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Model Guidelines for State Laws and Regulations

These guidelines are advisory in nature and set out general concepts rather than precise statutory language. The ICCFA is not recommending that the guidelines be codified into law as a whole. Instead, the guidelines are intended for consideration as a series of options to be selectively chosen by interested parties to address particular concerns.

Solicitation

      
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Developed in 1998 by the Government and Legal Affairs Task Force of the
International Cemetery and Funeral Association

 

BACKGROUND

Preneed sellers of funeral and cemetery merchandise and services and interment rights have the right to disseminate truthful information about these items through print and electronic advertising, direct mail, telemarketing, and other lawful forms of communication. Consumers should be protected from fraudulent or misleading solicitation techniques. However, restrictions on truthful solicitation can inhibit competition, making it difficult for consumers to comparison shop and learn about products, services, and pricing. To effectively reconcile consumer and business interests, laws should target deceptive and abusive sales practices without unfairly encroaching on commercial free speech or unreasonably encumbering the activities of legitimate businesses.

In particular, telemarketing has evolved into an integral part of solicitation in many industries. However, the use of telemarketing in the preneed sale of merchandise and services is distinguished from its use in other industries because these items are not "sold" over the telephone. Instead, preneed sellers use telemarketing to ascertain whether a potential purchaser has an interest in setting an appointment at a mutually agreeable time for an in-person sales presentation. Since no "sale" is consummated or even attempted over the telephone, this practice has been exempted under most federal and state laws that govern telemarketing sales.[Note: Since 2003, the National Do Not Call Registry, enforced by the Federal Trade Commission and by the Federal Communications Comission, prohibits telemarketing calls to numbers placed on the Do Not Call Registry, in the absence of limited exceptions.]

At the national level, unfair and deceptive forms of solicitation are regulated by the Federal Communications Commission and the Federal Trade Commission ("FTC"). The FTC "Cooling-Off Rule" further protects the consumer from high pressure sales tactics by providing a three-day right of cancellation for sales occurring anywhere other than the seller's business office.

Additionally, the FTC "Funeral Rule" requires providers, as determined by the "Funeral Rule," to furnish price information on request by telephone, written price lists for in-person inquiries, and other affirmative disclosures.

However, there exist certain instances in which the solicitation of funeral and cemetery merchandise and services and interment rights should be prohibited due to the disadvantaged mental or physical state of the consumer or his/her emotional vulnerability.

PRINCIPLES

  1. Preneed solicitation should be permitted with regulatory safeguards against fraudulent claims and untruthful representations.
     
  2. No seller of preneed merchandise or services or interment rights should knowingly contact a person where death is impending or any patient in a hospital, hospice, convalescent or nursing home, rest home, charitable home for the aged, infirmary, immediate care facility for the mentally retarded, or other health care facility, for the purpose of soliciting or inducing such patient to enter into a prepaid contract unless the seller has received a request from the patient, a family member, or the patient's legal representative to do so prior to the contact.