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High court ruling may open up casket options in South Carolina

-Gere Fulton is past president of the national FCA and a current board member of the Funeral Consumers Alliance of South Carolina. This editorial originally appeared in The State

On Feb. 25 the U.S. Supreme Court held that the N.C. dental board erred in trying to prevent teeth whiteners in spas and malls from competing with dentists. The Board of Dental Examiners, comprised entirely of dentists, had issued cease­ and­ desist orders, and after a series of appeals, the high court voted 6­3 to overturn those actions, as an unreasonable restraint of trade. For people in South Carolina who want to be able to decide for themselves where to buy their caskets, it was a great victory.


Let me explain why. Caskets are one of the most expensive items in the typical funeral; the mark­up is often as much as 600 percent. In 1994, the Federal Trade Commission paved the way for consumers to purchase caskets via the Internet or retail sales outlets, by requiring funeral homes to accept caskets other than those that they sold. Soon after, large retailers, such as Walmart and Costco, announced that they would sell caskets to the public, but there was one problem in South Carolina: the Board of Funeral Service.

The Board of Funeral Service exists to regulate the funeral industry. It is comprised of nine funeral directors and two “public members” appointed by the governor. (Unfortunately for the public, over the past five years, only one of the “public member” seats has been filled.) Seeing the Walmart/Costco announcement as a threat to themselves and their fellow funeral directors, the members of the Board of Funeral Service decided to regulate retail sales in a way that would discourage both entrepreneurs and large discounters. All sellers would be required to have public restrooms and at least six adult caskets on display. They also would have to pass an inspection. In Columbia, the regulations were used to shut down a woodworker who was making and selling inexpensive caskets to families wishing to have a green burial for a loved one.

South Carolinians are allowed to build their own caskets, or have someone build one for them (but not sell it). They can even purchase one from an internet seller. But unlike the residents of North Carolina or Florida, they cannot buy one from Walmart or Costco. They can go through all the steps on those websites, but when it comes to the point of paying, they will get a message that the companies are unable to deliver to anyone with a South Carolina address. The Board of Funeral Service has even boasted of its responsibility for this.

In February 2013, Gov. Nikki Haley appointed a regulatory review task force and charged state agencies to review their regulations to see which might be eliminated in order to reduce the government involvement in business and professional activities that stifles entrepreneurship, small business creation and economic growth. The task force held hearings throughout the state, deliberated and delivered its report to the governor on Nov. 15, 2013. It recommended that the retail sales regulations for caskets should be repealed because the board had “used and interpreted these regulations in a manner that appears not related to public safety as much as it might be construed for economic protectionism.”

Then the governor sent the recommendation to the board, which held an unscheduled teleconference and on Jan. 21, 2014, voted unanimously to reject the recommendation. The minutes show that there was no one present to explain or defend the recommendation and that confusion prevailed. Attempts by the Funeral Consumers Alliance to get the board to reconsider its decision have been unsuccessful.

The U. S. Supreme Court decision about teeth whitening might soon change all this. Optometrists have long since accepted the fact that some folks prefer to purchase less expensive reading glasses at their neighborhood drug store, and dentists in North Carolina will have to get used to teeth whitening competition from sellers in spas and kiosks. Soon, funeral directors will realize that they no longer have an in­-state monopoly over the retail sale of caskets — something they never should never have had in the first place. 

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