amount.
226 As
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and information to provide input on the
questions posed in this notice and
solicitation. The public is welcome to
provide comment related to any
concerns they see in the marketplace
and ideas for improving the Rule. At
this time, however, the Commission is
not inclined to consider issues beyond
those it has requested comment on in
the previous sections.228
In addition to the issues raised above,
the Commission solicits comments on
the following specific questions. For all
questions, the Commission requests
supporting data, information, and
argument. It is particularly interested in
evidence that quantifies the benefits and
costs to consumers and businesses,
including small businesses.
Online and Electronic Price Disclosure
1. Should the Rule be changed to
require (a) all funeral providers (b)
funeral providers that maintain websites
or (c) funeral providers who sell funeral
products or services online, to
prominently display their GPLs, or a
clearly labeled link to their GPLs, on
their websites? If so, how should such
a change be implemented to maximize
the benefits to consumers and minimize
the costs to businesses? Should the Rule
specify how the GPL or the link to the
GPL should be prominently displayed
on the website? Why or why not, and,
if so, how? Explain how your proposal
would benefit consumers and minimize
the costs to businesses, and provide all
evidence that supports your answer,
including any evidence that quantifies
the benefits to consumers, and the costs
to businesses, including small
businesses.
2. Should the Rule require (a) all
funeral providers, (b) funeral providers
that maintain a website, or (c) any
funeral provider who shows pictures
and/or descriptions of caskets,
alternative containers, or outer burial
containers on their website, to
prominently display their CPLs and/or
OBCPLs, or a clearly-labeled link to
these documents, on their websites? If
so, how should such a change be
implemented to maximize the benefits
to consumers and minimize the costs to
businesses? Provide all evidence that
supports your answer, including any
evidence that quantifies the benefits to
consumers, and the costs to businesses,
including small businesses.
3. In the alternative or in addition to
the proposed requirements in Questions
1 & 2, should the Rule require all
228 The Commission also encourages anyone with
knowledge of unfair or deceptive practices by a
particular company, to file a report at
reportfraud.ftc.gov.
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funeral providers that maintain a
website to display a prominent
statement on their website that the
providers’ GPLs, CPLs, and OBCPLs can
be requested and to include a link,
button, email address, or other
electronic mechanism for people to use
to request the GPL, CPL, and/or OBCPL?
If so, should the providers be required
to respond to such requests within any
particular time? Why or why not?
Provide all evidence that supports your
answer, including any evidence that
quantifies the benefits to consumers,
and the costs to businesses, including
small businesses.
4. Would a requirement that funeral
providers send their GPLs, CPLs and/or
OBCPLs to consumers via electronic
means and format present any
challenges or costs for compliance or
present any benefits to consumers? If so,
how could such challenges or costs be
minimized while still providing benefits
to consumers? Provide all evidence that
supports your answer, including any
evidence that quantifies the benefits to
consumers, and the costs to businesses,
including small businesses.
5. In addition to the proposed
requirements in Questions 1 & 2, should
a funeral provider that maintains a
presence on social media be required to
post the provider’s GPL and/or clearlylabeled links to the provider’s CPL and
OBCPL on its social media account?
Why or why not? If not, should a funeral
provider be required to link its social
media account to its main website if it
has one, or, provide an email address or
other online mechanism that will allow
visitors to request the provider’s GPL,
CPL, or OBCPL, and a statement that
consumers can request the price lists,
and should the funeral provider be
required to respond to such requests
within any particular time? Provide all
evidence that supports your answer,
including any evidence that quantifies
the benefits to consumers, and the costs
to businesses, including small
businesses.
6. In addition to the proposed
requirements in Questions 1, 2, & 5,
should the Rule contain other
provisions that will embrace new
platforms and technologies as they
develop so that both providers and
consumers can benefit from new
distribution methods without requiring
a Rule change? If so, how and what
types of provisions would be most
appropriate? Provide all evidence that
supports your answer, including any
evidence that quantifies the benefits to
consumers, and the costs to businesses,
including small businesses.
7. Should the Rule mandate that
funeral providers be required to post a
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GPL, CPL, or OBCPL, or a clearlylabeled link to these documents, on any
electronic, online, or virtual method or
platform that it uses to post or otherwise
make available information about its
products or services, sell products or
services, or communicate with
customers or potential customers on a
non-individual basis? If so, why, and
how should the Rule define or
otherwise explain when GPL, CPL, or
OBCPL, or a clearly-labeled link to these
documents, must be posted? Also, how
should such a change be implemented
to maximize the benefits to consumers
and minimize the costs to businesses?
Provide all evidence that supports your
answer, including any evidence that
quantifies the benefits to consumers,
and the costs to businesses, including
small businesses.
8. Would requiring a funeral provider
to provide the price lists online (which
could be defined to include a social
media account or other electronic,
online, or virtual method or platform)
impose any challenges or costs for
businesses, including small businesses,
or provide any benefits to consumers? If
so, how could such challenges or costs
be minimized while still benefiting
consumers? Provide all evidence that
supports your answer, including any
evidence that quantifies the benefits to
consumers, and the costs to businesses,
including small businesses.
9. In the alternative or in addition to
the proposed requirements in Questions
1, 2, 5, & 6, should the Rule require all
funeral providers (with or without
websites) to offer to send their GPLs,
CPLs, or OBCPLs electronically to a
person who asks about the providers’
goods or services, or asks for a copy of
any of the price lists? This would
include requests by telephone, text,
email, weblink, social media, fax, U.S.
Mail, or other new communication
methods that may emerge in the future.
If so, should providers be required to
send the information within a certain
timeframe unless the person declines
the offer, or does not provide an email
address or other method for receiving
the electronic information? In addition,
should such a requirement contain an
exception for funeral providers who
posts their GPL, CPL, and OBCPL
clearly and conspicuously on its
websites? Why or why not? Provide all
evidence that supports your answer,
including any evidence that quantifies
the benefits to consumers, and the costs
to businesses, including small
businesses.
10. In the alternative or in addition to
the proposed requirements in Questions
1, 2, 5, & 6, should the Rule require all
funeral providers to electronically
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distribute their GPLs at the start of any
arrangements discussion that is not inperson, unless a hard copy has already
been provided? Why or why not?
Provide all evidence that supports your
answer, including any evidence that
quantifies the benefits to consumers,
and the costs to businesses, including
small businesses.
11. In the alternative or in addition to
the proposed requirement in Question
10, should the Rule require that, if the
consumer is making selections for a
funeral arrangement online, then the
provider would need to offer a
prominent link to the GPL before
allowing the consumer to proceed with
selections? Why or why not? Provide all
evidence that supports your answer,
including any evidence that quantifies
the benefits to consumers, and the costs
to businesses, including small
businesses.
12. In the alternative or in addition to
the proposed requirements in Questions
1, 2, 5, 6, 10, & 11, should distribution
of electronic copies of the CPLs and
OBCPLs also be required if discussing or
showing those items in an arrangements
discussion that is not in-person, or if the
consumer is making selections
concerning those items while shopping
online? Provide all evidence that
supports your answer, including any
evidence that quantifies the benefits to
consumers, and the costs to businesses,
including small businesses.
13. With respect to the proposed
requirements in Questions 1, 2, 5, & 6,
should the Rule mandate how quickly
funeral providers should be required to
update the GPLs, CPLs, and OBCPLs
posted on their websites, social media
sites, or on other electronic sites? In
support of your position, identify all
costs that funeral providers incur each
time they update the GPL, CPL, or
OBCPL on their website. Provide all
evidence that supports your answer,
including any evidence that quantifies
the benefits to consumers, and the costs
to businesses, including small
businesses.
14. Should funeral providers be
required to send an electronic copy of
the Itemized Statement of Funeral
Services to people who do not meet
with a funeral provider in person, such
as persons making arrangements over
the telephone, email, or online, before
agreeing to services? Why or why not?
Provide all evidence that supports your
answer, including any evidence that
quantifies the benefits to consumers,
and the costs to businesses, including
small businesses.
15. Should any funeral providers be
exempted from any of the proposed
requirements described in Questions 1,
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2, 5, & 6? Why or why not? If so, who
are they, how many funeral providers
would qualify for this exemption, and
how would the exemption impact
consumers? Provide all evidence that
supports your answer, including any
evidence that quantifies the benefits to
consumers, and the costs to businesses,
including small businesses.
Crematory Fees and Additional Costs
16. Should all funeral providers be
required to list third-party crematory
fees in the description and price for
direct cremation on the GPL? Why or
why not? Provide all evidence that
supports your answer, including any
evidence that quantifies the benefits and
burdens to consumers, including how
adding this requirement might impact
the consumer experience, and the costs
and benefits to businesses, including
small businesses.
17. Alternatively, should funeral
providers that do not include the cost of
third-party crematory fees in the price
for direct cremation on the GPL be
required to include a statement on the
GPL in close proximity to the price for
direct cremation that purchasers will be
required to pay an additional third-party
crematory fee and include a typical
price range for the third-party crematory
fee? Why or why not? Provide all
evidence that supports your answer,
including any evidence that quantifies
the benefits and burdens to consumers,
including how adding this requirement
might impact the consumer experience,
and the costs and benefits to businesses,
including small businesses.
18. Should all funeral providers be
required to list additional items related
to direct cremation or immediate burial
not included in the price for direct
cremation or immediate burial on the
GPL? Why or why not? If so, which fees
should be required to be disclosed?
Provide all evidence that supports your
answer, including any evidence that
quantifies the benefits and burdens to
consumers, including how adding this
requirement might impact the consumer
experience, and the benefits and costs to
businesses, including small businesses.
19. In addition to the proposed
requirements in Question 18, should
funeral providers be required to include
such items in close proximity to the
price for direct cremation or immediate
burial? Why or why not? Provide all
evidence that supports your answer,
including any evidence that quantifies
the benefits and burdens to consumers,
including how adding this requirement
might impact the consumer experience,
and the costs to businesses, including
small businesses.
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20. In the alternative to the proposed
requirements in Question 18 & 19,
should all funeral providers be required
to list on the GPL in close proximity to
the cost for direct cremation and
immediate burial a statement listing
additional fees that the funeral home
knows consumers may incur when they
select a direct cremation or immediate
burial and the typical price range of
such fees, if such fees are not included
in the price for direct cremation or
immediate burial? Why or why not?
Provide all evidence that supports your
answer, including any evidence that
quantifies the benefits and burdens to
consumers, including how adding this
requirement might impact the consumer
experience, and the benefits and costs to
businesses, including small businesses.
21. In the alternative to proposed
requirements in Questions 18, 19 & 20,
should funeral providers be required to
include a statement in close proximity
to the price for direct cremation or
direct burial on the GPL that says that
additional fees may apply? Why or why
not? Provide all evidence that supports
your answer, including any evidence
that quantifies the burdens and benefits
to consumers, including how adding
this requirement might impact the
consumer experience, and the benefits
and costs to businesses, including small
businesses.
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Reduced Basic Fee Services
22. Should the Rule be amended to
clarify when funeral providers may
charge a reduced basic services fee?
Should the definition of direct
cremation and immediate burial in the
Rule be amended to allow those
offerings to include limited viewings,
limited visitations, or another other
services? Why or why not? If so, what
limited viewing, limited visitations, or
other services should qualify for the
reduced basic services fee under this
definition? Provide all evidence that
supports your answer, including any
evidence that quantifies the benefits to
consumers, and the costs to businesses,
including small businesses.
Alternative Forms of Disposition
23. Should the Rule language be
amended to specifically address
alternative forms of disposition,
including alkaline hydrolysis and
natural organic reduction? Why or why
not? If so, how should the Rule address
these services? Provide all evidence that
supports your answer, including any
evidence that quantifies the benefits to
consumers, and the costs to businesses,
including small businesses.
24. Should the Rule be amended to
state that providers of alternative forms
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of disposition, such as alkaline
hydrolysis and natural organic
reduction, could offer direct or
immediate services with a reduced basic
services fee? Why or why not? Provide
all evidence that supports your answer,
including any evidence that quantifies
the benefits to consumers, and the costs
to businesses, including small
businesses.
25. Should the Rule be updated to
provide exceptions for the requirements
to provide alternative containers and
disclosures related to alternative
containers for funeral service providers
using new methods of disposition or
direct disposition that do not require a
container? Why or why not? If so, how
should the Rule be amended to allow
such exceptions? Provide all evidence
that supports your answer, including
any evidence that quantifies the benefits
to consumers, and the costs to
businesses, including small businesses.
26. Should additional disclosure
language relating to alternative forms of
dispositions be added to the Rule? If so,
what should the disclosure say? How
would the additional disclosure
language impact the overall consumer
experience or create any benefits or
costs to consumers and businesses,
including small businesses?
27. Are there provisions of the Rule
that are in tension with alternative
forms of disposition? If so, what are
those provisions, and how are they in
tension with alternative forms of
disposition? Provide all evidence that
supports your answer and explain
whether and how the tension between
the Rule and alternative forms of
disposition creates costs for consumers
and businesses, including small
businesses.
Embalming Disclosure
28. Should the embalming disclosure
contained in section 453.3(a)(2)(ii) of
the Rule be amended to ensure
consumers understand the specific
circumstances in which embalming may
be required under state law? If so, how
should the disclosure be updated?
Identify any surveys, studies, or other
evidence that supports your position.
29. Should the Rule be amended to
modify the disclosures about embalming
to require providers to state on the GPL
the correct law for the jurisdictions in
which it operates, as follows: If the
provider operates in a state that never
requires embalming by law, the provider
must state: ‘‘Embalming is not required
by law in (name of state).’’ If the
provider operates in a state that requires
embalming by law under certain
circumstances, the provider must state
those circumstances: ‘‘Embalming is
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66113
required in (name of state) when (list
the state’s legal requirement).’’ If the
provider operates in multiple states
with different requirements for
embalming, the provider would list the
requirements for each state in which the
provider operates. Why or why not?
Identify any surveys, studies, or other
evidence that supports your position.
30. Should a funeral provider be
required to disclose its policy regarding
embalming on the GPL in close
proximity to its description and price
for embalming services? In addition or
in the alternative, should a funeral
provider be required to inform
consumers that it does not possess
refrigeration facilities, which may limit
a consumer’s options to avoid
embalming under state law, or add fees
related to third-party refrigeration
facilities, in close proximity to its
description and price for embalming
services? Provide all evidence that
supports your answer, including any
evidence that quantifies the benefits and
burdens to consumers, including how
adding this requirement might impact
the consumer experience, and the
benefits and costs to businesses,
including small businesses.
31. Should funeral providers that do
not offer embalming services to any
customers, due to their religious
traditions or for other reasons, be
required to include an embalming
disclosure on the GPL? Why or why
not? Provide all evidence that supports
your answer, including any evidence
that quantifies the benefits to
consumers, and the costs to businesses,
including small businesses.
Price List Readability
32. Should the GPL, CPL, and/or
OBCPL requirements be changed to
improve readability for consumers? If
so, what changes could be made to the
format that would make the documents
easier for consumers to comprehend and
for businesses to know they have
complied with the Rule? Also, state
whether your proposed changes would
add additional disclosure requirements
to the Rule. If so, how would the
additional disclosure language impact
the overall consumer experience and
describe any benefits or costs associated
with these disclosures. Provide all
evidence that supports your answer,
including any evidence that quantifies
the benefits to consumers, and the costs
to businesses, including small
businesses, and all surveys, studies, or
other evidence that supports your
position.
33. Should the Rule provide more
specific requirements to ensure that the
mandatory disclosures are clear and
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conspicuous? If so, how and why?
Provide all evidence that supports your
answer, including any evidence that
quantifies the benefits to consumers,
and the costs to businesses, including
small businesses, and all surveys,
studies, or other evidence that supports
your position.
34. Should the Rule be changed to
require that the information required to
be included on the GPL, such as the
prices for the 16 products and services
(if offered) and the mandatory
disclosures, be placed before other
content (such as packages) on the GPL?
Why or why not? Provide all evidence
that supports your answer, including
any evidence that quantifies the benefits
to consumers, and the costs to
businesses, including small businesses.
35. Should the Rule be changed to
require that the mandatory disclosures
on the price lists be in the same font,
color, and size as the rest of the content
on the price lists? Why or why not?
Provide all evidence that supports your
answer, including any evidence that
quantifies the benefits to consumers,
and the costs to businesses, including
small businesses.
36. Should the Rule require that the
GPL, CPL, and OBCPL be in machinereadable format? Why or why not?
Provide all evidence that supports your
answer, including any evidence that
quantifies the benefits to consumers,
and the costs to businesses, including
small businesses.
Impact on People in Underserved
Communities
37. Are there any funeral provider
practices that disproportionately target
or affect certain groups, including
lower-income communities,
communities of color, or other
historically underserved communities?
If so, why and how? Provide all
evidence that supports your answer,
including any evidence that quantifies
the impacts upon affected consumers
and communities, and the impacts to
businesses, including small businesses
and businesses owned and operated by
members of historically underserved
communities.
38. Should any of the provisions of
the Funeral Rule be amended to avoid
disproportionately impacting or
affecting certain groups, including
people living in lower-income
communities, communities of color, or
other historically underserved
communities? If so, why and how?
Provide all evidence that supports your
answer, including any evidence that
quantifies the benefits to consumers,
and the costs to businesses, including
small businesses and businesses owned
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and operated by members of historically
underserved communities.
39. Are there any special issues or
concerns related to the disclosure of
price information when consumers use
benefits provided by programs to help
families of veterans and low-income
consumers cover funeral expenses?
Provide all evidence that supports your
answer, including any evidence that
quantifies the benefits to consumers,
and the costs to businesses, including
small businesses.
40. Are there circumstances in which
funeral providers should be required to
make price lists, disclosures, and
statements of services selected available
in languages other than English? For
instance, should funeral providers be
required to provide itemized price lists
in any language they use for advertising,
or in any language they use to make
funeral arrangements? What would be
the effect of such a requirement, and
what costs and benefits would it entail?
V. Instructions for Submitting
Comments
You can file a comment online or on
paper. For the Commission to consider
your comment, we must receive it on or
before January 3, 2023. Write ‘‘Funeral
Rule ANPR, Project No. P034410’’ on
your comment. Your comment,
including your name and your state,
will be placed on the public record of
this proceeding, including, to the extent
practicable, on the https://
www.regulations.gov website.
Because of public health protections
and the agency’s heightened security
screening, postal mail addressed to the
Commission will be subject to delay. We
strongly encourage you to submit your
comments online through the https://
www.regulations.gov website. To ensure
the Commission considers your online
comment, please follow the instructions
on the web-based form. If you file your
comment on paper, write ‘‘Funeral Rule
ANPR, Project No. P034410’’ on your
comment and on the envelope, and mail
your comment to the following address:
Federal Trade Commission, Office of the
Secretary, 600 Pennsylvania Avenue
NW, Suite CC–5610 (Annex B),
Washington, DC 20580.
Because your comment will be placed
on the publicly accessible website,
https://www.regulations.gov, you are
solely responsible for making sure that
your comment does not include any
sensitive or confidential information. In
particular, your comment should not
include any sensitive personal
information such as your or anyone’s
Social Security number, date of birth,
driver’s license number or other state
identification number or foreign country
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equivalent, passport number, financial
account number, or credit or debit card
number. You are also solely responsible
for making sure your comment does not
include any sensitive health
information, such as medical records or
other individually identifiable health
information. In addition, your comment
should not include any ‘‘[t]rade secret or
any commercial or financial information
which . . . is privileged or
confidential’’—as provided in section
6(f) of the FTC Act, 15 U.S.C. 46(f), and
FTC Rule § 4.10(a)(2), 16 CFR
4.10(a)(2)—including in particular
competitively sensitive information
such as costs, sales statistics,
inventories, formulas, patterns, devices,
manufacturing processes, or customer
names.
Comments containing material for
which confidential treatment is
requested must be filed in paper form,
must be clearly labeled ‘‘Confidential,’’
and must comply with FTC Rule
§ 4.9(c). In particular, the written
request for confidential treatment that
accompanies the comment must include
the factual and legal basis for the
request, and must identify the specific
portions of the comment to be withheld
from the public record. See FTC Rule
§ 4.9(c). Your comment will be kept
confidential only if the General Counsel
grants your request in accordance with
the law and the public interest. Once
your comment has been posted publicly
at www.regulations.gov—as legally
required by FTC Rule § 4.9(b)—we
cannot redact or remove your comment,
unless you submit a confidentiality
request that meets the requirements for
such treatment under FTC Rule § 4.9(c),
and the General Counsel grants that
request.
Visit the FTC website to read this
request for comment and the news
release describing it. The FTC Act and
other laws the Commission administers
permit the collection of public
comments to consider and use in this
proceeding as appropriate. The
Commission will consider all timely
and responsive public comments it
receives on or before January 3, 2023.
For information on the Commission’s
privacy policy, including routine uses
permitted by the Privacy Act, see
https://www.ftc.gov/site-information/
privacy-policy.
VI. Public Workshop
The Commission seeks the broadest
participation by the affected interests in
the rulemaking. To that end, the
Commission will host a public
workshop to hear from the public about
these issues and discuss possible
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amendments. Staff will announce more
details about the workshop soon.
By direction of the Commission.
April J. Tabor,
Secretary.
Note: the following statements will not
appear in the Code of Federal Regulations.
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Statement of Chair Lina M. Khan
People are at their most vulnerable
when they’re grieving. That was the
insight behind the FTC’s Funeral Rule,
which first took effect in 1984. The goal
was to prevent consumers from being
taken advantage of during moments of
deep grief and loss. Among other
provisions, the Rule requires funeral
homes to provide a clear list of prices
for goods and services offered. This
helps family members make informed
decisions and avoid paying for things
they don’t need.
One challenge is that the Funeral Rule
was crafted before the internet age, so it
only applies in person or over the
phone. Even though Americans today
typically begin their shopping online,
funeral providers are not required to list
prices on their websites. The staff report
that the Commission is voting on today
found that just under 25 percent of
funeral home websites provided a full
list of prices. Over sixty percent
provided little to no price information
whatsoever. Stories persist about
consumers spending hours trying to
answer the most basic questions about
how much it will cost to bury their
loved ones.1 In the internet era, it’s hard
to see why anyone should have to
physically visit or call multiple funeral
homes just to compare prices.
Today’s advance notice of proposed
rulemaking seeks comment on several
concrete ways to modernize the Funeral
Rule. This includes asking whether the
Rule should require funeral providers to
provide pricing information online or
via email, which could help consumers
make informed decisions during some
of the most difficult moments of their
lives. It could also better incentivize
funeral homes to offer the most
competitive prices. This would
ultimately lower the expensive burden
of putting a loved one to rest.2
1 Robert Benincasa, Despite Decades-Old Law,
Funeral Prices Are Still Unclear, NPR (Feb. 8, 2017),
https://www.npr.org/2017/02/08/504031472/
despite-decades-old-law-funeral-prices-are-stillunclear.
