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Opinion 98-1 (331.64 KB)
us-ftc-advisory-opinions-91e28123543a2cd70d6fa07002d234f2•Opinion 98-1
us-ftc-advisory-opinions-91e28123543a2cd70d6fa07002d234f2Opinion 98-1Guidance
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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
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