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Proposed Rule2022-23832

Funeral Industry Practices Rule

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Published

November 2, 2022

Issuing agencies

Federal Trade Commission

Abstract

The Federal Trade Commission ("FTC" or "Commission") is considering whether to initiate a rulemaking proceeding to amend its Trade Regulation Rule entitled "Funeral Industry Practices Rule" ("Funeral Rule" or "Rule"). The Rule defines unfair and deceptive practices in the sale of funeral goods and services and prescribes preventative requirements to protect against these practices. All interested persons are hereby given notice of the opportunity to submit written data, views, and arguments concerning the Rule.

Full Text

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[Federal Register Volume 87, Number 211 (Wednesday, November 2, 2022)]
[Proposed Rules]
[Pages 66096-66116]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-23832]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 87, No. 211 / Wednesday, November 2, 2022 /
Proposed Rules

[[Page 66096]]

FEDERAL TRADE COMMISSION

16 CFR Part 453

Funeral Industry Practices Rule

AGENCY: Federal Trade Commission.

ACTION: Advance notice of proposed rulemaking; request for comment.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') is
considering whether to initiate a rulemaking proceeding to amend its
Trade Regulation Rule entitled ``Funeral Industry Practices Rule''
(``Funeral Rule'' or ``Rule''). The Rule defines unfair and deceptive
practices in the sale of funeral goods and services and prescribes
preventative requirements to protect against these practices. All
interested persons are hereby given notice of the opportunity to submit
written data, views, and arguments concerning the Rule.

DATES: Comments must be received on or before January 3, 2023.

ADDRESSES: Interested parties may file a comment online or on paper by
following the instructions in the Instructions for Submitting Comments
part of the SUPPLEMENTARY INFORMATION section below. Write ``Funeral
Rule ANPR, Project No. P034410'' on your comment, and file your comment
online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. If you prefer to file on paper,
mail your comment to the following address: Federal Trade Commission,
Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610
(Annex B), Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Melissa Dickey, (202) 326-2662,
<a href="/cdn-cgi/l/email-protection#80ede4e9e3ebe5f9c0e6f4e3aee7eff6"><span class="__cf_email__" data-cfemail="d2bfb6bbb1b9b7ab92b4a6b1fcb5bda4">[email&#160;protected]</span></a>, or Rebecca Plett, (202) 326-3664, <a href="/cdn-cgi/l/email-protection#483a38242d3c3c082e3c2b662f273e"><span class="__cf_email__" data-cfemail="1765677b7263635771637439707861">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

The Commission is publishing this document pursuant to Section 18
of the Federal Trade Commission (``FTC'') Act, 15 U.S.C. 57a, and the
provisions of Part 1, Subpart B of the Commission's Rules of Practice,
16 CFR 1.7 through 1.20, and 5 U.S.C. 553. This authority permits the
Commission to promulgate, modify, and repeal trade regulation rules
that define with specificity acts or practices that are unfair or
deceptive in or affecting commerce within the meaning of Section
5(a)(1) of the FTC Act, 15 U.S.C. 45(a)(1).
The Commission issued the Funeral Rule on September 24, 1982, and
it became fully effective on April 30, 1984.\1\ The Funeral Rule's
goals are to lower barriers to price competition in the funeral goods
and services market and to facilitate informed consumer choice.\2\ The
Rule helps to achieve these goals by ensuring that: (1) consumers have
access to sufficient information to permit them to make informed
decisions; (2) consumers are not required to purchase goods and
services that they do not want and are not required by law to purchase;
and (3) misrepresentations are not used to influence consumers'
decisions.\3\
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\1\ Portions of the Rule became effective on January 1, 1984,
and others became effective on April 30, 1984. 48 FR 45537, 45538
(Oct. 6, 1983); 49 FR 564 (Jan. 5, 1984). Several funeral providers
challenged the Rule, but it was upheld by the Fourth Circuit. Harry
and Bryant Co. v. FTC, 726 F.2d 993 (4th Cir.), cert. denied, 469
U.S. 820 (1984). The Rule was amended on July 19, 1994 (59 FR 1592
(Jan. 11, 1994)), and the Third Circuit upheld the amended Rule
following a challenge. Pennsylvania Funeral Directors Ass'n, Inc. v.
FTC, 41 F.3d 81, 83 (3d Cir. 1994). On March 14, 2008, the
Commission completed a regulatory review and concluded that the Rule
was still needed and should be retained. 73 FR 13740 (Mar. 14,
2008).
\2\ Original Funeral Rule Statement of Basis and Purpose, 47 FR
42260 (Sept. 24, 1982).
\3\ Id.
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Among other things, the Rule specifies that it is an unfair or
deceptive act or practice for a funeral provider to: (1) fail to
furnish accurate price information disclosing the cost to the purchaser
for each of the specific funeral goods or services used in connection
with the disposition of deceased human remains; \4\ (2) condition the
furnishing of any funeral good or funeral service upon the purchase of
any other funeral good or funeral service or charge a fee as a
condition to furnishing any goods or services, such as a ``casket
handling'' fee to consumers who provide their own casket; \5\ or (3)
embalm the deceased for a fee without authorization when embalming is
not required by law.\6\ The Rule also specifies that it is a deceptive
act or practice for a funeral provider to misrepresent certain legal or
cemetery requirements, including those for embalming, caskets, or
burial containers, or any other funeral good or service.\7\
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\4\ 16 CFR 453.2(a).
\5\ 16 CFR 453.4(b).
\6\ 16 CFR 453.5(a).
\7\ See 16 CFR 453.3 through 453.5 (listing additional unfair
and deceptive acts and preventative requirements).
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The Rule sets forth preventative requirements in the form of
itemized price and information disclosures to ensure funeral providers
do not engage in the unfair or deceptive acts or practices described in
the foregoing paragraph. First, the Rule requires funeral providers to
give persons inquiring in-person about funeral goods or services a
General Price List (``GPL'') to keep, which lists the goods and
services they offer and their itemized prices, along with specific
disclosures.\8\ Second, the Rule requires funeral providers to show
persons inquiring in-person a Casket Price List (``CPL'') identifying
the caskets and alternative containers they carry, and an Outer Burial
Container Price List (``OBCPL'') listing the vaults and grave liners
they offer, along with specific disclosures.\9\ Third, funeral
providers are required to tell persons ``who ask by telephone about the
funeral provider's offerings or prices . . . any accurate information''
from the GPL, CPL, or OBCPL, ``and any other readily available
information that reasonably answers the question.'' \10\ Fourth, the
Rule requires funeral providers to give an itemized statement showing
all the items a customer has selected and the itemized and total costs
for those goods and services, along with other specific disclosures, at
the conclusion of the discussion of arrangements.\11\
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\8\ 16 CFR 453.2(b)(4).
\9\ 16 CFR 453.2(b)(2)-(3).
\10\ 16 CFR 453.2(b)(1).
\11\ 16 CFR 453.2(b)(5).
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II. Regulatory Review of the Funeral Rule

On February 14, 2020, the Commission initiated a review of the
Rule.\12\ The Commission solicited comments on, among other things: (1)

[[Page 66097]]

the economic impact of, and the continuing need for, the Funeral Rule;
(2) the Rule's benefits to consumers; and (3) the burden it places on
industry members subject to the requirements, including small
businesses. The Commission also asked specific questions about a number
of topics, including whether funeral providers should be required to
post their price list information online.
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\12\ Rule Review 2020, 85 FR 8490 (Feb. 14, 2020), available at
<a href="https://www.federalregister.gov/documents/2020/02/14/2020-02803/funeral-industry-practices-rule">https://www.federalregister.gov/documents/2020/02/14/2020-02803/funeral-industry-practices-rule</a>.
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The Rule Review generated significant interest, receiving 785
comments.\13\ The vast majority (689 comments) came from individuals.
Most commenters expressed support for the Rule.\14\ Commenters credited
the Rule with improving consumers' ability to make informed
decisions.\15\ Two associations stated that the Rule facilitates
consumer choice.\16\ Another commented that the Rule ``level[s] the
playing field'' for funeral providers, protects consumers from bad
actors, and ``serves as an enforcement mechanism.'' \17\ Commenters
also reported that the Rule facilitates price transparency, gives
consumers ``a clearer idea of the services they are purchasing'' and
the prices for those services, and allows consumers to select only the
items they want to buy.\18\ One group also claimed that the Rule acts
as a restraint on price gouging.\19\ In addition, one trade group
stated that the Rule encouraged funeral providers to become better
businesses by forcing them to ``examine their costs, prices, and
profits.'' \20\
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\13\ All Rule Review comments are on the public record and are
available for inspection at: <a href="https://www.regulations.gov/docket/FTC-2020-0014">https://www.regulations.gov/docket/FTC-2020-0014</a>. The commenters included consumers, consumer advocates,
individual businesses, industry groups, government agencies, and
other organizations. The comments are cited as: [Commenter] RR [page
number]. Individual commenters are identified by their first initial
and last name. Companies and organizations are identified by
abbreviated names.
\14\ See, e.g., New York State Funeral Directors Association
(``NYSFDA'') RR at 2; International Cemetery, Cremation and Funeral
Association (``ICCFA'') RR at 4; Select Independent Funeral Homes
(``SIFH'') RR at 5; Funeral Consumer Alliance of the Virginia Blue
Ridge (``FCA VABR'') RR at 1; Funeral Consumer Alliance of Western
Massachusetts (``FCA WMA'') at 1; Funeral Consumer Alliance of
Pennsylvania (``FCA PA'') at 1; Consumer Action (``CA'') RR at 1;
Funeral Consumer Alliance of Connecticut (``FCA CT'') RR at 1;
Funeral Consumers Alliance of Arizona (``FCA AZ'') RR at 1; Carriage
Service (``Carriage'') RR at 1; The Consumer Federation of America
(``CFA'') RR at 1 Consumer Checkbook (``CC'') RR at 1; Unitarian
Universalist Fellowship of Visalia (``UUFV'') RR at 1; National
Funeral Directors Association (``NFDA'') RR at 79. 157 consumers
also explicitly expressed support for keeping the Rule. Two
individual commenters said they did not see a continuing need for
the rule, and one additional individual generally opposed the Rule.
B. Small RR at 1 (many provisions in the Funeral Rule are
appropriate, but this should be regulated by the states); B.
Barcheers RR at 1 (Funeral Rule is no longer needed as ``the public
is more aware now''); M. Matos RR at 1 (Funeral Rule is
``antiquated'' and there is no need to single out the funeral
industry).
\15\ CA RR at 1; see also Funeral Consumers Alliance (``FCA'')
RR at 3; CFA RR at 2-4; N. Leyden-Morffi RR at 1.
\16\ SIFH RR at 5; ICCFA RR at 5.
\17\ NYSFDA RR at 2.
\18\ CFA RR at 2; AARP RR at 1; CA RR at 1; UUFV RR at 1;
Service Corporation International (``SCI'') RR at 14.
\19\ CFA RR at 2.
\20\ NFDA RR at 16. Almost all of the Rule's supporters asked
for the Rule to be updated, modernized, amended, or changed.
However, some industry advocates asked the Commission to keep the
Rule as is. See Cremation Association of North America (``CANA'') RR
at 2; ICCFA RR at 5-8; Carriage RR at 1; SCI RR at 1; Florida
Cemetery, Cremation, and Funeral Association RR at 1-2 (advocating
that further regulation should be left to the states).
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Based on the comments received in response to the Rule Review,
along with the prior rulemaking records and the Commission's experience
enforcing the Rule, the Commission has determined the Rule continues to
serve a useful purpose and should be retained. The Commission now seeks
additional comment on possible modifications to the Funeral Rule.

III. Advance Notice of Proposed Rulemaking

The Commission publishes this advance notice of proposed rulemaking
(ANPR) pursuant to FTC Rule Sec. 1.10, 16 CFR 1.10. The notice
identifies areas of inquiry under consideration, the objectives the
Commission seeks to achieve, and possible regulatory alternatives.
After carefully reviewing all of the submitted comments,\21\ the
Commission is seeking additional input regarding the following seven
topic areas: (1) whether and how funeral providers should be required
to display or distribute their price information online or through
electronic media; (2) whether funeral providers should be required to
disclose third party crematory or other fees on the GPL; (3) whether
the Rule's requirements regarding reduced basic services fees should be
amended; (4) whether the Rule should be amended to account for new
forms of disposition; (5) whether the Rule's embalming disclosure
requirements should be amended; (6) whether the Rule should be changed
to improve the readability of the price lists; and (7) whether changes
should be made to the Rule to avoid negatively impacting underserved
communities.
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\21\ The Commission appreciates the commenters' submissions. All
of the Rule Review comments are noticed and are part of the record.
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A. Online and Electronic Price Disclosure

The Review elicited a large number of comments about whether to
require funeral providers to post their itemized price lists online or
to distribute price information electronically.\22\ Because the Rule
was enacted 40 years ago, before websites, email, or social media were
widely used, it only requires funeral providers to give price lists to
in-person visitors. Funeral providers are not required to display or
distribute their price information via any of these media.\23\
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\22\ 527 comments filed by individuals (many of whom appear to
be members of funeral consumer advocacy organizations) urged the
Commission to require that at least some price information be made
available online.
\23\ At least two states, California and Oregon, have some
requirements for funeral providers that maintain websites. Cal. Bus.
& Prof. Code Sec. 7685(b)(1) (``Each licensed funeral establishment
that maintains an internet website shall post on its internet
website the list of funeral goods and services that are required to
be included in the establishment's general price list, pursuant to
federal rule, and a statement that the general price list is
available upon request.''); Or. Admin. R. 830-040-0050(6) (if a
funeral establishment lists a price on its website, it must link to
its General Price List).
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As discussed in more detail herein, since the Rule was enacted,
consumers have changed how they shop and obtain price information, and
some funeral providers have started selling or advertising their
services and goods online.\24\ In addition, the pandemic highlighted
that some consumers are unable to visit funeral providers to obtain the
price lists required by the Rule, including the immunocompromised,
older adults, disabled individuals, individuals located in different
states, the grieving, and individuals without access to a vehicle.\25\
Yet, commenters almost universally report that many funeral providers
are not making their price lists available electronically or on their
websites, even when requested by consumers.\26\ The FTC is therefore
seeking further comment about whether the method by which price lists
are distributed should be updated and the benefits and costs to
consumers and

[[Page 66098]]

