Opinion 97-4

LfZ
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON , D. C. 20580
Division of Marketing Practices
Laurie Meehan
Attorney
Direct Dial
202. 326. 3755
VIA FACSIMILE AND U.S. MAIL
March 20 , 1997
Vincent F, Kilborn, II
Kilborn, Roebuck & Kilborn
1810 Old Governent Screet
Mobile, Alabama 36606
Dear Mr. Kilborn:
Than you for your letters of October 17, 1996 and December 31 1996, I apologize for
the delay in responding to your inquiries,
In your letters, you raise the following issues: 1) whether it is a violation of FTC'
Funeral Rule to lump groups of charges together under the category of "Funeral Ceremony ; 2)
whether it is a violation of the FTC' s Funeral Rule to fail to explain the mandatory Funeral
Director and Staff Services Charge; 3) whether there is a private right of action under the Funeral
Rule; and 4) whether there are any complaints against SCI , and how you may obtain them,
As you may know, the Commission is charged with the enforcement of the Federal Trade
Commission Act, 15 D, C. 941 et seq, FTC Act"), which prohibits unair and deceptive
practices, as well as enforcement of trade regulation rules enacted pursuant thereto, such as the
Funeral Rule , 16 C.F,R, Par 453, The Funeral Rule requires that fueral providers give
consumers accurate, itemized price lists, make disclosures regarding certain fueral goods and
service and prohibits fueral providers from making certain misrepresentations regarding fueral
goods and services,
First, you inquired as to whether it is a violation ofthe Funeral Rule to lump together a
number of items under a single charge of$600 for the "Funeral Ceremony, " This price allegedly
includes charges for embalming, visitation, fueral ceremony, graveside service, transfer
remains to fueral home, funeral vehicle, casket/cremation casket, and clothing/shroud,

The Funeral Rule requires itemization of prices for certain charges and services,
Specifically, on the General Price List, a funeral provider must list sixteen items separately with
their respective prices, 16 C, R. 9453.2 (4), (5) The sixteen items required to be listed
separately on the General Price List are: forwarding of remains, receiving remains, direct
cremation, immediate burial, basic services of fueral director and staff (and overhead), tTansfer
ofremains to fueral home, embalming, other preparation of the body, use offacilities and staff
for viewing, use of facilities and staff for fueral ceremony, use of facilities and stafffor
memorial service, use of equipment and staff for graveside service, hearse , limousine, casket
prices, and outer bural container prices, 16 C,F.R 9453, 2 (4)(ii) Under the Funeral Rule
fueral providers are required to provide consumers with an itemized Statement of Goods and
Services selected including, " (t)he funeral goods and services selected by that person and the
prices to be paid for each of them, See 16 C, R, 9453.2(b)(5), As the Compliance Guides
state (p, 23), " the categories of goods and services listed in the Statement (or other similar
document) should generally correspond to the items listed on the GPL (General Price List) so
that customers can easily compare the two documents,
The situation which you presented in your letter indicates a grouping or lumping together
of items on the Statement of Goods and Services Selected to include embalming, visitation
ceremony, memorial service, graveside service , transfer of remains to fueral home, fueral
vehicle and casket all in one entT, Such grouping does not comply with 9 453,2(b)(5),
Second, you inquired as to whether it is a violation of the Funeral Rule to fail to explain
that the Funeral and Staff service charge was mandatory on the Statement of Goods and Services,
In answer, first let me make it clear that the Funeral Staff and Services charge is not mandated by
law, Such a charge is, however permitted by the Funeral Rule, 16 C, R, 9453,2(4), The
allowable fee may include charges for services such as "conducting the arangements conference
planing the fueral, securng the necessar permits, preparng the notices, and coordinating the
cemetery or crematory arangements. " With respect to the basic services fee, if the fueral
provider lists a separate basic services fee and it is non-declinable, the provider must make the
following disclosure on the General Price List:
Ths fee for our basic services and overhead will be added to the
total cost of the fueral arangements you select. (Ths fee is
already included in our charges for direct cremations, immediate
burals, and forwarding or receiving remains,
The materials attached to your letter included what purorts to be a Statement of Goods and
Services Selected! , but did not include a General Price List. Therefore, I canot determine
There are three required disclosures which must be included on a Statement of Funeral
Goods and Services, These disclosures pertain to legal requirements, embalming, and cash
advance items, With respect to embalming, the fueral providers must include the following
statement on the Statement of Goods and Services:

whether the fueral service provider in question complied with this provision of the Rule,
Third, you inquired as to whether there is a private right of action under the Funeral Rule,
The FTC is charged with enforcing the provisions of the Funeral Rule, Under Section 5
(m)(1)(A) of the Federal Trade Commission Act, the Commission is authorized to commence a
civil action to recover a civil penalty in a United States District Cour against any person
parership, or corporation that violates an FTC rule,2 However, the case law clearly establishes
that there is no private right of action to enforce provisions of the FTC Act and other FTC Rules,
See Holloway v, Bristol-Myers C01:poration, 485 F,2d 986 (D,C. Cir. 1973); Days Inn of
America Franchising. Inc. v, Windham, 699 F, Supp, 1581 (N,D, Ga, 1988), It follows
therefore, that there is no private right of action to enforce the provisions of the Funeral Rule,
Finally, you have requested information concerning complaints that the FTC has received
regarding SCI. Your query is subject to the Freedom of Information Act. I will forward your
request to the appropriate par at the FTC to process your wrtten request for information. For
future use, if you require fuher information from the FTC, you should submit a written request
to:
Freedom of Information Act Request
Chief Information Offcer
Federal Trade Commission
6th and Pennsylvania Ave" N,
Washington, DC 20580
Other sources of consumer complaints regarding fueral homes include the state Attorney
General' s office for the state where the fueral home is located and the state fueral board,
If you selected a funeral that may require embalming, such as a
fueral with a viewing, you may have to pay for embalming, You
do not have to pay for embalming you did not approve if you
selected arangements such as a direct cremation or immediate
bural, Ifwe charged for embalming, we will explain why below,
16 C. R. 9453,5(b), The Compliance Guide (p, 25) advises that " (t)he form should leave
enough space for you to explain the reason for embalming, You should enter ths information on
the Statement before giving it to the customer.
In such an action, the Commission is authorized to request a penalty fee for each
violation, However, any penalty must be imposed by a United States Distrct Cour, An
investigation of a potential rule violation may be commenced upon information submitted by any
governental entity, upon complaint by members of the public, including industT members, or
by the Commission upon its own initiative,

I hope that this information is of assistance to you, Please let me know if! can be of any
fuher assistance,
aure Meehan
Funeral Rule Enforcement Staff

UNITD STATES OF AMERICA
FEDERAL TRADE COMMSSION
WASHINGTON, D. C. 20580
June 10 2003
Jeanne Dwyer
Executive Vice President
Monument Builders of North America
3158 S. River Road, Suite 224
Des Plaines , IL 60018
Dear Ms, Dwyer:
Thank you for your letter of May 20 2003 , to Eileen Harngton, which has been referred
to me for response. You indicate that most of your members do not sell monuments over the
phone or solicit or accept payment for such a purchase over the phone, You note, however, that
some of your members use the telephone as a preliminar sales tool either to make appointments
with interested consumers or to inform consumers that they have alternatives to buying a
monument from either a cemetery or funeral home, You ask whether these situations would be
covered by the national do-not-call registT, You should understand that this opinion is that of
Commssion staff and, as such, is neither attributable to nor binding on the Commssion itself or
any individual Commssioner.
The Telemarketing Sales Rule exempts face-to-face transactions from complying with the
requirements of the Rule except for certain of the abusive practices sections, including the do-
not-call provisions, Therefore, the do-not-call registry would cover situations where your
members call consumers to solicit appointTents during which the transaction is completed in a
face-to-face setting and where one or more interstate telephone calls are involved, Similarly, the
second scenaro you describe would also be covered by the do-not-call provisions of the Rule as
long as one or more interstate telephone calls are involved, Although the calls in the second
scenaro may appear to be "informational " they are in fact commercial calls that have been made
for the purose of inducing the purchase of goods or services " albeit at some unspecified later
date, and thus they would fall within the definition of "telemarketing,

I hope this information is helpful to you, I must remind you that the opinions expressed
in this letter are those of the Commission staff only. These opinions are not attributable to and
are not binding on the Commssion itself or on any individual Commssioner. If you wish to
discuss this staff opinion or related issues, please feel free to contact me at (202) 326-3115
(email: cdanielson(Qftc.gov).
Sincerely,
Carole I. Danielson
Investigator