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We ask the FTC to rule on misleading language

We sent the following to Funeral Rule Coordinator Craig Tregillus at the Federal Trade Commission. 

June 30, 2014
Craig Tregillus
Funeral Rule Coordinator
Federal Trade Commission
600 Pennsylvania Ave. NW
Washington, D.C. 20580

Dear Mr. Tregillus,

This is a request for an advisory opinion on two issues related to the Funeral Rule:

1. The use of the phrase, “cremation if relevant” on General Price Lists (GPLs). This phrase is used in Complying With the Funeral Rule and has unintentionally confused funeral providers and consumers. Funeral Consumers Alliance contends it should be removed. We request that the FTC formally clarify that the phrase should not appear on General Price Lists.

2. The use of the phrase, “except in certain special cases,” which occurs in the embalming disclosure mandated by the Funeral Rule. The full disclosure reads,

Except in certain special cases, embalming is not required by law. Embalming may be necessary, however, if you select certain arrangements 

We request that the FTC rule that funeral providers may not and shall not use this phrase when doing business in states that have no legal requirement for embalming.

I’ve been talking with Gere Fulton, the president of the Board of Directors of our South Carolina affiliate, about the recurrent problems he’s been having with their state regulatory agency regarding the “cremation if relevant” language. We agree that the phrase is both meaningless and misleading.  He tells me that you have agreed to recommend that the language be removed from the guide when your present supply is exhausted and that you’ve also agreed to see if it can be removed from any of the FTC’s online references as soon as possible.

When the consumer is purchasing a cremation there is no situation in which cremation would be irrelevant. Doubtless the phrase, “cremation if relevant,” was meant to refer to situations where funeral providers use a third-party crematory. In such cases, of course, they must disclose the cost of the crematory’s fee. I imagine the FTC authors assumed a funeral home with its own crematory would include the fee in its charge for direct cremation, so in such cases writing out the cost of cremation again would indeed be irrelevant.

But the phrasing is confusing and indirect. We request confirmation that:

1. The phrase will be deleted from all FTC publications relating to the Funeral Rule.

2. The FTC instructs funeral providers not to use this phrase on their GPLs.

Gere and I have also had a long-running conversation about the various GPLs that continue to preface their statements that embalming is not required by law with “Except in certain special cases.” That language is also found in both the Funeral Rule itself, and in Complying With the Funeral Rule. What some providers fail to read—or perhaps prefer to ignore—is the statement that follows:

You do not need to include the phrase, “except in certain special cases,” indicated in bold-face above, if state or local law in the area where you do business does not require embalming under any circumstances.

Nineteen US states do not require embalming under any circumstances. South Carolina is one of those. In these states, including the phrase “except in certain special cases” is actively misleading. It is  a falsehood. As the basis of the Funeral Rule is to compel clear and truthful disclosures for consumers, we feel certain the FTC will agree the phrase should not be used in states where embalming is not required by law.

Because so many funeral providers do not have an in-depth understanding of the Rule they often copy and paste the FTC’s suggested GPL language from Complying. In addition, many state regulatory boards and funeral trade associations publish guidelines—some of which are mandatory—on constructing GPLs, and this phrase has found its way into these.

Experience shows that it’s not enough for the FTC to merely suggest that funeral providers “don’t need” to include “except in certain special cases”. We are requesting that the FTC formally declare that funeral providers may notinclude the phrase when doing business in states that do not require embalming.

FCA volunteers and staff spend a great deal of time educating the public and funeral providers about the Funeral Rule. It’s fair to say we spend more time doing it than the FTC has resources for. An advisory opinion from the FTC would be a big help to us and would save our volunteers much wasted time trying to convince state regulators of our position. Without the formality of an FTC opinion, such regulators are reluctant or outright refuse to accept our suggestions.

Sincerely,

Joshua L. Slocum
Executive Director