businesses if the Rule is updated in such a manner.
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\24\ See infra notes 47-49.
\25\ See infra notes 38-46. Under the Rule, funeral providers
are required to tell persons ``who ask by telephone about the
funeral provider's offerings or prices . . . any accurate
information'' from the GPL, CPL, or OBCPL, ``and any other readily
available information that reasonably answers the question.'' 16 CFR
453.2(b)(1). The Rule does not require funeral providers to give out
the GPL, CPL, or OBCPL to consumers who call them. And some
commenters commented that receiving price information over the
telephone is not equivalent to or as helpful as receiving a written
GPL. See infra note 33.
\26\ See infra notes 34-37.
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1. Summary of Comments
A. Comments Generally Supporting Online and Electronic Disclosure
Many commenters urged the Commission to update the Rule to require
funeral homes to post their GPLs online, or at a minimum require
providers to send the itemized price information electronically to
persons who request it.\27\ They argued that the incredible stress
caused by a loss of a loved one,\28\ consumers' limited experience with
planning funerals,\29\ and the need to quickly make decisions about
what to do with a dead body \30\ -- ``combine to put the funeral
consumer in a uniquely disadvantaged position.'' \31\
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\27\ See, e.g., Attorneys General of the District of Columbia,
Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Iowa,
Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New
Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode
Island, Virginia, and Wisconsin (``AG'') RR at 2; AARP RR at 2;
House Energy and Commerce Committee (``House Committee'') RR at 2;
Cleveland Memorial Society--M. Binning (``CMS'') RR at 1; Memorial
Society of Georgia--T. Beale (``MSGA'') RR at 1; Funeral Consumer
Alliance of Utah--J. Mitchell (``FCA UT'') RR at 1; Truth in
Advertising, Inc. (``TINA'') RR at 2-3; Last Rights of Central
Pennsylvania--L. Mulvey (``LRCPA'') RR at 1; Funeral Consumers
Alliance of California, Advisory Committee for Cemetery & Funeral
Bureau, Dept of Consumer Affairs, CA--J. Okuye RR at 1; Funeral
Consumer Alliance of North Carolina--H. Williams (``FCA NC'') RR at
1; Funeral Consumers Alliance of Greater Kansas City (``FCA GKC'')
RR at 1; FCA of Eastern Massachusetts (``FCA EMA'') RR at 1; Funeral
Consumers Alliance of Greater Rochester (``FCA GR'') RR at 1;
Peoples Memorial Association (``PMA'') at 1; FCA PA RR at 1; Funeral
Consumers Alliance of South Carolina--O. Ganong (``FCA SC'') RR at
1; Funeral Consumers Alliance of Maine--Anthony Antolini (``FCA
ME'') RR at 1; CA RR at 1; CFA RR at 6-10; Funeral Consumers
Alliance of Central Texas--N. Walker (``FCA CTX'') RR at 1; Funeral
Consumers Alliance of the Finger Lakes--W. Sinclair RR at 1; Funeral
Consumers Alliance of Princeton--N. McCarty (``FCAP'') at 1; FCA CT
RR at 1; Chicago Consumer Coalition (``CCC'')--D. McCurry RR at 1;
FCA RR at 3-9; CC RR at 1; Consumer Reports (``CR RR'') at 2-3; FCA
AZ RR at 1-2; Funeral Consumers Alliance of Minnesota (``FCA MN'')
RR at 1; Texas Appleseed RR at 1; Balance for Life and Death--Neidra
RR at 1; Imperial Caskets--D. Perkins (``Imperial Caskets'') RR at
1; Funerea Ltd. Company--M. Hamilton (``Funerea'') RR at 1; Out of
the Box Funeral Planning--Susan Mackey (``OBFP'') RR at 1; Peace of
Mind--C. Andrews RR at 1; Charter Funerals--S. Minich (``Charter
Funerals'') RR at 1; Cindys List Funeral Concierge & Inheritance
Protection--C. Ivey RR at 1; Homesteaders Life Co.--M. Lacey
(``HLC'') RR at 1; On the Record Advance Planning--A. Praskac
(``OTR'') RR at 1; Givens Estates, Inc. and FCA NC--E. Hillman
(``Givens Estate'') RR at 1; UUFV RR at 1; Borderland, a Community
Ministry in Knoxville, TN--J. Arthur (``Borderland'') RR at 1;
Burmese American Buddhist Corp.--I. Timm RR at 1; Diversity
Collaborative--L. Lusardo (``DC'') RR at 1; Morristown Beard
School--J. Farhat (``MBS') RR at 1; Kansas City Hospice & Palliative
Care--R. Valdovino RR at 1; S. Della Valle RR at 1 (funeral home
owner). As one commenter said, ``[t]his is simply updating the Rule
for the current age.'' Borderland RR at 1.
\28\ FCA RR at 2, citing <a href="https://www.stress.org/holmes-rahe-stress-inventory">https://www.stress.org/holmes-rahe-stress-inventory</a> (``The Holmes and Rahe Stress Scale, an index of
stressful life events, rates the death of a spouse as the most
stressful event a person will experience.''); see also TINA RR at 1
n. 2.
\29\ CR RR at 1; FCA RR at 3.
\30\ For example, the Funeral Consumer Alliance of Utah noted
that ``[i]n hospitals, when death occurs, families are ordered to
call a funeral home to come immediately. Social Workers in hospitals
I've spoken to typically don't assist grieving families in price
comparing. Families tell us that the Social Workers just google
`closest funeral home to [name of city]'.'' FCA UT RR at 1; see also
TINA RR at 1 n. 3 (noting that a ``2007 AARP survey found that only
34 percent of those 50 years or older have `engaged in some
[funeral] preplanning.' Lona Choi-Allum, `Funeral and Burial
Planners Survey,' AARP (November 2007). Surveys by the [NFDA] found
the percentage of adults of all ages who have preplanned funerals is
even lower. See, e.g., `Consumer Awareness and Preferences Study,'
National Funeral Directors Association (Apr. 2019), at 8.'').
\31\ FCA RR at 3; see also TINA RR at 1; CC RR at 1 (``Although
the funeral homes that receive ratings on our surveys are overall
rated fairly highly compared to many other services we evaluate, we
receive an inordinate number of complaints about high costs. A
common complaint from families we survey is that they paid a lot
more than they expected for their loved ones' funerals; sometimes,
they report funeral directors coaxed them into spending more than
they would have liked.''); J. Wilson RR at 1 (discussing how she was
present while a funeral provider played on the emotions of her
grieving friend to get a larger sale by saying things like ``your
husband deserved better than that'').
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Some commenters noted at least some funeral providers are willing
to provide itemized price lists to consumers only when required by the
Rule (which currently only requires itemized price lists to be provided
during in-person meetings).\32\ Numerous commenters reported funeral
providers refused to provide their itemized price lists in response to
requests by mail, email, fax, over the phone, or by using the contact
form on the provider's website.\33\
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\32\ AARP RR at 2; see also MSGA RR at 1 (``[M]y experience over
the past few years is that 50-75% of Funeral Homes will NOT candidly
and promptly follow through on a simple request for pricing
information.''). Indeed, FTC enforcement experience and has shown
that some do not even comply with the current Rule's requirement to
timely distribute price lists. See FTC Releases Funeral Home
Compliance Results, Offers New Business Guidance on Funeral Rule
Requirements, FTC Press Release (June 8, 2020) (FTC investigators
found failures to disclose timely itemized pricing information, as
required by the Funeral Rule, in 17 of the 90 funeral homes visited
since 2018). In addition, the FCA and the CFA found that 28 out of
126 GPLs they examined violated the Rule because they lacked legally
required consumer options or offered only packaged options. CFA RR
at 8 (citing Joshua Slocum, Stephen Brobeck, The Relationship
between Funeral Price Disclosure and Funeral Prices: A California
Case Study, report from Consumer Federation of America/Funeral
Consumers Alliance (February 2021).
\33\ FCA VABR RR at 2 (20% of the homes surveyed refused to
provide price information in response to a letter); FCA UT RR at 1
(``Many funeral homes that we've requested a GPL from over the phone
and by email fail to send one''); CC RR at 3 (``Often, our
researchers had to call several times to request [the GPL]. With
many (we estimate it was about one-third of homes that didn't list
GPLs online), our shoppers had to persuade funeral directors to
email or fax GPLs by claiming to live out of town and therefore
couldn't visit in person over the next few days. Some funeral
homes--about 10 percent--refused to provide GPLs to our undercover
shoppers. They required us to visit in person to learn about their
prices.''); FCA CT RR at 1 (In 2019, they were only able to get a
57% response from funeral homes, after sending two letters, and
working with local volunteers and members who phoned, wrote or
visited those still not responding); MSGA at 1 (``Time after time I
have also tried to help people who contacted a local Funeral
Director to request pricing in writing and was told that it would be
sent to them, but it never showed up.''); M. Klein RR at 3-4
(``Numerous funeral homes have point-blank refused to give me prices
over the phone. Others did not to return phone calls within a few
days, and required multiple requests. And others never responded at
all. The phone requirement is hard to `police' since it is personal
communication, whereas violations of an internet requirement would
be readily apparent and the rule enforceable.''); R. Alexander RR at
1 (stating that he requested pricing information using the contact
form on 10 funeral homes' websites, 4 sent the requested
information, 2 never responded, and the other 4 would not send the
GPL but wanted to talk by phone); R. Zeldin RR at 3 (recalling that
when she assisted an Arizona resident planning an out of state
funeral 29% required three or more email and phone calls before
sending pricing information, and 20% homes never responded; when she
assisted a Pennsylvania resident, 67% ignored or refused her request
for information); E. Menkin RR at 1 (when mother died, commenter had
to drive to funeral homes when funeral providers refused to email or
mail her a price list). Some commenters also point out that the
current requirement to provide price information over the telephone
when asked by callers is not the same as getting a written GPL. MSGA
RR at 1 (when information is provided over the phone, there is ``no
record of the conversation or proof that prices were given''); see
also C. Reid RR at 2 (stating that ``[a] document with the funeral
homes' letterhead and their itemized lists is far more valuable than
what I heard over the phone from `Mary Sue' who was filling in the
day when I called in regarding the price lists.'').
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Commenters also reported many funeral providers do not make their
price lists available online, even if they have a website or other
online presence.\34\ A 2018 survey by the

[[Page 66099]]

Consumer Federation of America (``CFA'') and the Funeral Consumers
Alliance (``FCA'') found only 16 percent of the funeral homes they
surveyed posted their GPLs on their websites.\35\ Consumer Checkbook
similarly reported ``fewer than 25 percent--had posted their GPLs
online.'' \36\ Further, according to one commenter, even when pricing
information is available on a website, the prices may be out of
date.\37\
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\34\ FCA WMA RR at 1 (``Almost all of the 85 funeral homes in
our area (4 counties of western Massachusetts) do have websites, but
very few reveal prices online. In 2016 only 1 funeral home had its
GPL online. In 2018, we found 4 with prices online.''); FCA RR at 7-
8 (a February 2020 survey of California funeral homes found that
those that charged the highest prices were most likely to opt out of
putting their pricing online); Texas Appleseed RR at 2 (``in a
recent search of funeral homes in Austin, Texas, only one of the 15
homes surveyed posts their price list online''); FCA AZ RR at 1
(many funeral providers in Arizona do not post pricing information
online); D. Stimpert RR at 1 (``Of the 300 or so funeral homes in
Northeast Ohio, I have found only 12 that post a full General Price
List (GPL) on their website.''); UUFV RR at 1 (``[T]he Dignity
Memorials website for our local Visalia-based funeral home website
requires a consumer to divulge one's personal email address to them
in order to download a PDF document identified as a `price guide.'
Upon receipt, it turns out that this document is just an advertising
brochure, not an actual price list. The only costs identified in the
document are framed in the phrase `National median cost' rather than
providing the specific price of the local funeral home'' and a large
funeral home in area has an expensive website, but it does not
disclose prices on that website); M. Bern-Klug RR at 2 (University
of Iowa study found that, in 2016 study of three markets in Iowa,
``7 of the 48 funeral homes did include their GPLs on their website.
We checked again the first week of June 2020 and determined an
improvement: 13 funeral homes had posted their GPL (eight of the 28
funeral homes in Des Moines and five of the 23 funeral homes in the
Cedar Rapids/Iowa City area)''); H. Lee RR at 3, citing Robert
Benincasa, You Could Pay Thousands Less For A Funeral Just By
Crossing The Street (Feb. 7, 2017), NPR, <a href="https://www.npr.org/2017/02/07/504020003/a-funeral-may-cost-you-thousands-less-just-by-crossing-the-street">https://www.npr.org/2017/02/07/504020003/a-funeral-may-cost-you-thousands-less-just-by-crossing-the-street</a> (last visited Apr. 16, 2020) (most funeral homes
omit to post prices on websites); C. Reid RR at 3 (``In my area all
the funeral homes have a website. Some share quite a bit of
information except for prices. You are told to call in and stop by
to pick up the price lists you want. . . . A sample [of funeral
providers] showed that the city of Los Angeles, (73%), to the lowest
Alameda County (27%) posted prices conspicuously. California-
Funeral-Home-Pricing-Report-9-30-19docx Funeral Consumers Alliance,
Inc.''); A Rector RR at 1 (only 25% of funeral homes in Maine list
the GPL on their websites); J. Bates RR at 1 (of the 200 funeral
retailers in the Dallas-Ft. Worth area, less than 10 post any
pricing online); but see FCA UT RR at 1 (``Quite a few Utah funeral
homes are now posting their prices online on their own, so it should
not be a problem for the sneaky ones to do so as well.'').
Additionally, on June 21, 2022, the Funeral Consumers Alliance (FCA)
and Consumer Federation of America (CFA) issued a report that
outlining their May 2022 survey of 1,046 funeral provider websites.
The survey found that only 191 of these homes (18%) posted their
price lists online. Joshua Slocum, Stephen Brobeck, Online Price
Posting At More Than 1,000 Funeral Homes in 35 State Capitals (June
2022).
\35\ CFA at 3-4 (citing Joshua Slocum, Stephen Brobeck, A Needle
in a Haystack--Finding Funeral Prices Online in 26 State Capitals,
report from Funeral Consumers Alliance/Consumer Federation of
America (January 2018) (also noting that in twelve cities, no
funeral providers posted their prices online).
\36\ CC RR at 3.
\37\ FCA WMA RR at 1.
---------------------------------------------------------------------------

Commenters discussed how difficult it can be for many funeral
purchasers to personally visit funeral homes to pick up price
lists,\38\ including emotionally distraught families,\39\ families who
live in different states,\40\ the disabled, ill, and homebound elderly
consumers,\41\ those lacking access to transportation,\42\ and rural
consumers, who often have to drive long distances to reach the nearest
funeral home.\43\ One commenter reported that ``[w]hen my wife was
taken to the hospital, the doctors told me she had only days to live.
Turned out to be four. I shouldn't have had to choose between spending
her last days with her or collecting funeral information.'' \44\
Another reported that when his 4-year-old son died suddenly, he had to
make arrangements quickly and transfer his son's body to a funeral home
right away without knowing its prices. He said he ``had a crushing
level of grief when I walked into that funeral home and I had
absolutely no way to negotiate when they handed me their proposed
price. How is that fair? They already had possession of my son's body,
so it was not like I could walk out and begin shopping.'' \45\ The
pandemic has heightened such difficulties, as many people have been
reluctant or unable to leave their homes to obtain itemized price lists
from funeral providers.\46\
---------------------------------------------------------------------------

\38\ CFA RR at 3, citing James W. Gentry et al, ``The
vulnerability of those grieving the death of a loved one:
Implications for public policy,'' Journal of Public Policy and
Marketing, v. 14, n. 1 (Spring 1999); see also, e.g., Texas
Appleseed RR at 1.
\39\ AARP RR at 2; S. Henderson RR at 1 (after the sudden death
of his 15 year old stepson, it was too hard for his family to visit
multiple funeral providers to price shop); A. Nickerson RR at 1
(recounting her experiences in planning for the burial of a family
member, a ``time of distress and grief'', and explaining that the
process would have been easier if prices were available online); R.
Robertson RR at 1 (describing how out of state relatives had to step
in to help grief stricken niece plan a funeral); S. Alleger RR at 1
(discussing the impact on family members when they had to be
physically present to discuss funeral arrangements ``while
emotionally raw,'' and explaining that they agreed to charges they
did not want just to get out of the situation). See also FCA CTX RR
at 1 (``[E]ven when a death is expected, spouses and children are
overwhelmed with shock and grief. They have a lengthy list of tasks
and decisions to make without delay. Seldom do they have the time,
energy, or mental clarity to call or visit more than one funeral
home. If, however, price lists were available online, information
about goods and services could be collected by a family member,
neighbor or friend who is not emotionally distraught.'').
\40\ FCA CTX RR at 1; CCC RR at 1 (``Those facing death and
their out-of-town relatives planning funerals simply cannot visit
several funeral homes to pick up price lists. And if they did, the
likelihood of their visiting the homes offering the best value is
unlikely.''); FCA AZ RR at 2 (quoting consumer having difficulty
making out of state funeral arrangements, ``I live in Florida and a
Medical Examiner in Arizona just called to tell me that my nephew
there died. I can't find out from the funeral homes online how much
it will cost to ship his body here or have him cremated and shipped.
Do you have any pricing information or how do I get it?'') (emphasis
in original); B. Girling RR at 1 (``had to make funeral arrangements
for family located out of state, many funeral homes would not give
prices over the phone''); L. Lew RR at 1 (recounting how, in her
experience as a Veterans Hospital employee, it is so stressful for
out of state families to obtain funeral price information, and
noting that posting prices online would do much to ``eas[e] the
emotional and financial stress involved in making needed funeral
arrangements''); J. Wilson RR at 1 (describing difficulties in
arranging for out-of-state funeral for his mother, and explaining
that an online price list would have made things much easier); see
also CFA RR at 3, citing HwaJung Choi, et al, Spatial Distance
Between Parents and Adult Children in the United States (September
2018 report funded, in part, by the National Institute on Aging)
(``According to data from the 2013 Panel Study of Income Dynamics,
one-quarter (25%) of parents do not have an adult child living
within 30 miles of them.'').
\41\ See, e.g., K. Dvorak RR at 1 (wheelchair bound consumer
noted that online posting of prices would make it easier to find
prices); M. Klein RR at 1 (stating that when he had a medical
condition and could not drive and walk, he had to rely solely on the
handful of GPLs posted on the internet); V. Thorp RR at 1 (as an
elderly home-bound individual with an elderly home-bound spouse, she
feels a ``special burden when contemplating the need to put my
affairs in order''); J. Singler RR at 1 (an eighty-year old consumer
with hearing issues reported that ``[d]riving some places or making
several phone calls does not work for us'').
\42\ M. Scrudder RR at 1; N. Leyden-Morffi RR at 6.
\43\ A. Rector RR at 1 (noting that it is not uncommon for Maine
residents to drive 40 miles or more to reach a funeral home, but
only 25% of the funeral homes in Maine post their GPL on their
website).
\44\ J. Brown RR at 1.
\45\ A. Drapczuk III RR at 1. Another commenter reported when
his stepson died in a car accident, they only visited one funeral
provider because ``the thought of having to visit more than one
Funeral Home was unbearable.'' S. Henderson RR at 1.
\46\ FCA NC RR at 1; FCA EMA RR at 1; PMA RR at 1; CCC RR at 1;
House Committee RR at 2; TINA RR at 2 n. 12.
---------------------------------------------------------------------------

Many commenters urged the Commission to modernize the Rule to
require funeral providers to post their itemized price information
online because it would greatly benefit consumers shopping for funeral
services.\47\ Some argued online shopping is widely available now,\48\
and many consumers want funeral prices to be posted online.\49\ Others
noted that online posting will make it easier for consumers to obtain
price information and provide better opportunities for

[[Page 66100]]

consumers to meaningfully price shop and view the Rule's mandatory
disclosures earlier in the process.\50\ And some stated that online
posting could lead to more price competition among funeral
providers.\51\
---------------------------------------------------------------------------

\47\ CFA RR at 7-8; OBFP RR at 1; Imperial Caskets RR at 1;
Funerea RR at 1; LRCPA RR at 1; CA RR at 2; FCA SC RR at 1; Texas
Appleseed RR at 1; FCA RR at 5-9; FCA CT RR at 1; TINA RR at 2. One
commenter argued that the current language of the Rule ``implicitly
encourage funeral homes to exclusively use printed format, in an age
where almost everything (e.g., bills, receipts, invoices, bank
statements, etc.) has become paperless.'' H. Lee RR at 3.
\48\ CFA RR at 6, citing Nielsen Global Connected Commerce
Survey, (``a large majority of consumers now use the internet as
part of their online search for products, and a significant number
of these online searchers compare online price'') and Janssen,
Morage-Gonzalez, Wildenbeest, ``Consumer Search and Pricing Behavior
in internet Markets'' (online 2009) (consumers especially compare
online prices when products are relatively expensive); OTR RR at 1
(``according to 10 Online Shopping Statistics You Need to Know in
2020 (article by Maryam Mohsin on Oberlo dated 30 Oct 2019), 63% of
shopping occasions begin online.'').
\49\ CFA RR at 10 (a 2017 CFA-commissioned landline and cable
phone survey undertaken by Opinion Research Corporation of 1,004
representative adult Americans found that 79% of respondents agreed
that ``[i]f the funeral home has a website, should it also be
required to make this price information available on its website?''
and only 18% disagreed).
\50\ TINA RR at 2; CFA RR at 2-7; AG RR at 2; see also CA RR at
2 (a February 2020 CFA-commissioned Engine Group online survey of
1,000 representative adult Americans showed that 91% would be likely
to make price comparisons online if funeral homes posted their price
lists on their website, and 61% would be ``very likely'' to do so).
\51\ FCA EMA RR at 1. See also CC RR at 1; TINA RR at 2; Prof.
J. Perloff RR at 1. Commenters argued that amending the Rule to
include an online price requirement will ``[i]ncrease competition
and encourage funeral homes to offer the best possible pricing,
particularly [] in local markets where there are large price
differences between many funeral homes.'' AARP RR at 2; see also S.
Della Valle RR at 1 (funeral owner requesting online posting of GPL,
CPL, and OBCPL; he states that his competitor will not hand out GPL
on request, instead the competitor uses his GPL and then sets his
prices accordingly); CA RR at 1; CCC RR at 1; RW Alexander RR at 3
(noting that in his area of Northern Utah, there is a 223%
difference in prices for a full funeral); FCA RR at 8-9 (noting that
the prices for funeral services vary widely and the price variation
is not due to differences in quality ``because prices vary even for
cremations and direct burials, which involve generally the same
service.'' Instead, ``the problem is that Providers know that most
families are not aware of this huge price variation. . . So, even a
very high price is categorized in the consumer's mind as `normal,
and just what funerals or cremations cost'''); CC RR at 4 (``We also
find that [funeral home] prices are not related to service quality.
Funeral homes that receive high marks from their surveyed customers
for service quality are actually slightly less likely to charge high
prices compared to funeral homes that receive low scores from their
surveyed customers.'') (emphasis in original).
Commenters also cited to a recent study that found that funeral
providers in California who voluntarily disclose their prices on
their websites charged consumers lower rates. FCA RR at 7-8 citing
Joshua Slocum and Stephen Brobeck, The Relationship between Funeral
Price Disclosures and Funeral Prices: A California Case Study--
February 2020. Accessed at: <a href="https://funerals.org/wpcontent/uploads/2020/02/California-Funeral-Home-Pricing-Report-2-10-20.docx">https://funerals.org/wpcontent/uploads/2020/02/California-Funeral-Home-Pricing-Report-2-10-20.docx</a> (noting
that ``[p]rice-hiders charged a median price 31 percent higher for a
direct cremation ($1,695) than those who prominently disclosed their
prices online ($1,295), Price-hiders charged a median price 37
percent higher for an immediate burial ($2,595) than prominent
disclosers ($1,900), and Price-hiders charged a median price 36
percent higher for the basic services of funeral director and staff
($1,835) than prominent disclosers ($1,348)'').
---------------------------------------------------------------------------

