FTC Staff Comment Before the Louisiana Board of Embalmers and Funeral Directors Concerning the Removal of Bodies from the State of Louisiana

V940004
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
OfflCfl of the Dirt!JCtor
I1tJre.u of Consumer Protection
COMMISSION 	AUTHORIZED
January 	14, 	1994
Dawn 	P. 	Scardino
Executive 	Director
Board 	of 	Embalmers 	and 	Funeral 	Directors
Box 	8757
Metairie, 	Louisiana 	70011-8757
0ear Ms. 	Scardino:
The 	staff 	of 	the 	Federal 	Trade 	Commission1 offers 	this
comment 	on 	the 	proposal 	by 	the 	Board of 	Embalmers 	and 	Funeral
Directors 	to 	amend 	its 	rules 	governing 	the 	removal 	of 	bodies 	from
the 	state 	of 	Louisiana. 	The 	proposed new 	rule 	would 	require
that, 	with 	some 	exceptions, 	a 	body could not 	be 	removed 	from 	the
state 	unless 	it 	was 	first 	embalmed 	(or 	cremated). 	This
requirement 	could 	force 	consumers 	to purchase 	services 	they
neither 	need 	nor 	want, 	increase 	the 	costs 	borne 	by 	residents 	of
other 	states 	arranging 	funerals 	for 	their 	relatives 	who 	die 	in
Louisiana, 	and dampen 	competition between 	funeral 	providers 	in
Louisiana 	and 	those 	in other 	states. 	Especially 	in view of 	the
fact 	that 	virtually no 	other 	jurisdiction 	imposes 	a 	restriction
like 	the 	one 	the 	Board 	has 	proposed, 	we 	urge 	the 	Board 	to
consider 	carefully whether 	the 	public 	health benefits 	from 	the
requirement 	outweigh 	these 	likely 	adverse 	consequences.
I. 	Interest 	and Experience 	of 	the 	Federal 	Trade 	Commission.
The 	Federal 	Trade 	Commission 	is 	empowered 	to 	prevent 	unfair
methods 	of 	competition 	and unfair 	or 	deceptive 	acts 	or 	practices
in or 	affecting 	commerce. 2 	Pursuant 	to 	this 	statutory mandate,
the 	Commission encourages 	competition 	in 	the 	licensed
professions, 	including 	those 	in 	the 	funeral 	and 	cemetery
1 These 	comments 	are 	the 	views 	of 	the 	staff 	of 	the 	Bureau 	of
Consumer 	Protection 	of 	the 	Federal 	Trade 	Commission, 	and do 	not
necessarily 	represent 	the 	views 	of 	the 	Commission 	or 	any
individual 	Commissioner.
2 	15 	U.S.C. 	§ 	41 	~ ~.

Dawn 	P. 	Scardino
Page 	2
industry, 	to 	the 	maximum extent 	compatible 	with other 	state 	and
federal 	goals. 	The 	staff 	of 	the 	FTC works 	to 	identify
restrictions 	that 	hinder 	competition and 	increase 	costs 	without
providing 	countervailing benefits 	to 	consumers.
