October 20, 2022

Special NFDA Bulletin

FTC to Move Forward with Rulemaking Process to Modernize the Funeral Rule

Today, the commissioners of the Federal Trade Commission voted unanimously in favor of retaining the Funeral Rule and issuing an Advance Notice of Proposed Rulemaking seeking comment on potential updates to modernize the rule, including improvements to the public accessibility of funeral home price information. The Commission also approved the issuance of a staff report that summarizes the results of their review of almost 200 funeral provider websites.

NFDA ensured the perspective of funeral service was heard loud and clear. President Jack Mitchell and General Counsel Chris Farmer spoke on your behalf, commenting on the issue of the FTC’s stated goal of modernizing certain aspects of the Funeral Rule – without impeding funeral home’s ability to serve families with compassion and dignity.

Additionally, association members Cason Hightower, a member of the NFDA Advocacy Committee from Carrollton, Georgia, and former At-Large Representative Stephen Kemp of Southfield, Michigan, offered comments. You can watch a recording of the meeting here: https://kvgo.com/ftc/open-commission-october-20-2022.

One of NFDA’s long-held positions is that the trigger for presenting a GPL to families is vague and imprecise, a point which Mitchell, Hightower and Kemp addressed in their comments. The Funeral Rule currently requires the GPL to be given upon “beginning a discussion” of funeral goods, services, arrangement or prices. NFDA has pointed out that this requirement can be triggered in many different situations and scenarios where the consumer has no interest in selecting funeral goods or services. It can also come at a point at which a presenting a price list may seem cold and crass. Commissioner Bedoya commented that he did not believe a scenario shared by Hightower during her remarks would have triggered the requirement to provide a GPL as she believed; however, this assertion appears to be inconsistent with the way the Commission has enforced the Rule to date.

Farmer’s comments focused on two areas. First, he focused on the rigidity of the Rule and its effect of stifling funeral home’s ability to offer reduced packages such as cremation with a service for less than the basic nondeclinable service fee. As written, the Rule stifles competition and keeps prices artificially high for consumers.

Second, Farmer addressed the suggestion that the Funeral Rule be amended to require funeral homes to post prices online. While NFDA agrees that funeral homes should be transparent when it comes to pricing, it is NFDA’s position that posting prices online should be the choice of the business owner. Further, there does not appear to be any evidence that consumers have difficulty obtaining pricing information.

Additionally, it appears as if the matter is moot as states are looking at regulating the issue and third-parties are consolidating and posting price lists online, allowing consumers to visit one site for several funeral homes prices (as opposed to the consumer having to look up each funeral home separately). These developments are preferable as more responsive to consumers’ desires and are better tailored to each individual market than a rigid federal regulation would be.

In his comments, Kemp also addressed the Funeral Rule’s lack of clarity when dealing with diverse populations – something funeral service professionals are increasingly dealing with as communities continue to grow and evolve. The Funeral Rule does not adequately address the challenges that may be imposed by language or cultural barriers when a funeral director presents a GPL to a family.

The FTC has shared a news release and issued the Advance Notice of Proposed Rulemaking, on it’s website. Once NFDA has had a chance to review all of the information released by the FTC, we will provide an update to members.

The FTC received more than 785 comments to its original request for comments, including NFDA’s comprehensive responses. The official document submitted to the FTC with NFDA’s complete response may be found here.

As the FTC moves forward with the Advance Notice of Proposed Rulemaking, NFDA will be fully engaged in the process, ensuring that the perspective of funeral service professionals is heard loud and clear. We pledge to keep you informed throughout the process.

National Funeral Directors Association

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