By a posting made November 1, the Federal Trade Commission gave formal notice of its intent to revise the Funeral Rule and opened a 60 day comment period.  The notice is quite lengthy and signals that that the FTC wants major revisions to the Funeral Rule that go well beyond whether to require the posting of prices on websites.  Forty (40) issues are outlined for possible change.

The notice summarizes the FTC actions leading up to the decision to revise the Funeral Rule beginning February 14, 2020.  The FTC concluded that review with an October 20, 2022 meeting that allowed for comments from the public and from the funeral industry.  From the FTC’s summarization of comments, the agency obviously found many industry comments disingenuous.

A popular industry response to the funeral rule has been to decry its focus on funeral homes and demand the rule’s expansion to cemeteries and preneed sellers.  The FTC declined to move in that direction by suggesting no proof was provided of unfair or deceptive practices by cemeteries.

Some industry commentators urged the FTC to open the “state exemption” provision and simplify that process.  The Funeral Rule’s state exemption provision allows a state agency to exempt its state’s funeral homes from FTC oversight by proving that state agency provides greater consumer protections than the FTC.   The FTC shot this down, advising that “States have had and continue to have an option to apply for an exemption to Section 453.9, if they are interested in doing so, and the Commission will evaluate all such applications.”   (We have not found any evidence that the FTC has ever granted such an exemption.  Having sued Missouri and Virginia for Funeral Rule violations, the FTC may have little confidence in state oversight of the Funeral Rule.)

In outlining the 40 issues, the FTC frequently asks questions that signal the direction that it is leaning.  These questions offer the funeral industry an opportunity to provide thoughtful input that might actually influence the FTC’s direction.  We will use our next posts to frame issues in more detail.  The industry has until January 3, 2023 to file comments.