Commenters offered various ideas for how an online price
requirement should be implemented. Almost all agreed that funeral
providers that maintain websites should be required to prominently and
conspicuously post their price lists on their websites.\52\ Supporters
of this view noted that the cost to these funeral providers would be
minimal.\53\ Similarly, one commenter urged the Commission to mandate
that if a funeral provider has a business or ``official'' account on
social media services, ``they should be required to post their [p]rice
list information on that social media service.'' \54\
---------------------------------------------------------------------------

\52\ See, e.g., UUFV RR at 1; FCA RR at 9; AG RR at 2-3; CA RR
at 1; CR RR at 2. One commenter stated that funeral providers should
only have to post a GPL online, and not the OBCPL and CPL. D.
Stahlhut RR at 1.
\53\ FCA RR at 5; AG RR at 2-3; CA RR at 1; CR RR at 2; CFA RR
at 10; FCA AZ RR at 2-3; MSGA RR at 1; UUFV RR at 1; see also C.
Tregillus RR at 2 (``With computers and printers/copiers now
essential to all businesses, the costs of preparing, revising, and
printing the required disclosures are negligible, even for small,
low-volume funeral home businesses. Although some funeral providers,
of course, may elect to spend more than the Rule requires on their
price lists by, for example, sending them out for professional
multi-color printing, the prices they choose to pay for such
services are not required by the Rule, and thus are not real
compliance costs. Any claims about the high cost of compliance would
likely reflect such costs that are not required by the Rule.'').
Indeed, some argued that online pricing may save funeral providers
money, as they will save on printing and staff costs, and electronic
files can be changed quicker and easier than print files. FCA RR at
5; FCA VABR RR at 2.
\54\ UUFV RR at 2.
---------------------------------------------------------------------------

Commenters disagreed, however, about whether funeral providers that
do not maintain a website should be required to post their prices
online. One commenter argued all providers should make pricing
information available electronically, because setting up a website can
be done with little cost.\55\ Some commenters asserted funeral
providers without a website should have to promptly email itemized
price lists in response to consumer requests.\56\ Others argued that
email delivery was not an acceptable substitute, because email would
often be too slow for the time sensitive decisions at issue,\57\ and
requiring funeral homes to respond to emails in a timely fashion could
be too burdensome given that at least some homes have only a handful of
employees.\58\ Some commenters noted the collection of email addresses
by a funeral provider could raise privacy and spam concerns.\59\ Among
those commenters who supported online disclosures, some also asked that
the Rule be amended to contain guidelines for how online disclosure
should be made,\60\ such as requiring ``online GPLs be updated in a
reasonable timeframe when prices change''--so consumers are not misled
by out of date prices.\61\
---------------------------------------------------------------------------

\55\ AARP RR at 2. But see K. Kaczmarek RR at 3, citing How Much
Should a website Cost?, WebFX (2020) (setting up a website can cost
thousands of dollars). One commenter asked that funeral providers in
parts of the country with no or limited internet should be exempted
from any online disclosure requirements. FCA VABR RR at 3-4.
\56\ CR RR at 2; see also MSGA RR at 1 (sending pricing info via
email should be ``a very simple thing''); R. Zeldin RR at 1
(information must be emailed within 24 hours of receiving the
request); M. Ludlum RR at 3 (noting that websites should not be
mandatory now, but that he anticipates that all funeral providers
will have a website in the next few years because ``of the many
benefits of having a funeral home website''). One commenter also
suggested that the Rule be updated to require ``providers responding
to telephone requests for price lists [to] give consumers the option
of receiving emailed electronic copies, and otherwise provide the
GPL's required affirmative disclosures orally.'' C. Tregillus RR at
3.
\57\ C. Tregillus RR at 7 (requiring consumers to request
emailed prices will ``cause at least some delay'' which may
``prevent consideration of the information'' particularly where
``consumers may feel under pressure to make rapid arrangements'');
see also FCA AZ RR at 3; M. Klein RR at 4. One commenter argued that
funeral providers should be given 48 hours to respond to any emailed
request for price lists, given that the email could be sent over a
weekend or late at night. D. Stahlhut RR at 1.
\58\ RW Alexander RR at 7 (website disclosures would be less
burdensome to small businesses that requiring them to respond to
email).
\59\ UUFV RR at 1 (some of its members have reported receiving
``spam'' email and phone calls from funeral providers); R. Doremus
RR at 1 (consumer was contacted by a funeral home for six months
after providing her information); CFA RR at 3 (some funeral
providers use provided contact information to ``aggressively market
their services, including repeated calls'').
\60\ For example, some suggested that the FTC consider
requirements for language, type size, and placement in any required
online disclosures, as well as requirements that the posting be
conspicuous and easy to see, and that the GPL or a link to the GPL
be visible on the landing page of the funeral home's website. CFA RR
at 10; FCA MN RR at 1; M. Ludlum RR at 4-5; RW Alex RR at 16.
\61\ FCA WMA RR at 1. One commenter advocated instead that
funeral providers only be allowed update their prices once a year,
on 60-90 days' notice to consumers. N. Finkle RR at 1.
---------------------------------------------------------------------------

Regardless of how the Commission might implement an online or
electronic distribution requirement, commenters urged the Commission to
amend the Rule to require that, no matter how a purchase is ultimately
made (in person or via phone call, email, or texting, etc.), a funeral
provider must provide a copy of the GPL, CPL, and OBCPL before a
consumer makes any selections.\62\
---------------------------------------------------------------------------

\62\ FCA AZ RR at 3. Several attorney generals argued that if
the arrangements are made without an in-person meeting, then the
``funeral provider should be required to provide electronic copies
of its itemized GPL, CPL, or OBCPL prior to the consumer making any
selections'' and ``post all prices on their websites.'' AG RR at 3.
Another commenter stated that ``digital delivery of [GPL, CPL, and/
or OBCPL] should constitute `physical delivery,''' but the burden
will be on the provider to prove, ``through technological means such
as digital footprint tracking and other such methods, that a
consumer has reviewed and received the'' price list. HLC RR at 1.
---------------------------------------------------------------------------

B. Comments Generally Opposing Online and Electronic Disclosure
Some commenters argued the Rule should not be amended to require
all funeral providers to post their itemized GPLs, CPLs, or OBCPLs
online.\63\ Citing

[[Page 66101]]

industry surveys, they argued consumers are not currently being harmed
by not having funeral prices online, so a Rule amendment would not be
appropriate.\64\ They argued the current Rule ``provides consumers with
complete and accurate pricing information that they can digest and
utilize to develop funeral arrangements that meet their unique needs
and circumstances'' \65\ and ``[i]f a consumer does not want to step
inside a funeral home . . ., they do not have to do so and are free to
shop over the telephone or by visiting a funeral home and taking its
price list with them when they leave.'' \66\ Some of these commenters
stated many funeral providers already post price information online
(although no commenters provided data about what price information is
available or how widespread the practice is),\67\ and, they point to
third-party online services that collate funeral price information and
offer it to the public.\68\
---------------------------------------------------------------------------

\63\ SCI RR at 3, 16; Funeralocity RR at 1-2; NYSFDA at 3; CANA
RR at 2; SIFH RR at 11-12; ICCFA RR at 9-26; NFDA RR at 44-52;
Carriage RR at 2. See also the almost identical comments submitted
by the Kentucky, South Dakota, Utah, Iowa, Michigan, and Rhode
Island Funeral Directors Associations, the New Hampshire Funeral
Director and Embalmer Association, the Hawaii Funeral & Cemetery
Association, and the Arizona Funeral Cemetery & Cremation
Association (the ``State FDAs.'') The Indiana Funeral Directors
Association reports that 80.5% of 144 licensed funeral providers in
Indiana feel website/virtual inclusion should not be mandated in the
Rule. Indiana Funeral Directors Association (``IFDA'') RR at 3.
\64\ NFDA RR at 44-45 (NFDA's Consumer Survey found that
``slightly over 90% of consumers do not even look for price
information when selecting a funeral home. Secondly, of those who do
seek out price information, 65.4% do it by visiting the funeral home
and 24.8% by telephoning the funeral home''); see id. at 48 (``Given
the fact that less than 10% of funeral consumers seek price
information before selecting a funeral home and that an overwhelming
majority of those 10% prefer to visit the funeral home (65.4%) or
telephone the funeral home (24.6%), there is scant reason to believe
that requiring all funeral homes to post price lists would benefit
any consumers. However, to require the nation's 20,000 funeral homes
to post all their price lists on their websites and to add updates
thereto would involve substantial initial and ongoing costs.'');
Funeralocity at 1 (``We do not see a transparency problem in funeral
provider prices. As the NFDA 2019 consumer survey shows, in 83.2% of
the time, families call only one funeral home in their times of
need. And they can get the prices in that call--even in a grief-
stricken state. We see no reason to change the Funeral Rule
regarding GPL disclosure. There is no problem to remedy''); ICCFA RR
at 10 (noting that only one commenter said pricing information was
unavailable).
\65\ SCI RR at 16. See also NFDA RR 48 (``Even for the less than
1% of funeral consumers who do use the internet to price shop, there
is no evidence that they have any problem accessing funeral price
information on the internet. As NFDA's Funeral Consumer Survey
evidence showed, of the small minority of consumers who do price
comparison shop, over 87% of them reported it was very easy, easy,
or somewhat easy to obtain the price information they wanted.'')
\66\ Carriage RR at 3. But see discussion infra footnotes 29-30,
37-42 regarding reported difficulties with getting price lists or
with visiting a funeral home.
\67\ New Jersey Funeral Directors Association (``NJSFDA'') RR at
4 (``Many NJSFDA funeral providers voluntarily make GPLs available
on their websites. Others utilize and subscribe to Funeral Matters.
. . . Funeral Matters is a contemporary and transparent online
pricing tool that allows consumers the ability to price and compare
accurate charges with information available on the websites of 26
subscribing funeral providers. . . . In 2019, an average of 1,700
unique consumers performed pricing research on the subscribing
funeral providers' websites each month, representing 27.5% of the
funerals performed every month in NJ (74,159 deaths/12 months = an
average of 6,180 deaths each month.).''); NYS FDA RR at 3 (``While
empirical data show that this medium still lags as a tool for
consumers in seeking out funeral pricing information, it is a fact
that a growing number of funeral homes continue to choose to
voluntarily place their price lists on their websites''); ICCFA RR
at 10, citing FuneralOne, <a href="https://www.funeralone.com">https://www.funeralone.com</a> (last visited
June 9, 2020); Consolidated Funeral Services, <a href="https://runcfs.com">https://runcfs.com</a>
(last visited June 9, 2020); and Frazer Consultants, <a href="https://www.frazerconsultants.com">https://www.frazerconsultants.com</a> (last visited June 9, 2020).
\68\ ICCFA at 11; see also NFDA RR at 50. One service,
Funeralocity, commented stating that it ``spend[s] many thousands of
dollars obtaining and updating GPLs every year. If prices were
available online, we would save a lot of money. But we would lose
some of the uniqueness that we offer in displaying the prices of
virtually every funeral provider in the US online. . . We are
updating prices constantly . . .. While our updating process cannot
be done in real time with the GPL changes at each individual
provider, we are very accurate. And when we are not, the price is
only off slightly. The packages we create are for sampling the
provider's prices and the pricing profiles are still valid
especially when comparing to a competitor funeral home's pricing.''
Funeralocity RR at 2. But one commenter noted, however, that this
information, while well-intended, quickly becomes ``outdated and
inaccurate (at no fault of each funeral provider) and often results
in consumer/funeral provider conflict.'' NJSFDA RR at 3.
---------------------------------------------------------------------------

Some commenters argued most consumers are satisfied with the
current status quo \69\ and the market should dictate whether funeral
homes make prices available online.\70\ Some of these commenters stated
that, unlike many products, consumers consider more than price when
purchasing funeral services,\71\ and visiting funeral homes is
beneficial to consumers.\72\
---------------------------------------------------------------------------

\69\ NFDA RR at 46 (NFDA's 2019 and 2020 funeral surveys showed
that 19.54% of consumers found it to be very easy to obtain price
information, 34.9% found it to be easy, 32.75% found it to be
somewhat easy, 10.85% said it was not very easy, and 2.05% said it
was not easy at all); SCI RR at 2, 8, 9 (summarizing results of a JD
Power's survey).
\70\ NFDA RR at 49; CANA RR at 2; Carriage RR at 2-3; State
Directors FDA RR at 1 (``Additionally, our member funeral homes know
very well the clientele they serve. If families want price
information posted on the funeral home's website, the funeral home
will post it.''); ICCFA RR at 10, 20-21 (``Having that choice allows
the funeral home to present and inform the consumer in the manner
that is fair to the consumer and most appropriate for the business.
If the Funeral Rule were to mandate that all prices must be made
available online through a funeral home website, it takes away the
business' right to choose where it conducts business.'').
\71\ NFDA RR at 10-11, 49. As one funeral provider said, ``Price
simply does not tell the story'' of what a consumer is buying when
it comes to funeral service arrangements--``the `look and feel' of
the facilities matter.'' SCI RR at 13-14.
\72\ NYSFDA RR at 3 (``Indeed, there is also infinite value for
a consumer to speak with a funeral director, preferably in person,
so as to better understand his or her funeral home's specific
offerings and to review and explain price lists and the various
options that are available. Consumers are best served when they can
factor into their decisions both price AND service.'').
---------------------------------------------------------------------------

Some critics of an online disclosure requirement argued such a
requirement would be burdensome to funeral providers, including small
businesses who ``lack[] the budget, expertise, and staff to create and
maintain a website,'' \73\ although they did not quantify this burden
or offer evidence to support their position. They further argued the
proposed requirement is especially problematic for rural funeral homes,
because many do not have a website due to lack of local technology
infrastructure.\74\ Some commenters argued mandating website price
disclosures would put small business at a competitive disadvantage \75\
and potentially cause them to be subject to unaffordable penalties for
law violations.\76\ They argued funeral homes are already subject to
state regulation, and adding an additional layer of regulation (which,
they argued, might conflict with state laws) ``is not only unnecessary
but will create confusion.'' \77\
---------------------------------------------------------------------------

\73\ SIFH RR at 11-12; see also ICCFA RR at 21 (``Many funeral
homes are small facilities that have limited resources and limited
access to technology. Having to modify a website; keep it current;
and also make it consumer-friendly, are things small providers may
not be able to do.''); Funeralocity RR at 2 (``In our opinion,
funeral directors are not typically tech savvy, so these changes
will have to be implemented by outside resources.'').
\74\ IFDA RR at 3-4 (adding that some providers use social media
or instant messaging rather than having a website).
\75\ ICCFA RR at 21 (``Potentially, larger or more tech-savvy
providers could dominate on the pricing presentation and consumers
could be misled thinking that these were better providers--merely
because now, potentially, all shopping would be done online.'').
\76\ ICCFA RR at 24. The ICCFA was also concerned about costs to
educate funeral homes concerning the rule changes, including the
costs to mortuary schools which will have to update references,
books and materials on the current Funeral Rule and to states which
would have to update its testing materials. Id.
\77\ Carriage RR at 3; see also SCI RR at 15-16. But see OTR RR
at 1 (noting that Texas exercises minimal oversight over the funeral
industry).
---------------------------------------------------------------------------

Some commenters argued a requirement to post prices online would be
unfair since no other industry is mandated by federal law to post
prices online, except for a ``new Department of Health and Human
Services regulation which mandates that hospitals post prices for
certain procedures online.'' \78\

[[Page 66102]]

