Loyola University Chicago School of Law, J.D. 2019
One of the most difficult things many of us will experience in our lifetime is the death of a loved one. Whether unexpected or a drawn out farewell, it is a situation no one can be full prepared to handle. In this moment of extreme vulnerability, most people begin the process of planning a funeral. Society has placed an incredible amount of faith in funeral directors to make sure the wishes of our loved ones are met and insure a memorable service for the living. However, this is not always the case.
Abuse of Trust
As discussed in an All Things Considered segment on NPR, those we trust in one of our most difficult moments have the ability to exploit weakness. Funeral homes often do this with their discrete pricing practices.
One less than savory example involves the pricing on cremation. Several funeral homes may all use the same crematory and provide the same service but at drastically different prices. So what are these more expensive funeral homes selling? Scott Gilligan, a lawyer for the National Funeral Directors Association says, “Just like if I want a hamburger at a gourmet place, it’s the same hamburger I’m going to get at McDonald’s. But it’s going to cost more because of the atmosphere, because of what is being done.” A funeral home’s reputation and location can have a greater impact on prices than the actual service offered. This becomes a real problem when funeral homes are dishonest about pricing, making shopping for a better price difficult.
Another common practice is offering bundles of services at an upcharge. Instead of having to make individual decisions regarding multiple aspects of a funeral and burial, a customer can quickly choose a pre-prepared bundle of services. However, this bundle may have more than was truly desired and be priced higher than the individual services. So where do consumers turn for protection in their time of need?
Federal Trade Commission (FTC)
The FTC’s mission to protect consumer rights by preventing “anticompetitive, deceptive, and unfair business practices.” When it comes to funerary rites, the FTC has generated a series of articles entitled Shopping for Funeral Services. In the series the FTC guides consumers on how to protect themselves planning a funeral and gives a series of tips: “shop around early, ask for a price list, resist pressure to buy goods and services you don’t want or need, avoid emotional overspending, recognize your rights, apply the same smart shopping techniques you use with other major purchases and shop in advance.”
While this list is helpful as a starting point, it is hard to achieve without legal support.
The FTC first enacted the Funeral Rule in 1984 but later revised it in 1994. Today it exists as 16 C.F.R. § 453, Funeral Industry Practices. In general, the Funeral Rule requires funeral providers to make available a General Price List (GPL) that contains an itemized list prices and descriptions of all goods and services at the beginning of any discussion of arrangements. The GPL must also make four main disclosures: 1) the consumer has the right to only purchase desired goods and services, 2) embalming may not be legally required, 3) consumers may bring outside products for use during funeral services (i.e. caskets or urns), and 4) a basic services fee is the only fee that cannot be waived. Funeral providers must also make the in information on the GPL available to anyone who calls to inquire, and disclose casket and outer burial container prices prior to showing the goods to the consumer.
In the FTC’s undercover inspections, it was determined that in 2015 and 2016, across nine states, 31 out of 133 funeral homes failed to make adequate disclosures in compliance with the Funeral Rule. Additionally, the FTC states that over the course of 3,000 investigations, they have found 530 funeral homes with violations. Under the Funeral Rule, the FTC has the authority to impose monetary fines of up to $40,654 per violation; however, this is often not the case. Funeral providers have the ability to litigate the violation or first time offenders can negotiate the fine by enrolling in a training program.
Funeral Rule Offenders Program (FROP)
In 1996, the FTC announced two programs to boost compliance with the Funeral Rule: the Funeral Rule Offenders Program, a training program for first time violators of the Funeral Rule, and the Funeral Industry Rule Compliance Assurance Program, a certification of compliance program. The first time the FTC discovers a funeral provider has violated the Funeral Rule the provider may pay a smaller fine if the agree to enroll in FROP.
Once enrolled, the National Funeral Directors Association (NFDA) will review provider practices and develop a plan, complete with training, to bring the provider into compliance. This training and testing takes place every year for five years.
The FTC not only provides consumers with guides on how to shop for funeral services, but also provides in-depth guidance for funeral services providers to help them comply with the Funeral Rule. While exhaustive guidance doesn’t necessarily ensure compliance, one would expect that punitive actions and fines would. However, since the enactment of FROP in 1996, the FTC has been releasing of its investigations. In 1997, of the 239 funeral homes visited only 26 had violations, just over 10%. In 1998, 44 out of 300, or roughly 15% of funeral homes, violated the Funeral Rule. In 2014, around 25%, 30 of the 122 funeral homes, had violations. In 2017, around 23% of funeral homes had violations.
It is unclear if the rate of violations is currently increasing, but the percentage of compliance has dropped since 1996, and the FTCs efforts to boost compliance may be insufficient. In 2016, Congress actually increased the fine per violation from $16,000 to $40,000. However, the fee to join FROP remained 0.8% of a funeral homes average annual gross income. With FROP protecting first time offenders from the full force of federal fines, funeral providers may see an incentive to do nothing until after failing their first FTC inspection.