2 See, e.g., Joshua Slocum, Death with Dignity? A
Report on SCI/Dignity Memorial High Prices and
Refusal to Disclose These Prices, Funeral
Consumers Alliance & Consumer Fed’n of America
(Mar. 2017), https://funerals.org/wp-content/
uploads/2017/03/3-6-17-Funeral-SCI_Report.pdf;
Joshua Slocum & Stephen Brobeck, The
Relationship Between Funeral Price Disclosures and
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I am pleased to support this effort,
and I look forward to the public
comments during our rulemaking
proceeding. I’d like to thank our staff for
their excellent work on this matter.
excerpt from one commenter’s powerful
description of his excruciating
experience trying to make arrangements
for his young son without online pricing
information:
Statement of Commissioner Rebecca
Kelly Slaughter
Funerals are not only emotionally
overwhelming, they are also financially
overwhelming. The average cost of a
funeral in 2022 is $7,360 and has risen
over 6.6 percent over the past five
years.1 These costs don’t include end-oflife care or the thousands of additional
dollars required for a cemetery plot and
headstone. Not only is this a staggering
amount of money for most consumers to
cover—it is a purchase that they have to
make under incredible stress. Grieving,
rushed, distracted and unprepared,
consumers seeking funeral services are
in little position to negotiate. The FTC
Funeral Industry Practices Rule requires
that funeral providers share written
pricing information when consumers
inquire in person. The Rule also
requires that providers provide accurate
price information to consumers who call
them. But in its current form, the
Funeral Rule does not require funeral
providers to publish pricing information
online. This framework can make
planning and price comparison
challenging under any circumstance,
but I can’t imagine how hard this was
for the hundreds of thousands of
consumers who had to navigate making
funeral arrangements during the height
of the pandemic. In early 2020, the
Commission initiated a routine review
of the Rule, which generated 785
comments. I’ve reviewed many
submissions in which consumers
described how difficult it was to make
funeral arrangement for loved ones who
lived far away or how ill-equipped they
were to negotiate or make choices at the
height of their grief.2 I want to share an
In many, if not most cases, death comes
suddenly and is unexpected. This leaves the
loved ones of the deceased little time to
prepare for the viewing and burial.
This was true for my family with the death
of our 4-year-old son. While we had been
provided a terminal cancer diagnosis for
many months for my oldest son, I could not
bring myself to begin planning for his
funeral. I had limited time to spend with him
outside of work, I did not think it made sense
to invest any of it shopping for funeral
services.
When the end came for him, and it was
sudden, we were forced to decide between
two funeral homes in our town. We chose the
largest one because we expected a large
crowd to attend. I had no idea what to expect
when I arrived to discuss arrangements, so
you can imagine my surprise when I learned
the cost involved. Online pricing would have
allowed me to prepare in advance and to
prepare to negotiate what was by far the
largest purchase I’ve ever made without any
advance notice. I could have spent nights
reviewing the cost without feeling guilty
about leaving my son and the limited time
we had together.
I had a crushing level of grief when I
walked into that funeral home and I had
absolutely no way to negotiate when they
handed me their proposed price. How is that
fair? They already had possession of my son’s
body, so it was not like I could walk out and
begin shopping.
To place this in context, I believe my first
car, that I purchased in 1998, cost less than
his burial and I knew exactly what that
would cost because I had the internet
available to me. I could arrange for financing
from the bank before I ever bought the car so
I knew how much it would cost each month
and when I would make the final payment.
I felt completely prepared to purchase my car
and I was very comfortable when I walked
into the dealership to finalize the purchase
. . .
There is no logical reason not to allow for
online pricing except to suppress consumer
awareness . . . Government’s job is to protect
their citizens and this is one instance when
we need protecting because emotionally
compromised consumers are being taken
advantage and we have no way of preventing
it.3
Funeral Prices: A California Case Study, Consumer
Fed’n of America (Feb. 2020), https://
consumerfed.org/wp-content/uploads/2020/02/
California-Funeral-Home-Pricing-Report.pdf.
1 17 Mind-Boggling Funeral Cost Statistics in
2022 & Beyond, Kelly Maxwell, Seniors Mutual,
https://seniorsmutual.com/funeral-cost-breakdown/
.
2 See, e.g., FTC–2020–0014–0406 Comment
Submitted by John J. Wilson (‘‘[M]y mother who
lived alone in a retirement home in Phoenix,
Arizona passed away and since I live in Austin,
Texas, this required me to make funeral
arrangements in a distant city that I was not familiar
with. Without the funeral price list online this
made my task much more difficult. In fact, I feel
I was at the mercy of the funeral provider. Without
having knowledge of their prices in advance, I felt
that they could charge me whatever amount they
desired and I was defenseless. They had me over
a barrel, so to speak. I’m sure I paid much more
than necessary for my mother’s funeral
arrangements. If I had had their price list before
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I want to thank this father and all the
commenters to the 2020 rule review
visiting the funeral provider, I would have been in
a much better bargaining position, but
unfortunately this was not the case.’’); FTC–2020–
0014–0637 Comment Submitted by Elizabeth
Menkin (‘‘When my mother died, it was impossible
to collect price lists for any cost-comparison survey
at the time that we needed to make arrangements.
I had to individually contact funeral homes and
hope they would voluntarily email/mail a price list.
I would have had to drive to funeral homes who
refused. This is a terribly burdensome task to
impose on a grieving family.’’).
3 FTC–2020–0014–0685 Comment Submitted by
Adam Drapczuk III.
E:\FR\FM\02NOP1.SGM
02NOP1
66116
Federal Register / Vol. 87, No. 211 / Wednesday, November 2, 2022 / Proposed Rules
who shared their views and experiences
and I whole-heartedly support the FTC’s
publication of the advance notice of
proposed rulemaking asking specific
questions about whether and how to
modernize the Funeral Rule to better
protect consumers trying to make a huge
purchase under the worst
circumstances. I encourage all
consumers and other stakeholders to
weigh in on the questions posed by the
ANPR.
[FR Doc. 2022–23832 Filed 11–1–22; 8:45 am]
BILLING CODE 6750–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Part 80
[Docket No. FDA–2022–N–1635]
RIN 0910–AI69
Color Additive Certification; Increase
in Fees for Certification Services
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Proposed rule.
The Food and Drug
Administration (FDA or we) is
proposing to amend the color additive
regulation to increase the fee for
certification services. The change in fees
will allow FDA to continue to maintain
an adequate color certification program
as required by the Federal Food, Drug,
and Cosmetic Act (FD&C Act). The fees
are intended to recover the full costs of
operation of FDA’s color certification
program.
SUMMARY:
Either electronic or written
comments on the proposed rule must be
submitted by January 3, 2023.
ADDRESSES: You may submit comments
as follows. Please note that late,
untimely filed comments will not be
considered. The https://
www.regulations.gov electronic filing
system will accept comments until
11:59 p.m. Eastern Time at the end of
January 3, 2023. Comments received by
mail/hand delivery/courier (for written/
paper submissions) will be considered
timely if they are received on or before
that date.
khammond on DSKJM1Z7X2PROD with PROPOSALS
DATES:
Electronic Submissions
Submit electronic comments in the
following way:
• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
Comments submitted electronically,
VerDate Sep<11>2014
16:01 Nov 01, 2022
Jkt 259001
including attachments, to https://
www.regulations.gov will be posted to
the docket unchanged. Because your
comment will be made public, you are
solely responsible for ensuring that your
comment does not include any
confidential information that you or a
third party may not wish to be posted,
such as medical information, your or
anyone else’s Social Security number, or
confidential business information, such
as a manufacturing process. Please note
that if you include your name, contact
information, or other information that
identifies you in the body of your
comments, that information will be
posted on https://www.regulations.gov.
• If you want to submit a comment
with confidential information that you
do not wish to be made available to the
public, submit the comment as a
written/paper submission and in the
manner detailed (see ‘‘Written/Paper
Submissions’’ and ‘‘Instructions’’).
Written/Paper Submissions
Submit written/paper submissions as
follows:
• Mail/Hand Delivery/Courier (for
written/paper submissions): Dockets
Management Staff (HFA–305), Food and
Drug Administration, 5630 Fishers
Lane, Rm. 1061, Rockville, MD 20852.
• For written/paper comments
submitted to the Dockets Management
Staff, FDA will post your comment, as
well as any attachments, except for
information submitted, marked and
identified, as confidential, if submitted
as detailed in ‘‘Instructions.’’
Instructions: All submissions received
must include the Docket No. FDA–
2022–N–1635 for ‘‘Color Additive
Certification; Increase in Fees for
Certification Services.’’ Received
comments, those filed in a timely
manner (see ADDRESSES), will be placed
in the docket and, except for those
submitted as ‘‘Confidential
Submissions,’’ publicly viewable at
https://www.regulations.gov or at the
Dockets Management Staff between 9
a.m. and 4 p.m., Monday through
Friday, 240–402–7500.
• Confidential Submissions—To
submit a comment with confidential
information that you do not wish to be
made publicly available, submit your
comments only as a written/paper
submission. You should submit two
copies total. One copy will include the
information you claim to be confidential
with a heading or cover note that states
‘‘THIS DOCUMENT CONTAINS
CONFIDENTIAL INFORMATION.’’ We
will review this copy, including the
claimed confidential information, in our
consideration of comments. The second
copy, which will have the claimed
PO 00000
Frm 00021
Fmt 4702
Sfmt 4702
confidential information redacted/
blacked out, will be available for public
viewing and posted on https://
www.regulations.gov. Submit both
copies to the Dockets Management Staff.
If you do not wish your name and
contact information to be made publicly
available, you can provide this
information on the cover sheet and not
in the body of your comments and you
must identify this information as
‘‘confidential.’’ Any information marked
as ‘‘confidential’’ will not be disclosed
except in accordance with 21 CFR 10.20
and other applicable disclosure law. For
more information about FDA’s posting
of comments to public dockets, see 80
FR 56469, September 18, 2015, or access
the information at: https://
www.govinfo.gov/content/pkg/FR-201509-18/pdf/2015-23389.pdf.
Docket: For access to the docket to
read background documents or the
electronic and written/paper comments
received, go to https://
www.regulations.gov and insert the
docket number, found in brackets in the
heading of this document, into the
‘‘Search’’ box and follow the prompts
and/or go to the Dockets Management
Staff, 5630 Fishers Lane, Rm. 1061,
Rockville, MD 20852, 240–402–7500.
FOR FURTHER INFORMATION CONTACT:
Bryan Bowes, Office of Cosmetics and
Colors (HFS–105), Center for Food
Safety and Applied Nutrition, Food and
Drug Administration, 5001 Campus Dr.,
College Park, MD 20740, 240–402–1122;
or Carrol Bascus, Center for Food Safety
and Applied Nutrition, Office of
Regulations and Policy (HFS–024), Food
and Drug Administration, 5001 Campus
Dr., College Park, MD 20740, 240–402–
2378.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Proposed Rule
B. Summary of the Major Provisions of the
Proposed Rule
C. Legal Authority
D. Costs and Benefits
II. Background
A. Introduction
B. Need for the Regulation
III. Description of the Proposed Rule
IV. Proposed Effective Date
V. Preliminary Economic Analysis of Impacts
A. Introduction
B. Summary of Costs and Benefits
C. Summary of Regulatory Flexibility
Analysis
VI. Analysis of Environmental Impact
VII. Paperwork Reduction Act of 1995
VIII. Federalism
IX. Consultation and Coordination With
Indian Tribal Governments
X. Reference
E:\FR\FM\02NOP1.SGM
02NOP1
Agencies
[Federal Register Volume 87, Number 211 (Wednesday, November 2, 2022)]
[Proposed Rules]
[Pages 66096-66116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23832]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 87, No. 211 / Wednesday, November 2, 2022 /
Proposed Rules
[[Page 66096]]
FEDERAL TRADE COMMISSION
16 CFR Part 453
Funeral Industry Practices Rule
AGENCY: Federal Trade Commission.
ACTION: Advance notice of proposed rulemaking; request for comment.
-----------------------------------------------------------------------
SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') is
considering whether to initiate a rulemaking proceeding to amend its
Trade Regulation Rule entitled ``Funeral Industry Practices Rule''
(``Funeral Rule'' or ``Rule''). The Rule defines unfair and deceptive
practices in the sale of funeral goods and services and prescribes
preventative requirements to protect against these practices. All
interested persons are hereby given notice of the opportunity to submit
written data, views, and arguments concerning the Rule.
DATES: Comments must be received on or before January 3, 2023.
ADDRESSES: Interested parties may file a comment online or on paper by
following the instructions in the Instructions for Submitting Comments
part of the SUPPLEMENTARY INFORMATION section below. Write ``Funeral
Rule ANPR, Project No. P034410'' on your comment, and file your comment
online at https://www.regulations.gov. If you prefer to file on paper,
mail your comment to the following address: Federal Trade Commission,
Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610
(Annex B), Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT: Melissa Dickey, (202) 326-2662,
[email protected], or Rebecca Plett, (202) 326-3664, [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The Commission is publishing this document pursuant to Section 18
of the Federal Trade Commission (``FTC'') Act, 15 U.S.C. 57a, and the
provisions of Part 1, Subpart B of the Commission's Rules of Practice,
16 CFR 1.7 through 1.20, and 5 U.S.C. 553. This authority permits the
Commission to promulgate, modify, and repeal trade regulation rules
that define with specificity acts or practices that are unfair or
deceptive in or affecting commerce within the meaning of Section
5(a)(1) of the FTC Act, 15 U.S.C. 45(a)(1).
The Commission issued the Funeral Rule on September 24, 1982, and
it became fully effective on April 30, 1984.\1\ The Funeral Rule's
goals are to lower barriers to price competition in the funeral goods
and services market and to facilitate informed consumer choice.\2\ The
Rule helps to achieve these goals by ensuring that: (1) consumers have
access to sufficient information to permit them to make informed
decisions; (2) consumers are not required to purchase goods and
services that they do not want and are not required by law to purchase;
and (3) misrepresentations are not used to influence consumers'
decisions.\3\
---------------------------------------------------------------------------
\1\ Portions of the Rule became effective on January 1, 1984,
and others became effective on April 30, 1984. 48 FR 45537, 45538
(Oct. 6, 1983); 49 FR 564 (Jan. 5, 1984). Several funeral providers
challenged the Rule, but it was upheld by the Fourth Circuit. Harry
and Bryant Co. v. FTC, 726 F.2d 993 (4th Cir.), cert. denied, 469
U.S. 820 (1984). The Rule was amended on July 19, 1994 (59 FR 1592
(Jan. 11, 1994)), and the Third Circuit upheld the amended Rule
following a challenge. Pennsylvania Funeral Directors Ass'n, Inc. v.
FTC, 41 F.3d 81, 83 (3d Cir. 1994). On March 14, 2008, the
Commission completed a regulatory review and concluded that the Rule
was still needed and should be retained. 73 FR 13740 (Mar. 14,
2008).
\2\ Original Funeral Rule Statement of Basis and Purpose, 47 FR
42260 (Sept. 24, 1982).
\3\ Id.
---------------------------------------------------------------------------
Among other things, the Rule specifies that it is an unfair or
deceptive act or practice for a funeral provider to: (1) fail to
furnish accurate price information disclosing the cost to the purchaser
for each of the specific funeral goods or services used in connection
with the disposition of deceased human remains; \4\ (2) condition the
furnishing of any funeral good or funeral service upon the purchase of
any other funeral good or funeral service or charge a fee as a
condition to furnishing any goods or services, such as a ``casket
handling'' fee to consumers who provide their own casket; \5\ or (3)
embalm the deceased for a fee without authorization when embalming is
not required by law.\6\ The Rule also specifies that it is a deceptive
act or practice for a funeral provider to misrepresent certain legal or
cemetery requirements, including those for embalming, caskets, or
burial containers, or any other funeral good or service.\7\
---------------------------------------------------------------------------
\4\ 16 CFR 453.2(a).
\5\ 16 CFR 453.4(b).
\6\ 16 CFR 453.5(a).
\7\ See 16 CFR 453.3 through 453.5 (listing additional unfair
and deceptive acts and preventative requirements).
---------------------------------------------------------------------------
The Rule sets forth preventative requirements in the form of
itemized price and information disclosures to ensure funeral providers
do not engage in the unfair or deceptive acts or practices described in
the foregoing paragraph. First, the Rule requires funeral providers to
give persons inquiring in-person about funeral goods or services a
General Price List (``GPL'') to keep, which lists the goods and
services they offer and their itemized prices, along with specific
disclosures.\8\ Second, the Rule requires funeral providers to show
persons inquiring in-person a Casket Price List (``CPL'') identifying
the caskets and alternative containers they carry, and an Outer Burial
Container Price List (``OBCPL'') listing the vaults and grave liners
they offer, along with specific disclosures.\9\ Third, funeral
providers are required to tell persons ``who ask by telephone about the
funeral provider's offerings or prices . . . any accurate information''
from the GPL, CPL, or OBCPL, ``and any other readily available
information that reasonably answers the question.'' \10\ Fourth, the
Rule requires funeral providers to give an itemized statement showing
all the items a customer has selected and the itemized and total costs
for those goods and services, along with other specific disclosures, at
the conclusion of the discussion of arrangements.\11\
---------------------------------------------------------------------------
\8\ 16 CFR 453.2(b)(4).
\9\ 16 CFR 453.2(b)(2)-(3).
\10\ 16 CFR 453.2(b)(1).
\11\ 16 CFR 453.2(b)(5).
---------------------------------------------------------------------------
II. Regulatory Review of the Funeral Rule
On February 14, 2020, the Commission initiated a review of the
Rule.\12\ The Commission solicited comments on, among other things: (1)
[[Page 66097]]
the economic impact of, and the continuing need for, the Funeral Rule;
(2) the Rule's benefits to consumers; and (3) the burden it places on
industry members subject to the requirements, including small
businesses. The Commission also asked specific questions about a number
of topics, including whether funeral providers should be required to
post their price list information online.
---------------------------------------------------------------------------
\12\ Rule Review 2020, 85 FR 8490 (Feb. 14, 2020), available at
https://www.federalregister.gov/documents/2020/02/14/2020-02803/funeral-industry-practices-rule.
---------------------------------------------------------------------------
The Rule Review generated significant interest, receiving 785
comments.\13\ The vast majority (689 comments) came from individuals.
Most commenters expressed support for the Rule.\14\ Commenters credited
the Rule with improving consumers' ability to make informed
decisions.\15\ Two associations stated that the Rule facilitates
consumer choice.\16\ Another commented that the Rule ``level[s] the
playing field'' for funeral providers, protects consumers from bad
actors, and ``serves as an enforcement mechanism.'' \17\ Commenters
also reported that the Rule facilitates price transparency, gives
consumers ``a clearer idea of the services they are purchasing'' and
the prices for those services, and allows consumers to select only the
items they want to buy.\18\ One group also claimed that the Rule acts
as a restraint on price gouging.\19\ In addition, one trade group
stated that the Rule encouraged funeral providers to become better
businesses by forcing them to ``examine their costs, prices, and
profits.'' \20\
---------------------------------------------------------------------------
\13\ All Rule Review comments are on the public record and are
available for inspection at: https://www.regulations.gov/docket/FTC-2020-0014. The commenters included consumers, consumer advocates,
individual businesses, industry groups, government agencies, and
other organizations. The comments are cited as: [Commenter] RR [page
number]. Individual commenters are identified by their first initial
and last name. Companies and organizations are identified by
abbreviated names.
\14\ See, e.g., New York State Funeral Directors Association
(``NYSFDA'') RR at 2; International Cemetery, Cremation and Funeral
Association (``ICCFA'') RR at 4; Select Independent Funeral Homes
(``SIFH'') RR at 5; Funeral Consumer Alliance of the Virginia Blue
Ridge (``FCA VABR'') RR at 1; Funeral Consumer Alliance of Western
Massachusetts (``FCA WMA'') at 1; Funeral Consumer Alliance of
Pennsylvania (``FCA PA'') at 1; Consumer Action (``CA'') RR at 1;
Funeral Consumer Alliance of Connecticut (``FCA CT'') RR at 1;
Funeral Consumers Alliance of Arizona (``FCA AZ'') RR at 1; Carriage
Service (``Carriage'') RR at 1; The Consumer Federation of America
(``CFA'') RR at 1 Consumer Checkbook (``CC'') RR at 1; Unitarian
Universalist Fellowship of Visalia (``UUFV'') RR at 1; National
Funeral Directors Association (``NFDA'') RR at 79. 157 consumers
also explicitly expressed support for keeping the Rule. Two
individual commenters said they did not see a continuing need for
the rule, and one additional individual generally opposed the Rule.
B. Small RR at 1 (many provisions in the Funeral Rule are
appropriate, but this should be regulated by the states); B.
Barcheers RR at 1 (Funeral Rule is no longer needed as ``the public
is more aware now''); M. Matos RR at 1 (Funeral Rule is
``antiquated'' and there is no need to single out the funeral
industry).
\15\ CA RR at 1; see also Funeral Consumers Alliance (``FCA'')
RR at 3; CFA RR at 2-4; N. Leyden-Morffi RR at 1.
\16\ SIFH RR at 5; ICCFA RR at 5.
\17\ NYSFDA RR at 2.
\18\ CFA RR at 2; AARP RR at 1; CA RR at 1; UUFV RR at 1;
Service Corporation International (``SCI'') RR at 14.
\19\ CFA RR at 2.
\20\ NFDA RR at 16. Almost all of the Rule's supporters asked
for the Rule to be updated, modernized, amended, or changed.
However, some industry advocates asked the Commission to keep the
Rule as is. See Cremation Association of North America (``CANA'') RR
at 2; ICCFA RR at 5-8; Carriage RR at 1; SCI RR at 1; Florida
Cemetery, Cremation, and Funeral Association RR at 1-2 (advocating
that further regulation should be left to the states).
---------------------------------------------------------------------------
Based on the comments received in response to the Rule Review,
along with the prior rulemaking records and the Commission's experience
enforcing the Rule, the Commission has determined the Rule continues to
serve a useful purpose and should be retained. The Commission now seeks
additional comment on possible modifications to the Funeral Rule.
III. Advance Notice of Proposed Rulemaking
The Commission publishes this advance notice of proposed rulemaking
(ANPR) pursuant to FTC Rule Sec. 1.10, 16 CFR 1.10. The notice
identifies areas of inquiry under consideration, the objectives the
Commission seeks to achieve, and possible regulatory alternatives.