One commenter argued that ``[g]iven the rapid pace of technologic
change, in another decade the online world will likely look just as
different. . . . Many funeral homes are engaging with the public on
social media platforms, such as Facebook, Twitter, and Instagram. These
website alternatives do not lend themselves well to posting a GPL.''
\79\ Another commenter argued requiring only funeral providers that
maintain a website to post a GPL online, ``could lead to some funeral
homes removing their websites in order to avoid the requirement.'' \80\
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\78\ NFDA RR at 47; State FDAs RR at 1. See also ICCFA RR at 20
(``[o]ther industries regulated on the Federal level have disclosure
requirements, which each provide a trigger point, but none are
promulgated solely upon the existence of a website. . . For example,
U.S. air carriers must disclose various fee information, including
baggage fees, to consumers. However, the disclosure is only required
upon the `website of U.S. air carriers that have a website
accessible for ticket purchase by the general public'. . .
Similarly, a depository institution must provide certain account
disclosures to consumers before an account is opened. If the account
is opened through electronic means, such as through a website, ``the
disclosures required . . . must be provided before the account is
opened or the service is provided.'' Again, the notice is not deemed
to be necessary simply because the bank has a website--but is tied
to the creation of an account, and further tied to the time period
right before the service is provided.'') (emphasis in original)
(internal cites omitted).
\79\ SIFH RR at 11.
\80\ ICCFA RR at 21.
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Some commenters who argued against requiring all funeral providers
to provide electronic or online delivery of itemized price lists, did
support more limited modifications to the Rule. First, several
commenters opined all funeral providers that offer consumers the option
to make funeral arrangements online must post an itemized price list
online, so consumers can review this price information before making a
purchase.\81\ As one commenter said, ``[c]onsumers who choose to shop
online deserve the same protections as those who arrange a funeral or
cremation in person--and certainly deserve to receive itemized pricing
information `prior to any selection or determination' of funeral goods
and services.'' \82\ Second, the National Funeral Directors Association
(``NFDA'') proposed the Rule be updated to include ``permissible
options'' to transmit GPLs to consumer via new ``information
distribution systems'' that have emerged since the Rule was enacted--
``including personal delivery, U.S. Mail, electronic mail, telefax, or
by posting a link to its GPL on the funeral home web page with the
word[s] `price information.' '' \83\ Third, one commenter asserted the
Commission should offer a safe harbor from undercover shopping \84\ for
funeral providers that make GPLs available on a conspicuous place on
their websites.\85\
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\81\ ICCFA RR at 19; NFDA RR at 40; NYSFDA RR at 4; SIFH RR at
9, 11, 12; CANA RR at 2.
\82\ SIFH RR at 12.
\83\ NFDA RR at 40. The Indiana Funeral Director's Association
noted that 71.5% of the respondents in a recent survey ``felt the
mandatory inclusion of requiring funeral homes to fax, email, mail
GPLs when requested did not further protect the consumer, and
increased the potential cost confusion if a face-to-face requirement
to obtain a GPL were made optional.'' IFDA RR at 4.
\84\ Commission staff has historically conducted such shopping
as part of its efforts to ensure compliance with the Rule.
\85\ NJSFDA RR at 4 (FTC undercover price shoppers should not
target funeral providers who have GPLs conspicuously disclosed on
the website); NYSFDA RR at 3-4 (suggesting that instead of changing
the Rule, the FTC encourage providers to post their GPLs online by
providing a `safe harbor' from undercover shopping for such
providers since the GPLs are available at any time). One consumer
suggested that the Rule should allow providers who choose to post
price information online to include a ``waiver in the contract for
services stating that the consumer has seen all of the required
disclosures online and has waived their right to receive them in
person.'' L. Northcutt RR at 2. The NYSFDA also asked that the FTC
allow ``adequate time'' of one year before implementing any website
disclosures, to give the industry time to comply. NYSFDA RR at 3-4.
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2. Commission Staff Review of Funeral Provider websites
Commission staff conducted a review of almost 200 funeral provider
websites from a cross-section of geographical areas and sizes.\86\ As
described below, the review showed robust website use by those funeral
providers to promote their goods and services. Yet, most websites did
not provide any pricing information. Fewer than half (40%) of the sites
reviewed provided any information about the price of the goods or
services offered.\87\ Only about 24% of the websites contained an
itemized price list or GPL and just over 10% displayed only starting
prices or package prices.\88\ Moreover, of the websites that contained
pricing information, only some prominently displayed the GPLs or other
price information on their website's home page or on the drop-down
menus present on that page.\89\
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\86\ Shopping for Funeral Services Online: An FTC Staff Review
of Funeral Provider websites (Oct. 2022) (``Report''). The full
Report is available at <a href="https://www.ftc.gov/reports/shopping-funeral-services-online">https://www.ftc.gov/reports/shopping-funeral-services-online</a>. While not based on a statistical sample, the review
looked at a diverse group of funeral providers that are employing
websites in their businesses. The results offer broad insights into
the information providers of differing sizes and in areas with
different population densities make available online.
\87\ Report at 5.
\88\ Id. at 5-6.
\89\ Id. at 6.
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Staff's review found funeral providers were using websites for many
aspects of their business.\90\ For example, almost all of the reviewed
websites posted obituary information about the deceased persons in
their care, as well as information about any related funeral,
graveside, or memorial services. These websites provided dedicated
pages for each of the deceased persons in their care, many of which
could be shared electronically with others. The web pages also offered
visitors the opportunity to post condolences for the family and others
to see on the website and many offered ways to send flowers to the
families of the deceased.
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\90\ Id. at 4-5.
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Two-thirds of the websites reviewed listed an email address to
contact the provider and almost all offered online forms web visitors
could submit to contact the funeral providers.\91\ A handful appeared
to offer visitors the ability to chat online with the funeral provider,
and almost 10% of the reviewed websites appeared to offer visitors the
ability to make online selections of their funeral arrangements on the
providers' websites, without visiting the physical location.\92\ Almost
80% of the websites indicated an association with a third party company
to create, design, or host the funeral providers' websites.\93\
---------------------------------------------------------------------------

\91\ Id. at 4.
\92\ Id. at 4.
\93\ Id. at 9.
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3. Objectives and Alternatives
The record shows funeral providers typically use websites and
electronic communication to communicate with the public about a variety
of information, ranging from their contact information, obituaries,
information about any funeral, graveside, or memorial services,
pictures of caskets, and descriptions of the services they offer. Most,
however, appear not to use such technology to share their prices with
consumers. The record also shows that, given the growth of the internet
and electronic communication, adding electronic media as means to
display and distribute price information would greatly benefit
consumers by providing access to accurate itemized prices with arguably
minimal costs to funeral providers who already have websites. Such an
amendment appears to fit squarely with the original purpose of the Rule
and will make the Rule more in tune with how consumers generally obtain
price information today. Therefore, the Commission wishes to explore
how it could revise the Rule's preventative requirements regarding the
distribution of price information to include new technologies. The
Commission is particularly interested in suggestions about how to
tailor changes in ways that facilitate the ability of small businesses
to comply with the Rule using new technologies.

[[Page 66103]]

First, the Commission seeks comment on whether it should change the
Rule's price list disclosure provisions to require funeral providers to
prominently display either their GPLs or a prominently labeled link to
their GPLs on their websites. The Commission is particularly interested
in whether such a provision should apply to all funeral providers, all
providers with a website, or only providers who sell funeral goods or
services online.
Second, the Commission seeks comment on whether it should change
the Rule's CPL and OBCPL distribution requirements to require funeral
providers to prominently display either their CPLs and/or OBCPLs on
their websites, or a clearly labeled link to these price lists.\94\ The
current Rule requires funeral providers to present their CPLs and
OBCPLs before discussing or showing these items or pictures of these
items.\95\ This possible modification could apply to all providers, or
just those providers who show pictures and/or descriptions of caskets,
alternative containers, or outer burial containers.
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\94\ The Rule currently requires funeral providers to either
include the information contained in their CPLs or OBCPLs on their
GPLs, or list the price ranges for caskets, alternative containers,
and outer burial containers on their GPLs. 16 CFR 453.2(b)(4)(iii).
Thus, this provision would only be necessary for those providers
that only include the price ranges for caskets, alternative
containers, and outer burial containers on their GPL.
\95\ 16 CFRSec. 453.2(b)(2)(i) and 453.2(b)(3)(i).
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Third, the Commission could consider a Rule change to require all
funeral providers that maintain websites to display a prominent
statement that users can request the providers' GPLs, CPLs, and OBCPLs
with a link, button, or email address for people to use to request the
price list or lists.\96\ The Commission also seeks comment on whether
to include a requirement that funeral providers must respond to online
requests for price lists within a particular time frame. The Commission
notes the current Rule does not require the CPL or OBCPL to be in a
specific format, stating ``[i]n lieu of a written list, other formats,
such as notebooks, brochures, or charts may be used if they contain the
same information as would the printed or typewritten list, and display
it in a clear and conspicuous manner.'' \97\ Commission staff have seen
CPLs and OBCPLs in the form of binders, catalogs, and brochures in
addition to written lists. Thus, the Commission seeks input as to
whether a requirement that the CPL and/or OBCPL be in a format that can
be shared electronically provides any benefits to consumers or presents
any challenges or costs for compliance, particularly for small
business.
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\96\ Funeral providers could also be required to state on the
GPL that the CPL and OBCPL are available upon request via one of
these electronic methods.
\97\ 16 CFR 453.2(b)(2)(i).
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Fourth, the Commission is also considering whether to include
social media pages or other new technological or electronic
communication methods within the scope of covered websites for the
purposes of any Rule modifications. For example, the Commission could
require a funeral provider with a social media page to link to the
provider's main website or provide an email address or other online
mechanism for a user to request price list information. On a related
note, the Commission seeks input on ways to amend the Rule to embrace
new platforms and technologies as they develop so that both providers
and consumers can benefit from new distribution methods without
requiring a Rule change.
Fifth, the Commission seeks comment on whether the Rule should be
modified to require all funeral providers (regardless of whether they
maintain websites) to offer to send their GPLs, CPLs, or OBCPLs
electronically to any persons who ask about the providers' goods and
services, including those who ask for a copy of any of its price lists.
This could include requests by telephone, text, email, weblink, social
media, fax, U.S. Mail, or other new communication methods that may
emerge in the futures. Providers would be required to send the
information within a certain timeframe, unless the consumer declines to
receive this information or does not provide an email address or other
method for receiving the information. The Commission could also make an
exception to this proposed requirement if a funeral provider
prominently makes either its GPL, CPL, and OBCPL, or clearly labeled
links to these documents, available on its website.\98\
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\98\ Funeral providers would still be required to answer
questions of persons who ask over the telephone about the providers'
offerings or prices. Note that the change considered would not
require a funeral provider to affirmatively send or offer to send
price list information electronically unless a person first asks
about its offerings or prices. This approach is consistent with the
Commission's prior decision to repeal the original Rule's
requirement that providers affirmatively state price information
over the telephone even when a caller did not ask for the
information. See 1994 Statement of Basis and Purpose, 59 FR 1592,
1600-1602 (Jan. 11, 1994).
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Sixth, another approach the Commission is considering would require
all funeral providers to give electronic copies of their GPLs at the
beginning of any arrangement discussion or process that does not take
place in-person unless a hard copy has already been provided. For
example, if the arrangements are discussed on the telephone, the
provider would need to send an electronic copy of the GPL to the
consumer before continuing the conversation (if the consumer has not
yet received the information). If the consumer is making selections
online, the provider would need to offer a prominent link to its GPL
before allowing the consumer to proceed with selections. Electronic
copies of the CPLs and OBCPLs would also need to be provided if showing
or discussing those items or their prices, or if consumers are making
selections of those items online.
Seventh, if electronic distribution is required, the Commission is
considering whether the Rule should include a requirement concerning
how often providers should update the electronic GPLs, CPLs, and
OBCPLs. The current Rule requires a funeral provider to list an
effective date on its price lists. To be in compliance with the Rule,
the price list must be accurate. Therefore, funeral providers must
update their lists regularly as their prices change. The costs to
businesses of updating electronic lists would seem quite minimal and
further the goal of providing consumers with accurate itemized
information. Should the Commission set a specific time frame for
updating online information?
Eighth, the Commission is considering another potential
modification to the Rule's preventative requirements to include
electronic means for distribution of the statement of funeral goods and
services selected. Currently, the Rule requires funeral providers to
give an itemized written statement for retention to each person who
arranges a funeral or other disposition of human remains, at the
conclusion of the discussion of arrangements.\99\ When the arrangements
discussions take place in person, the statement is provided at the end
of the meeting. When consumers make arrangements via the telephone or
online, the funeral provider could be required to immediately send an
electronic copy of the statement of goods and services selected, rather
than giving the list to consumers in a less timely way, for example by
sending the statement via U.S. Mail. Electronic distribution of the
statement could provide tremendous benefits to consumers by providing
more timely access to the total cost of funeral

[[Page 66104]]

arrangements and appears to present minimal costs to providers.
---------------------------------------------------------------------------

\99\ 16 CFR 453.2(b)(5).
---------------------------------------------------------------------------

B. Disclosure of Crematory Fees and Other Costs

The Review also elicited comment about whether to require funeral
providers to disclose on their GPLs information about all crematory-
related fees, including third party fees, and other costs, such as fees
for death certificates and local permits. The Rule currently requires
funeral providers to list the prices for 16 items (if offered),
including the prices for the direct cremation services offered, with
separate prices for direct cremation with or without an alternative
container, and a description of the services and container included in
each price.\100\ A funeral provider may include the use of its
crematory or a third party's crematory in its GPL's description of the
services and costs for direct cremation services. Funeral providers who
do not operate their own crematories and have not included the
cremation fees in the price for direct cremation on the GPL must list
the fees charged by an outside crematory, or a good-faith estimate of
those fees, along with additional crematory-related fees as ``cash
advance'' services in the statement of goods and services
selected.\101\
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\100\ 16 CFR 453.2(b)(4).
\101\ Complying with the Funeral Rule, FTC Business Compliance
Guide available at <a href="https://www.ftc.gov/system/files/documents/plain-language/565a-complying-with-funeral-rule_2020_march_508.pdf">https://www.ftc.gov/system/files/documents/plain-language/565a-complying-with-funeral-rule_2020_march_508.pdf</a>.
---------------------------------------------------------------------------

1. Summary of Comments
Several commenters asked that the Rule be changed to require
funeral providers to disclose all crematory fees on the GPL, including
third party crematory fees, as well as any additional crematory-related
fees such as crematory transportation fees.\102\ These commenters
argued it is deceptive not to include these additional fees on the GPL
when listing the price for cremation services.\103\ They asserted a
reasonable consumer would expect a fee for ``cremation services''
reflects the full cost of the cremation, even if it is performed by a
third party crematory,\104\ and may not learn until it is time to pay
the bill they also have to pay additional third party crematory
fees.\105\
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\102\ CFA RR at 10-11; LRCPA RR at 1; FCA VABR RR at 1, 3; FCA
GKC RR at 1; FCA PA RR at 1; FCA GR RR at 1; FCA SC RR at 1; FCA RR
at 9-10; CR RR at 3; FCA AZ RR at 3-4; FCA MN RR at 1; FCA CT RR at
2; TINA RR at 3-4; Paige Hetherington, GraceFull Dying RR at 1; MBS
RR at 1; C. Tregillus RR at 9-10; Imperial Caskets RR at 1; Charter
Funerals RR at 1; Diversity Collaborative RR at 1; Borderland RR at
2; SIFH RR at 12; AARP RR at 3; M. Klein RR at 6-7. Some commenters
complained that funeral providers do not always disclose all of
their own fees or third party fees on the GPL. See, e.g., AG RR at 4
(noting that some funeral providers list a fee for the death
certificate in the GPL, but others do not, and ``it can be upsetting
for consumers to be asked to pay additional amounts they are not
aware of''); FCA CT at 2 (stating that some funeral homes omitted
required items and idiosyncratic fees from the GPL, including the
price of the container, the mandatory Medical Transportation Fee,
and unlisted transportation fees).
\103\ FCA of VABR RR at 3; CMS RR at 1; FCA RR at 9-10; SIFH RR
at 12.
\104\ FCA PA RR at 1 (``No normal person would ever think that
the advertised price of a cremation does not include the actual
crematory fee(s)...''); FCA RR at 9-10.
\105\ FCA RR at 9-10.
---------------------------------------------------------------------------

According to these commenters, while most funeral homes appear to
voluntarily disclose all third party crematory fees on their GPL, a
substantial minority do not.\106\ For example, a 2016 survey by the FCA
and CFA of 142 representative funeral homes nationwide found 22 percent
did not disclose third party crematory fees on the GPL.\107\ Consumer
Checkbook found 40 percent of ``funeral homes don't disclose crematory
fees on their GPLs, or even note that such a fee might exist.'' \108\
Commenters reported third party crematory fees can range from $250 to
$600.\109\
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\106\ CFA RR at 10-11; see also SIFH RR at 12 (Many online only
providers ``advertise a very low price for a ``direct cremation,''
but then charge the consumer a number of add-on fees that
substantially raise the actual price of the service''); FCA CT RR at
2 (2019 survey found that some funeral homes and many cremation
providers which touted ``inexpensive cremation'' failed to include
the price of the container, the required Medical Examiner's charge,
or an unlisted transportation fee to the ME's or the crematory to
pack up the ashes); FCA WMA RR at 1 (reporting that consumers are
surprised to discover that the GPL cremation fee does not include
the actual cremation or the required $200 medical examiner fee).
\107\ FCA RR at 9-10, citing Joshua Slocum, Stephen Brobeck,
``Cremation Services: Highly Variable and Misleading Pricing, Lack
of Disclosure, and Violation of Federal Rules,'' Funeral Consumers
Alliance and Consumer Federation of America (September 2016), at 3,
<a href="https://funerals.org/wp-content/uploads/2020/02/2016-9-12-FCA-CFA-Cremation-Report.pdf">https://funerals.org/wp-content/uploads/2020/02/2016-9-12-FCA-CFA-Cremation-Report.pdf</a>; see also CFA RR at 10-11.
\108\ CC RR at 4.
\109\ TINA RR at 3-4 citing Joshua Slocum, Stephen Brobeck,
``Cremation Services: Highly Variable and Misleading Pricing, Lack
of Disclosure, and Violation of Federal Rules,'' Funeral Consumers
Alliance and Consumer Federation of America (September 2016), at 3,
<a href="https://funerals.org/wp-content/uploads/2020/02/2016-9-12-FCA-CFA-Cremation-Report.pdf">https://funerals.org/wp-content/uploads/2020/02/2016-9-12-FCA-CFA-Cremation-Report.pdf</a>. See also CFA RR at 10-11; FCA RR at 9-10.
---------------------------------------------------------------------------

Several commenters said requiring third party crematory fees to be
included on the GPL would ``help[] ensure that consumers have accurate
pricing information,'' and ``create a fairer `playing field' for all
funeral homes.'' \110\ Some asked that the Rule be amended to mandate
the full disclosure of all crematory fees.\111\ Others felt funeral
homes who use a variety of third parties should only have to disclose a
price range,\112\ and some suggested a disclaimer that a crematory fee
is not included is one option to avoid harm to consumers.\113\
---------------------------------------------------------------------------

\110\ CFA RR at 10-11 (stating ``those that do not disclose have
an unfair advantage over those that do'').
\111\ CR RR at 3 (``The price list should be required to include
any products and services to be obtained from third parties and
treated as `cash advance' items by the funeral home. It should
include crematory fees, and other fees and charges of whatever kind
that the consumer would pay to the funeral home. . .''); FCA GKC RR
at 1; AARP RR at 3; SIFH RR at 12; C. Tregillus RR at 10.
\112\ TINA RR at 3-4; FCA RR at 10. But see C. Tregillus RR at
9-10 (a price range would not be helpful as it would create
unnecessary confusion for consumers).
\113\ FCA PA RR at 1. See also FCA VABR RR at 3 (the Rule could
either require the third party crematory to be included on the GPL
or it could require a disclaimer identifying the crematory provider
who will be charging an additional fee). But see FCA AZ RR at 3-4
(providing real-life examples of disclosures that would not be
helpful; such as price lists that contained ``low-ball pricing''
that is not reflective of what consumers will have to pay, that
included only a ``fine print'' disclosure that crematory or medical
examiner fees are not included in that pricing). Consumer Reports
asked that the GPL ``include any products and services to be
obtained from third parties and treated as `cash advance' items by
the funeral home. . ., [including] fees and charges of whatever kind
that the consumer would pay to the funeral home.'' CR RR at 3; see
also FCA VABR RR at 3 (the newspaper obituary fee should be listed
in the GPL).
---------------------------------------------------------------------------

Some commenters were opposed to amending the GPL requirement to
require the disclosure of third party crematory fees on the GPL.\114\
Some contended that over 70% of funeral providers use a third party
crematory to perform their cremations,\115\ and these funeral providers
have no control over the amount charged by third party
crematories.\116\ Some commenters reported many funeral providers work
with multiple crematories that charge different fees,\117\ and it would
be unduly burdensome to require providers to constantly monitor all of
these fees charged by separate businesses, and then update and re-print
the GPL each time the third party fees changes.\118\
---------------------------------------------------------------------------

\114\ NFDA RR at 60-61; NJSFDA RR at 5; NYSFDA RR at 4-5.
\115\ NFDA RR at 60 (``According to the 2019 NFDA Member General
Price List Study, over 70% of funeral homes use a third-party
crematory to perform their cremations.'').
\116\ Id.; NJSFDA RR at 5; NYSFDA RR at 4-5.
\117\ NFDA RR at 60.
\118\ NJSFDA RR at 5; NYSFDA RR at 4-5.
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2. Objectives and Alternatives
The Commission is considering whether to amend the Rule to provide
better disclosure for consumers about