The 	Commission 	staff 	has 	become 	familiar 	with 	the 	funeral
industry 	through 	its 	work 	on 	a 	Trade 	Regulation 	Rule 	that 	is
intended 	to 	promote 	increased 	competition and 	consumer 	choice 	in
the 	funeral 	industry by 	facilitating 	informed purchase
decisions. 3 	In 	addition, 	the 	Commission 	has 	taken 	law
enforcement 	actions 	against 	anticompetitive 	acquisitions 	in 	the
funeral 	industry.4 	The 	staff 	has 	previously commented on other
states' 	proposed 	legislation 	involving 	the 	funeral 	industry.s
II. 	Description of 	the 	Proposed Regulatio~.
The 	Louisiana 	State 	Board 	UL 	::.,.J..Jo.:'mers 	and 	Funeral 	Directors
has 	proposed a 	rule 	that 	would 	require 	that 	any dead body be
embalmed 	(or 	cremated) 	before 	being 	transported 	out 	of 	state. 6
In 	the 	original 	announcement, 	the 	proposal 	granted 	an 	exception
to permit 	transfer 	of 	an 	unembalmed body 	for 	the 	purpose 	of
3 	The 	FTC 	rule 	governing 	Funeral 	Industry 	Practices, 	16
C.F.R. 	§ 	453, 	became 	effective 	April 	30, 	1984. 	Among 	other
things, 	the 	rule 	requires 	funeral 	providers 	to 	disclose 	to
consumers 	detailed 	information 	about 	prices. 	The 	Commission 	has
recently approved 	amendments 	to 	this 	rule, 	to 	be 	effective 	July
18, 	1994, 	as 	part 	of 	a 	mandatory 	review procedure. 	59 	Fed. 	Reg.
1592 	(January 	11, 	1994).
4 See 	Service 	Corporation 	International, 	Dkts. 	C-3372
(consent 	order, 	February 	25, 	1992), 	C-3440 	(consent 	order, 	June
15, 	1993).
S ~ 	comments 	to 	the 	Wisconsin 	State 	Assembly, 	September
13, 	1993; 	Pennsylvania 	House 	of 	Representatives 	Committee 	on
Business 	and 	Commerce, 	August 	29, 	1989; 	Virginia 	Delegate
Franklin 	P. 	Hall, 	February 	9, 	1989; 	Oregon 	State 	Representative
Chuck Sides, 	April 	6, 	1987; 	Illinois 	Department 	of 	Registration
and 	Education, 	May 	9, 	1986; 	Kansas 	State 	Representative 	Ginger
Barr, 	February 14, 	1986; 	Alabama 	Representative 	Arthur 	PaYne,
January 	16, 	1986. 	Commission 	staff 	has 	also 	testified generally
on 	regulatory 	issues 	in 	this 	industry; 	~ Statement 	to
California Assembly Committee 	on 	Consumer 	Protection,
Governmental 	Efficiency and Economic 	Development, 	October 	17,
1991.
6 	Proposed Louisiana Administrative 	Code, 	Title 	46, 	Part
XXXVII, 	Ch. 	13, 	§1303.B.

Dawn 	P. 	Scardino
Page 	3
advancing medical 	science 	or 	as 	a 	source 	of. transplant 	organs.
In 	the 	amended announcement, 	another 	exception was 	added,
providing 	that 	the 	rule 	was 	not 	to 	be 	construed 	to 	require
embalming 	if 	special 	practices 	and 	beliefs 	of 	religious 	groups
prohibited 	it. 7
In 	the 	"impact 	statement" 	that 	accompanies 	the 	proposed
rule, 	the 	Board 	refers 	to 	public 	health 	concerns 	about 	the 	spread
of 	infections 	and 	contagious 	diseases. 	According 	to 	the
statement, 	an 	effect 	of 	the 	rule 	will 	be 	a 	"slight" 	decrease 	in
revenues 	for 	out-of-state 	firms, 	and 	a 	corresponding 	"slight"
increase 	for 	those 	in-state; 	however, 	the 	statement 	says 	that
there 	would 	be 	"no 	known 	impact 	on 	competition 	and 	employment
within 	the 	state 	of 	Louisiana." 	The 	statement 	says 	that 	"many"
local 	funeral 	homes 	already make 	it 	a 	practice 	to 	embalm 	before
transfer, 	and points 	out 	that 	those 	homes 	may 	already provide 	a
number 	of 	other 	services 	in 	connection with'interstate 	transport
of 	bodies.
