Opinion 95-3

LtZO
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON , D, C, 20580
Division of
Marketing Practices
Thomas A. Cohn
Attorney
July 18, 1995
George W. Lemke
Executi ve Director
Casket & Funeral Supply
708 Church Street
Evanston, IL 60201
Association of America
Re: Staff Opinion Regarding Refusal to Sell Caskets Only
Dear Mr, Lemke:
This office has received your recent request for an advisory
opinion, In your letter , you ask whether a funeral director must
sell a casket to a consumer al though he or she has no intent to
have services conducted by the funeral home and it is not the
practice of the funeral home to sell caskets only or advertise
caskets for sale independent of funeral services. Let me begin
by setting forth the Rule provisions relevant to your inquiry.
Section 453. 4 (b) (2) (ii) of the Funeral Rule states:
A funeral provider shall not violate this section by
failing to comply with a request for a combination of
goods or services which would be impossible
impractical , or excessively burdensome to provide.
Section 453. 4(b) (1) (i) of the Funeral Rule states:
In selling or offering to sell funeral goods or funeral
services , it is an unfair or deceptive act or practice
for a funeral provider to condition the furnishing of
any funeral good or funeral service to a person
arranging a funeral upon the purchase of any other
funeral good or funeral service, except as required by
law or as otherwise permitted by this part
Finally, Rule Section 453, 1 (i) defines a "funeral provider"
as " any person, partnership or corporation that sells or offers
to sell funeral goods and funeral services to the public " and
Rule Section 453. 1 (p) defines the" services of funeral director
and staff" as " the basic services
. ,
that are furnished by a
funeral provider in arranging any funeral
Staff interprets these definitions to mean that the Rule is
based upon an understanding that funeral providers are persons

George W, Lemke July 18,
Page 2
1995
who furnish funeral arrangements, and not persons who simply sell
a particular good or service as a separate sales transaction,
Therefore , it is impractical , in our opinion , for a business
operation thus defined to be required to function as something
else , such as a casket seller,
We do not believe it to be the Commission s intention to
require a funeral provider to sell an isolated good or service
that is not to be used in conjunction with a funeral arranged by
that funeral provider, The Statement of Basis and Purpose for
the original Funeral Rule supports this view. There the
Commission stated that it:
would not consider it a violation of section 453. (b)
for a funeral provider to refuse doing business with a
consumer who said' we have our own casket
transportation , flowers, etc., but wish to use your
viewing facilities for two hours next Monday. The
Commission wishes to stress, however , that this
provision does not give funeral providers the option to
reject arrangements which are practical to provide but
which do not comport with the provider s judgment of
what is appropriate under the circumstances.
47 FR 42260 , 42282 (Sept 24, 1982), fn. 230. Thus , in adopting
the Rule , the Commission merely sought to ensure that package
pricing was not the only option for consumers making funeral
arrangements, and that such consumers could choose and purchase
only what they desired for such arrangements.
However, if a consumer asked the funeral home to make
funeral arrangements , and the funeral home stated that a casket
could only be furnished if the requestor purchased other funeral
goods or services, such a response would violate the Rule ' s anti
tying provision , Section 453. 4 (b) (1) (i). For those consumers
making funeral arrangements, the Rule ' s anti tying provision
protects them from having to purchase unwanted goods or services,
as a condition for receiving the items they do want.
Therefore, the Rule does not require funeral providers to
sell a casket or any other item separately to anyone upon demand.
The Rule does require funeral providers to allow persons
arranging a funeral the freedom to choose and pay for only the
goods and services they desire for the funeral.
As you know , the Federal Trade Commission has amended the
Funeral Rule , and the changes became effective on July 19, 1994.
The enclosed Guidelines explain the Rule s requirements and
answer many basic questions about how to comply with the revised
Rule. The Guidelines also offer sample price lists and a sample

George W. Lemke~~ July 18 , 1995
Page 3
statement of goods and services selected to assist you in
bringing your forms into compliance with the revised Rule.
Finally, please be advised that the views expressed in this
letter are those of the FTC staff. They have not been reviewed,
approved or adopted by the Commission , and they are not binding
upon the Commission. However, they do reflect the opinions of
those staff members charged with enforcement of the Funeral Rule.
I hope that this information is helpful to you.
Sincerely,
--/
(t;;1/f1/vThomas A. Cohn
Funeral Rule Enforcement Staff
Enclosure: 6/94 Funeral Rule Guide