[[Page 66105]]

third-party crematory-related fees, as well as other costs not required
to be listed on the GPL. The Commission seeks comment on a whether
funeral providers should be required to list any applicable third-party
crematory fees on the GPL in close proximity to the description and
price for direct cremation. Another approach would be to require a
funeral provider that does not include the cost of the third-party
crematory fees in the price for direct cremation to include a statement
on the GPL that the cremation fee does not include third party
crematory fees, along with a typical price range for these fees. Such a
statement would need to be placed in close proximity to the price for
cremation.
In addition to third-party crematory fees, the Commission wishes to
explore whether the Rule should be clarified to state when other fees,
not included in the price of the services, should be disclosed on the
GPL.\119\ For example, these other fees may include separate charges
for the weight of the deceased, removal of a medical device, storing
remains, expedited cremation or burial, death certificates, county
permits, medical examiner permits, and supplies and procedures related
to infectious disease control. The Commission seeks comment on whether
these or other costs related to direct cremations or immediate burials
not included in the price of those services should be added to the
items required to be disclosed on the GPL, and whether such items
should appear in close proximity to the price for direct cremations and
immediate burials. Another approach to address concerns about other
costs not currently required to be listed on the GPL would require a
funeral provider to include on the GPL a statement in close proximity
to the price for direct cremation that lists the additional fees the
funeral home knows consumers may have to pay, along with a typical
price range for those fees. Alternatively, funeral providers could be
required to include a statement in close proximity to the prices for
direct cremation and immediate burial simply stating additional fees
may apply.
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\119\ Some staff advisory opinions address this issue. See
Funeral Rule Advisory Opinion 11-1 (2011), available at <a href="https://www.ftc.gov/legal-library/browse/advisory-opinions/opinion-11-1">https://www.ftc.gov/legal-library/browse/advisory-opinions/opinion-11-1</a> and
Advisory Opinion 13-1 (2013), available at <a href="https://www.ftc.gov/legal-library/browse/advisory-opinions/opinion-13-1">https://www.ftc.gov/legal-library/browse/advisory-opinions/opinion-13-1</a>; and Advisory
Opinion 16-2, available at <a href="https://www.ftc.gov/legal-library/browse/advisory-opinions/opinion-16-2">https://www.ftc.gov/legal-library/browse/advisory-opinions/opinion-16-2</a>. The Commission believes additional
clarity on this issue will provide benefits to industry and
consumers.
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C. Reduced Basic Services Fee

The Rule currently allows funeral providers to charge only one non-
declinable fee, for the ``services of the funeral director and staff''
(or ``the basic services fee'').\120\ This fee ``grew out of the Rule's
unbundling provisions, which required funeral providers to itemize
prices. These unbundling requirements meant funeral providers could no
longer sweep into the price of a funeral package their fee for the
basic services they perform in connection with planning a funeral.''
\121\ In recognition that ``irrespective of the combination of goods or
services [a consumer selects], the very process of selection itself
will involve use of the funeral provider's services,'' the Commission
permitted funeral providers to charge a basic services fee.\122\ The
Commission intended, however, that this fee should include only the
charges for a funeral provider's basic services associated with
arranging and planning a funeral (and a portion of overhead, if the
provider chooses to include it), and not the services associated with
providing the other 16 declinable items for which itemization is
required on the GPL.\123\
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\120\ The basic services fee is defined as ``[t]he basic
services, not to be included in prices of other categories in Sec.
453.2(b)(4), that are furnished by a funeral provider in arranging
any funeral, such as conducting the arrangements conference,
planning the funeral, obtaining necessary permits, and placing
obituary notices.'' 16 CFR 453.1(p).
\121\ 73 FR 13740, 13746 (Mar. 14, 2008).
\122\ Id.
\123\ Id.; see also 1994 Statement of Basis and Purpose, 59 FR
1592, 1607-1609.
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In the 2008 Rule Review, divided commenters asked the Commission to
consider eliminating the fee entirely or reformulating it. The
Commission declined to do so, stating as follows:

The purpose of the Rule is not to regulate prices. . . .
Regardless of the particular funeral arrangements a consumer seeks,
there are a number of fixed costs related to funeral arrangements
for which funeral providers are entitled to seek payment when their
services and facilities are used. Prior to the adoption of the Rule,
all costs were bundled into one package, none of which consumers
could decline. By allowing a basic services fee, the Rule ensures
that consumers get the benefit of choosing goods and services among
a variety of options--including the option to purchase goods from
the funeral provider's competitors--and paying for common costs only
once.\124\
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\124\ 73 FR 13740, 13747 (Mar. 14, 2008).

The current Rule Review solicited comment on whether to change the
Rule's requirement that funeral providers can charge only one basic
services fee in most instances, and whether two of the exceptions to
the basic services fee provision should be amended to permit some
common limited additional services without the funeral provider having
to charge its full basic services fee.
1. Summary of Comments
Commenters again were divided on whether the Commission should
eliminate or reformulate the basic services fee or maintain the status
quo.
Some favored eliminating the fee.\125\ They said the basic services
fee, which has no cap and is charged by almost all funeral homes,
confuses consumers.\126\ Moreover, to these commenters, the basic
services fee can be exorbitant.\127\
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\125\ CFA RR at 11; FCA WMA RR at 2; FCA RR at 11-12; CR RR at
4; M. Bern-Klug RR at 2-3; M. Klein RR at 8. The NJFSDA and another
commenter recommended the Commission remove from the Rule the option
to incorporate the basic service fee into the price of caskets.
NJSFDA RR at 5-6 (noting that ``consumer trends'' are ``moving away
from disposition options that require the use of caskets''); see
also C. Tregillus RR at 4 (16 CFR 453.2(iii)(C)(2) should be deleted
as no longer needed, unless ``there is opposition from the funeral
industry based on evidence that there are still funeral providers
that inflate their casket prices to cover their unallocated overhead
costs and provide a profit (rather than charging a non-declinable
basic services fee'').
\126\ FCA RR at 11-12; M. Bern-Klug RR at 2-3.
\127\ FCA RR at 11; CFA RR at 11. ``According to 2017 data
released by the NFDA, the median basic services fee was $2,100,
which is close to the price of a casket.'' CFA RR at 11. See also M.
Bern-Klug RR at 2 (University of Iowa collected 48 GPLs in 2016; the
basic services ranged from $245-$3,750).
---------------------------------------------------------------------------

The House Committee of Energy and Commerce said if the Commission
determines a non-declinable basic services fee is necessary, then
consumers should be made aware of what they are being charged for, by
requiring funeral providers ``to provide detailed descriptions'' of the
fee, including the total amount and what services are covered by
it.\128\ It also asked the Commission to cap the basic services
fees.\129\
---------------------------------------------------------------------------

\128\ House Committee RR at 2 (``[If] they are charged a fee,
consumers should know what they are paying for.'')
\129\ Id.
---------------------------------------------------------------------------

Several industry groups and State Attorneys General argued funeral
providers should be permitted to charge a variable fee, based on the
service provided,\130\ or a reduced service fee for consumers
requesting a limited viewing or visitation.\131\ To these commenters,
the funeral landscape has changed where, funeral providers ``offer a
wide variety of different service levels--memorial services,
visitations, private viewings, full catered events, and more,'' and
charging one basic services fee for all of these services penalizes
cash-strapped consumers and asks them

[[Page 66106]]

to subsidize the overhead involved in a ``full-service, traditional
funeral with all the bells and whistles.'' \132\ Allowing a variable
fee or reduced basic services fee also ``would help increase consumer
choice, provide transparency, and allow for cost-savings,'' \133\ and
``allow lower costs for simpler services, free funeral homes to offer
innovative options and more choice for consumers, and maintain the
basic price structure the FTC designed when it developed the Funeral
Rule.'' \134\ Another industry group, however, argued a variable basic
services fee has a ``potential for abuse practices'' as it ``creates an
opportunity for funeral providers to manipulate the content of a
`minimum service' in such a way that could induce purchasers to utilize
their firm (because of the published low price) and then lead
purchasers into making other added purchases not included in the
`minimum service.'' \135\
---------------------------------------------------------------------------

\130\ NFDA RR at 66-70.
\131\ AG RR at 5.
\132\ SIFH RR at 12-13. See also IFDA RR at 4 (noting that
68.75% of Indiana funeral providers ``were in favor of a partial
non-declinable fee as alternative forms of services and dispositions
become available . . . [T]he overall general feeling is the consumer
will be paying for services more representative of what they receive
professionally rather than a `catch all' fee which is what the non-
declinable has become over time'').
\133\ AG RR at 5.
\134\ Id. at 5. The NFDA argues that if ``the Funeral Rule is
modified to allow a variable basic services fee, the mandatory
disclosure in Section 453.2(b)(4)(iii)(C)(1) should be revised.''
NFDA RR at 71. NFDA's suggested language is as follows: ``A fee for
our basic services will be added to the total cost of the funeral
arrangements you select. (This basic services fee is already
included in our charges for direct cremations, immediate burials,
and forwarding or receiving of remains).'' Id.
One commenter thought a ``separate cost of a family viewing
should be allowed without triggering a basic services charge.'' See
Givens Estate RR at 1. Another argued that the FTC should not
``expand the definition of direct cremation and immediate burial to
allow the addition of other services without charging the full basic
services fee,'' because providers ``are really seeking relief from a
very real marketplace constraint on how high their regular basic
services fees can be without making their prices uncompetitive.
Consumers faced with a full basic services fee increase of a
thousand dollars or more just for adding a memorial service to a
direct cremation are likely to take their business to a provider
with a lower basic services fee, or find another location or
provider for a separate memorial service.'' C. Tregillus RR at 12.
\135\ NJSFDA RR at 3.
---------------------------------------------------------------------------

Finally, one consumer advocacy group and one individual asked the
Commission to preserve the status quo.\136\ The consumer advocacy group
asserted funeral providers provide a ``true service'', and the basic
services fee ``support[s] the continued health of these businesses.''
\137\ The fee ``assures the consumer that there are specific
expectations for minimal costs and insures the funeral home that their
service can be adequately compensated.'' \138\ The individual argued
banning the fee ``is likely to have unintended and undesirable
consequences. Not the least of these would be a return to embedding
basic services fee costs in the prices of caskets, and now, the prices
of urns, leading to greater resistance by providers to accepting lower-
cost third-party caskets and urns, and thereby creating new enforcement
challenges for the FTC.'' \139\
---------------------------------------------------------------------------

\136\ FCA VABR RR at 4; C. Tregillus RR at 11. The NFDA also
argued against eliminating the basic services fee: ``From a
practical standpoint, `it is virtually impossible to eliminate the
non-declinable nature of the basic service fee' ''--as all consumers
are using the services of the funeral director and staff. NFDA RR at
66-70.
\137\ FCA VABR RR at 4.
\138\ Id. at 1.
\139\ C. Tregillus RR at 11.
---------------------------------------------------------------------------

2. Objectives and Alternatives
The Commission does not believe the basic services fee should be
eliminated, for the reasons set forth in the 2008 Regulatory Review
Notice. The Commission, however, is interested in exploring whether
consumers and businesses could benefit from a limited expansion of two
of the basic services fee provisions--direct cremation and immediate
burial. Commission staff has opined the Rule currently permits funeral
providers to charge a lower basic services fee for these two types of
services, as well as for forwarding and receiving remains, if they wish
because of the limited use of the funeral provider's facilities and
staff time generally associated with those services.\140\ The
definitions for both direct cremation and immediate burial exclude
situations when a customer also wants a formal viewing or a visitation,
even if it is a limited viewing or visitation.\141\ If a customer wants
to add a brief visitation to a direct cremation, the funeral provider
must charge its full basic services fee. Thus, clarifying in the Rule
concerning when a reduced basic services fee may be charged may provide
benefits for providers and customers. While not a ``variable basic
services fee,'' this approach would effectually give consumers a few
more options in the reduced fee structure.
---------------------------------------------------------------------------

\140\ See, e.g., Funeral Rule Advisory Opinion 09-6 (2009),
available at <a href="https://www.ftc.gov/sites/default/files/documents/advisory_opinions/opinion-09-6/opinion09-6.pdf">https://www.ftc.gov/sites/default/files/documents/advisory_opinions/opinion-09-6/opinion09-6.pdf</a>. The Commission
intends to make this position unambiguously clear in this rulemaking
\141\ 16 CFR 453.1 (g) (defining a ``direct cremation'' as a
``disposition of human remains by cremation, without formal viewing,
visitation, or ceremony with the body present''); 16 CFR 453.1(k)
(defining ``immediate burial'' as a disposition of human remains by
burial, without formal viewing, visitation, or ceremony with the
body present, except for a graveside service'').
---------------------------------------------------------------------------

Therefore, the Commission is considering clarifying in the Rule
that funeral providers may charge a lower basic services fee for
forwarding and receiving remains, immediate burial, and direct
cremation, if they wish, because of the limited use of the funeral
provider's facilities and staff time generally associated with those
services. In addition, the Commission is considering modifying the
definition of direct cremation and immediate burial to allow those
offerings to include limited viewings or visitations or other
additional services, and seeks comments on whether this modification
should be made and, if so, how. Funeral providers who wish to could
offer these additional services as options, listing the add-on costs
for the additional services on the GPL, along with the basic services
fee charge due if the limited visitation option is selected. Thus, for
example, a funeral provider would list on its GPL the price it charges
for direct cremation, describing the services included and giving the
price with and without a cremation container, as well as the additional
cost if a purchaser wanted to add a limited visitation or viewing at
its facility, describing the limits for that visitation, such as the
amount of time or number of guests, and the associated basic services
fee. The Commission seeks comment on how this change would impact both
consumers and businesses, and how to clearly disclose the additional
options for these two reduced basic services on the GPL.

D. New Forms of Disposition

The Review elicited some comments about methods of human
disposition that have changed since the Rule was enacted. The Rule
currently defines ``cremation'' as ``a heating process which
incinerates human remains,'' \142\ but does not mention whether newer
techniques for disposition of human remains, such as alkaline
hydrolysis and natural organic reduction,\143\ are included in this
definition. Such services do not fit within the definition of direct
cremation or immediate burial but are still subject to the Rule. The
Commission is considering modifications to clarify application of the
Rule for providers of new forms of

[[Page 66107]]

disposition and consumers considering these options.
---------------------------------------------------------------------------

\142\ 16 CFR 453.1(e).
\143\ Natural organic reduction is a new type of disposition
that became legal in the State of Washington as of May 1, 2020, and
was scheduled to be offered to funeral providers as soon as March
2021. This process differs from green burial interments because it
transforms the deceased into soil in 4-6 weeks. See H.B. 2574--
Natural Organic Reduction--Q&A, <a href="https://www.oregonlegislature.gov/marsh/Documents/HB2574_Natural_Organic_Reduction.pdf?ID=43">https://www.oregonlegislature.gov/marsh/Documents/HB2574_Natural_Organic_Reduction.pdf?ID=43</a> (last
visited August 17, 2022).
---------------------------------------------------------------------------

Few commenters provided input on whether the Rule should be updated
to reflect new alternative methods of disposition. One commenter
suggested the Commission amend the Rule to add ``natural organic
reduction process'' and ``green burials'' as additional methods of
disposition, rather than incorporated under the umbrella definition of
``cremation.'' \144\ To the commenter, the natural organic reduction
process is different from cremation: for example, unlike with a
cremation, the use of alternative containers is not needed.\145\
Another commenter agreed natural organic reduction processes should not
be included in the definition of ``cremation'' in the Rule, but argued
that because these methods of disposition are not available in most of
the country, the Rule does not need to be altered to address them.\146\
---------------------------------------------------------------------------

\144\ Recompose RR at 2-4. One commenter suggested that the FTC
define ``green burial'' to ``make clear that the term applies not
only to provider arrangements for casketed burials in green cemetery
plots, but also to arrangements using mushroom burial suits,
biodegradable tree urns, and body pods in lieu of caskets.'' C.
Tregillus RR at 10-11. Another commenter asked that, if a funeral
provider offers green burials, what ``this includes and the
requirement for the burial board or container should be specifically
stated.'' S. Robinson RR at 1.
\145\ Recompose RR at 2-4.
\146\ NFDA RR at 64-65.
---------------------------------------------------------------------------

An alternative funeral provider commented to ask to be allowed to
charge ``a uniform price'' for disposition via natural organic
reduction, because ``it is neither practical nor either feasible for
[the provider] to itemize the individual services that will be
available for all decedents and next of kin as part of the [natural
organic reduction] process as piecemeal offerings, unlike the way this
may be done for the traditional disposition methods of direct burial
and cremation.'' \147\
---------------------------------------------------------------------------

\147\ Recompose RR at 1, 3.
---------------------------------------------------------------------------

The Commission is considering modifying the Rule to explicitly
include new methods of disposition, such as alkaline hydrolysis and
human natural organic reduction. The Rule could then clarify that such
providers could offer direct or immediate services with a reduced basic
services fee. The Commission is also considering updating the Rule to
adapt to new methods of disposition, for example the Rule requirements
to offer and provide disclosures about alternative containers for
direct services. The Commission wants to ensure the Rule does not
stifle innovation and believes the proposed changes help level the
playing field for providers of new alternative methods.