After carefully reviewing all of the submitted comments,\21\ the
Commission is seeking additional input regarding the following seven
topic areas: (1) whether and how funeral providers should be required
to display or distribute their price information online or through
electronic media; (2) whether funeral providers should be required to
disclose third party crematory or other fees on the GPL; (3) whether
the Rule's requirements regarding reduced basic services fees should be
amended; (4) whether the Rule should be amended to account for new
forms of disposition; (5) whether the Rule's embalming disclosure
requirements should be amended; (6) whether the Rule should be changed
to improve the readability of the price lists; and (7) whether changes
should be made to the Rule to avoid negatively impacting underserved
communities.
---------------------------------------------------------------------------
\21\ The Commission appreciates the commenters' submissions. All
of the Rule Review comments are noticed and are part of the record.
---------------------------------------------------------------------------
A. Online and Electronic Price Disclosure
The Review elicited a large number of comments about whether to
require funeral providers to post their itemized price lists online or
to distribute price information electronically.\22\ Because the Rule
was enacted 40 years ago, before websites, email, or social media were
widely used, it only requires funeral providers to give price lists to
in-person visitors. Funeral providers are not required to display or
distribute their price information via any of these media.\23\
---------------------------------------------------------------------------
\22\ 527 comments filed by individuals (many of whom appear to
be members of funeral consumer advocacy organizations) urged the
Commission to require that at least some price information be made
available online.
\23\ At least two states, California and Oregon, have some
requirements for funeral providers that maintain websites. Cal. Bus.
& Prof. Code Sec. 7685(b)(1) (``Each licensed funeral establishment
that maintains an internet website shall post on its internet
website the list of funeral goods and services that are required to
be included in the establishment's general price list, pursuant to
federal rule, and a statement that the general price list is
available upon request.''); Or. Admin. R. 830-040-0050(6) (if a
funeral establishment lists a price on its website, it must link to
its General Price List).
---------------------------------------------------------------------------
As discussed in more detail herein, since the Rule was enacted,
consumers have changed how they shop and obtain price information, and
some funeral providers have started selling or advertising their
services and goods online.\24\ In addition, the pandemic highlighted
that some consumers are unable to visit funeral providers to obtain the
price lists required by the Rule, including the immunocompromised,
older adults, disabled individuals, individuals located in different
states, the grieving, and individuals without access to a vehicle.\25\
Yet, commenters almost universally report that many funeral providers
are not making their price lists available electronically or on their
websites, even when requested by consumers.\26\ The FTC is therefore
seeking further comment about whether the method by which price lists
are distributed should be updated and the benefits and costs to
consumers and
[[Page 66098]]
businesses if the Rule is updated in such a manner.
---------------------------------------------------------------------------
\24\ See infra notes 47-49.
\25\ See infra notes 38-46. Under the Rule, funeral providers
are required to tell persons ``who ask by telephone about the
funeral provider's offerings or prices . . . any accurate
information'' from the GPL, CPL, or OBCPL, ``and any other readily
available information that reasonably answers the question.'' 16 CFR
453.2(b)(1). The Rule does not require funeral providers to give out
the GPL, CPL, or OBCPL to consumers who call them. And some
commenters commented that receiving price information over the
telephone is not equivalent to or as helpful as receiving a written
GPL. See infra note 33.
\26\ See infra notes 34-37.
---------------------------------------------------------------------------
1. Summary of Comments
A. Comments Generally Supporting Online and Electronic Disclosure
Many commenters urged the Commission to update the Rule to require
funeral homes to post their GPLs online, or at a minimum require
providers to send the itemized price information electronically to
persons who request it.\27\ They argued that the incredible stress
caused by a loss of a loved one,\28\ consumers' limited experience with
planning funerals,\29\ and the need to quickly make decisions about
what to do with a dead body \30\ -- ``combine to put the funeral
consumer in a uniquely disadvantaged position.'' \31\
---------------------------------------------------------------------------
\27\ See, e.g., Attorneys General of the District of Columbia,
Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Iowa,
Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New
Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode
Island, Virginia, and Wisconsin (``AG'') RR at 2; AARP RR at 2;
House Energy and Commerce Committee (``House Committee'') RR at 2;
Cleveland Memorial Society--M. Binning (``CMS'') RR at 1; Memorial
Society of Georgia--T. Beale (``MSGA'') RR at 1; Funeral Consumer
Alliance of Utah--J. Mitchell (``FCA UT'') RR at 1; Truth in
Advertising, Inc. (``TINA'') RR at 2-3; Last Rights of Central
Pennsylvania--L. Mulvey (``LRCPA'') RR at 1; Funeral Consumers
Alliance of California, Advisory Committee for Cemetery & Funeral
Bureau, Dept of Consumer Affairs, CA--J. Okuye RR at 1; Funeral
Consumer Alliance of North Carolina--H. Williams (``FCA NC'') RR at
1; Funeral Consumers Alliance of Greater Kansas City (``FCA GKC'')
RR at 1; FCA of Eastern Massachusetts (``FCA EMA'') RR at 1; Funeral
Consumers Alliance of Greater Rochester (``FCA GR'') RR at 1;
Peoples Memorial Association (``PMA'') at 1; FCA PA RR at 1; Funeral
Consumers Alliance of South Carolina--O. Ganong (``FCA SC'') RR at
1; Funeral Consumers Alliance of Maine--Anthony Antolini (``FCA
ME'') RR at 1; CA RR at 1; CFA RR at 6-10; Funeral Consumers
Alliance of Central Texas--N. Walker (``FCA CTX'') RR at 1; Funeral
Consumers Alliance of the Finger Lakes--W. Sinclair RR at 1; Funeral
Consumers Alliance of Princeton--N. McCarty (``FCAP'') at 1; FCA CT
RR at 1; Chicago Consumer Coalition (``CCC'')--D. McCurry RR at 1;
FCA RR at 3-9; CC RR at 1; Consumer Reports (``CR RR'') at 2-3; FCA
AZ RR at 1-2; Funeral Consumers Alliance of Minnesota (``FCA MN'')
RR at 1; Texas Appleseed RR at 1; Balance for Life and Death--Neidra
RR at 1; Imperial Caskets--D. Perkins (``Imperial Caskets'') RR at
1; Funerea Ltd. Company--M. Hamilton (``Funerea'') RR at 1; Out of
the Box Funeral Planning--Susan Mackey (``OBFP'') RR at 1; Peace of
Mind--C. Andrews RR at 1; Charter Funerals--S. Minich (``Charter
Funerals'') RR at 1; Cindys List Funeral Concierge & Inheritance
Protection--C. Ivey RR at 1; Homesteaders Life Co.--M. Lacey
(``HLC'') RR at 1; On the Record Advance Planning--A. Praskac
(``OTR'') RR at 1; Givens Estates, Inc. and FCA NC--E. Hillman
(``Givens Estate'') RR at 1; UUFV RR at 1; Borderland, a Community
Ministry in Knoxville, TN--J. Arthur (``Borderland'') RR at 1;
Burmese American Buddhist Corp.--I. Timm RR at 1; Diversity
Collaborative--L. Lusardo (``DC'') RR at 1; Morristown Beard
School--J. Farhat (``MBS') RR at 1; Kansas City Hospice & Palliative
Care--R. Valdovino RR at 1; S. Della Valle RR at 1 (funeral home
owner). As one commenter said, ``[t]his is simply updating the Rule
for the current age.'' Borderland RR at 1.
\28\ FCA RR at 2, citing https://www.stress.org/holmes-rahe-stress-inventory (``The Holmes and Rahe Stress Scale, an index of
stressful life events, rates the death of a spouse as the most
stressful event a person will experience.''); see also TINA RR at 1
n. 2.
\29\ CR RR at 1; FCA RR at 3.
\30\ For example, the Funeral Consumer Alliance of Utah noted
that ``[i]n hospitals, when death occurs, families are ordered to
call a funeral home to come immediately. Social Workers in hospitals
I've spoken to typically don't assist grieving families in price
comparing. Families tell us that the Social Workers just google
`closest funeral home to [name of city]'.'' FCA UT RR at 1; see also
TINA RR at 1 n. 3 (noting that a ``2007 AARP survey found that only
34 percent of those 50 years or older have `engaged in some
[funeral] preplanning.' Lona Choi-Allum, `Funeral and Burial
Planners Survey,' AARP (November 2007). Surveys by the [NFDA] found
the percentage of adults of all ages who have preplanned funerals is
even lower. See, e.g., `Consumer Awareness and Preferences Study,'
National Funeral Directors Association (Apr. 2019), at 8.'').
\31\ FCA RR at 3; see also TINA RR at 1; CC RR at 1 (``Although
the funeral homes that receive ratings on our surveys are overall
rated fairly highly compared to many other services we evaluate, we
receive an inordinate number of complaints about high costs. A
common complaint from families we survey is that they paid a lot
more than they expected for their loved ones' funerals; sometimes,
they report funeral directors coaxed them into spending more than
they would have liked.''); J. Wilson RR at 1 (discussing how she was
present while a funeral provider played on the emotions of her
grieving friend to get a larger sale by saying things like ``your
husband deserved better than that'').
---------------------------------------------------------------------------
Some commenters noted at least some funeral providers are willing
to provide itemized price lists to consumers only when required by the
Rule (which currently only requires itemized price lists to be provided
during in-person meetings).\32\ Numerous commenters reported funeral
providers refused to provide their itemized price lists in response to
requests by mail, email, fax, over the phone, or by using the contact
form on the provider's website.\33\
---------------------------------------------------------------------------
\32\ AARP RR at 2; see also MSGA RR at 1 (``[M]y experience over
the past few years is that 50-75% of Funeral Homes will NOT candidly
and promptly follow through on a simple request for pricing
information.''). Indeed, FTC enforcement experience and has shown
that some do not even comply with the current Rule's requirement to
timely distribute price lists. See FTC Releases Funeral Home
Compliance Results, Offers New Business Guidance on Funeral Rule
Requirements, FTC Press Release (June 8, 2020) (FTC investigators
found failures to disclose timely itemized pricing information, as
required by the Funeral Rule, in 17 of the 90 funeral homes visited
since 2018). In addition, the FCA and the CFA found that 28 out of
126 GPLs they examined violated the Rule because they lacked legally
required consumer options or offered only packaged options. CFA RR
at 8 (citing Joshua Slocum, Stephen Brobeck, The Relationship
between Funeral Price Disclosure and Funeral Prices: A California
Case Study, report from Consumer Federation of America/Funeral
Consumers Alliance (February 2021).
\33\ FCA VABR RR at 2 (20% of the homes surveyed refused to
provide price information in response to a letter); FCA UT RR at 1
(``Many funeral homes that we've requested a GPL from over the phone
and by email fail to send one''); CC RR at 3 (``Often, our
researchers had to call several times to request [the GPL]. With
many (we estimate it was about one-third of homes that didn't list
GPLs online), our shoppers had to persuade funeral directors to
email or fax GPLs by claiming to live out of town and therefore
couldn't visit in person over the next few days. Some funeral
homes--about 10 percent--refused to provide GPLs to our undercover
shoppers. They required us to visit in person to learn about their
prices.''); FCA CT RR at 1 (In 2019, they were only able to get a
57% response from funeral homes, after sending two letters, and
working with local volunteers and members who phoned, wrote or
visited those still not responding); MSGA at 1 (``Time after time I
have also tried to help people who contacted a local Funeral
Director to request pricing in writing and was told that it would be
sent to them, but it never showed up.''); M. Klein RR at 3-4
(``Numerous funeral homes have point-blank refused to give me prices
over the phone. Others did not to return phone calls within a few
days, and required multiple requests. And others never responded at
all. The phone requirement is hard to `police' since it is personal
communication, whereas violations of an internet requirement would
be readily apparent and the rule enforceable.''); R. Alexander RR at
1 (stating that he requested pricing information using the contact
form on 10 funeral homes' websites, 4 sent the requested
information, 2 never responded, and the other 4 would not send the
GPL but wanted to talk by phone); R. Zeldin RR at 3 (recalling that
when she assisted an Arizona resident planning an out of state
funeral 29% required three or more email and phone calls before
sending pricing information, and 20% homes never responded; when she
assisted a Pennsylvania resident, 67% ignored or refused her request
for information); E. Menkin RR at 1 (when mother died, commenter had
to drive to funeral homes when funeral providers refused to email or
mail her a price list). Some commenters also point out that the
current requirement to provide price information over the telephone
when asked by callers is not the same as getting a written GPL. MSGA
RR at 1 (when information is provided over the phone, there is ``no
record of the conversation or proof that prices were given''); see
also C. Reid RR at 2 (stating that ``[a] document with the funeral
homes' letterhead and their itemized lists is far more valuable than
what I heard over the phone from `Mary Sue' who was filling in the
day when I called in regarding the price lists.'').
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Commenters also reported many funeral providers do not make their
price lists available online, even if they have a website or other
online presence.\34\ A 2018 survey by the
[[Page 66099]]
Consumer Federation of America (``CFA'') and the Funeral Consumers
Alliance (``FCA'') found only 16 percent of the funeral homes they
surveyed posted their GPLs on their websites.\35\ Consumer Checkbook
similarly reported ``fewer than 25 percent--had posted their GPLs
online.'' \36\ Further, according to one commenter, even when pricing
information is available on a website, the prices may be out of
date.\37\
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\34\ FCA WMA RR at 1 (``Almost all of the 85 funeral homes in
our area (4 counties of western Massachusetts) do have websites, but
very few reveal prices online. In 2016 only 1 funeral home had its
GPL online. In 2018, we found 4 with prices online.''); FCA RR at 7-
8 (a February 2020 survey of California funeral homes found that
those that charged the highest prices were most likely to opt out of
putting their pricing online); Texas Appleseed RR at 2 (``in a
recent search of funeral homes in Austin, Texas, only one of the 15
homes surveyed posts their price list online''); FCA AZ RR at 1
(many funeral providers in Arizona do not post pricing information
online); D. Stimpert RR at 1 (``Of the 300 or so funeral homes in
Northeast Ohio, I have found only 12 that post a full General Price
List (GPL) on their website.''); UUFV RR at 1 (``[T]he Dignity
Memorials website for our local Visalia-based funeral home website
requires a consumer to divulge one's personal email address to them
in order to download a PDF document identified as a `price guide.'
Upon receipt, it turns out that this document is just an advertising
brochure, not an actual price list. The only costs identified in the
document are framed in the phrase `National median cost' rather than
providing the specific price of the local funeral home'' and a large
funeral home in area has an expensive website, but it does not
disclose prices on that website); M. Bern-Klug RR at 2 (University
of Iowa study found that, in 2016 study of three markets in Iowa,
``7 of the 48 funeral homes did include their GPLs on their website.
We checked again the first week of June 2020 and determined an
improvement: 13 funeral homes had posted their GPL (eight of the 28
funeral homes in Des Moines and five of the 23 funeral homes in the
Cedar Rapids/Iowa City area)''); H. Lee RR at 3, citing Robert
Benincasa, You Could Pay Thousands Less For A Funeral Just By
Crossing The Street (Feb. 7, 2017), NPR, https://www.npr.org/2017/02/07/504020003/a-funeral-may-cost-you-thousands-less-just-by-crossing-the-street (last visited Apr. 16, 2020) (most funeral homes
omit to post prices on websites); C. Reid RR at 3 (``In my area all
the funeral homes have a website. Some share quite a bit of
information except for prices. You are told to call in and stop by
to pick up the price lists you want. . . . A sample [of funeral
providers] showed that the city of Los Angeles, (73%), to the lowest
Alameda County (27%) posted prices conspicuously. California-
Funeral-Home-Pricing-Report-9-30-19docx Funeral Consumers Alliance,
Inc.''); A Rector RR at 1 (only 25% of funeral homes in Maine list
the GPL on their websites); J. Bates RR at 1 (of the 200 funeral
retailers in the Dallas-Ft. Worth area, less than 10 post any
pricing online); but see FCA UT RR at 1 (``Quite a few Utah funeral
homes are now posting their prices online on their own, so it should
not be a problem for the sneaky ones to do so as well.'').
Additionally, on June 21, 2022, the Funeral Consumers Alliance (FCA)
and Consumer Federation of America (CFA) issued a report that
outlining their May 2022 survey of 1,046 funeral provider websites.
The survey found that only 191 of these homes (18%) posted their
price lists online. Joshua Slocum, Stephen Brobeck, Online Price
Posting At More Than 1,000 Funeral Homes in 35 State Capitals (June
2022).
\35\ CFA at 3-4 (citing Joshua Slocum, Stephen Brobeck, A Needle
in a Haystack--Finding Funeral Prices Online in 26 State Capitals,
report from Funeral Consumers Alliance/Consumer Federation of
America (January 2018) (also noting that in twelve cities, no
funeral providers posted their prices online).
\36\ CC RR at 3.
\37\ FCA WMA RR at 1.
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Commenters discussed how difficult it can be for many funeral
purchasers to personally visit funeral homes to pick up price
lists,\38\ including emotionally distraught families,\39\ families who
live in different states,\40\ the disabled, ill, and homebound elderly
consumers,\41\ those lacking access to transportation,\42\ and rural
consumers, who often have to drive long distances to reach the nearest
funeral home.\43\ One commenter reported that ``[w]hen my wife was
taken to the hospital, the doctors told me she had only days to live.
Turned out to be four. I shouldn't have had to choose between spending
her last days with her or collecting funeral information.'' \44\
Another reported that when his 4-year-old son died suddenly, he had to
make arrangements quickly and transfer his son's body to a funeral home
right away without knowing its prices. He said he ``had a crushing
level of grief when I walked into that funeral home and I had
absolutely no way to negotiate when they handed me their proposed
price. How is that fair? They already had possession of my son's body,
so it was not like I could walk out and begin shopping.'' \45\ The
pandemic has heightened such difficulties, as many people have been
reluctant or unable to leave their homes to obtain itemized price lists
from funeral providers.\46\
---------------------------------------------------------------------------
\38\ CFA RR at 3, citing James W. Gentry et al, ``The
vulnerability of those grieving the death of a loved one:
Implications for public policy,'' Journal of Public Policy and
Marketing, v. 14, n. 1 (Spring 1999); see also, e.g., Texas
Appleseed RR at 1.
\39\ AARP RR at 2; S. Henderson RR at 1 (after the sudden death
of his 15 year old stepson, it was too hard for his family to visit
multiple funeral providers to price shop); A. Nickerson RR at 1
(recounting her experiences in planning for the burial of a family
member, a ``time of distress and grief'', and explaining that the
process would have been easier if prices were available online); R.
Robertson RR at 1 (describing how out of state relatives had to step
in to help grief stricken niece plan a funeral); S. Alleger RR at 1
(discussing the impact on family members when they had to be
physically present to discuss funeral arrangements ``while
emotionally raw,'' and explaining that they agreed to charges they
did not want just to get out of the situation). See also FCA CTX RR
at 1 (``[E]ven when a death is expected, spouses and children are
overwhelmed with shock and grief. They have a lengthy list of tasks
and decisions to make without delay. Seldom do they have the time,
energy, or mental clarity to call or visit more than one funeral
home. If, however, price lists were available online, information
about goods and services could be collected by a family member,
neighbor or friend who is not emotionally distraught.'').
\40\ FCA CTX RR at 1; CCC RR at 1 (``Those facing death and
their out-of-town relatives planning funerals simply cannot visit
several funeral homes to pick up price lists. And if they did, the
likelihood of their visiting the homes offering the best value is
unlikely.''); FCA AZ RR at 2 (quoting consumer having difficulty
making out of state funeral arrangements, ``I live in Florida and a
Medical Examiner in Arizona just called to tell me that my nephew
there died. I can't find out from the funeral homes online how much
it will cost to ship his body here or have him cremated and shipped.
Do you have any pricing information or how do I get it?'') (emphasis
in original); B. Girling RR at 1 (``had to make funeral arrangements
for family located out of state, many funeral homes would not give
prices over the phone''); L. Lew RR at 1 (recounting how, in her
experience as a Veterans Hospital employee, it is so stressful for
out of state families to obtain funeral price information, and
noting that posting prices online would do much to ``eas[e] the
emotional and financial stress involved in making needed funeral
arrangements''); J. Wilson RR at 1 (describing difficulties in
arranging for out-of-state funeral for his mother, and explaining
that an online price list would have made things much easier); see
also CFA RR at 3, citing HwaJung Choi, et al, Spatial Distance
Between Parents and Adult Children in the United States (September
2018 report funded, in part, by the National Institute on Aging)
(``According to data from the 2013 Panel Study of Income Dynamics,
one-quarter (25%) of parents do not have an adult child living
within 30 miles of them.'').
\41\ See, e.g., K. Dvorak RR at 1 (wheelchair bound consumer
noted that online posting of prices would make it easier to find
prices); M. Klein RR at 1 (stating that when he had a medical
condition and could not drive and walk, he had to rely solely on the
handful of GPLs posted on the internet); V. Thorp RR at 1 (as an
elderly home-bound individual with an elderly home-bound spouse, she
feels a ``special burden when contemplating the need to put my
affairs in order''); J. Singler RR at 1 (an eighty-year old consumer
with hearing issues reported that ``[d]riving some places or making
several phone calls does not work for us'').
\42\ M. Scrudder RR at 1; N. Leyden-Morffi RR at 6.
\43\ A. Rector RR at 1 (noting that it is not uncommon for Maine
residents to drive 40 miles or more to reach a funeral home, but
only 25% of the funeral homes in Maine post their GPL on their
website).
\44\ J. Brown RR at 1.
\45\ A. Drapczuk III RR at 1. Another commenter reported when
his stepson died in a car accident, they only visited one funeral
provider because ``the thought of having to visit more than one
Funeral Home was unbearable.'' S. Henderson RR at 1.
\46\ FCA NC RR at 1; FCA EMA RR at 1; PMA RR at 1; CCC RR at 1;
House Committee RR at 2; TINA RR at 2 n. 12.
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Many commenters urged the Commission to modernize the Rule to
require funeral providers to post their itemized price information
online because it would greatly benefit consumers shopping for funeral
services.\47\ Some argued online shopping is widely available now,\48\
and many consumers want funeral prices to be posted online.\49\ Others
noted that online posting will make it easier for consumers to obtain
price information and provide better opportunities for
[[Page 66100]]
consumers to meaningfully price shop and view the Rule's mandatory
disclosures earlier in the process.\50\ And some stated that online
posting could lead to more price competition among funeral
providers.\51\
---------------------------------------------------------------------------
\47\ CFA RR at 7-8; OBFP RR at 1; Imperial Caskets RR at 1;
Funerea RR at 1; LRCPA RR at 1; CA RR at 2; FCA SC RR at 1; Texas
Appleseed RR at 1; FCA RR at 5-9; FCA CT RR at 1; TINA RR at 2. One
commenter argued that the current language of the Rule ``implicitly
encourage funeral homes to exclusively use printed format, in an age
where almost everything (e.g., bills, receipts, invoices, bank
statements, etc.) has become paperless.'' H. Lee RR at 3.
