When the FTC announced its routine review of the Funeral Rule in 2020, the Funeral Consumer Alliance and about half the country’s state attorney generals responded with complaints about online advertising by the funeral industry.   The criticism of funeral home websites led the FTC to conduct its own research of online advertising.   For a four month period beginning June 2021 (when COVID made travel to a funeral home for planning difficult), the FTC staff visited 200 funeral home websites to judge the complaints by the AGs and the FCA.   That research culminated in a report titled “Shopping for Funeral Services Online” that was released with the notice of the October 20, 2022 FTC meeting on whether to initiate the rulemaking process for amending the Funeral Rule.  That staff report ended with the following statement:

In conclusion, many of the funeral providers reviewed operated websites that offer prospective purchasers a wide range of information, including the providers’  location and how to contact them. In most instances, the websites provided at least some information about some of the goods and services offered. However, in most instances people viewing these websites would have a difficult time determining what prices were charged by a provider or comparing prices between providers. Most of the providers did not include any price information and those that did offer such information typically provided only partial information. Consumers planning funerals would, in almost all instances, need to contact the businesses directly or visit the providers in person to get enough information to make informed price decisions or to compare prices.

Despite advance notice that the FTC focus would be online funeral advertising, few of the industry commentators addressed that issue.  The few that did suggested that states could better regulate online advertising or that the FTC would make matters worse.  We could identify with only one commentator who endorsed the need for addressing online advertising but that the FTC should use caution to not over burden small funeral homes.

The comments of the individual Commissioners following the October 20th hearing were very telling.  Unlike the other FTC matter heard that day, the Commissioners were in agreement of endorsing the staff report and the advance notice of the rulemaking process.  This train is on the tracks and it does appear that the Funeral Rule will be amended to require GPLs be posted on funeral home websites.   While arguments can be made for and against, one aspect of the staff report suggests to us that the FTC will ultimately require online posting of the GPL.  If the FTC requires GPLs to be posted on line, Funeral Rule investigations become an online process for the FTC staff and their enforcement budget will go further. No more of those dreaded Funeral Rule sweeps.  In the near future, the FTC investigator will be just the click of a button away.

The last section of the Funeral Rule notice (Issues 37-40) raises questions whether there are funeral provider practices that disproportionately affect minority communities.  Again, we are not quite sure the intent of the FTC when raising these questions.  Concerns have been raised that FEMA’s COVID-19 funeral assistance did not benefit the minority communities as much as the Biden administration had expected.  Leaders of the National Funeral Directors & Morticians Association have also cited how little of the COVID relief funds have been paid to minority owned funeral homes.  But, these issues do have to do with funeral industry business practices.  The FTC may be providing an opportunity for the minority communities to identify industry business practices that create systemic barriers to competition by minority businesses.   We will learn more after comments are posted to this section of the notice.

The next-to-last section of the Funeral Rule notice (Issues 32-36) deals with what the FTC calls Price List Readability.  This seemed to us as a very nebulous phrase, and so we searched “Price List Readability” in the context of the Consumer Funeral Alliance, and lo and behold, the CFA has guidelines for what it suggests will make a price list legal and easy to use.  The Funeral Director’s Guide is actually helpful to understand the consumer advocate’s criticism of common mistakes made by funeral providers.  From the Guide, the funeral industry can anticipate the recommendations that the FCA will make.

Some of the Guide’s criticism is subjective, and not likely to be picked up by the FTC.  However, examples of overreaching language that implicates statutory requirements could trigger some new form of restrictions by the Funeral Rule.  The Guide is also helpful in showing what is lacking from a sample GPL.

We anticipate this to be one of those issues where the FTC will weigh the FCA’s recommendations and then propose a more definitive set of requirements that may be submitted to the public for comment.   Funeral providers would be advised to give the Guide a review.

Issues 28 through 31 of the FTC Funeral Rule notice concern the embalming disclosure.  Consumer advocates are pressing to have the Funeral Rule be more specific about when state law does or does not require embalming.   For states that require embalming under certain circumstances, consumer advocates want the GPL to reference the state law and set out the circumstances when embalming is required.   Consumer advocates also want funeral providers to disclose whether they possess refrigeration units, and if they do not, advocates want a disclosure about the availability of third party refrigeration and their fees.

Consumer advocates have found that in states without embalming requirements, funeral providers frequently adopt policies regarding when their services will be conditioned upon embalming.  Following the advocate’s recommendation, Issue 30 asks why such policies should not be required to be disclosed.

For funeral providers operating near a state line, the FTC suggests that the provider may be required to disclose the embalming requirements for all states in which it operates.  That seems to beg the question how the FTC will interpret when a funeral home operates in the nearby state.   Take the Kansas City, Missouri funeral home that sees regular business from Kansas City, Kansas.  Does that constitute ‘operating’ in Kansas, and thus disclosure of both states embalming requirements?  Or, does operation in a state require a facility in that state?

Issues 23 through 27 of the FTC Notice to amend the Funeral Rule raise questions concerning the new alternative forms of disposition: alkaline hydrolysis and natural organic reduction.  For the most part, consumer advocates have embraced these new forms of disposition as friendlier on the environment and more economical.  However the Issues seem to express some concern that as more funeral providers begin to offer the alternative dispositions, prices will be driven up.  Accordingly questions are raised whether the Funeral Rule should disclose that reduced basic service fees may be offered for these services.  A question is also raised whether the Funeral Rule should disclose that alternative containers are not required with these forms of dispositions.

At this point, these concerns all seem purely conjecture.   If anything, funeral providers will likely outsource for at least alkaline hydrolysis and the question will be the same for trade crematories: must the GPL disclose that the funeral provider does not possess its own hydrolysis chamber and must contract for such services.