E. Embalming Disclosure

The Commission also elicited comments about whether to modify the
Rule's current disclosure related to whether embalming may be required.
The Rule currently requires funeral providers to include on the GPL a
disclosure that states ``[e]xcept in certain special cases, embalming
is not required by law. Embalming may be necessary, however, if you
select certain funeral arrangements, such as a funeral with viewing. If
you do not want embalming, you usually have the right to choose an
arrangement that does not require you to pay for it, such as direct
cremation or immediate burial.'' \148\
---------------------------------------------------------------------------

\148\ 16 CFR 453.3(a)(2)(ii).
---------------------------------------------------------------------------

1. Summary of Comments
Several commenters asked the Commission to clarify the embalming
disclosure, although they disagreed on how it should be clarified.\149\
No commenter asked the Commission to keep the current disclosure as is.
---------------------------------------------------------------------------

\149\ FCA RR at 12-13; CFA RR at 11; NFDA RR at 71-73; TINA RR
at 4; FCA WMA RR at 2; CR RR at 3; C. Tregillus RR at 13; AG RR at
5; UUFV RR at 2; Borderland RR at 2.
---------------------------------------------------------------------------

Several consumer advocates, government agencies, and one individual
asked the Commission to either eliminate the embalming disclosure
requirement or amend it to indicate ``that the requirement is only that
of the funeral home, not that of the state,'' to avoid consumer
confusion.\150\ They said no state requires that viewed bodies be
embalmed, although some ``require embalming only in situations where
refrigeration is not available or when burial/cremation cannot happen
with a `reasonable' or defined period of time.'' \151\ When consumers
``are told by a funeral home that they will not permit viewing without
embalming,'' \152\ consumers mistakenly assume this embalming is
mandated by law and the ``only way to avoid embalming is to choose
direct cremation or immediate burial.'' \153\ Modifying the disclosure
will also ``clarify persistent questions raised by the growing segment
of funeral providers who do not offer embalming at all'' due to their
religious traditions or because they only offer simple
arrangements.\154\
---------------------------------------------------------------------------

\150\ CFA RR at 11; see also FCA RR at 12; TINA RR at 4; FCA WMA
MA RR at 2; CR RR at 3; C. Tregillus RR at 13; AG RR at 5;
Borderland RR at 2. FCA also recommended that ``Funeral providers
should also be required to provide a numerical or statutory citation
if there are legal requirements in the provider's state that mandate
embalming in any circumstance.'' FCA RR at 12.
\151\ FCA RR at 13 (compiling statistics from Slocum and
Carlson, Final Rights: Reclaiming the American Way of Death. 2011
Upper Access Publishers); see also CFA RR at 11.
\152\ UUFV RR at 2 (``at least one funeral home in Visalia,
California have told potential purchasers that embalming and
purchasing a casket is `required' by their funeral home as a matter
of `our policy' rather than as a legal requirement. . .. The
salesman I talked to claimed it was a liability issue for them,
asserting that an un-embalmed body could theoretically make them
subject to lawsuits or embarrassment.'').
\153\ FCA RR at 12.
\154\ Id. at 12-13.
---------------------------------------------------------------------------

The NFDA agreed the embalming disclosure should be amended, but for
different reasons.\155\ It argued embalming may be required under state
law: ``37 of 50 states require that deceased human remains either be
embalmed or refrigerated within a certain time span following death''
and ``46% of funeral homes do not have refrigeration facilities.''
\156\ To the NFDA, the current disclaimer is misleading ``in that it
implies to the consumer that embalming is rarely required by law.''
\157\ The NFDA suggested the Rule be amended to plainly explain to
consumers embalming is not required in 13 states, and, in the other 37
states, embalming may be required. Funeral providers can then ``explain
the requirements of state law at the end of the mandatory disclosure.''
\158\
---------------------------------------------------------------------------

\155\ NFDA RR at 71-73. The NFDA also asked that the Rule be
modified to only require providers that offer embalming to use the
embalming mandatory disclosure. Id.
\156\ Id.
\157\ Id. at 71.
\158\ Id. The NFDA proposed that the Rule be amended to state
that ``except as may be noted below, embalming may not be required
by law'' and that ``The phrase `except as may be noted below' shall
not be included in this disclosure if state or local law in the
area(s) where the provider does business does not require embalming
under any circumstances. If state law does require embalming in some
circumstances, the funeral provider may explain the state law
requirements for embalming following this disclosure. This
disclosure only has to be placed on the general price list if the
funeral provider offers embalming.'' Id.
---------------------------------------------------------------------------

2. Objectives and Alternatives
The embalming disclosure is a preventative requirement enacted
because of deceptive acts or practices by funeral providers that
generated ``substantial consumer confusion about what the law requires
about embalming.'' \159\ The Commission is considering changing the
language of this disclosure and seeks comment on how the disclosure can
be improved to educate consumers accurately on the limited
circumstances when embalming may be required under the laws of some
states.
---------------------------------------------------------------------------

\159\ 47 FR 42260, 42275 (1982) (finding that ``most funeral
directors d[id] not disclose that embalming is optional'' to
consumers, and ``a significant number of funeral providers have
affirmatively misrepresented state laws regarding embalming'').
---------------------------------------------------------------------------

For example, one option the Commission wishes to explore is

[[Page 66108]]

modifying the language of the embalming disclosure to require the
funeral provider to state the relevant requirements in its
jurisdiction. Thus, if the provider operates in a state that never
requires embalming by law, the provider must state: ``Embalming is not
required by law in__(name of state)__.'' If the provider operates in a
state that requires embalming by law under certain circumstances, the
provider must state those circumstances: ``Embalming is required in
__(name of state)__when__(list the state's legal requirement).'' If the
provider operates in multiple states with different requirements for
embalming, the provider would list the requirements for each state in
which the provider operates. If the provider has its own policy of
requiring embalming for visitations, it could then state that on the
GPL as long as it is clear it is the establishment's policy.

F. Price List Readability

The Commission elicited comments about issues with the format and
readability of the itemized price lists. The Rule currently requires
the GPL to list the itemized prices for 16 specific goods and services,
if offered,\160\ as well as several mandatory disclosures and placement
requirements for those disclosures.\161\ Other than those requirements,
the Rule currently does not mandate a specific format for the GPL.
---------------------------------------------------------------------------

\160\ 16 CFR 453.2(b)(4).
\161\ See, e.g., 16 CFR 453.3(b)(2).
---------------------------------------------------------------------------

1. Summary of Comments
Several commenters urged the Commission to modify the Rule's
provisions regarding price lists.\162\ Many argued the price lists are
confusing to read,\163\ often ``lack important information on some
fees,'' \164\ and sometimes contain inconsistent description of fees,
such as the inclusion or exclusion of death certificate fees, which
makes it hard for consumers to compare prices.\165\ For example, one
commenter stated one GPL he reviewed contained four pages of direct
cremation options, and ``you practically need a Ph.D. to parse out the
differences and see what meets your specific needs.'' \166\ Similarly,
the DC Attorney General conducted a survey that found many
inconsistencies in how DC funeral providers disclosed prices on their
GPLs, including inconsistencies in how visitation and viewings prices
and death certificate fees were disclosed.\167\
---------------------------------------------------------------------------

\162\ AG RR at 4; FCA VABR RR at 1; CFA RR at 11; FCA RR at 14;
FCA WMA RR at 1; CA RR at 2; FCA SC RR at 1; FCA CT RR at 1; CR RR
at 3-4; TINA RR at 4; M. Turner, Full Cycle of Living and Dying RR
at 1; House Committee RR at 2; Borderland RR at 2; M. Bern-Klug RR
at 2-3; M. Klein RR at 5-6; NYSFDA RR at 4.
\163\ CC RR at 4; see also K. Griffith RR at 1.
\164\ CC RR at 4; see also AG RR at 4 (noting that a survey of
GPLs conducted by the DC Attorney General found that some funeral
providers do not list a separate charge for viewings or
visitations).
\165\ AG RR at 4; House Committee RR at 2; see also CC RR at 4
(``Another common problem is that our researchers must compare a la
carte pricing listed on GPLs with packages sold by many funeral
homes. It's usually quite complicated to determine whether our
hypothetical family would be `better off' buying a package.''); FCA
EMA RR at 1 (``As things stand now, price and service lists vary
considerably in how what is available is arranged and described.
This makes comparisons among funeral homes difficult at best, even
when consumers shop and plan in advance of need . . . '').
\166\ M. Klein RR at 5-6.
\167\ AG RR at 4.
---------------------------------------------------------------------------

Commenters also pointed out some funeral providers structure the
GPL to make it harder for consumers to notice the mandatory
disclosures, such as by putting them after information about packaged
funerals,\168\ listing ``itemized goods and services only after 5-10
pages of packages in . . . a clear attempt to distract the consumer,''
and using ``8-point type or similar font'' for the mandatory
disclosures, ``knowing that it will be overshadowed by the large type
and attractive lay-out with which they offer packages.'' \169\
---------------------------------------------------------------------------

\168\ TINA RR at 4; FCA RR at 14.
\169\ FCA RR at 14; see also R. Zeldin RR at 4 (``SCI DBA
Dignity Memorial provides overbearing price lists designed to
overwhelm and confuse the consumer and burying the itemized list at
the end. These price lists are known to be over 50 pages long so as
to include each and every possible package deal they could come up
with!'').
---------------------------------------------------------------------------

Several Attorney General offices encouraged the Commission to adopt
a standardized GPL format through consultation with funeral homes,
consumers, consumer advocates, and government agency representatives.
They stated a standardized format will inhibit funeral homes from
imposing illegal charges or otherwise violating the Funeral Rule,\170\
and benefit businesses, by providing certainty and lowering compliance
risks.\171\ Other commenters agreed and argued a standardized itemized
price list, if done ``with the appropriate level of clarity. . . .,
[will] significantly facilitate funeral home compliance,'' \172\
minimize consumer confusion,\173\ make it easier for consumers to
compare prices between funeral homes.\174\
---------------------------------------------------------------------------

\170\ AG RR at 4; FCA RR at 14; see also TINA RR at 4.
\171\ House Committee RR at 2; L. Northcutt RR at 3 (``If
funeral homes decide to post their disclosures online, it would be
helpful to consumers if that information was provided in a
standardized format. This requirement will impose limited burdens on
businesses who are choosing to move this information online and
greatly assist consumers who want to be able to compare services
online from their homes.''); AG RR at 4 (``A standard form could lay
out the specific disclosures, making it easier for funeral homes to
assess whether their lists satisfy regulatory requirements.
Standardization would therefore streamline both compliance and
enforcement.'').
\172\ NFDA RR at 4.
\173\ See, e.g., L. Bramble RR at 1 (``Mortgage lenders are
required to use a standardized HUD1 statement to make fees easier to
understand and compare; standardized terms and forms make it easy
for a person who is already overwhelmed to make a knowledgeable and
confident decision.'').
\174\ AG RR at 4; House Committee RR at 2; FCA SC RR at 1.
---------------------------------------------------------------------------

Commenters expressed diverse views about what a standardized
disclosure should look like. Ideas ranged from consulting with
advocates, plain language experts, and government agency
representatives to draft a standard disclosure,\175\ creating a
standard, machine-readable document, which would ``make the information
more easily available through the use of accessibility devices,'' \176\
and mandating that ``the list should begin with clear and prominent
introductory statements.'' \177\ Others commented the GPL should be
``organized in a consumer-friendly way'' \178\ or with a ``plain
English explanation of its contents,'' \179\ that the mandatory
disclosures should appear on the GPL before other goods, services, or
packages,\180\ the Rule should mandate that the GPL not contain any

[[Page 66109]]

information not expressly required or permitted by the Rule,\181\ and
the Commission should create a fill-in-the blank GPL, if feasible, that
summarizes all unbundled services and their prices and lists the Rule's
mandatory disclosures.\182\ One commenter also recommended ``the
inclusion of a `safe harbor' provision for funeral homes'' to
incentivize funeral home compliance.\183\
---------------------------------------------------------------------------

\175\ AG RR at 4-5; see also C. Tregillus RR at 13 (suggesting
copy testing of key disclosures). The AGs also encouraged the
Commission to include unconventional burial services in the GPL and
noted that ``[p]eriodic revisions will be necessary.'' AG RR at 4-5.
\176\ House Committee RR at 2.
\177\ CR RR at 3 (the GPL should begin with the following
statements: ``<bullet> that the consumer has the right to choose
among options and to choose individual products and services
separately, <bullet> that, unless specified otherwise, no product or
service is required by law, and <bullet> that any product or service
that is required by law will be accompanied with a specific
reference to the statute or ordinance that requires it, and a clear
and specific description of the circumstances under which it is
required'') (emphasis in original).
\178\ Id. at 3. Other ideas included (1) requiring the right-of
selection disclosure to be prominently displayed and the ``itemized
price lists to be listed in at least as conspicuous a manner as the
package deal,'' see TINA RR at 4; (2) the use of standard
definitions of services to enable cost comparisons, see FCA EMA RR
at 1; M. Bern-Klug RR at 2-3; C. McTighe RR at 1; (3) ``the addition
of a disclaimer as to what are extraneous services and which
services legally require the participation of a funeral home,'' see
FCAP RR at 1; and (4) that the GPL be amended to include whether the
facility offers body donation or eye/cornea donation, or green
burial, see Eye Bank Ass'n of Am. RR at 1; M. Bern-Klug RR at 4.
\179\ See, e.g., D. O'Brien RR at 1.
\180\ CFA RR at 11; FCA VABR RR at 2-3 (noting that
``regulations of the state of Virginia include a recommendation of a
sample GPL in which the Basic services fee listing is first, after
the required disclosure statement'').
\181\ C. Tregillus RR at 3-4 (``Such a prohibition would be
essential for a standardized format price list that could facilitate
comparison shopping for consumers, academic research and online
third-party pricing guides that could consequently be kept up-to-
date and accurate.'').
\182\ Id. at 9.
\183\ NYSFDA RR at 4.
---------------------------------------------------------------------------

Three commenters argued against a standardized GPL.\184\ The NFDA
argued ``a standardized price list is not needed [] to foster
comparison shopping or to increase consumer comprehension'' as ``the
only empirical evidence submitted on consumer understanding of price
lists shows a very high comprehension level.'' \185\ It further argued
that it would be ``impossible to design a standardized price list
without limiting funeral options and innovation''--given the many
different types of funeral homes in the country.\186\ Alternative
funeral provider Recompose argued ``the goods and services offered in
connection with all forms of disposition are not uniform such that [a
standardized price list] would be practical, particularly when it comes
to natural organic reduction.'' \187\ The New Jersey State Funeral
Directors Association argued a standardized GPL is ``an overly
prescriptive approach'' that leaves little room ``for adaption to
individual funeral practices and ever-changing consumer changes,
preference and trends.'' \188\ It also argued a standardized GPL would
create an undue hardship to funeral homes, because the ``minimum out of
pocket compliance cost for this change alone could cost NJ funeral
providers up to $364,000, not including labor, delivery and overhead.''
\189\
---------------------------------------------------------------------------

\184\ Recompose RR at 1-2; NJSFDA RR at 4-5; NFDA RR at 56-58.
\185\ NFDA RR at 57 (citing an AARP commissioned Gallup poll in
anticipation of the first review of the Funeral Rule which
``reported that 92% of funeral consumers surveyed `understood all of
the terms on the price list used to describe the funeral service'
'').
\186\ Id.
\187\ Recompose RR at 1-2.
\188\ NJSFDA RR at 4.
\189\ Id. (suggesting instead that ``standardization should be
pursued at the state level as most price comparisons are conducted
between providers located in the same state'').
---------------------------------------------------------------------------

2. Objectives and Alternatives
The Commission is interested in obtaining additional comment on how
the itemized price lists could be improved to maximize consumers'
access to accurate itemized price information in ways that minimize the
burden on funeral providers, particularly small providers.\190\ One
alternative under consideration would require all information that must
be included on the GPL--such as the required prices for 16 products and
services (if offered) and all mandatory disclosures -- to appear before
any non-required information, such as details about packages or
bundles, caterings, or cemeteries. Under another approach, the Rule
would specify ways to make sure the mandatory disclosures are clear
including requirements that they be in the same font, color, and size
as the rest of the content in the price lists. One other option under
consideration would require any price list posted online or conveyed
electronically be in machine-readable format so third parties could
collect and aggregate this information. Finally, even if the Commission
declines to mandate a standardized form, it could issue new templates
for the itemized price lists based on the input received on how to
improve readability and consumer comprehension, as an optional tool for
businesses to help them comply with the Rule.
---------------------------------------------------------------------------

\190\ The Commission believes that the broad variety of products
and services offered by funeral homes across the nation likely makes
a fully standardized price list unfeasible.
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G. Impact on People in Underserved Communities

The Commission is interested in receiving comment on the Rule's
effect on the purchase of funeral goods and services in historically
underserved communities.\191\ For example, do any of the Rule's
provisions create hardships or benefits for consumers in low-income
communities, those with limited or no English proficiency or from
recent immigrant communities, or those living in communities of color?
In another example, several programs exist that can help families of
veterans and low-income consumers cover funeral expenses. The
Commission is interested in knowing whether there are any particular
issues or concerns related to the disclosure of price information when
consumers make arrangements using such benefits to cover some or all
funeral costs.
---------------------------------------------------------------------------

\191\ Historically underserved communities include Black
Americans, Latinos, Indigenous/Native American persons, Asian
Americans/Pacific Islanders or other persons of color, members of
religious minorities, lesbian, gay, bisexual, transgender, and/or
queer persons, persons with disabilities, persons who live in rural
areas, and persons adversely affected by persistent poverty or
inequality.
---------------------------------------------------------------------------

H. Other Issues

The Rule Review elicited comments on a variety of other topics and
concerns related to funeral goods and services. The Commission
appreciates these comments and has carefully considered them, but is
not inclined to consider proposals beyond those laid out in the prior
sections. Nevertheless, the Commission will briefly respond to three
additional topics discussed in the Rule Review comments.
1. Cemeteries
Many commenters, including consumer advocates, industry groups, and
consumers, asked the FTC to expand the Rule to cover cemeteries.\192\
These commenters argued the factors that disadvantage consumers when
dealing with funeral providers are also present during consumers'
interactions with cemeteries,\193\ and some cemetery operators are not
transparent about their fees,\194\ refuse to disclose prices on paper
to consumers or researchers,\195\ misrepresent legal and sales
requirements,\196\ and only offer bundled services.\197\ Some
commenters said

[[Page 66110]]

consumers are disadvantaged in their negotiations with cemeteries,
``because deceased family members are already buried there,'' which
adds additional emotional hurdles.\198\ Further, more than half of all
funerals involve cemeteries,\199\ and cemetery services are
expensive.\200\ Amending the rule would allow consumers to compare
prices ``across the entire funeral service landscape,'' \201\ protect
consumers from deception and manipulation,\202\ and provide ``a needed
and long overdue level of fairness and marketplace equity to funeral
firms, which are subject to the Rule's provisions all while these other
sellers are not.'' \203\ Some of these commenters recognized the FTC
may have jurisdictional challenges regulating not-for-profit
cemeteries, but they argued Commission action would still be
beneficial.\204\
---------------------------------------------------------------------------