\48\ CFA RR at 6, citing Nielsen Global Connected Commerce
Survey, (``a large majority of consumers now use the internet as
part of their online search for products, and a significant number
of these online searchers compare online price'') and Janssen,
Morage-Gonzalez, Wildenbeest, ``Consumer Search and Pricing Behavior
in internet Markets'' (online 2009) (consumers especially compare
online prices when products are relatively expensive); OTR RR at 1
(``according to 10 Online Shopping Statistics You Need to Know in
2020 (article by Maryam Mohsin on Oberlo dated 30 Oct 2019), 63% of
shopping occasions begin online.'').
\49\ CFA RR at 10 (a 2017 CFA-commissioned landline and cable
phone survey undertaken by Opinion Research Corporation of 1,004
representative adult Americans found that 79% of respondents agreed
that ``[i]f the funeral home has a website, should it also be
required to make this price information available on its website?''
and only 18% disagreed).
\50\ TINA RR at 2; CFA RR at 2-7; AG RR at 2; see also CA RR at
2 (a February 2020 CFA-commissioned Engine Group online survey of
1,000 representative adult Americans showed that 91% would be likely
to make price comparisons online if funeral homes posted their price
lists on their website, and 61% would be ``very likely'' to do so).
\51\ FCA EMA RR at 1. See also CC RR at 1; TINA RR at 2; Prof.
J. Perloff RR at 1. Commenters argued that amending the Rule to
include an online price requirement will ``[i]ncrease competition
and encourage funeral homes to offer the best possible pricing,
particularly [] in local markets where there are large price
differences between many funeral homes.'' AARP RR at 2; see also S.
Della Valle RR at 1 (funeral owner requesting online posting of GPL,
CPL, and OBCPL; he states that his competitor will not hand out GPL
on request, instead the competitor uses his GPL and then sets his
prices accordingly); CA RR at 1; CCC RR at 1; RW Alexander RR at 3
(noting that in his area of Northern Utah, there is a 223%
difference in prices for a full funeral); FCA RR at 8-9 (noting that
the prices for funeral services vary widely and the price variation
is not due to differences in quality ``because prices vary even for
cremations and direct burials, which involve generally the same
service.'' Instead, ``the problem is that Providers know that most
families are not aware of this huge price variation. . . So, even a
very high price is categorized in the consumer's mind as `normal,
and just what funerals or cremations cost'''); CC RR at 4 (``We also
find that [funeral home] prices are not related to service quality.
Funeral homes that receive high marks from their surveyed customers
for service quality are actually slightly less likely to charge high
prices compared to funeral homes that receive low scores from their
surveyed customers.'') (emphasis in original).
Commenters also cited to a recent study that found that funeral
providers in California who voluntarily disclose their prices on
their websites charged consumers lower rates. FCA RR at 7-8 citing
Joshua Slocum and Stephen Brobeck, The Relationship between Funeral
Price Disclosures and Funeral Prices: A California Case Study--
February 2020. Accessed at: https://funerals.org/wpcontent/uploads/2020/02/California-Funeral-Home-Pricing-Report-2-10-20.docx (noting
that ``[p]rice-hiders charged a median price 31 percent higher for a
direct cremation ($1,695) than those who prominently disclosed their
prices online ($1,295), Price-hiders charged a median price 37
percent higher for an immediate burial ($2,595) than prominent
disclosers ($1,900), and Price-hiders charged a median price 36
percent higher for the basic services of funeral director and staff
($1,835) than prominent disclosers ($1,348)'').
---------------------------------------------------------------------------
Commenters offered various ideas for how an online price
requirement should be implemented. Almost all agreed that funeral
providers that maintain websites should be required to prominently and
conspicuously post their price lists on their websites.\52\ Supporters
of this view noted that the cost to these funeral providers would be
minimal.\53\ Similarly, one commenter urged the Commission to mandate
that if a funeral provider has a business or ``official'' account on
social media services, ``they should be required to post their [p]rice
list information on that social media service.'' \54\
---------------------------------------------------------------------------
\52\ See, e.g., UUFV RR at 1; FCA RR at 9; AG RR at 2-3; CA RR
at 1; CR RR at 2. One commenter stated that funeral providers should
only have to post a GPL online, and not the OBCPL and CPL. D.
Stahlhut RR at 1.
\53\ FCA RR at 5; AG RR at 2-3; CA RR at 1; CR RR at 2; CFA RR
at 10; FCA AZ RR at 2-3; MSGA RR at 1; UUFV RR at 1; see also C.
Tregillus RR at 2 (``With computers and printers/copiers now
essential to all businesses, the costs of preparing, revising, and
printing the required disclosures are negligible, even for small,
low-volume funeral home businesses. Although some funeral providers,
of course, may elect to spend more than the Rule requires on their
price lists by, for example, sending them out for professional
multi-color printing, the prices they choose to pay for such
services are not required by the Rule, and thus are not real
compliance costs. Any claims about the high cost of compliance would
likely reflect such costs that are not required by the Rule.'').
Indeed, some argued that online pricing may save funeral providers
money, as they will save on printing and staff costs, and electronic
files can be changed quicker and easier than print files. FCA RR at
5; FCA VABR RR at 2.
\54\ UUFV RR at 2.
---------------------------------------------------------------------------
Commenters disagreed, however, about whether funeral providers that
do not maintain a website should be required to post their prices
online. One commenter argued all providers should make pricing
information available electronically, because setting up a website can
be done with little cost.\55\ Some commenters asserted funeral
providers without a website should have to promptly email itemized
price lists in response to consumer requests.\56\ Others argued that
email delivery was not an acceptable substitute, because email would
often be too slow for the time sensitive decisions at issue,\57\ and
requiring funeral homes to respond to emails in a timely fashion could
be too burdensome given that at least some homes have only a handful of
employees.\58\ Some commenters noted the collection of email addresses
by a funeral provider could raise privacy and spam concerns.\59\ Among
those commenters who supported online disclosures, some also asked that
the Rule be amended to contain guidelines for how online disclosure
should be made,\60\ such as requiring ``online GPLs be updated in a
reasonable timeframe when prices change''--so consumers are not misled
by out of date prices.\61\
---------------------------------------------------------------------------
\55\ AARP RR at 2. But see K. Kaczmarek RR at 3, citing How Much
Should a website Cost?, WebFX (2020) (setting up a website can cost
thousands of dollars). One commenter asked that funeral providers in
parts of the country with no or limited internet should be exempted
from any online disclosure requirements. FCA VABR RR at 3-4.
\56\ CR RR at 2; see also MSGA RR at 1 (sending pricing info via
email should be ``a very simple thing''); R. Zeldin RR at 1
(information must be emailed within 24 hours of receiving the
request); M. Ludlum RR at 3 (noting that websites should not be
mandatory now, but that he anticipates that all funeral providers
will have a website in the next few years because ``of the many
benefits of having a funeral home website''). One commenter also
suggested that the Rule be updated to require ``providers responding
to telephone requests for price lists [to] give consumers the option
of receiving emailed electronic copies, and otherwise provide the
GPL's required affirmative disclosures orally.'' C. Tregillus RR at
3.
\57\ C. Tregillus RR at 7 (requiring consumers to request
emailed prices will ``cause at least some delay'' which may
``prevent consideration of the information'' particularly where
``consumers may feel under pressure to make rapid arrangements'');
see also FCA AZ RR at 3; M. Klein RR at 4. One commenter argued that
funeral providers should be given 48 hours to respond to any emailed
request for price lists, given that the email could be sent over a
weekend or late at night. D. Stahlhut RR at 1.
\58\ RW Alexander RR at 7 (website disclosures would be less
burdensome to small businesses that requiring them to respond to
email).
\59\ UUFV RR at 1 (some of its members have reported receiving
``spam'' email and phone calls from funeral providers); R. Doremus
RR at 1 (consumer was contacted by a funeral home for six months
after providing her information); CFA RR at 3 (some funeral
providers use provided contact information to ``aggressively market
their services, including repeated calls'').
\60\ For example, some suggested that the FTC consider
requirements for language, type size, and placement in any required
online disclosures, as well as requirements that the posting be
conspicuous and easy to see, and that the GPL or a link to the GPL
be visible on the landing page of the funeral home's website. CFA RR
at 10; FCA MN RR at 1; M. Ludlum RR at 4-5; RW Alex RR at 16.
\61\ FCA WMA RR at 1. One commenter advocated instead that
funeral providers only be allowed update their prices once a year,
on 60-90 days' notice to consumers. N. Finkle RR at 1.
---------------------------------------------------------------------------
Regardless of how the Commission might implement an online or
electronic distribution requirement, commenters urged the Commission to
amend the Rule to require that, no matter how a purchase is ultimately
made (in person or via phone call, email, or texting, etc.), a funeral
provider must provide a copy of the GPL, CPL, and OBCPL before a
consumer makes any selections.\62\
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\62\ FCA AZ RR at 3. Several attorney generals argued that if
the arrangements are made without an in-person meeting, then the
``funeral provider should be required to provide electronic copies
of its itemized GPL, CPL, or OBCPL prior to the consumer making any
selections'' and ``post all prices on their websites.'' AG RR at 3.
Another commenter stated that ``digital delivery of [GPL, CPL, and/
or OBCPL] should constitute `physical delivery,''' but the burden
will be on the provider to prove, ``through technological means such
as digital footprint tracking and other such methods, that a
consumer has reviewed and received the'' price list. HLC RR at 1.
---------------------------------------------------------------------------
B. Comments Generally Opposing Online and Electronic Disclosure
Some commenters argued the Rule should not be amended to require
all funeral providers to post their itemized GPLs, CPLs, or OBCPLs
online.\63\ Citing
[[Page 66101]]
industry surveys, they argued consumers are not currently being harmed
by not having funeral prices online, so a Rule amendment would not be
appropriate.\64\ They argued the current Rule ``provides consumers with
complete and accurate pricing information that they can digest and
utilize to develop funeral arrangements that meet their unique needs
and circumstances'' \65\ and ``[i]f a consumer does not want to step
inside a funeral home . . ., they do not have to do so and are free to
shop over the telephone or by visiting a funeral home and taking its
price list with them when they leave.'' \66\ Some of these commenters
stated many funeral providers already post price information online
(although no commenters provided data about what price information is
available or how widespread the practice is),\67\ and, they point to
third-party online services that collate funeral price information and
offer it to the public.\68\
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\63\ SCI RR at 3, 16; Funeralocity RR at 1-2; NYSFDA at 3; CANA
RR at 2; SIFH RR at 11-12; ICCFA RR at 9-26; NFDA RR at 44-52;
Carriage RR at 2. See also the almost identical comments submitted
by the Kentucky, South Dakota, Utah, Iowa, Michigan, and Rhode
Island Funeral Directors Associations, the New Hampshire Funeral
Director and Embalmer Association, the Hawaii Funeral & Cemetery
Association, and the Arizona Funeral Cemetery & Cremation
Association (the ``State FDAs.'') The Indiana Funeral Directors
Association reports that 80.5% of 144 licensed funeral providers in
Indiana feel website/virtual inclusion should not be mandated in the
Rule. Indiana Funeral Directors Association (``IFDA'') RR at 3.
\64\ NFDA RR at 44-45 (NFDA's Consumer Survey found that
``slightly over 90% of consumers do not even look for price
information when selecting a funeral home. Secondly, of those who do
seek out price information, 65.4% do it by visiting the funeral home
and 24.8% by telephoning the funeral home''); see id. at 48 (``Given
the fact that less than 10% of funeral consumers seek price
information before selecting a funeral home and that an overwhelming
majority of those 10% prefer to visit the funeral home (65.4%) or
telephone the funeral home (24.6%), there is scant reason to believe
that requiring all funeral homes to post price lists would benefit
any consumers. However, to require the nation's 20,000 funeral homes
to post all their price lists on their websites and to add updates
thereto would involve substantial initial and ongoing costs.'');
Funeralocity at 1 (``We do not see a transparency problem in funeral
provider prices. As the NFDA 2019 consumer survey shows, in 83.2% of
the time, families call only one funeral home in their times of
need. And they can get the prices in that call--even in a grief-
stricken state. We see no reason to change the Funeral Rule
regarding GPL disclosure. There is no problem to remedy''); ICCFA RR
at 10 (noting that only one commenter said pricing information was
unavailable).
\65\ SCI RR at 16. See also NFDA RR 48 (``Even for the less than
1% of funeral consumers who do use the internet to price shop, there
is no evidence that they have any problem accessing funeral price
information on the internet. As NFDA's Funeral Consumer Survey
evidence showed, of the small minority of consumers who do price
comparison shop, over 87% of them reported it was very easy, easy,
or somewhat easy to obtain the price information they wanted.'')
\66\ Carriage RR at 3. But see discussion infra footnotes 29-30,
37-42 regarding reported difficulties with getting price lists or
with visiting a funeral home.
\67\ New Jersey Funeral Directors Association (``NJSFDA'') RR at
4 (``Many NJSFDA funeral providers voluntarily make GPLs available
on their websites. Others utilize and subscribe to Funeral Matters.
. . . Funeral Matters is a contemporary and transparent online
pricing tool that allows consumers the ability to price and compare
accurate charges with information available on the websites of 26
subscribing funeral providers. . . . In 2019, an average of 1,700
unique consumers performed pricing research on the subscribing
funeral providers' websites each month, representing 27.5% of the
funerals performed every month in NJ (74,159 deaths/12 months = an
average of 6,180 deaths each month.).''); NYS FDA RR at 3 (``While
empirical data show that this medium still lags as a tool for
consumers in seeking out funeral pricing information, it is a fact
that a growing number of funeral homes continue to choose to
voluntarily place their price lists on their websites''); ICCFA RR
at 10, citing FuneralOne, https://www.funeralone.com (last visited
June 9, 2020); Consolidated Funeral Services, https://runcfs.com
(last visited June 9, 2020); and Frazer Consultants, https://www.frazerconsultants.com (last visited June 9, 2020).
\68\ ICCFA at 11; see also NFDA RR at 50. One service,
Funeralocity, commented stating that it ``spend[s] many thousands of
dollars obtaining and updating GPLs every year. If prices were
available online, we would save a lot of money. But we would lose
some of the uniqueness that we offer in displaying the prices of
virtually every funeral provider in the US online. . . We are
updating prices constantly . . .. While our updating process cannot
be done in real time with the GPL changes at each individual
provider, we are very accurate. And when we are not, the price is
only off slightly. The packages we create are for sampling the
provider's prices and the pricing profiles are still valid
especially when comparing to a competitor funeral home's pricing.''
Funeralocity RR at 2. But one commenter noted, however, that this
information, while well-intended, quickly becomes ``outdated and
inaccurate (at no fault of each funeral provider) and often results
in consumer/funeral provider conflict.'' NJSFDA RR at 3.
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Some commenters argued most consumers are satisfied with the
current status quo \69\ and the market should dictate whether funeral
homes make prices available online.\70\ Some of these commenters stated
that, unlike many products, consumers consider more than price when
purchasing funeral services,\71\ and visiting funeral homes is
beneficial to consumers.\72\
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\69\ NFDA RR at 46 (NFDA's 2019 and 2020 funeral surveys showed
that 19.54% of consumers found it to be very easy to obtain price
information, 34.9% found it to be easy, 32.75% found it to be
somewhat easy, 10.85% said it was not very easy, and 2.05% said it
was not easy at all); SCI RR at 2, 8, 9 (summarizing results of a JD
Power's survey).
\70\ NFDA RR at 49; CANA RR at 2; Carriage RR at 2-3; State
Directors FDA RR at 1 (``Additionally, our member funeral homes know
very well the clientele they serve. If families want price
information posted on the funeral home's website, the funeral home
will post it.''); ICCFA RR at 10, 20-21 (``Having that choice allows
the funeral home to present and inform the consumer in the manner
that is fair to the consumer and most appropriate for the business.
If the Funeral Rule were to mandate that all prices must be made
available online through a funeral home website, it takes away the
business' right to choose where it conducts business.'').
\71\ NFDA RR at 10-11, 49. As one funeral provider said, ``Price
simply does not tell the story'' of what a consumer is buying when
it comes to funeral service arrangements--``the `look and feel' of
the facilities matter.'' SCI RR at 13-14.
\72\ NYSFDA RR at 3 (``Indeed, there is also infinite value for
a consumer to speak with a funeral director, preferably in person,
so as to better understand his or her funeral home's specific
offerings and to review and explain price lists and the various
options that are available. Consumers are best served when they can
factor into their decisions both price AND service.'').
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Some critics of an online disclosure requirement argued such a
requirement would be burdensome to funeral providers, including small
businesses who ``lack[] the budget, expertise, and staff to create and
maintain a website,'' \73\ although they did not quantify this burden
or offer evidence to support their position. They further argued the
proposed requirement is especially problematic for rural funeral homes,
because many do not have a website due to lack of local technology
infrastructure.\74\ Some commenters argued mandating website price
disclosures would put small business at a competitive disadvantage \75\
and potentially cause them to be subject to unaffordable penalties for
law violations.\76\ They argued funeral homes are already subject to
state regulation, and adding an additional layer of regulation (which,
they argued, might conflict with state laws) ``is not only unnecessary
but will create confusion.'' \77\
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\73\ SIFH RR at 11-12; see also ICCFA RR at 21 (``Many funeral
homes are small facilities that have limited resources and limited
access to technology. Having to modify a website; keep it current;
and also make it consumer-friendly, are things small providers may
not be able to do.''); Funeralocity RR at 2 (``In our opinion,
funeral directors are not typically tech savvy, so these changes
will have to be implemented by outside resources.'').
\74\ IFDA RR at 3-4 (adding that some providers use social media
or instant messaging rather than having a website).
\75\ ICCFA RR at 21 (``Potentially, larger or more tech-savvy
providers could dominate on the pricing presentation and consumers
could be misled thinking that these were better providers--merely
because now, potentially, all shopping would be done online.'').
\76\ ICCFA RR at 24. The ICCFA was also concerned about costs to
educate funeral homes concerning the rule changes, including the
costs to mortuary schools which will have to update references,
books and materials on the current Funeral Rule and to states which
would have to update its testing materials. Id.
\77\ Carriage RR at 3; see also SCI RR at 15-16. But see OTR RR
at 1 (noting that Texas exercises minimal oversight over the funeral
industry).
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Some commenters argued a requirement to post prices online would be
unfair since no other industry is mandated by federal law to post
prices online, except for a ``new Department of Health and Human
Services regulation which mandates that hospitals post prices for
certain procedures online.'' \78\
[[Page 66102]]
One commenter argued that ``[g]iven the rapid pace of technologic
change, in another decade the online world will likely look just as
different. . . . Many funeral homes are engaging with the public on
social media platforms, such as Facebook, Twitter, and Instagram. These
website alternatives do not lend themselves well to posting a GPL.''
\79\ Another commenter argued requiring only funeral providers that
maintain a website to post a GPL online, ``could lead to some funeral
homes removing their websites in order to avoid the requirement.'' \80\
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\78\ NFDA RR at 47; State FDAs RR at 1. See also ICCFA RR at 20
(``[o]ther industries regulated on the Federal level have disclosure
requirements, which each provide a trigger point, but none are
promulgated solely upon the existence of a website. . . For example,
U.S. air carriers must disclose various fee information, including
baggage fees, to consumers. However, the disclosure is only required
upon the `website of U.S. air carriers that have a website
accessible for ticket purchase by the general public'. . .
Similarly, a depository institution must provide certain account
disclosures to consumers before an account is opened. If the account
is opened through electronic means, such as through a website, ``the
disclosures required . . . must be provided before the account is
opened or the service is provided.'' Again, the notice is not deemed
to be necessary simply because the bank has a website--but is tied
to the creation of an account, and further tied to the time period
right before the service is provided.'') (emphasis in original)
(internal cites omitted).
\79\ SIFH RR at 11.
\80\ ICCFA RR at 21.
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Some commenters who argued against requiring all funeral providers
to provide electronic or online delivery of itemized price lists, did
support more limited modifications to the Rule. First, several
commenters opined all funeral providers that offer consumers the option
to make funeral arrangements online must post an itemized price list
online, so consumers can review this price information before making a
purchase.\81\ As one commenter said, ``[c]onsumers who choose to shop
online deserve the same protections as those who arrange a funeral or
cremation in person--and certainly deserve to receive itemized pricing
information `prior to any selection or determination' of funeral goods
and services.'' \82\ Second, the National Funeral Directors Association
(``NFDA'') proposed the Rule be updated to include ``permissible
options'' to transmit GPLs to consumer via new ``information
distribution systems'' that have emerged since the Rule was enacted--
``including personal delivery, U.S. Mail, electronic mail, telefax, or
by posting a link to its GPL on the funeral home web page with the
word[s] `price information.' '' \83\ Third, one commenter asserted the
Commission should offer a safe harbor from undercover shopping \84\ for
funeral providers that make GPLs available on a conspicuous place on
their websites.\85\
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\81\ ICCFA RR at 19; NFDA RR at 40; NYSFDA RR at 4; SIFH RR at
9, 11, 12; CANA RR at 2.
\82\ SIFH RR at 12.
\83\ NFDA RR at 40. The Indiana Funeral Director's Association
noted that 71.5% of the respondents in a recent survey ``felt the
mandatory inclusion of requiring funeral homes to fax, email, mail
GPLs when requested did not further protect the consumer, and
increased the potential cost confusion if a face-to-face requirement
to obtain a GPL were made optional.'' IFDA RR at 4.
\84\ Commission staff has historically conducted such shopping
as part of its efforts to ensure compliance with the Rule.
\85\ NJSFDA RR at 4 (FTC undercover price shoppers should not
target funeral providers who have GPLs conspicuously disclosed on
the website); NYSFDA RR at 3-4 (suggesting that instead of changing
the Rule, the FTC encourage providers to post their GPLs online by
providing a `safe harbor' from undercover shopping for such
providers since the GPLs are available at any time). One consumer
suggested that the Rule should allow providers who choose to post
price information online to include a ``waiver in the contract for
services stating that the consumer has seen all of the required
disclosures online and has waived their right to receive them in
person.'' L. Northcutt RR at 2. The NYSFDA also asked that the FTC
allow ``adequate time'' of one year before implementing any website
disclosures, to give the industry time to comply. NYSFDA RR at 3-4.