The intent behind Issue No. 22 of the FTC Notice to revise the Funeral Rule has us a little perplexed.  Funeral providers may charge a lower basic services fee for direct cremations and immediate burials.  Issue 22 seems to be asking whether funeral providers must disclose when they do not have a lower basic service fee for direct cremation or immediate burials.  The issue is suggesting that these two services should set out that limited viewings or visitations are involved.   It seems that consumer advocates have found some funeral providers that include their basic service fee in these two categories, and that consumers should be afforded more warning that the provider is not reducing the basic service fee when the law allows for that.

For this post we are focused on Issues 18 through 21of the FTC’s Notice to revise the Funeral Rule.   With these issues the FTC is responding to consumer advocates assertions that the GPL does not adequately disclose incidental costs associated with direct cremations or immediate burials.  With regard to immediate burials, advocates do not believe consumers are adequately warned that the cemetery will have its own charges (such as interment fees, endowed care and a vault).  With regard to direct cremations, the issues ask whether funeral providers must list possible costs such as an urn or delivery costs.

It would seem intuitive that consumers would ask the funeral provider what is or is not included.  But the consumer advocate is suggesting that as on line shopping expands, consumers will make decisions based on the information posted on the funeral provider’s website.  But the reality is that a very small percentage of funeral arrangements are made wholly online.  If any disclosure is needed for this situation it should be that additional costs may be associated with either direct cremations and immediate burials, and consumers should speak with their funeral provider before finalizing their decisions.

The FTC’s second area of concern for Funeral Rule revisions is titled Crematory Fees and Additional Costs.  For this post, we are going to look at Issues 16 and 17.  Funeral consumer advocates are focused on the fact that many funeral homes do not own their own crematory and therefore outsource that service to a trade crematory.  The consumer advocates want funeral homes to be required to disclose what they pay for crematory services.  The intent here is to show what type of markup the funeral home charges on direct cremation arrangements (and other cremation arrangements).  While these two issues do not reference trade embalming, we can see the advocates pushing for similar disclosures when embalming is also outsourced.

While there may be merit in a disclosure that a funeral provider must outsource cremation services, a requirement to post the crematory fee or a range of fees will be problematic.  This would require funeral providers to update the price list not only for their own changes but also when each third party crematory changes their charges.  In some service areas, funeral providers use multiple trade crematories.  Their preference may depend on quality of service, prices and work load.

These two issues seem motivated by advocates’ desire to drill down in to GPLs to show mark ups in all cremation prices.  While the issues are cloaked in ‘a discovery of direct cremation prices’, once the 3rd party crematory fee is disclosed assertions can be made about all of the provider’s cremation pricing.  This goes deeper than the Funeral Rule’s intent.  We think that consumers have a legitimate interest in knowing if 3rd party crematories are used, and who they are.  Consumers would want to know of the quality of services provided by such entities.

With Issues No. 10 through 15 of the FTC’s Funeral Rule notice, the agency begins inquiries on how to ensure the online shopper has access to all of the funeral home’s price lists before making any selections.  Would it be sufficient to require the funeral home’s website to provide links for downloading the GPL (and casket price list and the outer burial container price list), or should the rule require the funeral home to email the prices lists?  The FTC is pondering whether online availability of the price lists is sufficient.  We could see where the FTC may be leaning towards a requirement that email delivery be used, with the funeral home being required to maintain copies of the email transmissions as proof of compliance.

If the FTC should opt for email delivery and confirmation, it would seem burdensome to also require posting of price lists in a downloadable format.  It would seem that the burden should be on the shopper to make a request for the price lists by providing their name, address and valid email address.  To reduce the burden on the funeral home, the email delivery requirement would apply only to residents within their service area.


As discussed in our prior post, the FTC’s rulemaking notice for amending the Funeral Rule requests public comment on 40 Issues.   Those 40 issues are grouped by the FTC in the following 7 categories of potential amendments:

  1. Electronic price disclosure – whether and how funeral providers should be required to display or distribute price information online or through electronic media
  2. Cremation-related fees disclosure – whether funeral providers should be required to disclose on the general price list third party crematory or other fees
  3. Limited exceptions to the basic service fee – whether the Rule’s requirements regarding reduced basic services fees should be amended
  4. New alternative disposal methods – whether the Rule should be amended to account for new forms of disposition
  5. Amendment of the mandatory embalming disclosure – whether the Rule’s embalming disclosure requirements should be amended
  6. Improvement of price list readability – whether the Rule should be changed to improve the readability of the price lists
  7. Effect on historically underserved communities – whether changes should be made to the Rule to avoid negatively impacting underserved communities.

With regard to the category “Electronic Price Disclosures”, the FTC dedicates the attached 15 Issues.  For purposes of this post, we want to focus on the issue of whether the Funeral Rule should require funeral providers to post their general price list on their website, or provide their GPL by some other electronic means.

The FTC acknowledges that not all funeral homes maintain a website.  Some rely upon other forms of social media like Facebook.  The FTC seems to be expressing concern that funeral homes may eliminate their website if the Funeral Rule would force the posting of GPLs.  The FTC also acknowledges that some forms of social media do not lend themselves to the posting of GLPs.  So, the FTC is asking in the various Issues whether funeral homes should be required to provide their GPL by electronic means such as by Fax or Email.  A Consumer Federation of America case study suggests that California funeral homes were found to be very responsive to requests for GPLs by email.

It would not seem burdensome on the industry if the Funeral Rule required funeral homes to email the GPL within 24 hours of a request by any person residing within the service area.   The request should identify the person, include a representation that he/she (or the person for whom services are sought) resides in the funeral homes service area, and provides a valid email address.