\192\ NFDA RR at 76-77; LRCPA RR at 1; FCA VABR RR at 1; FCA GKC
RR at 1; FCA WMA RR at 2; FCA GR RR at 1-2; FCA ME RR at 1; FCA SC
RR at 1; PMA RR at 1; FCA CTX RR at 1; CR RR at 4; FCA AZ RR at 4;
FCA MN RR at 1; DC RR at 1; House Committee RR at 2; Charter
Funerals RR at 1; UUFV RR at 2; Borderland RR at 2; SIFH RR at 11 n.
15; C. Reid RR at 4-7; M. Klein RR at 10; IN FDA RR at 3 (87% of its
144 licensed respondents ``believed that including cemeteries in The
Rule application was a logical progression in The Rule evolution'').
See also FCA RR at 16-20 (asking the Commission to conduct an
investigation into whether cemeteries should be regulated); J.
Blackman RR at 13-14 (same). The New York Funeral Directors
Association asked that the Rule's applicability be extended to all
sellers of funeral goods or services, including cemeteries. NYSFDA
RR at 2.
\193\ FCA RR at 18-20.
\194\ FCA ME RR at 1 (Prices are not available online for
cemeteries); UUFV RR at 2 (same). Other complaints included
difficulties transferring cemetery rights to other buyers, see
Funeral Consumer Alliance of Houston RR at 1, and complaints
concerning burying family members in the same mausoleum. See FCA GR
RR at 2 (noting that ``to tell a family member who just interred one
parent in a mausoleum, the other parent would not be able to be
placed in the same vault days after the internment is unconscionable
and heartless'').
\195\ FCA RR at 18.
\196\ Id. at 19; NFDA RR at 76-77 (1999 NFDA Membership survey
found that ``over 30% of the cemeteries imposed a fee whenever a
consumer had chosen to purchase goods or services from a third-
party'').
\197\ NFDA RR at 76-77 (1999 NFDA comments reported results of
NFDA survey, composed of 3,436 response, found that ``49.6% of the
funeral homes reported that cemeteries in their areas required
consumers to purchase goods and services only from the cemetery'');
FCA RR at 18-20; E. Livshits RR at 1.
\198\ FCA RR at 17.
\199\ Id. (``Though cremation recently passed the 50 percent
mark, about 49 percent of households experiencing a death have to do
business with a cemetery each year.'') (emphasis in original).
\200\ Id. (``Cemetery fees commonly add $2,000 to $3,000 to the
final bill for the death of a loved one.'').
\201\ NYSFDA RR at 2-3.
\202\ PMA RR at 1-2.
\203\ NYSFDA RR at 1; see also SIFH RR at 11 n. 15. One
commenter also noted that ``[m]aking things more complicated is the
existence of businesses that constitute a corporate-owned mega-
portfolio of around 1,500 funeral homes and several hundred
cemeteries. This means that funeral homes may have arrangements with
certain cemeteries that enable businesses to include costs related
to the cemetery as a package, enabling funeral businesses to still
overcharge consumers by solely disclosing prices related to funeral
homes while surreptitiously increasing cemetery-related costs.
Moreover, with more and more families opting for cremation,
cemeteries will have greater incentives to make up for losses by
overpricing services and goods related to their services.'' H. Lee
RR at 4.
\204\ One said that ``[a] robust rule in this regard for all
cemeteries within its jurisdiction will aid the entire cemetery
industry, non-profit, as well as for-profit, to undertake `best
practices'.'' UUFV RR at 2; see also C. Tregillus RR at 14-15
(encouraged the Commission to hold a workshop to ``explore the
possibility of developing voluntary industry-wide price list
disclosure standards.'')
---------------------------------------------------------------------------

Two commenters, the International Cemetery, Crematory, and Funeral
Association (``ICCFA''), and Carriage Services, Inc. (``Carriage''),
opposed regulating cemeteries under the Rule.\205\ They pointed out a
large number of cemeteries are non-profits, which fall outside the
scope of the Commission's jurisdiction,\206\ and nothing has changed in
the cemetery industry since the Commission decided in 2008 to not
regulate cemeteries under the Rule.\207\ ICCFA argued the data shows
relatively few consumer complaints about cemetery issues,\208\ and
``more and more states have developed their own internal process to
report, review and also resolve cemetery issues.'' \209\ Carriage also
argued because cemeteries and funeral homes operate differently, it is
not practical or necessary to expand the Rule to cemeteries.\210\
---------------------------------------------------------------------------

\205\ ICCFA RR at 26-29; Carriage RR at 3-4.
\206\ ICCFA RR at 27-28 (pointing out that there are over 9,000
reported 501(c)(3) cemeteries, as well as additional exempt
religious or charitable cemeteries and that ``some states still
prohibit for-profit cemeteries, including Connecticut,
Massachusetts, Maine, New Jersey and New York'' (citing Conn. Gen.
Stat. Sec. 19a-296 (1959); Mass. Ann. Laws ch. 114, Sec. 1A
(2008); Me. Rev. Stat. Tit. 13, Sec. 1303 (1937); New Jersey
Cemetery Act, 2002, 2002 Bill Text NJ A.B. 3048 (2002); N.Y. Not-
for-Profit Corp. Law Sec. 1501 (1977)); Carriage RR at 4.
\207\ ICCFA at 26.
\208\ Id. (noting that the ``FTC Sentinel Report identified only
1,105 complaints in funeral service out of 3,200,000'' and that
ICCFA's Cemetery Consumer Service Council only received 104
complaints in 2009, which led to the disbandment of the Council).
\209\ Id.; see also Carriage RR at 3-4.
\210\ Carriage RR at 4.
---------------------------------------------------------------------------

In the 2008 Regulatory Review, the Commission declined to embark on
a proceeding to expand the Rule to cover cemeteries because ``the
substantial portion of cemeteries that are not-for-profit entities
[are] outside the jurisdiction of the FTC Act, and there is
insufficient evidence that commercial cemeteries, crematories, and
third-party sellers of funeral goods are engaged in widespread unfair
or deceptive acts or practices.'' \211\
---------------------------------------------------------------------------

\211\ 73 FR 13740, 13742-45 (Mar. 14, 2008).
---------------------------------------------------------------------------

The Commission's position on this issue remains the same. No
evidence of changed circumstances has been submitted that would warrant
a fresh look at this issue. The Commission encourages companies or
individuals with knowledge of unfair or deceptive practices by
cemeteries to submit a complaint with the Commission at
<a href="http://reportfraud.ftc.gov">reportfraud.ftc.gov</a>.
2. The State Exemption
Some commenters urged the Commission to ``re-open'' the state
exemption provision contained in Rule Section 453.9.\212\ Rule Section
453.9 allows a state agency to apply to the FTC for a state exemption
from the Funeral Rule.\213\ If the Commission determines (1) ``there is
a state requirement in effect which applies to any transaction to which
this rule applies; and (2) that state requirement affords an overall
level of protection to consumers which is as great as, or greater than,
the protection afforded by this rule; then the Commission's rule will
not be in effect in that state to the extent specified by the
Commission in its determination, for as long as the State administers
and enforces effectively the state requirement.'' \214\
---------------------------------------------------------------------------

\212\ NFDA RR at 41-42; ICCFA RR at 12-18; IFDA RR at 4; State
FDAs RR at 1.
\213\ 16 CFR 453.9.
\214\ Id.
---------------------------------------------------------------------------

The Commission does not believe any amendments to Rule Section
453.9 are necessary. 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.
3. The Funeral Rule Offender Program
Several commenters asked the FTC to either publish the names of all
the funeral homes participating in the Funeral Rule Offender Program
(FROP) \215\ or drop the program entirely.\216\ The ``FROP allows
funeral homes that have been found to be in violation of the Funeral
Rule to attend educational courses offered by the NFDA instead of being
subject to regulatory action.'' \217\ Critics of the FROP stated it
``is unbalanced and unfair because it has little or no transparency for
consumer complaints'' and ``consumers cannot really see who did what,
and see the consequence.'' \218\ They also claim no evidence shows the
FROP has improved compliance.\219\ ``In comparison, if the FTC
published the names of violators, that would significantly increase the
cost of a violation and likely persuade a much higher percentage of
funeral homes to give compliance a much higher priority.'' \220\
---------------------------------------------------------------------------

\215\ CFA RR at 11-12; FCA WMA RR at 2; Funeral Consumers
Alliance of North Texas (``FCA NTX'')--J. Bates RR at 1; FCA RR at
14-16; CR RR at 4; TINA RR at 4.
\216\ FCA RR at 14-16.
\217\ Id. at 14.
\218\ FCA NTX--J. Bates RR at 1.
\219\ Id.
\220\ CFA RR at 11-12. Some commenters noted that the fees paid
to the FROP could provide a revenue stream that could be used for
enforcement. FCA RR at 15. However, any civil penalty funds
collected from FTC actions do not go into the FTC's budget. Such
funds go to the U.S. Treasury.
---------------------------------------------------------------------------

Others supported keeping the FROP.\221\ These commenters said the
FTC should have ``an interest in encouraging voluntary compliance by
offering compliance training to first offenders whose Rule violations
may have resulted from inadequate training or inattention.'' \222\ They
argued most participants in the FROP program ``did not intentionally
violate the Funeral Rule. In nearly every case, it was simply a case of
employee carelessness or confusion.'' \223\ And, commenters

[[Page 66111]]

contend, the program works: ``Currently, there are 42 funeral homes in
the FROP Program. . . . Of the several hundreds of funeral homes that
have graduated from the Program over its 25 year history, NFDA has a
record of only three of them subsequently being cited by the FTC for
additional Funeral Rule violations.'' \224\ Further, ``[t]he program is
a valuable resource for funeral providers, because without it, many
smaller funeral providers could be put out of business with just one
violation.'' \225\
---------------------------------------------------------------------------

\221\ C. Tregillus RR at 14; ICCFA RR at 24-25; NFDA RR at 74-
75.
\222\ C. Tregillus RR at 14; see also NFDA RR at 74-75 (``the
point of the Program was education, not punishment'').
\223\ NFDA RR at 74-75.
\224\ Id.
\225\ ICCRFA RR at 24-25.
---------------------------------------------------------------------------

The Commission agreed to establish the FROP in 1996. The program
has served the purpose of bringing into compliance with the Rule,
through a compliance review and training, those funeral providers found
in violation of the price disclosure provisions. Funeral providers in
the program, many of whom are small businesses, make a voluntary
payment to the U.S. Treasury \226\ and pay a fee to the NFDA that
manages the program. These amounts are typically less than the maximum
Civil Penalty amounts (currently up to $46,517 per violation) set by
statute for violations of the Funeral Rule.\227\ At the same time, the
FROP allows the Commission to focus its limited resources on a broad
test shopping program that has checked the compliance of thousands of
providers through the years, and on business and consumer outreach and
education efforts.
---------------------------------------------------------------------------

\226\ As a condition of entering FROP, the funeral provider must
make a voluntary payment to the U.S. Treasury or a State Treasury in
an amount equal to 0.8% of the funeral provider's average gross
annual sales revenue for the proceeding three years.
\227\ Federal courts have broad discretion in setting this
penalty amount.
---------------------------------------------------------------------------

The Commission would like to thank all the commenters for their
thoughtful feedback about the FROP. While the program is not codified
in the Rule and therefore not officially a part of any proposed
rulemaking, this feedback will help the Commission weigh the pros and
cons of continuing the program, or potentially modifying it, as it re-
assesses its enforcement program.

IV. Issues for Comment

The Commission invites members of the public to comment on any
issues or concerns they believe are relevant to this ANPR. Commenters
need not re-submit any comments submitted in response to the regulatory
review issued February 14, 2020, as those comments are already part of
the public record, but may submit additional comment, data, and
information to provide input on the questions posed in this notice and
solicitation. The public is welcome to provide comment related to any
concerns they see in the marketplace and ideas for improving the Rule.
At this time, however, the Commission is not inclined to consider
issues beyond those it has requested comment on in the previous
sections.\228\
---------------------------------------------------------------------------

\228\ The Commission also encourages anyone with knowledge of
unfair or deceptive practices by a particular company, to file a
report at <a href="http://reportfraud.ftc.gov">reportfraud.ftc.gov</a>.
---------------------------------------------------------------------------

In addition to the issues raised above, the Commission solicits
comments on the following specific questions. For all questions, the
Commission requests supporting data, information, and argument. It is
particularly interested in evidence that quantifies the benefits and
costs to consumers and businesses, including small businesses.

Online and Electronic Price Disclosure

1. Should the Rule be changed to require (a) all funeral providers
(b) funeral providers that maintain websites or (c) funeral providers
who sell funeral products or services online, to prominently display
their GPLs, or a clearly labeled link to their GPLs, on their websites?
If so, how should such a change be implemented to maximize the benefits
to consumers and minimize the costs to businesses? Should the Rule
specify how the GPL or the link to the GPL should be prominently
displayed on the website? Why or why not, and, if so, how? Explain how
your proposal would benefit consumers and minimize the costs to
businesses, and provide all evidence that supports your answer,
including any evidence that quantifies the benefits to consumers, and
the costs to businesses, including small businesses.
2. Should the Rule require (a) all funeral providers, (b) funeral
providers that maintain a website, or (c) any funeral provider who
shows pictures and/or descriptions of caskets, alternative containers,
or outer burial containers on their website, to prominently display
their CPLs and/or OBCPLs, or a clearly-labeled link to these documents,
on their websites? If so, how should such a change be implemented to
maximize the benefits to consumers and minimize the costs to
businesses? Provide all evidence that supports your answer, including
any evidence that quantifies the benefits to consumers, and the costs
to businesses, including small businesses.
3. In the alternative or in addition to the proposed requirements
in Questions 1 & 2, should the Rule require all funeral providers that
maintain a website to display a prominent statement on their website
that the providers' GPLs, CPLs, and OBCPLs can be requested and to
include a link, button, email address, or other electronic mechanism
for people to use to request the GPL, CPL, and/or OBCPL? If so, should
the providers be required to respond to such requests within any
particular time? Why or why not? Provide all evidence that supports
your answer, including any evidence that quantifies the benefits to
consumers, and the costs to businesses, including small businesses.
4. Would a requirement that funeral providers send their GPLs, CPLs
and/or OBCPLs to consumers via electronic means and format present any
challenges or costs for compliance or present any benefits to
consumers? If so, how could such challenges or costs be minimized while
still providing benefits to consumers? Provide all evidence that
supports your answer, including any evidence that quantifies the
benefits to consumers, and the costs to businesses, including small
businesses.
5. In addition to the proposed requirements in Questions 1 & 2,
should a funeral provider that maintains a presence on social media be
required to post the provider's GPL and/or clearly-labeled links to the
provider's CPL and OBCPL on its social media account? Why or why not?
If not, should a funeral provider be required to link its social media
account to its main website if it has one, or, provide an email address
or other online mechanism that will allow visitors to request the
provider's GPL, CPL, or OBCPL, and a statement that consumers can
request the price lists, and should the funeral provider be required to
respond to such requests within any particular time? Provide all
evidence that supports your answer, including any evidence that
quantifies the benefits to consumers, and the costs to businesses,
including small businesses.
6. In addition to the proposed requirements in Questions 1, 2, & 5,
should the Rule contain other provisions that will embrace new
platforms and technologies as they develop so that both providers and
consumers can benefit from new distribution methods without requiring a
Rule change? If so, how and what types of provisions would be most
appropriate? Provide all evidence that supports your answer, including
any evidence that quantifies the benefits to consumers, and the costs
to businesses, including small businesses.
7. Should the Rule mandate that funeral providers be required to
post a

[[Page 66112]]

GPL, CPL, or OBCPL, or a clearly-labeled link to these documents, on
any electronic, online, or virtual method or platform that it uses to
post or otherwise make available information about its products or
services, sell products or services, or communicate with customers or
potential customers on a non-individual basis? If so, why, and how
should the Rule define or otherwise explain when GPL, CPL, or OBCPL, or
a clearly-labeled link to these documents, must be posted? Also, how
should such a change be implemented to maximize the benefits to
consumers and minimize the costs to businesses? Provide all evidence
that supports your answer, including any evidence that quantifies the
benefits to consumers, and the costs to businesses, including small
businesses.
8. Would requiring a funeral provider to provide the price lists
online (which could be defined to include a social media account or
other electronic, online, or virtual method or platform) impose any
challenges or costs for businesses, including small businesses, or
provide any benefits to consumers? If so, how could such challenges or
costs be minimized while still benefiting consumers? Provide all
evidence that supports your answer, including any evidence that
quantifies the benefits to consumers, and the costs to businesses,
including small businesses.
9. In the alternative or in addition to the proposed requirements
in Questions 1, 2, 5, & 6, should the Rule require all funeral
providers (with or without websites) to offer to send their GPLs, CPLs,
or OBCPLs electronically to a person who asks about the providers'
goods or services, or asks for a copy of any of the price lists? This
would include requests by telephone, text, email, weblink, social
media, fax, U.S. Mail, or other new communication methods that may
emerge in the future. If so, should providers be required to send the
information within a certain timeframe unless the person declines the
offer, or does not provide an email address or other method for
receiving the electronic information? In addition, should such a
requirement contain an exception for funeral providers who posts their
GPL, CPL, and OBCPL clearly and conspicuously on its websites? Why or
why not? Provide all evidence that supports your answer, including any
evidence that quantifies the benefits to consumers, and the costs to
businesses, including small businesses.
10. In the alternative or in addition to the proposed requirements
in Questions 1, 2, 5, & 6, should the Rule require all funeral
providers to electronically distribute their GPLs at the start of any
arrangements discussion that is not in-person, unless a hard copy has
already been provided? Why or why not? Provide all evidence that
supports your answer, including any evidence that quantifies the
benefits to consumers, and the costs to businesses, including small
businesses.
11. In the alternative or in addition to the proposed requirement
in Question 10, should the Rule require that, if the consumer is making
selections for a funeral arrangement online, then the provider would
need to offer a prominent link to the GPL before allowing the consumer
to proceed with selections? Why or why not? Provide all evidence that
supports your answer, including any evidence that quantifies the
benefits to consumers, and the costs to businesses, including small
businesses.
12. In the alternative or in addition to the proposed requirements
in Questions 1, 2, 5, 6, 10, & 11, should distribution of electronic
copies of the CPLs and OBCPLs also be required if discussing or showing
those items in an arrangements discussion that is not in-person, or if
the consumer is making selections concerning those items while shopping
online? Provide all evidence that supports your answer, including any
evidence that quantifies the benefits to consumers, and the costs to
businesses, including small businesses.
13. With respect to the proposed requirements in Questions 1, 2, 5,
& 6, should the Rule mandate how quickly funeral providers should be
required to update the GPLs, CPLs, and OBCPLs posted on their websites,
social media sites, or on other electronic sites? In support of your
position, identify all costs that funeral providers incur each time
they update the GPL, CPL, or OBCPL on their website. Provide all
evidence that supports your answer, including any evidence that
quantifies the benefits to consumers, and the costs to businesses,
including small businesses.
14. Should funeral providers be required to send an electronic copy
of the Itemized Statement of Funeral Services to people who do not meet
with a funeral provider in person, such as persons making arrangements
over the telephone, email, or online, before agreeing to services? Why
or why not? Provide all evidence that supports your answer, including
any evidence that quantifies the benefits to consumers, and the costs
to businesses, including small businesses.
15. Should any funeral providers be exempted from any of the
proposed requirements described in Questions 1, 2, 5, & 6? Why or why
not? If so, who are they, how many funeral providers would qualify for
this exemption, and how would the exemption impact consumers? Provide
all evidence that supports your answer, including any evidence that
quantifies the benefits to consumers, and the costs to businesses,
including small businesses.