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2. Commission Staff Review of Funeral Provider websites
Commission staff conducted a review of almost 200 funeral provider
websites from a cross-section of geographical areas and sizes.\86\ As
described below, the review showed robust website use by those funeral
providers to promote their goods and services. Yet, most websites did
not provide any pricing information. Fewer than half (40%) of the sites
reviewed provided any information about the price of the goods or
services offered.\87\ Only about 24% of the websites contained an
itemized price list or GPL and just over 10% displayed only starting
prices or package prices.\88\ Moreover, of the websites that contained
pricing information, only some prominently displayed the GPLs or other
price information on their website's home page or on the drop-down
menus present on that page.\89\
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\86\ Shopping for Funeral Services Online: An FTC Staff Review
of Funeral Provider websites (Oct. 2022) (``Report''). The full
Report is available at https://www.ftc.gov/reports/shopping-funeral-services-online. While not based on a statistical sample, the review
looked at a diverse group of funeral providers that are employing
websites in their businesses. The results offer broad insights into
the information providers of differing sizes and in areas with
different population densities make available online.
\87\ Report at 5.
\88\ Id. at 5-6.
\89\ Id. at 6.
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Staff's review found funeral providers were using websites for many
aspects of their business.\90\ For example, almost all of the reviewed
websites posted obituary information about the deceased persons in
their care, as well as information about any related funeral,
graveside, or memorial services. These websites provided dedicated
pages for each of the deceased persons in their care, many of which
could be shared electronically with others. The web pages also offered
visitors the opportunity to post condolences for the family and others
to see on the website and many offered ways to send flowers to the
families of the deceased.
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\90\ Id. at 4-5.
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Two-thirds of the websites reviewed listed an email address to
contact the provider and almost all offered online forms web visitors
could submit to contact the funeral providers.\91\ A handful appeared
to offer visitors the ability to chat online with the funeral provider,
and almost 10% of the reviewed websites appeared to offer visitors the
ability to make online selections of their funeral arrangements on the
providers' websites, without visiting the physical location.\92\ Almost
80% of the websites indicated an association with a third party company
to create, design, or host the funeral providers' websites.\93\
---------------------------------------------------------------------------
\91\ Id. at 4.
\92\ Id. at 4.
\93\ Id. at 9.
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3. Objectives and Alternatives
The record shows funeral providers typically use websites and
electronic communication to communicate with the public about a variety
of information, ranging from their contact information, obituaries,
information about any funeral, graveside, or memorial services,
pictures of caskets, and descriptions of the services they offer. Most,
however, appear not to use such technology to share their prices with
consumers. The record also shows that, given the growth of the internet
and electronic communication, adding electronic media as means to
display and distribute price information would greatly benefit
consumers by providing access to accurate itemized prices with arguably
minimal costs to funeral providers who already have websites. Such an
amendment appears to fit squarely with the original purpose of the Rule
and will make the Rule more in tune with how consumers generally obtain
price information today. Therefore, the Commission wishes to explore
how it could revise the Rule's preventative requirements regarding the
distribution of price information to include new technologies. The
Commission is particularly interested in suggestions about how to
tailor changes in ways that facilitate the ability of small businesses
to comply with the Rule using new technologies.
[[Page 66103]]
First, the Commission seeks comment on whether it should change the
Rule's price list disclosure provisions to require funeral providers to
prominently display either their GPLs or a prominently labeled link to
their GPLs on their websites. The Commission is particularly interested
in whether such a provision should apply to all funeral providers, all
providers with a website, or only providers who sell funeral goods or
services online.
Second, the Commission seeks comment on whether it should change
the Rule's CPL and OBCPL distribution requirements to require funeral
providers to prominently display either their CPLs and/or OBCPLs on
their websites, or a clearly labeled link to these price lists.\94\ The
current Rule requires funeral providers to present their CPLs and
OBCPLs before discussing or showing these items or pictures of these
items.\95\ This possible modification could apply to all providers, or
just those providers who show pictures and/or descriptions of caskets,
alternative containers, or outer burial containers.
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\94\ The Rule currently requires funeral providers to either
include the information contained in their CPLs or OBCPLs on their
GPLs, or list the price ranges for caskets, alternative containers,
and outer burial containers on their GPLs. 16 CFR 453.2(b)(4)(iii).
Thus, this provision would only be necessary for those providers
that only include the price ranges for caskets, alternative
containers, and outer burial containers on their GPL.
\95\ 16 CFRSec. 453.2(b)(2)(i) and 453.2(b)(3)(i).
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Third, the Commission could consider a Rule change to require all
funeral providers that maintain websites to display a prominent
statement that users can request the providers' GPLs, CPLs, and OBCPLs
with a link, button, or email address for people to use to request the
price list or lists.\96\ The Commission also seeks comment on whether
to include a requirement that funeral providers must respond to online
requests for price lists within a particular time frame. The Commission
notes the current Rule does not require the CPL or OBCPL to be in a
specific format, stating ``[i]n lieu of a written list, other formats,
such as notebooks, brochures, or charts may be used if they contain the
same information as would the printed or typewritten list, and display
it in a clear and conspicuous manner.'' \97\ Commission staff have seen
CPLs and OBCPLs in the form of binders, catalogs, and brochures in
addition to written lists. Thus, the Commission seeks input as to
whether a requirement that the CPL and/or OBCPL be in a format that can
be shared electronically provides any benefits to consumers or presents
any challenges or costs for compliance, particularly for small
business.
---------------------------------------------------------------------------
\96\ Funeral providers could also be required to state on the
GPL that the CPL and OBCPL are available upon request via one of
these electronic methods.
\97\ 16 CFR 453.2(b)(2)(i).
---------------------------------------------------------------------------
Fourth, the Commission is also considering whether to include
social media pages or other new technological or electronic
communication methods within the scope of covered websites for the
purposes of any Rule modifications. For example, the Commission could
require a funeral provider with a social media page to link to the
provider's main website or provide an email address or other online
mechanism for a user to request price list information. On a related
note, the Commission seeks input on ways to amend the Rule to embrace
new platforms and technologies as they develop so that both providers
and consumers can benefit from new distribution methods without
requiring a Rule change.
Fifth, the Commission seeks comment on whether the Rule should be
modified to require all funeral providers (regardless of whether they
maintain websites) to offer to send their GPLs, CPLs, or OBCPLs
electronically to any persons who ask about the providers' goods and
services, including those who ask for a copy of any of its price lists.
This could include requests by telephone, text, email, weblink, social
media, fax, U.S. Mail, or other new communication methods that may
emerge in the futures. Providers would be required to send the
information within a certain timeframe, unless the consumer declines to
receive this information or does not provide an email address or other
method for receiving the information. The Commission could also make an
exception to this proposed requirement if a funeral provider
prominently makes either its GPL, CPL, and OBCPL, or clearly labeled
links to these documents, available on its website.\98\
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\98\ Funeral providers would still be required to answer
questions of persons who ask over the telephone about the providers'
offerings or prices. Note that the change considered would not
require a funeral provider to affirmatively send or offer to send
price list information electronically unless a person first asks
about its offerings or prices. This approach is consistent with the
Commission's prior decision to repeal the original Rule's
requirement that providers affirmatively state price information
over the telephone even when a caller did not ask for the
information. See 1994 Statement of Basis and Purpose, 59 FR 1592,
1600-1602 (Jan. 11, 1994).
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Sixth, another approach the Commission is considering would require
all funeral providers to give electronic copies of their GPLs at the
beginning of any arrangement discussion or process that does not take
place in-person unless a hard copy has already been provided. For
example, if the arrangements are discussed on the telephone, the
provider would need to send an electronic copy of the GPL to the
consumer before continuing the conversation (if the consumer has not
yet received the information). If the consumer is making selections
online, the provider would need to offer a prominent link to its GPL
before allowing the consumer to proceed with selections. Electronic
copies of the CPLs and OBCPLs would also need to be provided if showing
or discussing those items or their prices, or if consumers are making
selections of those items online.
Seventh, if electronic distribution is required, the Commission is
considering whether the Rule should include a requirement concerning
how often providers should update the electronic GPLs, CPLs, and
OBCPLs. The current Rule requires a funeral provider to list an
effective date on its price lists. To be in compliance with the Rule,
the price list must be accurate. Therefore, funeral providers must
update their lists regularly as their prices change. The costs to
businesses of updating electronic lists would seem quite minimal and
further the goal of providing consumers with accurate itemized
information. Should the Commission set a specific time frame for
updating online information?
Eighth, the Commission is considering another potential
modification to the Rule's preventative requirements to include
electronic means for distribution of the statement of funeral goods and
services selected. Currently, the Rule requires funeral providers to
give an itemized written statement for retention to each person who
arranges a funeral or other disposition of human remains, at the
conclusion of the discussion of arrangements.\99\ When the arrangements
discussions take place in person, the statement is provided at the end
of the meeting. When consumers make arrangements via the telephone or
online, the funeral provider could be required to immediately send an
electronic copy of the statement of goods and services selected, rather
than giving the list to consumers in a less timely way, for example by
sending the statement via U.S. Mail. Electronic distribution of the
statement could provide tremendous benefits to consumers by providing
more timely access to the total cost of funeral
[[Page 66104]]
arrangements and appears to present minimal costs to providers.
---------------------------------------------------------------------------
\99\ 16 CFR 453.2(b)(5).
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B. Disclosure of Crematory Fees and Other Costs
The Review also elicited comment about whether to require funeral
providers to disclose on their GPLs information about all crematory-
related fees, including third party fees, and other costs, such as fees
for death certificates and local permits. The Rule currently requires
funeral providers to list the prices for 16 items (if offered),
including the prices for the direct cremation services offered, with
separate prices for direct cremation with or without an alternative
container, and a description of the services and container included in
each price.\100\ A funeral provider may include the use of its
crematory or a third party's crematory in its GPL's description of the
services and costs for direct cremation services. Funeral providers who
do not operate their own crematories and have not included the
cremation fees in the price for direct cremation on the GPL must list
the fees charged by an outside crematory, or a good-faith estimate of
those fees, along with additional crematory-related fees as ``cash
advance'' services in the statement of goods and services
selected.\101\
---------------------------------------------------------------------------
\100\ 16 CFR 453.2(b)(4).
\101\ Complying with the Funeral Rule, FTC Business Compliance
Guide available at https://www.ftc.gov/system/files/documents/plain-language/565a-complying-with-funeral-rule_2020_march_508.pdf.
---------------------------------------------------------------------------
1. Summary of Comments
Several commenters asked that the Rule be changed to require
funeral providers to disclose all crematory fees on the GPL, including
third party crematory fees, as well as any additional crematory-related
fees such as crematory transportation fees.\102\ These commenters
argued it is deceptive not to include these additional fees on the GPL
when listing the price for cremation services.\103\ They asserted a
reasonable consumer would expect a fee for ``cremation services''
reflects the full cost of the cremation, even if it is performed by a
third party crematory,\104\ and may not learn until it is time to pay
the bill they also have to pay additional third party crematory
fees.\105\
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\102\ CFA RR at 10-11; LRCPA RR at 1; FCA VABR RR at 1, 3; FCA
GKC RR at 1; FCA PA RR at 1; FCA GR RR at 1; FCA SC RR at 1; FCA RR
at 9-10; CR RR at 3; FCA AZ RR at 3-4; FCA MN RR at 1; FCA CT RR at
2; TINA RR at 3-4; Paige Hetherington, GraceFull Dying RR at 1; MBS
RR at 1; C. Tregillus RR at 9-10; Imperial Caskets RR at 1; Charter
Funerals RR at 1; Diversity Collaborative RR at 1; Borderland RR at
2; SIFH RR at 12; AARP RR at 3; M. Klein RR at 6-7. Some commenters
complained that funeral providers do not always disclose all of
their own fees or third party fees on the GPL. See, e.g., AG RR at 4
(noting that some funeral providers list a fee for the death
certificate in the GPL, but others do not, and ``it can be upsetting
for consumers to be asked to pay additional amounts they are not
aware of''); FCA CT at 2 (stating that some funeral homes omitted
required items and idiosyncratic fees from the GPL, including the
price of the container, the mandatory Medical Transportation Fee,
and unlisted transportation fees).
\103\ FCA of VABR RR at 3; CMS RR at 1; FCA RR at 9-10; SIFH RR
at 12.
\104\ FCA PA RR at 1 (``No normal person would ever think that
the advertised price of a cremation does not include the actual
crematory fee(s)...''); FCA RR at 9-10.
\105\ FCA RR at 9-10.
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According to these commenters, while most funeral homes appear to
voluntarily disclose all third party crematory fees on their GPL, a
substantial minority do not.\106\ For example, a 2016 survey by the FCA
and CFA of 142 representative funeral homes nationwide found 22 percent
did not disclose third party crematory fees on the GPL.\107\ Consumer
Checkbook found 40 percent of ``funeral homes don't disclose crematory
fees on their GPLs, or even note that such a fee might exist.'' \108\
Commenters reported third party crematory fees can range from $250 to
$600.\109\
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\106\ CFA RR at 10-11; see also SIFH RR at 12 (Many online only
providers ``advertise a very low price for a ``direct cremation,''
but then charge the consumer a number of add-on fees that
substantially raise the actual price of the service''); FCA CT RR at
2 (2019 survey found that some funeral homes and many cremation
providers which touted ``inexpensive cremation'' failed to include
the price of the container, the required Medical Examiner's charge,
or an unlisted transportation fee to the ME's or the crematory to
pack up the ashes); FCA WMA RR at 1 (reporting that consumers are
surprised to discover that the GPL cremation fee does not include
the actual cremation or the required $200 medical examiner fee).
\107\ FCA RR at 9-10, citing Joshua Slocum, Stephen Brobeck,
``Cremation Services: Highly Variable and Misleading Pricing, Lack
of Disclosure, and Violation of Federal Rules,'' Funeral Consumers
Alliance and Consumer Federation of America (September 2016), at 3,
https://funerals.org/wp-content/uploads/2020/02/2016-9-12-FCA-CFA-Cremation-Report.pdf; see also CFA RR at 10-11.
\108\ CC RR at 4.
\109\ TINA RR at 3-4 citing Joshua Slocum, Stephen Brobeck,
``Cremation Services: Highly Variable and Misleading Pricing, Lack
of Disclosure, and Violation of Federal Rules,'' Funeral Consumers
Alliance and Consumer Federation of America (September 2016), at 3,
https://funerals.org/wp-content/uploads/2020/02/2016-9-12-FCA-CFA-Cremation-Report.pdf. See also CFA RR at 10-11; FCA RR at 9-10.
---------------------------------------------------------------------------
Several commenters said requiring third party crematory fees to be
included on the GPL would ``help[] ensure that consumers have accurate
pricing information,'' and ``create a fairer `playing field' for all
funeral homes.'' \110\ Some asked that the Rule be amended to mandate
the full disclosure of all crematory fees.\111\ Others felt funeral
homes who use a variety of third parties should only have to disclose a
price range,\112\ and some suggested a disclaimer that a crematory fee
is not included is one option to avoid harm to consumers.\113\
---------------------------------------------------------------------------
\110\ CFA RR at 10-11 (stating ``those that do not disclose have
an unfair advantage over those that do'').
\111\ CR RR at 3 (``The price list should be required to include
any products and services to be obtained from third parties and
treated as `cash advance' items by the funeral home. It should
include crematory fees, and other fees and charges of whatever kind
that the consumer would pay to the funeral home. . .''); FCA GKC RR
at 1; AARP RR at 3; SIFH RR at 12; C. Tregillus RR at 10.
\112\ TINA RR at 3-4; FCA RR at 10. But see C. Tregillus RR at
9-10 (a price range would not be helpful as it would create
unnecessary confusion for consumers).
\113\ FCA PA RR at 1. See also FCA VABR RR at 3 (the Rule could
either require the third party crematory to be included on the GPL
or it could require a disclaimer identifying the crematory provider
who will be charging an additional fee). But see FCA AZ RR at 3-4
(providing real-life examples of disclosures that would not be
helpful; such as price lists that contained ``low-ball pricing''
that is not reflective of what consumers will have to pay, that
included only a ``fine print'' disclosure that crematory or medical
examiner fees are not included in that pricing). Consumer Reports
asked that the GPL ``include any products and services to be
obtained from third parties and treated as `cash advance' items by
the funeral home. . ., [including] fees and charges of whatever kind
that the consumer would pay to the funeral home.'' CR RR at 3; see
also FCA VABR RR at 3 (the newspaper obituary fee should be listed
in the GPL).
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Some commenters were opposed to amending the GPL requirement to
require the disclosure of third party crematory fees on the GPL.\114\
Some contended that over 70% of funeral providers use a third party
crematory to perform their cremations,\115\ and these funeral providers
have no control over the amount charged by third party
crematories.\116\ Some commenters reported many funeral providers work
with multiple crematories that charge different fees,\117\ and it would
be unduly burdensome to require providers to constantly monitor all of
these fees charged by separate businesses, and then update and re-print
the GPL each time the third party fees changes.\118\
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\114\ NFDA RR at 60-61; NJSFDA RR at 5; NYSFDA RR at 4-5.
\115\ NFDA RR at 60 (``According to the 2019 NFDA Member General
Price List Study, over 70% of funeral homes use a third-party
crematory to perform their cremations.'').
\116\ Id.; NJSFDA RR at 5; NYSFDA RR at 4-5.
\117\ NFDA RR at 60.
\118\ NJSFDA RR at 5; NYSFDA RR at 4-5.
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2. Objectives and Alternatives
The Commission is considering whether to amend the Rule to provide
better disclosure for consumers about
[[Page 66105]]
third-party crematory-related fees, as well as other costs not required
to be listed on the GPL. The Commission seeks comment on a whether
funeral providers should be required to list any applicable third-party
crematory fees on the GPL in close proximity to the description and
price for direct cremation. Another approach would be to require a
funeral provider that does not include the cost of the third-party
crematory fees in the price for direct cremation to include a statement
on the GPL that the cremation fee does not include third party
crematory fees, along with a typical price range for these fees. Such a
statement would need to be placed in close proximity to the price for
cremation.
In addition to third-party crematory fees, the Commission wishes to
explore whether the Rule should be clarified to state when other fees,
not included in the price of the services, should be disclosed on the
GPL.\119\ For example, these other fees may include separate charges
for the weight of the deceased, removal of a medical device, storing
remains, expedited cremation or burial, death certificates, county
permits, medical examiner permits, and supplies and procedures related
to infectious disease control. The Commission seeks comment on whether
these or other costs related to direct cremations or immediate burials
not included in the price of those services should be added to the
items required to be disclosed on the GPL, and whether such items
should appear in close proximity to the price for direct cremations and
immediate burials. Another approach to address concerns about other
costs not currently required to be listed on the GPL would require a
funeral provider to include on the GPL a statement in close proximity
to the price for direct cremation that lists the additional fees the
funeral home knows consumers may have to pay, along with a typical
price range for those fees. Alternatively, funeral providers could be
required to include a statement in close proximity to the prices for
direct cremation and immediate burial simply stating additional fees
may apply.
---------------------------------------------------------------------------
\119\ Some staff advisory opinions address this issue. See
Funeral Rule Advisory Opinion 11-1 (2011), available at https://www.ftc.gov/legal-library/browse/advisory-opinions/opinion-11-1 and
Advisory Opinion 13-1 (2013), available at https://www.ftc.gov/legal-library/browse/advisory-opinions/opinion-13-1; and Advisory
Opinion 16-2, available at https://www.ftc.gov/legal-library/browse/advisory-opinions/opinion-16-2. The Commission believes additional
clarity on this issue will provide benefits to industry and
consumers.
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C. Reduced Basic Services Fee
The Rule currently allows funeral providers to charge only one non-
declinable fee, for the ``services of the funeral director and staff''
(or ``the basic services fee'').\120\ This fee ``grew out of the Rule's
unbundling provisions, which required funeral providers to itemize
prices. These unbundling requirements meant funeral providers could no
longer sweep into the price of a funeral package their fee for the
basic services they perform in connection with planning a funeral.''
\121\ In recognition that ``irrespective of the combination of goods or
services [a consumer selects], the very process of selection itself
will involve use of the funeral provider's services,'' the Commission
permitted funeral providers to charge a basic services fee.\122\ The
Commission intended, however, that this fee should include only the
charges for a funeral provider's basic services associated with
arranging and planning a funeral (and a portion of overhead, if the
provider chooses to include it), and not the services associated with
providing the other 16 declinable items for which itemization is
required on the GPL.\123\
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\120\ The basic services fee is defined as ``[t]he basic
services, not to be included in prices of other categories in Sec.
453.2(b)(4), that are furnished by a funeral provider in arranging
any funeral, such as conducting the arrangements conference,
planning the funeral, obtaining necessary permits, and placing
obituary notices.'' 16 CFR 453.1(p).
\121\ 73 FR 13740, 13746 (Mar. 14, 2008).
\122\ Id.
\123\ Id.; see also 1994 Statement of Basis and Purpose, 59 FR
1592, 1607-1609.
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In the 2008 Rule Review, divided commenters asked the Commission to
consider eliminating the fee entirely or reformulating it. The
Commission declined to do so, stating as follows:
The purpose of the Rule is not to regulate prices. . . .
Regardless of the particular funeral arrangements a consumer seeks,
there are a number of fixed costs related to funeral arrangements
for which funeral providers are entitled to seek payment when their
services and facilities are used. Prior to the adoption of the Rule,
all costs were bundled into one package, none of which consumers
could decline. By allowing a basic services fee, the Rule ensures
that consumers get the benefit of choosing goods and services among
a variety of options--including the option to purchase goods from
the funeral provider's competitors--and paying for common costs only
once.\124\
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\124\ 73 FR 13740, 13747 (Mar. 14, 2008).
The current Rule Review solicited comment on whether to change the
Rule's requirement that funeral providers can charge only one basic
services fee in most instances, and whether two of the exceptions to
the basic services fee provision should be amended to permit some
common limited additional services without the funeral provider having
to charge its full basic services fee.
1. Summary of Comments
Commenters again were divided on whether the Commission should
eliminate or reformulate the basic services fee or maintain the status
quo.
Some favored eliminating the fee.\125\ They said the basic services
fee, which has no cap and is charged by almost all funeral homes,
confuses consumers.\126\ Moreover, to these commenters, the basic
services fee can be exorbitant.\127\
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\125\ CFA RR at 11; FCA WMA RR at 2; FCA RR at 11-12; CR RR at
4; M. Bern-Klug RR at 2-3; M. Klein RR at 8. The NJFSDA and another
commenter recommended the Commission remove from the Rule the option
to incorporate the basic service fee into the price of caskets.
NJSFDA RR at 5-6 (noting that ``consumer trends'' are ``moving away
from disposition options that require the use of caskets''); see
also C. Tregillus RR at 4 (16 CFR 453.2(iii)(C)(2) should be deleted
as no longer needed, unless ``there is opposition from the funeral
industry based on evidence that there are still funeral providers
that inflate their casket prices to cover their unallocated overhead
costs and provide a profit (rather than charging a non-declinable
basic services fee'').
