Washington Report 112001

Date Published: 
Original Author: 
Robert M. Fells
Original Publication: 
ICCFA Magazine

Consumer Cemetery Complaints Indicate No Funeral Rule Violations

by Robert M. Fells, Esq., general counsel 
The Federal Trade Commission (FTC) has been heavily promoting its consumer hotline whereby the public can file complaints against businesses by calling a toll-free 800 number or by e-mailing the FTC Consumer Protection Division, in addition to sending complaints by traditional "snail mail." In 1999, the FTC stated that it was receiving over 60,000 complaints annually. At that time, the ICFA filed a Freedom of Information Act (FOIA) request with the Commission to determine how many complaints were cemetery-related. Although the ICFA sought four years' worth of data in its April 1999 request, FTC staff could only check back to September 1997. The ICFA eventually received summaries of 26 complaints, none of which would have involved violations of the FTC Funeral Rule had cemeteries been covered under the rule, as several organizations have advocated. This summer, the ICFA filed a second FOIA request with the FTC for consumer complaints involving cemeteries from October 1999 through August 2001. Although three times the number of complaints were received compared to the first FOIA request, once again none were related to the Funeral Rule.
The increased number of complaints suggest that consumers are contacting the FTC with increasing frequency, thereby giving commission staff a better idea of problem areas. However, the grounds for the complaints are extremely varied and not focused on any particular issues. For example, complaints involved the failure to promptly install a marker, driving a backhoe over a grave, requiring permission to disinter remains, questioning whether remains are buried in the correct grave and a cemetery's refusal to sell a lot. Other complaints were actually inquiries asking whether the FTC regulated the size of headstones in cemeteries or if cremation services can be arranged through a cemetery. Complaints involving pricing data indicated that price information was being disclosed to consumers in a timely manner. Such complaints tended to focus on the amount of the price being charged, not the lack of price disclosure.
A small number of complaints were filed by competitors of the cemetery cited rather than by consumers. One funeral director complained of area cemeteries' policies of opening and closing graves only by their own staffs. Ironically, the complainant had litigated this issue with the same cemeteries some years ago and had settled out of court. This fact was apparently omitted in the complaint. Other cemetery competitors complained of vault inspection fees, suggesting that, similar to the casket handing fee prohibited by the Funeral Rule since 1994, the vault inspection fee should likewise be prohibited. However, the Funeral Rule does not specifically prohibit a casket handling fee. Instead, the rule permits only one non-declinable professional service fee to be charged to customers. Funeral homes customarily assess a service fee to cover their costs associated with overhead. However, since cemeteries generally do not charge a service fee, a vault inspection fee could be considered an equivalent of the service fee permitted under the Funeral Rule.
The Funeral Rule is currently under review by the FTC to determine whether any amendments or modifications in its provisions are required. The rule's current definition of "funeral provider" applies almost exclusively to funeral homes, but many organizations have urged the commission to expand the rule's coverage to all sellers of funeral goods or services. Under the FTC rules of procedure, the Funeral Rule cannot be amended unless substantial evidence exists in the rulemaking record to justify such amendment. In order to expand the rule's coverage to include cemeteries and other sellers, there should be evidence that 1) consumers are suffering harm from sellers not covered by the Funeral Rule; 2) the harm is prevalent and not merely anecdotal; and 3) the rule would prevent or remedy the harm suffered.
To date, there is no evidence to suggest that consumers are experiencing rule- related harm from cemeteries or other sellers not currently included under the Funeral Rule. However, the ICFA remains the only national industry trade association to actively oppose the expansion of the Funeral Rule. The rule review proceedings were initiated in May 1999 but have been on hold since November 1999. The proceedings are expected to resume at some point in 2002. ICFA members will be updated on all important developments.