III. 	Effects 	of 	the 	Proposed Regulation.
The 	requirement 	may 	force 	out-of-state 	clients 	to 	obtain,
and pay 	for, 	services 	they 	neither 	need 	nor 	want. 	Neither
Louisiana 	nor 	the 	bordering 	states 	of 	Texas, 	Arkansas 	and
Mississippi 	impose 	a 	general 	embalming 	requirement 	by 	statute 	or
regulation. 8 	A family 	in a 	nearby 	state 	who 	wanted 	to 	arrange
7 	Because 	the 	exception 	deals 	only with 	embalming, 	the 	rule
as 	drafted might 	still 	be 	construed 	to 	require 	cremation,
regardless 	of 	religious 	beliefs 	or 	practices.
8 	The 	Commission's 	Funeral 	Rule 	declares 	it 	to 	be 	deceptive
for 	a 	funeral 	provider 	to 	represent 	that 	the 	law 	requires
embalming when 	that 	is 	not 	the 	case, 	or 	to 	fail 	to 	disclose 	that
embalming 	is 	not 	required 	by 	law 	except 	in 	certain 	special 	cases.
16 	C.F.R. 	§453.3(a) (1). 	Thus, 	the 	Rule 	prohibits 	funeral
providers 	from 	representing 	that 	embalming 	is 	required 	for 	direct
cremation, 	immediate 	burial, 	a 	funeral 	using 	a 	sealed 	casket, 	or
if 	refrigeration 	is 	available 	and 	the 	funeral 	is 	without 	viewing
or 	visitation 	and with 	a 	closed 	casket 	when 	state 	or 	local 	law
does 	not 	require 	embalming. 	16 	C.F.R. 	§453.3(a) (2) (i). 	The 	Rule
also 	requires 	funeral 	providers 	to 	make 	the 	following 	written
disclosure 	on 	their 	general 	price 	lists:
Except 	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,
(continued ... )

Dawn 	P. 	Scardino
Page 	4
for 	irrr~diate burial 	or a 	funeral 	without 	a 	viewing might 	well
choose 	to 	save 	the 	cost 	of 	embalming. 	But 	if 	their 	family member
had 	died 	across 	the 	state 	line, 	this 	proposal 	would 	require 	them
to 	obtain 	and 	pay 	for 	that 	servi~c. 	The 	proposal, 	by 	requiring
that 	services 	be 	obtained 	from 	in-state 	providers, 	regardless 	of
whether 	related 	or 	similar 	services 	would 	also 	be 	obtained 	from
other, 	out-of-state 	providers, 	would also 	make 	it 	more 	likely
that 	out-of-state 	clients 	would 	have 	to 	pay a 	basic 	professional
services 	fee 9 	to 	two 	different 	funeral 	providers, 	in
circumstances 	where 	it 	would 	have 	been 	feasible 	to 	pay only once.
The 	Board's 	impact 	statement 	describes 	how 	the 	requirement
will 	affect 	competition among providers, 	especially 	in geographic
markets 	that 	cross 	state 	lines. 	Funeral 	establishments 	in 	nearby
states 	could not 	compete 	to 	provide 	embalming 	or 	cremation
services, 	even when 	their 	customers 	wanted 	them, 	and would
probably be 	unable 	to 	compete 	effectively 	to 	provide 	related
services 	such 	as 	transportation. 	=: 	~ person 	from 	out 	of 	state
died 	in 	Louisiana, 	the 	decedent's 	family 	and 	executor 	(or, 	more
likely, 	their 	out-of-state 	funeral 	home) 	would 	have 	to 	arrange
and pay 	for 	embalming 	(or 	cremation) 	by a 	Louisiana 	funeral
establishment 	before 	the 	remains 	could be 	returned home 	for
burial. 	This 	would 	be 	true 	even 	if 	the 	distance 	to 	the 	out-of-
state 	location were 	sho~~er than 	a 	transfer 	entirely within
Louisiana. 10 	In-state 	businesses 	would 	thus 	be 	insulated 	from
some 	of 	the 	competition 	from 	businesses 	across 	the 	state 	line.