\126\ FCA RR at 11-12; M. Bern-Klug RR at 2-3.
\127\ FCA RR at 11; CFA RR at 11. ``According to 2017 data
released by the NFDA, the median basic services fee was $2,100,
which is close to the price of a casket.'' CFA RR at 11. See also M.
Bern-Klug RR at 2 (University of Iowa collected 48 GPLs in 2016; the
basic services ranged from $245-$3,750).
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The House Committee of Energy and Commerce said if the Commission
determines a non-declinable basic services fee is necessary, then
consumers should be made aware of what they are being charged for, by
requiring funeral providers ``to provide detailed descriptions'' of the
fee, including the total amount and what services are covered by
it.\128\ It also asked the Commission to cap the basic services
fees.\129\
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\128\ House Committee RR at 2 (``[If] they are charged a fee,
consumers should know what they are paying for.'')
\129\ Id.
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Several industry groups and State Attorneys General argued funeral
providers should be permitted to charge a variable fee, based on the
service provided,\130\ or a reduced service fee for consumers
requesting a limited viewing or visitation.\131\ To these commenters,
the funeral landscape has changed where, funeral providers ``offer a
wide variety of different service levels--memorial services,
visitations, private viewings, full catered events, and more,'' and
charging one basic services fee for all of these services penalizes
cash-strapped consumers and asks them
[[Page 66106]]
to subsidize the overhead involved in a ``full-service, traditional
funeral with all the bells and whistles.'' \132\ Allowing a variable
fee or reduced basic services fee also ``would help increase consumer
choice, provide transparency, and allow for cost-savings,'' \133\ and
``allow lower costs for simpler services, free funeral homes to offer
innovative options and more choice for consumers, and maintain the
basic price structure the FTC designed when it developed the Funeral
Rule.'' \134\ Another industry group, however, argued a variable basic
services fee has a ``potential for abuse practices'' as it ``creates an
opportunity for funeral providers to manipulate the content of a
`minimum service' in such a way that could induce purchasers to utilize
their firm (because of the published low price) and then lead
purchasers into making other added purchases not included in the
`minimum service.'' \135\
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\130\ NFDA RR at 66-70.
\131\ AG RR at 5.
\132\ SIFH RR at 12-13. See also IFDA RR at 4 (noting that
68.75% of Indiana funeral providers ``were in favor of a partial
non-declinable fee as alternative forms of services and dispositions
become available . . . [T]he overall general feeling is the consumer
will be paying for services more representative of what they receive
professionally rather than a `catch all' fee which is what the non-
declinable has become over time'').
\133\ AG RR at 5.
\134\ Id. at 5. The NFDA argues that if ``the Funeral Rule is
modified to allow a variable basic services fee, the mandatory
disclosure in Section 453.2(b)(4)(iii)(C)(1) should be revised.''
NFDA RR at 71. NFDA's suggested language is as follows: ``A fee for
our basic services will be added to the total cost of the funeral
arrangements you select. (This basic services fee is already
included in our charges for direct cremations, immediate burials,
and forwarding or receiving of remains).'' Id.
One commenter thought a ``separate cost of a family viewing
should be allowed without triggering a basic services charge.'' See
Givens Estate RR at 1. Another argued that the FTC should not
``expand the definition of direct cremation and immediate burial to
allow the addition of other services without charging the full basic
services fee,'' because providers ``are really seeking relief from a
very real marketplace constraint on how high their regular basic
services fees can be without making their prices uncompetitive.
Consumers faced with a full basic services fee increase of a
thousand dollars or more just for adding a memorial service to a
direct cremation are likely to take their business to a provider
with a lower basic services fee, or find another location or
provider for a separate memorial service.'' C. Tregillus RR at 12.
\135\ NJSFDA RR at 3.
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Finally, one consumer advocacy group and one individual asked the
Commission to preserve the status quo.\136\ The consumer advocacy group
asserted funeral providers provide a ``true service'', and the basic
services fee ``support[s] the continued health of these businesses.''
\137\ The fee ``assures the consumer that there are specific
expectations for minimal costs and insures the funeral home that their
service can be adequately compensated.'' \138\ The individual argued
banning the fee ``is likely to have unintended and undesirable
consequences. Not the least of these would be a return to embedding
basic services fee costs in the prices of caskets, and now, the prices
of urns, leading to greater resistance by providers to accepting lower-
cost third-party caskets and urns, and thereby creating new enforcement
challenges for the FTC.'' \139\
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\136\ FCA VABR RR at 4; C. Tregillus RR at 11. The NFDA also
argued against eliminating the basic services fee: ``From a
practical standpoint, `it is virtually impossible to eliminate the
non-declinable nature of the basic service fee' ''--as all consumers
are using the services of the funeral director and staff. NFDA RR at
66-70.
\137\ FCA VABR RR at 4.
\138\ Id. at 1.
\139\ C. Tregillus RR at 11.
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2. Objectives and Alternatives
The Commission does not believe the basic services fee should be
eliminated, for the reasons set forth in the 2008 Regulatory Review
Notice. The Commission, however, is interested in exploring whether
consumers and businesses could benefit from a limited expansion of two
of the basic services fee provisions--direct cremation and immediate
burial. Commission staff has opined the Rule currently permits funeral
providers to charge a lower basic services fee for these two types of
services, as well as for forwarding and receiving remains, if they wish
because of the limited use of the funeral provider's facilities and
staff time generally associated with those services.\140\ The
definitions for both direct cremation and immediate burial exclude
situations when a customer also wants a formal viewing or a visitation,
even if it is a limited viewing or visitation.\141\ If a customer wants
to add a brief visitation to a direct cremation, the funeral provider
must charge its full basic services fee. Thus, clarifying in the Rule
concerning when a reduced basic services fee may be charged may provide
benefits for providers and customers. While not a ``variable basic
services fee,'' this approach would effectually give consumers a few
more options in the reduced fee structure.
---------------------------------------------------------------------------
\140\ See, e.g., Funeral Rule Advisory Opinion 09-6 (2009),
available at https://www.ftc.gov/sites/default/files/documents/advisory_opinions/opinion-09-6/opinion09-6.pdf. The Commission
intends to make this position unambiguously clear in this rulemaking
\141\ 16 CFR 453.1 (g) (defining a ``direct cremation'' as a
``disposition of human remains by cremation, without formal viewing,
visitation, or ceremony with the body present''); 16 CFR 453.1(k)
(defining ``immediate burial'' as a disposition of human remains by
burial, without formal viewing, visitation, or ceremony with the
body present, except for a graveside service'').
---------------------------------------------------------------------------
Therefore, the Commission is considering clarifying in the Rule
that funeral providers may charge a lower basic services fee for
forwarding and receiving remains, immediate burial, and direct
cremation, if they wish, because of the limited use of the funeral
provider's facilities and staff time generally associated with those
services. In addition, the Commission is considering modifying the
definition of direct cremation and immediate burial to allow those
offerings to include limited viewings or visitations or other
additional services, and seeks comments on whether this modification
should be made and, if so, how. Funeral providers who wish to could
offer these additional services as options, listing the add-on costs
for the additional services on the GPL, along with the basic services
fee charge due if the limited visitation option is selected. Thus, for
example, a funeral provider would list on its GPL the price it charges
for direct cremation, describing the services included and giving the
price with and without a cremation container, as well as the additional
cost if a purchaser wanted to add a limited visitation or viewing at
its facility, describing the limits for that visitation, such as the
amount of time or number of guests, and the associated basic services
fee. The Commission seeks comment on how this change would impact both
consumers and businesses, and how to clearly disclose the additional
options for these two reduced basic services on the GPL.
D. New Forms of Disposition
The Review elicited some comments about methods of human
disposition that have changed since the Rule was enacted. The Rule
currently defines ``cremation'' as ``a heating process which
incinerates human remains,'' \142\ but does not mention whether newer
techniques for disposition of human remains, such as alkaline
hydrolysis and natural organic reduction,\143\ are included in this
definition. Such services do not fit within the definition of direct
cremation or immediate burial but are still subject to the Rule. The
Commission is considering modifications to clarify application of the
Rule for providers of new forms of
[[Page 66107]]
disposition and consumers considering these options.
---------------------------------------------------------------------------
\142\ 16 CFR 453.1(e).
\143\ Natural organic reduction is a new type of disposition
that became legal in the State of Washington as of May 1, 2020, and
was scheduled to be offered to funeral providers as soon as March
2021. This process differs from green burial interments because it
transforms the deceased into soil in 4-6 weeks. See H.B. 2574--
Natural Organic Reduction--Q&A, https://www.oregonlegislature.gov/marsh/Documents/HB2574_Natural_Organic_Reduction.pdf?ID=43 (last
visited August 17, 2022).
---------------------------------------------------------------------------
Few commenters provided input on whether the Rule should be updated
to reflect new alternative methods of disposition. One commenter
suggested the Commission amend the Rule to add ``natural organic
reduction process'' and ``green burials'' as additional methods of
disposition, rather than incorporated under the umbrella definition of
``cremation.'' \144\ To the commenter, the natural organic reduction
process is different from cremation: for example, unlike with a
cremation, the use of alternative containers is not needed.\145\
Another commenter agreed natural organic reduction processes should not
be included in the definition of ``cremation'' in the Rule, but argued
that because these methods of disposition are not available in most of
the country, the Rule does not need to be altered to address them.\146\
---------------------------------------------------------------------------
\144\ Recompose RR at 2-4. One commenter suggested that the FTC
define ``green burial'' to ``make clear that the term applies not
only to provider arrangements for casketed burials in green cemetery
plots, but also to arrangements using mushroom burial suits,
biodegradable tree urns, and body pods in lieu of caskets.'' C.
Tregillus RR at 10-11. Another commenter asked that, if a funeral
provider offers green burials, what ``this includes and the
requirement for the burial board or container should be specifically
stated.'' S. Robinson RR at 1.
\145\ Recompose RR at 2-4.
\146\ NFDA RR at 64-65.
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An alternative funeral provider commented to ask to be allowed to
charge ``a uniform price'' for disposition via natural organic
reduction, because ``it is neither practical nor either feasible for
[the provider] to itemize the individual services that will be
available for all decedents and next of kin as part of the [natural
organic reduction] process as piecemeal offerings, unlike the way this
may be done for the traditional disposition methods of direct burial
and cremation.'' \147\
---------------------------------------------------------------------------
\147\ Recompose RR at 1, 3.
---------------------------------------------------------------------------
The Commission is considering modifying the Rule to explicitly
include new methods of disposition, such as alkaline hydrolysis and
human natural organic reduction. The Rule could then clarify that such
providers could offer direct or immediate services with a reduced basic
services fee. The Commission is also considering updating the Rule to
adapt to new methods of disposition, for example the Rule requirements
to offer and provide disclosures about alternative containers for
direct services. The Commission wants to ensure the Rule does not
stifle innovation and believes the proposed changes help level the
playing field for providers of new alternative methods.
E. Embalming Disclosure
The Commission also elicited comments about whether to modify the
Rule's current disclosure related to whether embalming may be required.
The Rule currently requires funeral providers to include on the GPL a
disclosure that states ``[e]xcept in certain special cases, embalming
is not required by law. Embalming may be necessary, however, if you
select certain funeral arrangements, such as a funeral with viewing. If
you do not want embalming, you usually have the right to choose an
arrangement that does not require you to pay for it, such as direct
cremation or immediate burial.'' \148\
---------------------------------------------------------------------------
\148\ 16 CFR 453.3(a)(2)(ii).
---------------------------------------------------------------------------
1. Summary of Comments
Several commenters asked the Commission to clarify the embalming
disclosure, although they disagreed on how it should be clarified.\149\
No commenter asked the Commission to keep the current disclosure as is.
---------------------------------------------------------------------------
\149\ FCA RR at 12-13; CFA RR at 11; NFDA RR at 71-73; TINA RR
at 4; FCA WMA RR at 2; CR RR at 3; C. Tregillus RR at 13; AG RR at
5; UUFV RR at 2; Borderland RR at 2.
---------------------------------------------------------------------------
Several consumer advocates, government agencies, and one individual
asked the Commission to either eliminate the embalming disclosure
requirement or amend it to indicate ``that the requirement is only that
of the funeral home, not that of the state,'' to avoid consumer
confusion.\150\ They said no state requires that viewed bodies be
embalmed, although some ``require embalming only in situations where
refrigeration is not available or when burial/cremation cannot happen
with a `reasonable' or defined period of time.'' \151\ When consumers
``are told by a funeral home that they will not permit viewing without
embalming,'' \152\ consumers mistakenly assume this embalming is
mandated by law and the ``only way to avoid embalming is to choose
direct cremation or immediate burial.'' \153\ Modifying the disclosure
will also ``clarify persistent questions raised by the growing segment
of funeral providers who do not offer embalming at all'' due to their
religious traditions or because they only offer simple
arrangements.\154\
---------------------------------------------------------------------------
\150\ CFA RR at 11; see also FCA RR at 12; TINA RR at 4; FCA WMA
MA RR at 2; CR RR at 3; C. Tregillus RR at 13; AG RR at 5;
Borderland RR at 2. FCA also recommended that ``Funeral providers
should also be required to provide a numerical or statutory citation
if there are legal requirements in the provider's state that mandate
embalming in any circumstance.'' FCA RR at 12.
\151\ FCA RR at 13 (compiling statistics from Slocum and
Carlson, Final Rights: Reclaiming the American Way of Death. 2011
Upper Access Publishers); see also CFA RR at 11.
\152\ UUFV RR at 2 (``at least one funeral home in Visalia,
California have told potential purchasers that embalming and
purchasing a casket is `required' by their funeral home as a matter
of `our policy' rather than as a legal requirement. . .. The
salesman I talked to claimed it was a liability issue for them,
asserting that an un-embalmed body could theoretically make them
subject to lawsuits or embarrassment.'').
\153\ FCA RR at 12.
\154\ Id. at 12-13.
---------------------------------------------------------------------------
The NFDA agreed the embalming disclosure should be amended, but for
different reasons.\155\ It argued embalming may be required under state
law: ``37 of 50 states require that deceased human remains either be
embalmed or refrigerated within a certain time span following death''
and ``46% of funeral homes do not have refrigeration facilities.''
\156\ To the NFDA, the current disclaimer is misleading ``in that it
implies to the consumer that embalming is rarely required by law.''
\157\ The NFDA suggested the Rule be amended to plainly explain to
consumers embalming is not required in 13 states, and, in the other 37
states, embalming may be required. Funeral providers can then ``explain
the requirements of state law at the end of the mandatory disclosure.''
\158\
---------------------------------------------------------------------------
\155\ NFDA RR at 71-73. The NFDA also asked that the Rule be
modified to only require providers that offer embalming to use the
embalming mandatory disclosure. Id.
\156\ Id.
\157\ Id. at 71.
\158\ Id. The NFDA proposed that the Rule be amended to state
that ``except as may be noted below, embalming may not be required
by law'' and that ``The phrase `except as may be noted below' shall
not be included in this disclosure if state or local law in the
area(s) where the provider does business does not require embalming
under any circumstances. If state law does require embalming in some
circumstances, the funeral provider may explain the state law
requirements for embalming following this disclosure. This
disclosure only has to be placed on the general price list if the
funeral provider offers embalming.'' Id.
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2. Objectives and Alternatives
The embalming disclosure is a preventative requirement enacted
because of deceptive acts or practices by funeral providers that
generated ``substantial consumer confusion about what the law requires
about embalming.'' \159\ The Commission is considering changing the
language of this disclosure and seeks comment on how the disclosure can
be improved to educate consumers accurately on the limited
circumstances when embalming may be required under the laws of some
states.
---------------------------------------------------------------------------
\159\ 47 FR 42260, 42275 (1982) (finding that ``most funeral
directors d[id] not disclose that embalming is optional'' to
consumers, and ``a significant number of funeral providers have
affirmatively misrepresented state laws regarding embalming'').
---------------------------------------------------------------------------
For example, one option the Commission wishes to explore is
[[Page 66108]]
modifying the language of the embalming disclosure to require the
funeral provider to state the relevant requirements in its
jurisdiction. Thus, if the provider operates in a state that never
requires embalming by law, the provider must state: ``Embalming is not
required by law in__(name of state)__.'' If the provider operates in a
state that requires embalming by law under certain circumstances, the
provider must state those circumstances: ``Embalming is required in
__(name of state)__when__(list the state's legal requirement).'' If the
provider operates in multiple states with different requirements for
embalming, the provider would list the requirements for each state in
which the provider operates. If the provider has its own policy of
requiring embalming for visitations, it could then state that on the
GPL as long as it is clear it is the establishment's policy.
F. Price List Readability
The Commission elicited comments about issues with the format and
readability of the itemized price lists. The Rule currently requires
the GPL to list the itemized prices for 16 specific goods and services,
if offered,\160\ as well as several mandatory disclosures and placement
requirements for those disclosures.\161\ Other than those requirements,
the Rule currently does not mandate a specific format for the GPL.
---------------------------------------------------------------------------
\160\ 16 CFR 453.2(b)(4).
\161\ See, e.g., 16 CFR 453.3(b)(2).
---------------------------------------------------------------------------
1. Summary of Comments
Several commenters urged the Commission to modify the Rule's
provisions regarding price lists.\162\ Many argued the price lists are
confusing to read,\163\ often ``lack important information on some
fees,'' \164\ and sometimes contain inconsistent description of fees,
such as the inclusion or exclusion of death certificate fees, which
makes it hard for consumers to compare prices.\165\ For example, one
commenter stated one GPL he reviewed contained four pages of direct
cremation options, and ``you practically need a Ph.D. to parse out the
differences and see what meets your specific needs.'' \166\ Similarly,
the DC Attorney General conducted a survey that found many
inconsistencies in how DC funeral providers disclosed prices on their
GPLs, including inconsistencies in how visitation and viewings prices
and death certificate fees were disclosed.\167\
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\162\ AG RR at 4; FCA VABR RR at 1; CFA RR at 11; FCA RR at 14;
FCA WMA RR at 1; CA RR at 2; FCA SC RR at 1; FCA CT RR at 1; CR RR
at 3-4; TINA RR at 4; M. Turner, Full Cycle of Living and Dying RR
at 1; House Committee RR at 2; Borderland RR at 2; M. Bern-Klug RR
at 2-3; M. Klein RR at 5-6; NYSFDA RR at 4.
\163\ CC RR at 4; see also K. Griffith RR at 1.
\164\ CC RR at 4; see also AG RR at 4 (noting that a survey of
GPLs conducted by the DC Attorney General found that some funeral
providers do not list a separate charge for viewings or
visitations).
\165\ AG RR at 4; House Committee RR at 2; see also CC RR at 4
(``Another common problem is that our researchers must compare a la
carte pricing listed on GPLs with packages sold by many funeral
homes. It's usually quite complicated to determine whether our
hypothetical family would be `better off' buying a package.''); FCA
EMA RR at 1 (``As things stand now, price and service lists vary
considerably in how what is available is arranged and described.
This makes comparisons among funeral homes difficult at best, even
when consumers shop and plan in advance of need . . . '').
\166\ M. Klein RR at 5-6.
\167\ AG RR at 4.
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Commenters also pointed out some funeral providers structure the
GPL to make it harder for consumers to notice the mandatory
disclosures, such as by putting them after information about packaged
funerals,\168\ listing ``itemized goods and services only after 5-10
pages of packages in . . . a clear attempt to distract the consumer,''
and using ``8-point type or similar font'' for the mandatory
disclosures, ``knowing that it will be overshadowed by the large type
and attractive lay-out with which they offer packages.'' \169\
---------------------------------------------------------------------------
\168\ TINA RR at 4; FCA RR at 14.
\169\ FCA RR at 14; see also R. Zeldin RR at 4 (``SCI DBA
Dignity Memorial provides overbearing price lists designed to
overwhelm and confuse the consumer and burying the itemized list at
the end. These price lists are known to be over 50 pages long so as
to include each and every possible package deal they could come up
with!'').
---------------------------------------------------------------------------
Several Attorney General offices encouraged the Commission to adopt
a standardized GPL format through consultation with funeral homes,
consumers, consumer advocates, and government agency representatives.
They stated a standardized format will inhibit funeral homes from
imposing illegal charges or otherwise violating the Funeral Rule,\170\
and benefit businesses, by providing certainty and lowering compliance
risks.\171\ Other commenters agreed and argued a standardized itemized
price list, if done ``with the appropriate level of clarity. . . .,
[will] significantly facilitate funeral home compliance,'' \172\
minimize consumer confusion,\173\ make it easier for consumers to
compare prices between funeral homes.\174\
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\170\ AG RR at 4; FCA RR at 14; see also TINA RR at 4.
\171\ House Committee RR at 2; L. Northcutt RR at 3 (``If
funeral homes decide to post their disclosures online, it would be
helpful to consumers if that information was provided in a
standardized format. This requirement will impose limited burdens on
businesses who are choosing to move this information online and
greatly assist consumers who want to be able to compare services
online from their homes.''); AG RR at 4 (``A standard form could lay
out the specific disclosures, making it easier for funeral homes to
assess whether their lists satisfy regulatory requirements.
Standardization would therefore streamline both compliance and
enforcement.'').
\172\ NFDA RR at 4.
\173\ See, e.g., L. Bramble RR at 1 (``Mortgage lenders are
required to use a standardized HUD1 statement to make fees easier to
understand and compare; standardized terms and forms make it easy
for a person who is already overwhelmed to make a knowledgeable and
confident decision.'').
\174\ AG RR at 4; House Committee RR at 2; FCA SC RR at 1.
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Commenters expressed diverse views about what a standardized
disclosure should look like. Ideas ranged from consulting with
advocates, plain language experts, and government agency
representatives to draft a standard disclosure,\175\ creating a
standard, machine-readable document, which would ``make the information
more easily available through the use of accessibility devices,'' \176\
and mandating that ``the list should begin with clear and prominent
introductory statements.'' \177\ Others commented the GPL should be
``organized in a consumer-friendly way'' \178\ or with a ``plain
English explanation of its contents,'' \179\ that the mandatory
disclosures should appear on the GPL before other goods, services, or
packages,\180\ the Rule should mandate that the GPL not contain any
[[Page 66109]]
information not expressly required or permitted by the Rule,\181\ and
the Commission should create a fill-in-the blank GPL, if feasible, that
summarizes all unbundled services and their prices and lists the Rule's
mandatory disclosures.\182\ One commenter also recommended ``the
inclusion of a `safe harbor' provision for funeral homes'' to
incentivize funeral home compliance.\183\
---------------------------------------------------------------------------
\175\ AG RR at 4-5; see also C. Tregillus RR at 13 (suggesting
copy testing of key disclosures). The AGs also encouraged the
Commission to include unconventional burial services in the GPL and
noted that ``[p]eriodic revisions will be necessary.'' AG RR at 4-5.
