Opinion 98-1

UNITED STATES OF AMEJUCA
FEDERAL TRAE COMMISSION
L-e I+.e V ve: Rv Ie. Ij. c;k1e lc (W\ ')
i e. NO CClS \uJ t.j3S-
WASHINGTON , D.C. 205XO
Division of Marketing Practices
Laurie Meehan
Staff Attorney
Direct Dial
(202) 326.3755
VIA FACSIMILE AND REGULAR MAIL
May 25 , 1998
Michael H. Rasch, Esq.
Dunn & Rasch, Ltd.
3500 Nort Causeway Blvd.
Suite 1216
Executive Towers One
Metairie, Louisiana 70002
Dear Mr. Rasch:
I apologize for the delay in responding to your inquiry. I appreciate your concern regarding the
interaction of the Federal Trade Commission s Funeral Rule and the state laws of Louisiana.
First, as a matter of background, an essential purose of the Funeral Rule is to "ensure that
consumers have access to sufficient information to permit informed purchase decisions, that consumers
are not required to purchase items they do not want and are not required by law to purchase and that
misrepresentations are not used to influence consumer purchase decisions. " Statement of Basis and
Purpose, Funeral Industr Practices Trade Regulation Rule , 59 Fed. Reg. at 1593 (January 11 1994)
(reprinted ITom the 1982 Statement of Basis and Purose). As you know, the Funeral Rule governs the
activities offuneral providers, who are defined as entities that engage in the sale of both fueral goods
and funeral services. In summar, the Funeral Rule: (I) requires funeral directors to provide
consumers with a general price list, a casket price list, an outer bural container price list and an itemized
statement of funeral goods and services selected by the consumer; (2) prohibits misrepresentations
regarding embalming, casket or outer bural container requirements, legal and cemetery requirements
and protective value claims; (3) prohibits funeral directors ITom requiring the purchase of certain goods

and services as a condition for purchasing other goods and services; and (4) prohibits embalming
without prior approval , except in limited circumstances.
You have requested an informal staff advisory opinion regarding the interaction between the
rules and regulations of the Louisiana State Board of Embalmers and Funeral Directors and the FTC'
Funeral Rule.
In reviewing the state law and the rules and regulations of the Louisiana
State Board of Embalmers and Funeral Directors does a conflict exist
between these provisions and the Funeral Rule conceming the retail sale
of caskets?
The Louisiana state law and the Louisiana State Board of Embalmers and Funeral Directors
rules and regulations state that it is an unlawful practice for any individual or entity that is not a licensed
funeral director to engage in the retail sale of fueral goods , including caskets. In addition, the
Louisiana rules and regulations also require that prices of caskets be available in the display room and in
the caskets. The provisions of the Funeral Rule relating to caskets include the provision which prohibits
casket handling fees and specific provisions regarding the Casket Price List.
First, the Funeral Rule prohibits charging fees, apar ITom the Basic Services fee, other than
those for the goods or services selected by the consumer or the goods and services required to be
purchased as a matter of law. This prohibition was specifically directed at the practice of charging
consumers who provided their own caskets a casket handling fee. The Louisiana State Board of
Embalmers and Funeral Directors Rules and Regulations touches on a related issue by limiting retail
casket sales to licensed funeral directors and licensed funeral establishments. The Funeral Rule does
not prohibit ths type of regulation, nor does it demand that retail casket sales be open to entities other
than licensed funeral establishments. Accordingly, there is no direct conflict between the provisions of
the Funeral Rule and the provisions of the Louisiana regulations. This opinion is limited to the
interaction between Louisiana state regulations and the FTC' s Funeral Rule. It does not reach the issue
of whether the Louisiana regulations are in compliance with other FTC rules, regulations and statutes
including, but not limited to , those addressing restraint oftTade.
Tensions exist, however, between the spirit and intention ofthe FTC' s Funeral Rule and the
Louisiana Regulations. Although the FTC's Funeral Rule does not address what entities may sell
caskets or what entities a consumer may buy a casket ITom, the Funeral Rule does encourage consumer
choice in the area of funeral goods and services, and the Louisiana statute may have the effect of
restrcting a consumer s choice of suppliers of funeral goods or their choice of funeral goods and
servICes.
Durng one of our conversations, you stated that, in Louisiana, some consumers have purchased
caskets ITom funeral homes other than the one where services were performed and that some
consumers have furnished home made caskets. Because ofthese instances , you stated that the