Most 	states 	do 	not 	require 	embalming 	before 	remains 	are
shipped. 	Of 	the 	few 	state 	statutes 	that 	do 	require 	embalming,
8( •.. continued)
you 	usually 	have 	the 	right 	to 	choose 	an 	arrangement
which does 	not 	require 	you 	to 	pay 	for 	it, 	such 	as
direct 	cremation 	or 	immediate 	burial.
16 	C.F.R. 	§453.3 (a) (2) (ii) .
9 The 	Funeral 	Rule 	permits 	funeral 	providers 	to 	establish a
separate 	fee 	for 	professional 	services, 	which 	typically 	covers
overhead 	costs 	as 	well 	as 	staff 	expenses, 	and 	include 	that 	fee 	in
the 	charge 	for 	forwarding 	or 	receiving 	remains. 	16 	C.F.R.
§453.2(b) (4) (iii) (C) (1).
10 An 	example 	illustrates 	the 	disparity: 	the 	proposed
regulation 	would 	not 	require 	embalming or 	cremation 	to 	transfer 	a
body 	the 	300 	miles 	from New Orleans 	to 	Shreveport, 	but 	would 	for
the 	40 	mile 	transfer 	from 	New Orleans 	to 	Picayune, 	Mississippi.

Dawn 	P. 	Scardino
Page 	5
all 	but 	one 	apply only 	to 	bodies 	shipped on-" common 	.... arriers. 11
Staff 	has 	found 	that 	major airlines 	and businesses 	actively
engaged 	in 	handling 	shipment 	of 	remains 	for 	burial 	do 	not
generally 	require 	embalming, 	so 	long as 	the 	remains 	are 	carried
in 	suitable 	containers.
IV. 	Conclusion.
Because 	the 	proposed 	regulation would 	limit 	consumer 	choice
and 	impair 	competition, 	we 	urge 	the 	board 	to 	consider 	less
anticompetitive 	options. 	We 	express 	no 	opinion 	on 	the 	public
health 	issues 	outlined 	in 	the 	statement 	accompanying 	the 	proposed
rule; 	however, 	we 	suggest 	that 	the 	Board 	consider measures 	to
protect 	public 	health without 	adversely affecting 	competition.
In particular, 	a 	rule 	based on 	the 	method of 	handling, 	rather
than 	on political 	boundaries, 	might 	both promote 	public 	health
and preserve 	competition.
Sincer~ly,
- 	/i 	( 	-
/" 	// 	-t--' 	\ 	I 	-L(~_
C_ ~1,"1,.u.( 1-tl-~, 	j L\ ~'" ).,~~
Christia~ S. 	White
Acting 	Director
11 	Kansas 	prohibits 	common 	carriers 	from 	receiving 	bodies
that 	have 	not 	been 	embalmed. 	Kans. 	Stat. 	Ann., 	Public 	Health
Code 	§65-1703. 	Idaho 	and Wyoming 	appear 	to 	do 	the 	same, 	although
the 	statutes 	do 	not 	explicitly 	require 	embalming. 	Id. 	Gen. 	L.
§54-1120; 	Wyo. 	Stat. 	1977 	§33-16-106. 	California 	requires
embalming 	before 	common 	carrier 	shipment, 	but 	provides 	an
exception; 	if 	the 	condition 	of 	the 	~ody does 	not 	permit
embalming, 	it 	may be 	shipped 	in 	an 	airtight 	container. 	Cal.
Health 	& Safety Code 	§7355. 	These 	four 	statutes 	treat 	interstate
and 	intrastate 	shipment 	alike. 	Arkansas 	requires 	embalming 	of
bodies 	shipped by common 	carrier 	out 	of 	the 	state. 	Ark. 	Code
Ann., 	Prof., 	Occup. 	& Bus. 	§1/-26-311. 	The 	exception 	is 	Alabama,
which 	requires 	embalming 	(or 	cremation) 	of 	any body 	to 	be
transported out 	of 	the 	state, 	regardless 	of 	whether 	a 	common
carrier 	is 	used. 	Ala. 	Code 	§22-19-2.