\176\ House Committee RR at 2.
\177\ CR RR at 3 (the GPL should begin with the following
statements: `` that the consumer has the right to choose
among options and to choose individual products and services
separately, that, unless specified otherwise, no product or
service is required by law, and that any product or service
that is required by law will be accompanied with a specific
reference to the statute or ordinance that requires it, and a clear
and specific description of the circumstances under which it is
required'') (emphasis in original).
\178\ Id. at 3. Other ideas included (1) requiring the right-of
selection disclosure to be prominently displayed and the ``itemized
price lists to be listed in at least as conspicuous a manner as the
package deal,'' see TINA RR at 4; (2) the use of standard
definitions of services to enable cost comparisons, see FCA EMA RR
at 1; M. Bern-Klug RR at 2-3; C. McTighe RR at 1; (3) ``the addition
of a disclaimer as to what are extraneous services and which
services legally require the participation of a funeral home,'' see
FCAP RR at 1; and (4) that the GPL be amended to include whether the
facility offers body donation or eye/cornea donation, or green
burial, see Eye Bank Ass'n of Am. RR at 1; M. Bern-Klug RR at 4.
\179\ See, e.g., D. O'Brien RR at 1.
\180\ CFA RR at 11; FCA VABR RR at 2-3 (noting that
``regulations of the state of Virginia include a recommendation of a
sample GPL in which the Basic services fee listing is first, after
the required disclosure statement'').
\181\ C. Tregillus RR at 3-4 (``Such a prohibition would be
essential for a standardized format price list that could facilitate
comparison shopping for consumers, academic research and online
third-party pricing guides that could consequently be kept up-to-
date and accurate.'').
\182\ Id. at 9.
\183\ NYSFDA RR at 4.
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Three commenters argued against a standardized GPL.\184\ The NFDA
argued ``a standardized price list is not needed [] to foster
comparison shopping or to increase consumer comprehension'' as ``the
only empirical evidence submitted on consumer understanding of price
lists shows a very high comprehension level.'' \185\ It further argued
that it would be ``impossible to design a standardized price list
without limiting funeral options and innovation''--given the many
different types of funeral homes in the country.\186\ Alternative
funeral provider Recompose argued ``the goods and services offered in
connection with all forms of disposition are not uniform such that [a
standardized price list] would be practical, particularly when it comes
to natural organic reduction.'' \187\ The New Jersey State Funeral
Directors Association argued a standardized GPL is ``an overly
prescriptive approach'' that leaves little room ``for adaption to
individual funeral practices and ever-changing consumer changes,
preference and trends.'' \188\ It also argued a standardized GPL would
create an undue hardship to funeral homes, because the ``minimum out of
pocket compliance cost for this change alone could cost NJ funeral
providers up to $364,000, not including labor, delivery and overhead.''
\189\
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\184\ Recompose RR at 1-2; NJSFDA RR at 4-5; NFDA RR at 56-58.
\185\ NFDA RR at 57 (citing an AARP commissioned Gallup poll in
anticipation of the first review of the Funeral Rule which
``reported that 92% of funeral consumers surveyed `understood all of
the terms on the price list used to describe the funeral service'
'').
\186\ Id.
\187\ Recompose RR at 1-2.
\188\ NJSFDA RR at 4.
\189\ Id. (suggesting instead that ``standardization should be
pursued at the state level as most price comparisons are conducted
between providers located in the same state'').
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2. Objectives and Alternatives
The Commission is interested in obtaining additional comment on how
the itemized price lists could be improved to maximize consumers'
access to accurate itemized price information in ways that minimize the
burden on funeral providers, particularly small providers.\190\ One
alternative under consideration would require all information that must
be included on the GPL--such as the required prices for 16 products and
services (if offered) and all mandatory disclosures -- to appear before
any non-required information, such as details about packages or
bundles, caterings, or cemeteries. Under another approach, the Rule
would specify ways to make sure the mandatory disclosures are clear
including requirements that they be in the same font, color, and size
as the rest of the content in the price lists. One other option under
consideration would require any price list posted online or conveyed
electronically be in machine-readable format so third parties could
collect and aggregate this information. Finally, even if the Commission
declines to mandate a standardized form, it could issue new templates
for the itemized price lists based on the input received on how to
improve readability and consumer comprehension, as an optional tool for
businesses to help them comply with the Rule.
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\190\ The Commission believes that the broad variety of products
and services offered by funeral homes across the nation likely makes
a fully standardized price list unfeasible.
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G. Impact on People in Underserved Communities
The Commission is interested in receiving comment on the Rule's
effect on the purchase of funeral goods and services in historically
underserved communities.\191\ For example, do any of the Rule's
provisions create hardships or benefits for consumers in low-income
communities, those with limited or no English proficiency or from
recent immigrant communities, or those living in communities of color?
In another example, several programs exist that can help families of
veterans and low-income consumers cover funeral expenses. The
Commission is interested in knowing whether there are any particular
issues or concerns related to the disclosure of price information when
consumers make arrangements using such benefits to cover some or all
funeral costs.
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\191\ Historically underserved communities include Black
Americans, Latinos, Indigenous/Native American persons, Asian
Americans/Pacific Islanders or other persons of color, members of
religious minorities, lesbian, gay, bisexual, transgender, and/or
queer persons, persons with disabilities, persons who live in rural
areas, and persons adversely affected by persistent poverty or
inequality.
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H. Other Issues
The Rule Review elicited comments on a variety of other topics and
concerns related to funeral goods and services. The Commission
appreciates these comments and has carefully considered them, but is
not inclined to consider proposals beyond those laid out in the prior
sections. Nevertheless, the Commission will briefly respond to three
additional topics discussed in the Rule Review comments.
1. Cemeteries
Many commenters, including consumer advocates, industry groups, and
consumers, asked the FTC to expand the Rule to cover cemeteries.\192\
These commenters argued the factors that disadvantage consumers when
dealing with funeral providers are also present during consumers'
interactions with cemeteries,\193\ and some cemetery operators are not
transparent about their fees,\194\ refuse to disclose prices on paper
to consumers or researchers,\195\ misrepresent legal and sales
requirements,\196\ and only offer bundled services.\197\ Some
commenters said
[[Page 66110]]
consumers are disadvantaged in their negotiations with cemeteries,
``because deceased family members are already buried there,'' which
adds additional emotional hurdles.\198\ Further, more than half of all
funerals involve cemeteries,\199\ and cemetery services are
expensive.\200\ Amending the rule would allow consumers to compare
prices ``across the entire funeral service landscape,'' \201\ protect
consumers from deception and manipulation,\202\ and provide ``a needed
and long overdue level of fairness and marketplace equity to funeral
firms, which are subject to the Rule's provisions all while these other
sellers are not.'' \203\ Some of these commenters recognized the FTC
may have jurisdictional challenges regulating not-for-profit
cemeteries, but they argued Commission action would still be
beneficial.\204\
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\192\ NFDA RR at 76-77; LRCPA RR at 1; FCA VABR RR at 1; FCA GKC
RR at 1; FCA WMA RR at 2; FCA GR RR at 1-2; FCA ME RR at 1; FCA SC
RR at 1; PMA RR at 1; FCA CTX RR at 1; CR RR at 4; FCA AZ RR at 4;
FCA MN RR at 1; DC RR at 1; House Committee RR at 2; Charter
Funerals RR at 1; UUFV RR at 2; Borderland RR at 2; SIFH RR at 11 n.
15; C. Reid RR at 4-7; M. Klein RR at 10; IN FDA RR at 3 (87% of its
144 licensed respondents ``believed that including cemeteries in The
Rule application was a logical progression in The Rule evolution'').
See also FCA RR at 16-20 (asking the Commission to conduct an
investigation into whether cemeteries should be regulated); J.
Blackman RR at 13-14 (same). The New York Funeral Directors
Association asked that the Rule's applicability be extended to all
sellers of funeral goods or services, including cemeteries. NYSFDA
RR at 2.
\193\ FCA RR at 18-20.
\194\ FCA ME RR at 1 (Prices are not available online for
cemeteries); UUFV RR at 2 (same). Other complaints included
difficulties transferring cemetery rights to other buyers, see
Funeral Consumer Alliance of Houston RR at 1, and complaints
concerning burying family members in the same mausoleum. See FCA GR
RR at 2 (noting that ``to tell a family member who just interred one
parent in a mausoleum, the other parent would not be able to be
placed in the same vault days after the internment is unconscionable
and heartless'').
\195\ FCA RR at 18.
\196\ Id. at 19; NFDA RR at 76-77 (1999 NFDA Membership survey
found that ``over 30% of the cemeteries imposed a fee whenever a
consumer had chosen to purchase goods or services from a third-
party'').
\197\ NFDA RR at 76-77 (1999 NFDA comments reported results of
NFDA survey, composed of 3,436 response, found that ``49.6% of the
funeral homes reported that cemeteries in their areas required
consumers to purchase goods and services only from the cemetery'');
FCA RR at 18-20; E. Livshits RR at 1.
\198\ FCA RR at 17.
\199\ Id. (``Though cremation recently passed the 50 percent
mark, about 49 percent of households experiencing a death have to do
business with a cemetery each year.'') (emphasis in original).
\200\ Id. (``Cemetery fees commonly add $2,000 to $3,000 to the
final bill for the death of a loved one.'').
\201\ NYSFDA RR at 2-3.
\202\ PMA RR at 1-2.
\203\ NYSFDA RR at 1; see also SIFH RR at 11 n. 15. One
commenter also noted that ``[m]aking things more complicated is the
existence of businesses that constitute a corporate-owned mega-
portfolio of around 1,500 funeral homes and several hundred
cemeteries. This means that funeral homes may have arrangements with
certain cemeteries that enable businesses to include costs related
to the cemetery as a package, enabling funeral businesses to still
overcharge consumers by solely disclosing prices related to funeral
homes while surreptitiously increasing cemetery-related costs.
Moreover, with more and more families opting for cremation,
cemeteries will have greater incentives to make up for losses by
overpricing services and goods related to their services.'' H. Lee
RR at 4.
\204\ One said that ``[a] robust rule in this regard for all
cemeteries within its jurisdiction will aid the entire cemetery
industry, non-profit, as well as for-profit, to undertake `best
practices'.'' UUFV RR at 2; see also C. Tregillus RR at 14-15
(encouraged the Commission to hold a workshop to ``explore the
possibility of developing voluntary industry-wide price list
disclosure standards.'')
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Two commenters, the International Cemetery, Crematory, and Funeral
Association (``ICCFA''), and Carriage Services, Inc. (``Carriage''),
opposed regulating cemeteries under the Rule.\205\ They pointed out a
large number of cemeteries are non-profits, which fall outside the
scope of the Commission's jurisdiction,\206\ and nothing has changed in
the cemetery industry since the Commission decided in 2008 to not
regulate cemeteries under the Rule.\207\ ICCFA argued the data shows
relatively few consumer complaints about cemetery issues,\208\ and
``more and more states have developed their own internal process to
report, review and also resolve cemetery issues.'' \209\ Carriage also
argued because cemeteries and funeral homes operate differently, it is
not practical or necessary to expand the Rule to cemeteries.\210\
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\205\ ICCFA RR at 26-29; Carriage RR at 3-4.
\206\ ICCFA RR at 27-28 (pointing out that there are over 9,000
reported 501(c)(3) cemeteries, as well as additional exempt
religious or charitable cemeteries and that ``some states still
prohibit for-profit cemeteries, including Connecticut,
Massachusetts, Maine, New Jersey and New York'' (citing Conn. Gen.
Stat. Sec. 19a-296 (1959); Mass. Ann. Laws ch. 114, Sec. 1A
(2008); Me. Rev. Stat. Tit. 13, Sec. 1303 (1937); New Jersey
Cemetery Act, 2002, 2002 Bill Text NJ A.B. 3048 (2002); N.Y. Not-
for-Profit Corp. Law Sec. 1501 (1977)); Carriage RR at 4.
\207\ ICCFA at 26.
\208\ Id. (noting that the ``FTC Sentinel Report identified only
1,105 complaints in funeral service out of 3,200,000'' and that
ICCFA's Cemetery Consumer Service Council only received 104
complaints in 2009, which led to the disbandment of the Council).
\209\ Id.; see also Carriage RR at 3-4.
\210\ Carriage RR at 4.
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In the 2008 Regulatory Review, the Commission declined to embark on
a proceeding to expand the Rule to cover cemeteries because ``the
substantial portion of cemeteries that are not-for-profit entities
[are] outside the jurisdiction of the FTC Act, and there is
insufficient evidence that commercial cemeteries, crematories, and
third-party sellers of funeral goods are engaged in widespread unfair
or deceptive acts or practices.'' \211\
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\211\ 73 FR 13740, 13742-45 (Mar. 14, 2008).
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The Commission's position on this issue remains the same. No
evidence of changed circumstances has been submitted that would warrant
a fresh look at this issue. The Commission encourages companies or
individuals with knowledge of unfair or deceptive practices by
cemeteries to submit a complaint with the Commission at
reportfraud.ftc.gov.
2. The State Exemption
Some commenters urged the Commission to ``re-open'' the state
exemption provision contained in Rule Section 453.9.\212\ Rule Section
453.9 allows a state agency to apply to the FTC for a state exemption
from the Funeral Rule.\213\ If the Commission determines (1) ``there is
a state requirement in effect which applies to any transaction to which
this rule applies; and (2) that state requirement affords an overall
level of protection to consumers which is as great as, or greater than,
the protection afforded by this rule; then the Commission's rule will
not be in effect in that state to the extent specified by the
Commission in its determination, for as long as the State administers
and enforces effectively the state requirement.'' \214\
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\212\ NFDA RR at 41-42; ICCFA RR at 12-18; IFDA RR at 4; State
FDAs RR at 1.
\213\ 16 CFR 453.9.
\214\ Id.
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The Commission does not believe any amendments to Rule Section
453.9 are necessary. States have had and continue to have an option to
apply for an exemption to Section 453.9, if they are interested in
doing so, and the Commission will evaluate all such applications.
3. The Funeral Rule Offender Program
Several commenters asked the FTC to either publish the names of all
the funeral homes participating in the Funeral Rule Offender Program
(FROP) \215\ or drop the program entirely.\216\ The ``FROP allows
funeral homes that have been found to be in violation of the Funeral
Rule to attend educational courses offered by the NFDA instead of being
subject to regulatory action.'' \217\ Critics of the FROP stated it
``is unbalanced and unfair because it has little or no transparency for
consumer complaints'' and ``consumers cannot really see who did what,
and see the consequence.'' \218\ They also claim no evidence shows the
FROP has improved compliance.\219\ ``In comparison, if the FTC
published the names of violators, that would significantly increase the
cost of a violation and likely persuade a much higher percentage of
funeral homes to give compliance a much higher priority.'' \220\
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\215\ CFA RR at 11-12; FCA WMA RR at 2; Funeral Consumers
Alliance of North Texas (``FCA NTX'')--J. Bates RR at 1; FCA RR at
14-16; CR RR at 4; TINA RR at 4.
\216\ FCA RR at 14-16.
\217\ Id. at 14.
\218\ FCA NTX--J. Bates RR at 1.
\219\ Id.
\220\ CFA RR at 11-12. Some commenters noted that the fees paid
to the FROP could provide a revenue stream that could be used for
enforcement. FCA RR at 15. However, any civil penalty funds
collected from FTC actions do not go into the FTC's budget. Such
funds go to the U.S. Treasury.
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Others supported keeping the FROP.\221\ These commenters said the
FTC should have ``an interest in encouraging voluntary compliance by
offering compliance training to first offenders whose Rule violations
may have resulted from inadequate training or inattention.'' \222\ They
argued most participants in the FROP program ``did not intentionally
violate the Funeral Rule. In nearly every case, it was simply a case of
employee carelessness or confusion.'' \223\ And, commenters
[[Page 66111]]
contend, the program works: ``Currently, there are 42 funeral homes in
the FROP Program. . . . Of the several hundreds of funeral homes that
have graduated from the Program over its 25 year history, NFDA has a
record of only three of them subsequently being cited by the FTC for
additional Funeral Rule violations.'' \224\ Further, ``[t]he program is
a valuable resource for funeral providers, because without it, many
smaller funeral providers could be put out of business with just one
violation.'' \225\
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\221\ C. Tregillus RR at 14; ICCFA RR at 24-25; NFDA RR at 74-
75.
\222\ C. Tregillus RR at 14; see also NFDA RR at 74-75 (``the
point of the Program was education, not punishment'').
\223\ NFDA RR at 74-75.
\224\ Id.
\225\ ICCRFA RR at 24-25.
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The Commission agreed to establish the FROP in 1996. The program
has served the purpose of bringing into compliance with the Rule,
through a compliance review and training, those funeral providers found
in violation of the price disclosure provisions. Funeral providers in
the program, many of whom are small businesses, make a voluntary
payment to the U.S. Treasury \226\ and pay a fee to the NFDA that
manages the program. These amounts are typically less than the maximum
Civil Penalty amounts (currently up to $46,517 per violation) set by
statute for violations of the Funeral Rule.\227\ At the same time, the
FROP allows the Commission to focus its limited resources on a broad
test shopping program that has checked the compliance of thousands of
providers through the years, and on business and consumer outreach and
education efforts.
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\226\ As a condition of entering FROP, the funeral provider must
make a voluntary payment to the U.S. Treasury or a State Treasury in
an amount equal to 0.8% of the funeral provider's average gross
annual sales revenue for the proceeding three years.
\227\ Federal courts have broad discretion in setting this
penalty amount.
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The Commission would like to thank all the commenters for their
thoughtful feedback about the FROP. While the program is not codified
in the Rule and therefore not officially a part of any proposed
rulemaking, this feedback will help the Commission weigh the pros and
cons of continuing the program, or potentially modifying it, as it re-
assesses its enforcement program.
IV. Issues for Comment
The Commission invites members of the public to comment on any
issues or concerns they believe are relevant to this ANPR. Commenters
need not re-submit any comments submitted in response to the regulatory
review issued February 14, 2020, as those comments are already part of
the public record, but may submit additional comment, data, and
information to provide input on the questions posed in this notice and
solicitation. The public is welcome to provide comment related to any
concerns they see in the marketplace and ideas for improving the Rule.
At this time, however, the Commission is not inclined to consider
issues beyond those it has requested comment on in the previous
sections.\228\
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\228\ The Commission also encourages anyone with knowledge of
unfair or deceptive practices by a particular company, to file a
report at reportfraud.ftc.gov.
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In addition to the issues raised above, the Commission solicits
comments on the following specific questions. For all questions, the
Commission requests supporting data, information, and argument. It is
particularly interested in evidence that quantifies the benefits and
costs to consumers and businesses, including small businesses.
Online and Electronic Price Disclosure
1. Should the Rule be changed to require (a) all funeral providers
(b) funeral providers that maintain websites or (c) funeral providers
who sell funeral products or services online, to prominently display
their GPLs, or a clearly labeled link to their GPLs, on their websites?
If so, how should such a change be implemented to maximize the benefits
to consumers and minimize the costs to businesses? Should the Rule
specify how the GPL or the link to the GPL should be prominently
displayed on the website? Why or why not, and, if so, how? Explain how
your proposal would benefit consumers and minimize the costs to
businesses, and provide all evidence that supports your answer,
including any evidence that quantifies the benefits to consumers, and
the costs to businesses, including small businesses.
2. Should the Rule require (a) all funeral providers, (b) funeral
providers that maintain a website, or (c) any funeral provider who
shows pictures and/or descriptions of caskets, alternative containers,
or outer burial containers on their website, to prominently display
their CPLs and/or OBCPLs, or a clearly-labeled link to these documents,
on their websites? If so, how should such a change be implemented to
maximize the benefits to consumers and minimize the costs to
businesses? Provide all evidence that supports your answer, including
any evidence that quantifies the benefits to consumers, and the costs
to businesses, including small businesses.
3. In the alternative or in addition to the proposed requirements
in Questions 1 & 2, should the Rule require all funeral providers that
maintain a website to display a prominent statement on their website
that the providers' GPLs, CPLs, and OBCPLs can be requested and to
include a link, button, email address, or other electronic mechanism
for people to use to request the GPL, CPL, and/or OBCPL? If so, should
the providers be required to respond to such requests within any
particular time? Why or why not? Provide all evidence that supports
your answer, including any evidence that quantifies the benefits to
consumers, and the costs to businesses, including small businesses.
4. Would a requirement that funeral providers send their GPLs, CPLs
and/or OBCPLs to consumers via electronic means and format present any
challenges or costs for compliance or present any benefits to
consumers? If so, how could such challenges or costs be minimized while
still providing benefits to consumers? Provide all evidence that
supports your answer, including any evidence that quantifies the
benefits to consumers, and the costs to businesses, including small
businesses.
5. In addition to the proposed requirements in Questions 1 & 2,
should a funeral provider that maintains a presence on social media be
required to post the provider's GPL and/or clearly-labeled links to the
provider's CPL and OBCPL on its social media account? Why or why not?
If not, should a funeral provider be required to link its social media
account to its main website if it has one, or, provide an email address
or other online mechanism that will allow visitors to request the
provider's GPL, CPL, or OBCPL, and a statement that consumers can
request the price lists, and should the funeral provider be required to
respond to such requests within any particular time? Provide all
evidence that supports your answer, including any evidence that
quantifies the benefits to consumers, and the costs to businesses,
including small businesses.
6. In addition to the proposed requirements in Questions 1, 2, & 5,
should the Rule contain other provisions that will embrace new
platforms and technologies as they develop so that both providers and
consumers can benefit from new distribution methods without requiring a
Rule change? If so, how and what types of provisions would be most
appropriate? Provide all evidence that supports your answer, including
any evidence that quantifies the benefits to consumers, and the costs
to businesses, including small businesses.
7. Should the Rule mandate that funeral providers be required to
post a
[[Page 66112]]
GPL, CPL, or OBCPL, or a clearly-labeled link to these documents, on
any electronic, online, or virtual method or platform that it uses to
post or otherwise make available information about its products or
services, sell products or services, or communicate with customers or
potential customers on a non-individual basis? If so, why, and how
should the Rule define or otherwise explain when GPL, CPL, or OBCPL, or
a clearly-labeled link to these documents, must be posted? Also, how
should such a change be implemented to maximize the benefits to
consumers and minimize the costs to businesses? Provide all evidence
that supports your answer, including any evidence that quantifies the
benefits to consumers, and the costs to businesses, including small
businesses.