Louisiana regulation did not significantly limit consumers' choices as they could still purchase caskets
ITom competing funeral homes or provide home made caskets. It is likely, however, that limiting the
types of entities that may sell caskets may have the overall effect of reducing the number of casket
choices or choices of suppliers of caskets.
For additional information, I am enclosing a letter to The Honorable Franklin P. Hall ITom the
Director ofthe FTC' s Bureau of Competition. The letter addressed a similar issue with respect to
proposed legislation in the state of Virginia which sought to limit the sales of pre-need funeral planing.
The Commission authorized the Director to send this letter, which stated, in pertinent par, that
The Commission is concerned with restTictions that allow only licensed
funeral directors to sell pre-need funeral plans, including fueral goods
and arrangements for providing funeral services. Such restrictions may
harm consumers by preventing the intToduction and development of
innovative forms of competition and lower cost alternatives for fueral
products and services for which the professional expertise of a funeral
director is not required. For example, consumers may be hared if
owners of cemeteries and manufacturers of fueral goods are
completely prohibited ITom selling caskets and bural vaults
consumers in Virginia.
Thus, although the Funeral Rule does not directly address this issue, the Commission has previously
expressed concerns regarding the competitive effects of regulations which restrict the tyes of entities
which may sell funeral goods.
Second, the Funeral Rule requires fueral providers, defined as entities offering both fueral
goods and fueral services, to either list the retail price of each casket on the General Price List or
prepare a separate Casket Price list including the effective date of the list and the retail prices and
suffcient identifyng information for caskets and alternative containers offered. Furher, the Funeral
Rule requires fueral providers to offer consumers an opportty to review the Casket Price List upon
a discussion of caskets, but prior to showing consumers caskets. The Louisiana State Board of
Embalmers and Funeral Directors Rules and Regulations, however, simply require that the fueral
service licensee have the prices of caskets available in the display room and in the casket in public view.
Note, in order to comply with the FTC' s Funeral Rule, fueral providers must provide a casket price
list prior to showing the display room.
Does the Funeral Rule have any specific provisions which allow the
retail sale of caskets by anv individual or group?
The FTC' s Funeral Rule provisions regarding the sale of caskets are limited to the requirement
to provide a Casket Price List, the prohibition against casket handling fees, and the prohibitions against

misrepresenting the necessity of or preservative effects of a casket. The Funeral Rule does not address
the retail sale of caskets by a particular individual or group. It neither prohibits nor allows thc retail sale
of caskets. The prohibition on casket handling fees , however, assumes or encourages a competitive
market in the retail sale of caskets.
If the Funeral Rule would not apply to a "casket store" is it not proper
for such an entity to comply with all state laws concerning the retail sale
of fueral merchandise?
The FTC's Funeral Rule governs the activities of funeral providers , who are defined as entities
that engage in both the sale of funeral goods and funeral services. Funeral goods are " goods which are
sold or offered for sale directly to the public for use in connection with funeral services. " Funeral
services are: (1) services used to care for and prepare bodies for burial, cremation or other final
disposition; and (2) services used to arange, supervise, or conduct the funeral ceremony or final
disposition of human remains. Thus, if a " casket store" engaged solely in retail sale of caskets or even
other fueral goods, the Funeral Rule would not apply unless the " store" also engaged in the sale of
fueral services.
As the Compliance Guide states
, "
you must comply with all state regulations, as well as the
FTC Funeral Rule " unless your state has been granted an exemption. Louisiana is not exempt ITom the
Funeral Rule, so fueral providers must comply with both the FTC' s Funeral Rule and any state
regulations.
With respect to entities which are not covered within the definition of "fueral provider," the
FTC' s Funeral Rule does not apply. The regulation ofthose outside this definition or such outside
entities' compliance with any other regulation is simply beyond the scope of opinion ofthe staff charged
with enforcement of the Funeral Rule.
Please note that the views expressed in this letter are those of staff only. They have not been
reviewed, approved or adopted by the Commission, and they are not binding on the Commission.
They do, however, reflect the opinions of the staff charged with enforcement ofthe Funeral Rule.
I hope that you find the above information helpful.
have any additional questions.
Please do not hesitate to contact me if you
Sincerely,
Laurie Meehan
Funeral Rule Enforcement Staff

Enclosure