8. Would requiring a funeral provider to provide the price lists
online (which could be defined to include a social media account or
other electronic, online, or virtual method or platform) impose any
challenges or costs for businesses, including small businesses, or
provide any benefits to consumers? If so, how could such challenges or
costs be minimized while still benefiting consumers? Provide all
evidence that supports your answer, including any evidence that
quantifies the benefits to consumers, and the costs to businesses,
including small businesses.
9. In the alternative or in addition to the proposed requirements
in Questions 1, 2, 5, & 6, should the Rule require all funeral
providers (with or without websites) to offer to send their GPLs, CPLs,
or OBCPLs electronically to a person who asks about the providers'
goods or services, or asks for a copy of any of the price lists? This
would include requests by telephone, text, email, weblink, social
media, fax, U.S. Mail, or other new communication methods that may
emerge in the future. If so, should providers be required to send the
information within a certain timeframe unless the person declines the
offer, or does not provide an email address or other method for
receiving the electronic information? In addition, should such a
requirement contain an exception for funeral providers who posts their
GPL, CPL, and OBCPL clearly and conspicuously on its websites? Why or
why not? Provide all evidence that supports your answer, including any
evidence that quantifies the benefits to consumers, and the costs to
businesses, including small businesses.
10. In the alternative or in addition to the proposed requirements
in Questions 1, 2, 5, & 6, should the Rule require all funeral
providers to electronically distribute their GPLs at the start of any
arrangements discussion that is not in-person, unless a hard copy has
already been provided? Why or why not? Provide all evidence that
supports your answer, including any evidence that quantifies the
benefits to consumers, and the costs to businesses, including small
businesses.
11. In the alternative or in addition to the proposed requirement
in Question 10, should the Rule require that, if the consumer is making
selections for a funeral arrangement online, then the provider would
need to offer a prominent link to the GPL before allowing the consumer
to proceed with selections? Why or why not? Provide all evidence that
supports your answer, including any evidence that quantifies the
benefits to consumers, and the costs to businesses, including small
businesses.
12. In the alternative or in addition to the proposed requirements
in Questions 1, 2, 5, 6, 10, & 11, should distribution of electronic
copies of the CPLs and OBCPLs also be required if discussing or showing
those items in an arrangements discussion that is not in-person, or if
the consumer is making selections concerning those items while shopping
online? Provide all evidence that supports your answer, including any
evidence that quantifies the benefits to consumers, and the costs to
businesses, including small businesses.
13. With respect to the proposed requirements in Questions 1, 2, 5,
& 6, should the Rule mandate how quickly funeral providers should be
required to update the GPLs, CPLs, and OBCPLs posted on their websites,
social media sites, or on other electronic sites? In support of your
position, identify all costs that funeral providers incur each time
they update the GPL, CPL, or OBCPL on their website. Provide all
evidence that supports your answer, including any evidence that
quantifies the benefits to consumers, and the costs to businesses,
including small businesses.
14. Should funeral providers be required to send an electronic copy
of the Itemized Statement of Funeral Services to people who do not meet
with a funeral provider in person, such as persons making arrangements
over the telephone, email, or online, before agreeing to services? Why
or why not? Provide all evidence that supports your answer, including
any evidence that quantifies the benefits to consumers, and the costs
to businesses, including small businesses.
15. Should any funeral providers be exempted from any of the
proposed requirements described in Questions 1, 2, 5, & 6? Why or why
not? If so, who are they, how many funeral providers would qualify for
this exemption, and how would the exemption impact consumers? Provide
all evidence that supports your answer, including any evidence that
quantifies the benefits to consumers, and the costs to businesses,
including small businesses.
Crematory Fees and Additional Costs
16. Should all funeral providers be required to list third-party
crematory fees in the description and price for direct cremation on the
GPL? Why or why not? Provide all evidence that supports your answer,
including any evidence that quantifies the benefits and burdens to
consumers, including how adding this requirement might impact the
consumer experience, and the costs and benefits to businesses,
including small businesses.
17. Alternatively, should funeral providers that do not include the
cost of third-party crematory fees in the price for direct cremation on
the GPL be required to include a statement on the GPL in close
proximity to the price for direct cremation that purchasers will be
required to pay an additional third-party crematory fee and include a
typical price range for the third-party crematory fee? Why or why not?
Provide all evidence that supports your answer, including any evidence
that quantifies the benefits and burdens to consumers, including how
adding this requirement might impact the consumer experience, and the
costs and benefits to businesses, including small businesses.
18. Should all funeral providers be required to list additional
items related to direct cremation or immediate burial not included in
the price for direct cremation or immediate burial on the GPL? Why or
why not? If so, which fees should be required to be disclosed? Provide
all evidence that supports your answer, including any evidence that
quantifies the benefits and burdens to consumers, including how adding
this requirement might impact the consumer experience, and the benefits
and costs to businesses, including small businesses.
19. In addition to the proposed requirements in Question 18, should
funeral providers be required to include such items in close proximity
to the price for direct cremation or immediate burial? Why or why not?
Provide all evidence that supports your answer, including any evidence
that quantifies the benefits and burdens to consumers, including how
adding this requirement might impact the consumer experience, and the
costs to businesses, including small businesses.
[[Page 66113]]
20. In the alternative to the proposed requirements in Question 18
& 19, should all funeral providers be required to list on the GPL in
close proximity to the cost for direct cremation and immediate burial a
statement listing additional fees that the funeral home knows consumers
may incur when they select a direct cremation or immediate burial and
the typical price range of such fees, if such fees are not included in
the price for direct cremation or immediate burial? Why or why not?
Provide all evidence that supports your answer, including any evidence
that quantifies the benefits and burdens to consumers, including how
adding this requirement might impact the consumer experience, and the
benefits and costs to businesses, including small businesses.
21. In the alternative to proposed requirements in Questions 18, 19
& 20, should funeral providers be required to include a statement in
close proximity to the price for direct cremation or direct burial on
the GPL that says that additional fees may apply? Why or why not?
Provide all evidence that supports your answer, including any evidence
that quantifies the burdens and benefits to consumers, including how
adding this requirement might impact the consumer experience, and the
benefits and costs to businesses, including small businesses.
Reduced Basic Fee Services
22. Should the Rule be amended to clarify when funeral providers
may charge a reduced basic services fee? Should the definition of
direct cremation and immediate burial in the Rule be amended to allow
those offerings to include limited viewings, limited visitations, or
another other services? Why or why not? If so, what limited viewing,
limited visitations, or other services should qualify for the reduced
basic services fee under this definition? Provide all evidence that
supports your answer, including any evidence that quantifies the
benefits to consumers, and the costs to businesses, including small
businesses.
Alternative Forms of Disposition
23. Should the Rule language be amended to specifically address
alternative forms of disposition, including alkaline hydrolysis and
natural organic reduction? Why or why not? If so, how should the Rule
address these services? Provide all evidence that supports your answer,
including any evidence that quantifies the benefits to consumers, and
the costs to businesses, including small businesses.
24. Should the Rule be amended to state that providers of
alternative forms of disposition, such as alkaline hydrolysis and
natural organic reduction, could offer direct or immediate services
with a reduced basic services fee? Why or why not? Provide all evidence
that supports your answer, including any evidence that quantifies the
benefits to consumers, and the costs to businesses, including small
businesses.
25. Should the Rule be updated to provide exceptions for the
requirements to provide alternative containers and disclosures related
to alternative containers for funeral service providers using new
methods of disposition or direct disposition that do not require a
container? Why or why not? If so, how should the Rule be amended to
allow such exceptions? Provide all evidence that supports your answer,
including any evidence that quantifies the benefits to consumers, and
the costs to businesses, including small businesses.
26. Should additional disclosure language relating to alternative
forms of dispositions be added to the Rule? If so, what should the
disclosure say? How would the additional disclosure language impact the
overall consumer experience or create any benefits or costs to
consumers and businesses, including small businesses?
27. Are there provisions of the Rule that are in tension with
alternative forms of disposition? If so, what are those provisions, and
how are they in tension with alternative forms of disposition? Provide
all evidence that supports your answer and explain whether and how the
tension between the Rule and alternative forms of disposition creates
costs for consumers and businesses, including small businesses.
Embalming Disclosure
28. Should the embalming disclosure contained in section
453.3(a)(2)(ii) of the Rule be amended to ensure consumers understand
the specific circumstances in which embalming may be required under
state law? If so, how should the disclosure be updated? Identify any
surveys, studies, or other evidence that supports your position.
29. Should the Rule be amended to modify the disclosures about
embalming to require providers to state on the GPL the correct law for
the jurisdictions in which it operates, as follows: If the provider
operates in a state that never requires embalming by law, the provider
must state: ``Embalming is not required by law in (name of state).'' If
the provider operates in a state that requires embalming by law under
certain circumstances, the provider must state those circumstances:
``Embalming is required in (name of state) when (list the state's legal
requirement).'' If the provider operates in multiple states with
different requirements for embalming, the provider would list the
requirements for each state in which the provider operates. Why or why
not? Identify any surveys, studies, or other evidence that supports
your position.
30. Should a funeral provider be required to disclose its policy
regarding embalming on the GPL in close proximity to its description
and price for embalming services? In addition or in the alternative,
should a funeral provider be required to inform consumers that it does
not possess refrigeration facilities, which may limit a consumer's
options to avoid embalming under state law, or add fees related to
third-party refrigeration facilities, in close proximity to its
description and price for embalming services? Provide all evidence that
supports your answer, including any evidence that quantifies the
benefits and burdens to consumers, including how adding this
requirement might impact the consumer experience, and the benefits and
costs to businesses, including small businesses.
31. Should funeral providers that do not offer embalming services
to any customers, due to their religious traditions or for other
reasons, be required to include an embalming disclosure on the GPL? Why
or why not? Provide all evidence that supports your answer, including
any evidence that quantifies the benefits to consumers, and the costs
to businesses, including small businesses.
Price List Readability
32. Should the GPL, CPL, and/or OBCPL requirements be changed to
improve readability for consumers? If so, what changes could be made to
the format that would make the documents easier for consumers to
comprehend and for businesses to know they have complied with the Rule?
Also, state whether your proposed changes would add additional
disclosure requirements to the Rule. If so, how would the additional
disclosure language impact the overall consumer experience and describe
any benefits or costs associated with these disclosures. Provide all
evidence that supports your answer, including any evidence that
quantifies the benefits to consumers, and the costs to businesses,
including small businesses, and all surveys, studies, or other evidence
that supports your position.
33. Should the Rule provide more specific requirements to ensure
that the mandatory disclosures are clear and
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conspicuous? If so, how and why? Provide all evidence that supports
your answer, including any evidence that quantifies the benefits to
consumers, and the costs to businesses, including small businesses, and
all surveys, studies, or other evidence that supports your position.
34. Should the Rule be changed to require that the information
required to be included on the GPL, such as the prices for the 16
products and services (if offered) and the mandatory disclosures, be
placed before other content (such as packages) on the GPL? Why or why
not? Provide all evidence that supports your answer, including any
evidence that quantifies the benefits to consumers, and the costs to
businesses, including small businesses.
35. Should the Rule be changed to require that the mandatory
disclosures on the price lists be in the same font, color, and size as
the rest of the content on the price lists? Why or why not? Provide all
evidence that supports your answer, including any evidence that
quantifies the benefits to consumers, and the costs to businesses,
including small businesses.
36. Should the Rule require that the GPL, CPL, and OBCPL be in
machine-readable format? Why or why not? Provide all evidence that
supports your answer, including any evidence that quantifies the
benefits to consumers, and the costs to businesses, including small
businesses.
Impact on People in Underserved Communities
37. Are there any funeral provider practices that
disproportionately target or affect certain groups, including lower-
income communities, communities of color, or other historically
underserved communities? If so, why and how? Provide all evidence that
supports your answer, including any evidence that quantifies the
impacts upon affected consumers and communities, and the impacts to
businesses, including small businesses and businesses owned and
operated by members of historically underserved communities.
38. Should any of the provisions of the Funeral Rule be amended to
avoid disproportionately impacting or affecting certain groups,
including people living in lower-income communities, communities of
color, or other historically underserved communities? If so, why and
how? Provide all evidence that supports your answer, including any
evidence that quantifies the benefits to consumers, and the costs to
businesses, including small businesses and businesses owned and
operated by members of historically underserved communities.
39. Are there any special issues or concerns related to the
disclosure of price information when consumers use benefits provided by
programs to help families of veterans and low-income consumers cover
funeral expenses? Provide all evidence that supports your answer,
including any evidence that quantifies the benefits to consumers, and
the costs to businesses, including small businesses.
40. Are there circumstances in which funeral providers should be
required to make price lists, disclosures, and statements of services
selected available in languages other than English? For instance,
should funeral providers be required to provide itemized price lists in
any language they use for advertising, or in any language they use to
make funeral arrangements? What would be the effect of such a
requirement, and what costs and benefits would it entail?
V. Instructions for Submitting Comments
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before January 3, 2023.
Write ``Funeral Rule ANPR, Project No. P034410'' on your comment. Your
comment, including your name and your state, will be placed on the
public record of this proceeding, including, to the extent practicable,
on the https://www.regulations.gov website.
Because of public health protections and the agency's heightened
security screening, postal mail addressed to the Commission will be
subject to delay. We strongly encourage you to submit your comments
online through the https://www.regulations.gov website. To ensure the
Commission considers your online comment, please follow the
instructions on the web-based form. If you file your comment on paper,
write ``Funeral Rule ANPR, Project No. P034410'' on your comment and on
the envelope, and mail your comment to the following address: Federal
Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW,
Suite CC-5610 (Annex B), Washington, DC 20580.
Because your comment will be placed on the publicly accessible
website, https://www.regulations.gov, you are solely responsible for
making sure that your comment does not include any sensitive or
confidential information. In particular, your comment should not
include any sensitive personal information such as your or anyone's
Social Security number, date of birth, driver's license number or other
state identification number or foreign country equivalent, passport
number, financial account number, or credit or debit card number. You
are also solely responsible for making sure your comment does not
include any sensitive health information, such as medical records or
other individually identifiable health information. In addition, your
comment should not include any ``[t]rade secret or any commercial or
financial information which . . . is privileged or confidential''--as
provided in section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule
Sec. 4.10(a)(2), 16 CFR 4.10(a)(2)--including in particular
competitively sensitive information such as costs, sales statistics,
inventories, formulas, patterns, devices, manufacturing processes, or
customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule Sec. 4.9(c). In
particular, the written request for confidential treatment that
accompanies the comment must include the factual and legal basis for
the request, and must identify the specific portions of the comment to
be withheld from the public record. See FTC Rule Sec. 4.9(c). Your
comment will be kept confidential only if the General Counsel grants
your request in accordance with the law and the public interest. Once
your comment has been posted publicly at www.regulations.gov--as
legally required by FTC Rule Sec. 4.9(b)--we cannot redact or remove
your comment, unless you submit a confidentiality request that meets
the requirements for such treatment under FTC Rule Sec. 4.9(c), and
the General Counsel grants that request.
Visit the FTC website to read this request for comment and the news
release describing it. The FTC Act and other laws the Commission
administers permit the collection of public comments to consider and
use in this proceeding as appropriate. The Commission will consider all
timely and responsive public comments it receives on or before January
3, 2023. For information on the Commission's privacy policy, including
routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.
VI. Public Workshop
The Commission seeks the broadest participation by the affected
interests in the rulemaking. To that end, the Commission will host a
public workshop to hear from the public about these issues and discuss
possible
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amendments. Staff will announce more details about the workshop soon.
By direction of the Commission.
April J. Tabor,
Secretary.
Note: the following statements will not appear in the Code of
Federal Regulations.
Statement of Chair Lina M. Khan
People are at their most vulnerable when they're grieving. That was
the insight behind the FTC's Funeral Rule, which first took effect in
1984. The goal was to prevent consumers from being taken advantage of
during moments of deep grief and loss. Among other provisions, the Rule
requires funeral homes to provide a clear list of prices for goods and
services offered. This helps family members make informed decisions and
avoid paying for things they don't need.
One challenge is that the Funeral Rule was crafted before the
internet age, so it only applies in person or over the phone. Even
though Americans today typically begin their shopping online, funeral
providers are not required to list prices on their websites. The staff
report that the Commission is voting on today found that just under 25
percent of funeral home websites provided a full list of prices. Over
sixty percent provided little to no price information whatsoever.
Stories persist about consumers spending hours trying to answer the
most basic questions about how much it will cost to bury their loved
ones.\1\ In the internet era, it's hard to see why anyone should have
to physically visit or call multiple funeral homes just to compare
prices.
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\1\ Robert Benincasa, Despite Decades-Old Law, Funeral Prices
Are Still Unclear, NPR (Feb. 8, 2017), https://www.npr.org/2017/02/08/504031472/despite-decades-old-law-funeral-prices-are-still-unclear.
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Today's advance notice of proposed rulemaking seeks comment on
several concrete ways to modernize the Funeral Rule. This includes
asking whether the Rule should require funeral providers to provide
pricing information online or via email, which could help consumers
make informed decisions during some of the most difficult moments of
their lives. It could also better incentivize funeral homes to offer
the most competitive prices. This would ultimately lower the expensive
burden of putting a loved one to rest.\2\
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\2\ See, e.g., Joshua Slocum, Death with Dignity? A Report on
SCI/Dignity Memorial High Prices and Refusal to Disclose These
Prices, Funeral Consumers Alliance & Consumer Fed'n of America (Mar.
2017), https://funerals.org/wp-content/uploads/2017/03/3-6-17-Funeral-SCI_Report.pdf; Joshua Slocum & Stephen Brobeck, The
Relationship Between Funeral Price Disclosures and Funeral Prices: A
California Case Study, Consumer Fed'n of America (Feb. 2020),
https://consumerfed.org/wp-content/uploads/2020/02/California-Funeral-Home-Pricing-Report.pdf.
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I am pleased to support this effort, and I look forward to the
public comments during our rulemaking proceeding. I'd like to thank our
staff for their excellent work on this matter.
Statement of Commissioner Rebecca Kelly Slaughter
Funerals are not only emotionally overwhelming, they are also
financially overwhelming. The average cost of a funeral in 2022 is
$7,360 and has risen over 6.6 percent over the past five years.\1\
These costs don't include end-of-life care or the thousands of
additional dollars required for a cemetery plot and headstone. Not only
is this a staggering amount of money for most consumers to cover--it is
a purchase that they have to make under incredible stress. Grieving,
rushed, distracted and unprepared, consumers seeking funeral services
are in little position to negotiate. The FTC Funeral Industry Practices
Rule requires that funeral providers share written pricing information
when consumers inquire in person. The Rule also requires that providers
provide accurate price information to consumers who call them. But in
its current form, the Funeral Rule does not require funeral providers
to publish pricing information online. This framework can make planning
and price comparison challenging under any circumstance, but I can't
imagine how hard this was for the hundreds of thousands of consumers
who had to navigate making funeral arrangements during the height of
the pandemic. In early 2020, the Commission initiated a routine review
of the Rule, which generated 785 comments. I've reviewed many
submissions in which consumers described how difficult it was to make
funeral arrangement for loved ones who lived far away or how ill-
equipped they were to negotiate or make choices at the height of their
grief.\2\ I want to share an excerpt from one commenter's powerful
description of his excruciating experience trying to make arrangements
for his young son without online pricing information:
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\1\ 17 Mind-Boggling Funeral Cost Statistics in 2022 & Beyond,
Kelly Maxwell, Seniors Mutual, https://seniorsmutual.com/funeral-cost-breakdown/.
\2\ See, e.g., FTC-2020-0014-0406 Comment Submitted by John J.
Wilson (``[M]y mother who lived alone in a retirement home in
Phoenix, Arizona passed away and since I live in Austin, Texas, this
required me to make funeral arrangements in a distant city that I
was not familiar with. Without the funeral price list online this
made my task much more difficult. In fact, I feel I was at the mercy
of the funeral provider. Without having knowledge of their prices in
advance, I felt that they could charge me whatever amount they
desired and I was defenseless. They had me over a barrel, so to
speak. I'm sure I paid much more than necessary for my mother's
funeral arrangements. If I had had their price list before visiting
the funeral provider, I would have been in a much better bargaining
position, but unfortunately this was not the case.''); FTC-2020-
0014-0637 Comment Submitted by Elizabeth Menkin (``When my mother
died, it was impossible to collect price lists for any cost-
comparison survey at the time that we needed to make arrangements. I
had to individually contact funeral homes and hope they would
voluntarily email/mail a price list. I would have had to drive to
funeral homes who refused. This is a terribly burdensome task to
impose on a grieving family.'').
In many, if not most cases, death comes suddenly and is
unexpected. This leaves the loved ones of the deceased little time
to prepare for the viewing and burial.
This was true for my family with the death of our 4-year-old
son. While we had been provided a terminal cancer diagnosis for many
months for my oldest son, I could not bring myself to begin planning
for his funeral. I had limited time to spend with him outside of
work, I did not think it made sense to invest any of it shopping for
funeral services.
When the end came for him, and it was sudden, we were forced to
decide between two funeral homes in our town. We chose the largest
one because we expected a large crowd to attend. I had no idea what
to expect when I arrived to discuss arrangements, so you can imagine
my surprise when I learned the cost involved. Online pricing would
have allowed me to prepare in advance and to prepare to negotiate
what was by far the largest purchase I've ever made without any
advance notice. I could have spent nights reviewing the cost without
feeling guilty about leaving my son and the limited time we had
together.
I had a crushing level of grief when I walked into that funeral
home and I had absolutely no way to negotiate when they handed me
their proposed price. How is that fair? They already had possession
of my son's body, so it was not like I could walk out and begin
shopping.
To place this in context, I believe my first car, that I
purchased in 1998, cost less than his burial and I knew exactly what
that would cost because I had the internet available to me. I could
arrange for financing from the bank before I ever bought the car so
I knew how much it would cost each month and when I would make the
final payment. I felt completely prepared to purchase my car and I
was very comfortable when I walked into the dealership to finalize
the purchase . . .
There is no logical reason not to allow for online pricing
except to suppress consumer awareness . . . Government's job is to
protect their citizens and this is one instance when we need
protecting because emotionally compromised consumers are being taken
advantage and we have no way of preventing it.\3\
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\3\ FTC-2020-0014-0685 Comment Submitted by Adam Drapczuk III.
I want to thank this father and all the commenters to the 2020 rule
review
[[Page 66116]]
who shared their views and experiences and I whole-heartedly support
the FTC's publication of the advance notice of proposed rulemaking
asking specific questions about whether and how to modernize the
Funeral Rule to better protect consumers trying to make a huge purchase
under the worst circumstances. I encourage all consumers and other
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stakeholders to weigh in on the questions posed by the ANPR.
[FR Doc. 2022-23832 Filed 11-1-22; 8:45 am]
BILLING CODE 6750-01-P