Crematory Fees and Additional Costs

16. Should all funeral providers be required to list third-party
crematory fees in the description and price for direct cremation on the
GPL? Why or why not? Provide all evidence that supports your answer,
including any evidence that quantifies the benefits and burdens to
consumers, including how adding this requirement might impact the
consumer experience, and the costs and benefits to businesses,
including small businesses.
17. Alternatively, should funeral providers that do not include the
cost of third-party crematory fees in the price for direct cremation on
the GPL be required to include a statement on the GPL in close
proximity to the price for direct cremation that purchasers will be
required to pay an additional third-party crematory fee and include a
typical price range for the third-party crematory fee? Why or why not?
Provide all evidence that supports your answer, including any evidence
that quantifies the benefits and burdens to consumers, including how
adding this requirement might impact the consumer experience, and the
costs and benefits to businesses, including small businesses.
18. Should all funeral providers be required to list additional
items related to direct cremation or immediate burial not included in
the price for direct cremation or immediate burial on the GPL? Why or
why not? If so, which fees should be required to be disclosed? Provide
all evidence that supports your answer, including any evidence that
quantifies the benefits and burdens to consumers, including how adding
this requirement might impact the consumer experience, and the benefits
and costs to businesses, including small businesses.
19. In addition to the proposed requirements in Question 18, should
funeral providers be required to include such items in close proximity
to the price for direct cremation or immediate burial? Why or why not?
Provide all evidence that supports your answer, including any evidence
that quantifies the benefits and burdens to consumers, including how
adding this requirement might impact the consumer experience, and the
costs to businesses, including small businesses.

[[Page 66113]]

20. In the alternative to the proposed requirements in Question 18
& 19, should all funeral providers be required to list on the GPL in
close proximity to the cost for direct cremation and immediate burial a
statement listing additional fees that the funeral home knows consumers
may incur when they select a direct cremation or immediate burial and
the typical price range of such fees, if such fees are not included in
the price for direct cremation or immediate burial? Why or why not?
Provide all evidence that supports your answer, including any evidence
that quantifies the benefits and burdens to consumers, including how
adding this requirement might impact the consumer experience, and the
benefits and costs to businesses, including small businesses.
21. In the alternative to proposed requirements in Questions 18, 19
& 20, should funeral providers be required to include a statement in
close proximity to the price for direct cremation or direct burial on
the GPL that says that additional fees may apply? Why or why not?
Provide all evidence that supports your answer, including any evidence
that quantifies the burdens and benefits to consumers, including how
adding this requirement might impact the consumer experience, and the
benefits and costs to businesses, including small businesses.

Reduced Basic Fee Services

22. Should the Rule be amended to clarify when funeral providers
may charge a reduced basic services fee? Should the definition of
direct cremation and immediate burial in the Rule be amended to allow
those offerings to include limited viewings, limited visitations, or
another other services? Why or why not? If so, what limited viewing,
limited visitations, or other services should qualify for the reduced
basic services fee under this definition? Provide all evidence that
supports your answer, including any evidence that quantifies the
benefits to consumers, and the costs to businesses, including small
businesses.

Alternative Forms of Disposition

23. Should the Rule language be amended to specifically address
alternative forms of disposition, including alkaline hydrolysis and
natural organic reduction? Why or why not? If so, how should the Rule
address these services? Provide all evidence that supports your answer,
including any evidence that quantifies the benefits to consumers, and
the costs to businesses, including small businesses.
24. Should the Rule be amended to state that providers of
alternative forms of disposition, such as alkaline hydrolysis and
natural organic reduction, could offer direct or immediate services
with a reduced basic services fee? Why or why not? Provide all evidence
that supports your answer, including any evidence that quantifies the
benefits to consumers, and the costs to businesses, including small
businesses.
25. Should the Rule be updated to provide exceptions for the
requirements to provide alternative containers and disclosures related
to alternative containers for funeral service providers using new
methods of disposition or direct disposition that do not require a
container? Why or why not? If so, how should the Rule be amended to
allow such exceptions? Provide all evidence that supports your answer,
including any evidence that quantifies the benefits to consumers, and
the costs to businesses, including small businesses.
26. Should additional disclosure language relating to alternative
forms of dispositions be added to the Rule? If so, what should the
disclosure say? How would the additional disclosure language impact the
overall consumer experience or create any benefits or costs to
consumers and businesses, including small businesses?
27. Are there provisions of the Rule that are in tension with
alternative forms of disposition? If so, what are those provisions, and
how are they in tension with alternative forms of disposition? Provide
all evidence that supports your answer and explain whether and how the
tension between the Rule and alternative forms of disposition creates
costs for consumers and businesses, including small businesses.

Embalming Disclosure

28. Should the embalming disclosure contained in section
453.3(a)(2)(ii) of the Rule be amended to ensure consumers understand
the specific circumstances in which embalming may be required under
state law? If so, how should the disclosure be updated? Identify any
surveys, studies, or other evidence that supports your position.
29. Should the Rule be amended to modify the disclosures about
embalming to require providers to state on the GPL the correct law for
the jurisdictions in which it operates, as follows: If the provider
operates in a state that never requires embalming by law, the provider
must state: ``Embalming is not required by law in (name of state).'' If
the provider operates in a state that requires embalming by law under
certain circumstances, the provider must state those circumstances:
``Embalming is required in (name of state) when (list the state's legal
requirement).'' If the provider operates in multiple states with
different requirements for embalming, the provider would list the
requirements for each state in which the provider operates. Why or why
not? Identify any surveys, studies, or other evidence that supports
your position.
30. Should a funeral provider be required to disclose its policy
regarding embalming on the GPL in close proximity to its description
and price for embalming services? In addition or in the alternative,
should a funeral provider be required to inform consumers that it does
not possess refrigeration facilities, which may limit a consumer's
options to avoid embalming under state law, or add fees related to
third-party refrigeration facilities, in close proximity to its
description and price for embalming services? Provide all evidence that
supports your answer, including any evidence that quantifies the
benefits and burdens to consumers, including how adding this
requirement might impact the consumer experience, and the benefits and
costs to businesses, including small businesses.
31. Should funeral providers that do not offer embalming services
to any customers, due to their religious traditions or for other
reasons, be required to include an embalming disclosure on the GPL? Why
or why not? Provide all evidence that supports your answer, including
any evidence that quantifies the benefits to consumers, and the costs
to businesses, including small businesses.

Price List Readability

32. Should the GPL, CPL, and/or OBCPL requirements be changed to
improve readability for consumers? If so, what changes could be made to
the format that would make the documents easier for consumers to
comprehend and for businesses to know they have complied with the Rule?
Also, state whether your proposed changes would add additional
disclosure requirements to the Rule. If so, how would the additional
disclosure language impact the overall consumer experience and describe
any benefits or costs associated with these disclosures. Provide all
evidence that supports your answer, including any evidence that
quantifies the benefits to consumers, and the costs to businesses,
including small businesses, and all surveys, studies, or other evidence
that supports your position.
33. Should the Rule provide more specific requirements to ensure
that the mandatory disclosures are clear and

[[Page 66114]]

conspicuous? If so, how and why? Provide all evidence that supports
your answer, including any evidence that quantifies the benefits to
consumers, and the costs to businesses, including small businesses, and
all surveys, studies, or other evidence that supports your position.
34. Should the Rule be changed to require that the information
required to be included on the GPL, such as the prices for the 16
products and services (if offered) and the mandatory disclosures, be
placed before other content (such as packages) on the GPL? Why or why
not? Provide all evidence that supports your answer, including any
evidence that quantifies the benefits to consumers, and the costs to
businesses, including small businesses.
35. Should the Rule be changed to require that the mandatory
disclosures on the price lists be in the same font, color, and size as
the rest of the content on the price lists? Why or why not? Provide all
evidence that supports your answer, including any evidence that
quantifies the benefits to consumers, and the costs to businesses,
including small businesses.
36. Should the Rule require that the GPL, CPL, and OBCPL be in
machine-readable format? Why or why not? Provide all evidence that
supports your answer, including any evidence that quantifies the
benefits to consumers, and the costs to businesses, including small
businesses.

Impact on People in Underserved Communities

37. Are there any funeral provider practices that
disproportionately target or affect certain groups, including lower-
income communities, communities of color, or other historically
underserved communities? If so, why and how? Provide all evidence that
supports your answer, including any evidence that quantifies the
impacts upon affected consumers and communities, and the impacts to
businesses, including small businesses and businesses owned and
operated by members of historically underserved communities.
38. Should any of the provisions of the Funeral Rule be amended to
avoid disproportionately impacting or affecting certain groups,
including people living in lower-income communities, communities of
color, or other historically underserved communities? If so, why and
how? Provide all evidence that supports your answer, including any
evidence that quantifies the benefits to consumers, and the costs to
businesses, including small businesses and businesses owned and
operated by members of historically underserved communities.
39. Are there any special issues or concerns related to the
disclosure of price information when consumers use benefits provided by
programs to help families of veterans and low-income consumers cover
funeral expenses? Provide all evidence that supports your answer,
including any evidence that quantifies the benefits to consumers, and
the costs to businesses, including small businesses.
40. Are there circumstances in which funeral providers should be
required to make price lists, disclosures, and statements of services
selected available in languages other than English? For instance,
should funeral providers be required to provide itemized price lists in
any language they use for advertising, or in any language they use to
make funeral arrangements? What would be the effect of such a
requirement, and what costs and benefits would it entail?

V. Instructions for Submitting Comments

You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before January 3, 2023.
Write ``Funeral Rule ANPR, Project No. P034410'' on your comment. Your
comment, including your name and your state, will be placed on the
public record of this proceeding, including, to the extent practicable,
on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website.
Because of public health protections and the agency's heightened
security screening, postal mail addressed to the Commission will be
subject to delay. We strongly encourage you to submit your comments
online through the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. To ensure the
Commission considers your online comment, please follow the
instructions on the web-based form. If you file your comment on paper,
write ``Funeral Rule ANPR, Project No. P034410'' on your comment and on
the envelope, and mail your comment to the following address: Federal
Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW,
Suite CC-5610 (Annex B), Washington, DC 20580.
Because your comment will be placed on the publicly accessible
website, <a href="https://www.regulations.gov">https://www.regulations.gov</a>, you are solely responsible for
making sure that your comment does not include any sensitive or
confidential information. In particular, your comment should not
include any sensitive personal information such as your or anyone's
Social Security number, date of birth, driver's license number or other
state identification number or foreign country equivalent, passport
number, financial account number, or credit or debit card number. You
are also solely responsible for making sure your comment does not
include any sensitive health information, such as medical records or
other individually identifiable health information. In addition, your
comment should not include any ``[t]rade secret or any commercial or
financial information which . . . is privileged or confidential''--as
provided in section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule
Sec. 4.10(a)(2), 16 CFR 4.10(a)(2)--including in particular
competitively sensitive information such as costs, sales statistics,
inventories, formulas, patterns, devices, manufacturing processes, or
customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule Sec. 4.9(c). In
particular, the written request for confidential treatment that
accompanies the comment must include the factual and legal basis for
the request, and must identify the specific portions of the comment to
be withheld from the public record. See FTC Rule Sec. 4.9(c). Your
comment will be kept confidential only if the General Counsel grants
your request in accordance with the law and the public interest. Once
your comment has been posted publicly at <a href="http://www.regulations.gov">www.regulations.gov</a>--as
legally required by FTC Rule Sec. 4.9(b)--we cannot redact or remove
your comment, unless you submit a confidentiality request that meets
the requirements for such treatment under FTC Rule Sec. 4.9(c), and
the General Counsel grants that request.
Visit the FTC website to read this request for comment and the news
release describing it. The FTC Act and other laws the Commission
administers permit the collection of public comments to consider and
use in this proceeding as appropriate. The Commission will consider all
timely and responsive public comments it receives on or before January
3, 2023. For information on the Commission's privacy policy, including
routine uses permitted by the Privacy Act, see <a href="https://www.ftc.gov/site-information/privacy-policy">https://www.ftc.gov/site-information/privacy-policy</a>.

VI. Public Workshop

The Commission seeks the broadest participation by the affected
interests in the rulemaking. To that end, the Commission will host a
public workshop to hear from the public about these issues and discuss
possible

[[Page 66115]]

amendments. Staff will announce more details about the workshop soon.

By direction of the Commission.
April J. Tabor,
Secretary.

Note: the following statements will not appear in the Code of
Federal Regulations.

Statement of Chair Lina M. Khan

People are at their most vulnerable when they're grieving. That was
the insight behind the FTC's Funeral Rule, which first took effect in
1984. The goal was to prevent consumers from being taken advantage of
during moments of deep grief and loss. Among other provisions, the Rule
requires funeral homes to provide a clear list of prices for goods and
services offered. This helps family members make informed decisions and
avoid paying for things they don't need.
One challenge is that the Funeral Rule was crafted before the
internet age, so it only applies in person or over the phone. Even
though Americans today typically begin their shopping online, funeral
providers are not required to list prices on their websites. The staff
report that the Commission is voting on today found that just under 25
percent of funeral home websites provided a full list of prices. Over
sixty percent provided little to no price information whatsoever.
Stories persist about consumers spending hours trying to answer the
most basic questions about how much it will cost to bury their loved
ones.\1\ In the internet era, it's hard to see why anyone should have
to physically visit or call multiple funeral homes just to compare
prices.
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\1\ Robert Benincasa, Despite Decades-Old Law, Funeral Prices
Are Still Unclear, NPR (Feb. 8, 2017), <a href="https://www.npr.org/2017/02/08/504031472/despite-decades-old-law-funeral-prices-are-still-unclear">https://www.npr.org/2017/02/08/504031472/despite-decades-old-law-funeral-prices-are-still-unclear</a>.
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Today's advance notice of proposed rulemaking seeks comment on
several concrete ways to modernize the Funeral Rule. This includes
asking whether the Rule should require funeral providers to provide
pricing information online or via email, which could help consumers
make informed decisions during some of the most difficult moments of
their lives. It could also better incentivize funeral homes to offer
the most competitive prices. This would ultimately lower the expensive
burden of putting a loved one to rest.\2\
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\2\ See, e.g., Joshua Slocum, Death with Dignity? A Report on
SCI/Dignity Memorial High Prices and Refusal to Disclose These
Prices, Funeral Consumers Alliance & Consumer Fed'n of America (Mar.
2017), <a href="https://funerals.org/wp-content/uploads/2017/03/3-6-17-Funeral-SCI_Report.pdf">https://funerals.org/wp-content/uploads/2017/03/3-6-17-Funeral-SCI_Report.pdf</a>; Joshua Slocum & Stephen Brobeck, The
Relationship Between Funeral Price Disclosures and Funeral Prices: A
California Case Study, Consumer Fed'n of America (Feb. 2020),
<a href="https://consumerfed.org/wp-content/uploads/2020/02/California-Funeral-Home-Pricing-Report.pdf">https://consumerfed.org/wp-content/uploads/2020/02/California-Funeral-Home-Pricing-Report.pdf</a>.
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I am pleased to support this effort, and I look forward to the
public comments during our rulemaking proceeding. I'd like to thank our
staff for their excellent work on this matter.

Statement of Commissioner Rebecca Kelly Slaughter

Funerals are not only emotionally overwhelming, they are also
financially overwhelming. The average cost of a funeral in 2022 is
$7,360 and has risen over 6.6 percent over the past five years.\1\
These costs don't include end-of-life care or the thousands of
additional dollars required for a cemetery plot and headstone. Not only
is this a staggering amount of money for most consumers to cover--it is
a purchase that they have to make under incredible stress. Grieving,
rushed, distracted and unprepared, consumers seeking funeral services
are in little position to negotiate. The FTC Funeral Industry Practices
Rule requires that funeral providers share written pricing information
when consumers inquire in person. The Rule also requires that providers
provide accurate price information to consumers who call them. But in
its current form, the Funeral Rule does not require funeral providers
to publish pricing information online. This framework can make planning
and price comparison challenging under any circumstance, but I can't
imagine how hard this was for the hundreds of thousands of consumers
who had to navigate making funeral arrangements during the height of
the pandemic. In early 2020, the Commission initiated a routine review
of the Rule, which generated 785 comments. I've reviewed many
submissions in which consumers described how difficult it was to make
funeral arrangement for loved ones who lived far away or how ill-
equipped they were to negotiate or make choices at the height of their
grief.\2\ I want to share an excerpt from one commenter's powerful
description of his excruciating experience trying to make arrangements
for his young son without online pricing information:
---------------------------------------------------------------------------

\1\ 17 Mind-Boggling Funeral Cost Statistics in 2022 & Beyond,
Kelly Maxwell, Seniors Mutual, <a href="https://seniorsmutual.com/funeral-cost-breakdown/">https://seniorsmutual.com/funeral-cost-breakdown/</a>.
\2\ See, e.g., FTC-2020-0014-0406 Comment Submitted by John J.
Wilson (``[M]y mother who lived alone in a retirement home in
Phoenix, Arizona passed away and since I live in Austin, Texas, this
required me to make funeral arrangements in a distant city that I
was not familiar with. Without the funeral price list online this
made my task much more difficult. In fact, I feel I was at the mercy
of the funeral provider. Without having knowledge of their prices in
advance, I felt that they could charge me whatever amount they
desired and I was defenseless. They had me over a barrel, so to
speak. I'm sure I paid much more than necessary for my mother's
funeral arrangements. If I had had their price list before visiting
the funeral provider, I would have been in a much better bargaining
position, but unfortunately this was not the case.''); FTC-2020-
0014-0637 Comment Submitted by Elizabeth Menkin (``When my mother
died, it was impossible to collect price lists for any cost-
comparison survey at the time that we needed to make arrangements. I
had to individually contact funeral homes and hope they would
voluntarily email/mail a price list. I would have had to drive to
funeral homes who refused. This is a terribly burdensome task to
impose on a grieving family.'').

In many, if not most cases, death comes suddenly and is
unexpected. This leaves the loved ones of the deceased little time
to prepare for the viewing and burial.
This was true for my family with the death of our 4-year-old
son. While we had been provided a terminal cancer diagnosis for many
months for my oldest son, I could not bring myself to begin planning
for his funeral. I had limited time to spend with him outside of
work, I did not think it made sense to invest any of it shopping for
funeral services.
When the end came for him, and it was sudden, we were forced to
decide between two funeral homes in our town. We chose the largest
one because we expected a large crowd to attend. I had no idea what
to expect when I arrived to discuss arrangements, so you can imagine
my surprise when I learned the cost involved. Online pricing would
have allowed me to prepare in advance and to prepare to negotiate
what was by far the largest purchase I've ever made without any
advance notice. I could have spent nights reviewing the cost without
feeling guilty about leaving my son and the limited time we had
together.
I had a crushing level of grief when I walked into that funeral
home and I had absolutely no way to negotiate when they handed me
their proposed price. How is that fair? They already had possession
of my son's body, so it was not like I could walk out and begin
shopping.
To place this in context, I believe my first car, that I
purchased in 1998, cost less than his burial and I knew exactly what
that would cost because I had the internet available to me. I could
arrange for financing from the bank before I ever bought the car so
I knew how much it would cost each month and when I would make the
final payment. I felt completely prepared to purchase my car and I
was very comfortable when I walked into the dealership to finalize
the purchase . . .
There is no logical reason not to allow for online pricing
except to suppress consumer awareness . . . Government's job is to
protect their citizens and this is one instance when we need
protecting because emotionally compromised consumers are being taken
advantage and we have no way of preventing it.\3\
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\3\ FTC-2020-0014-0685 Comment Submitted by Adam Drapczuk III.

I want to thank this father and all the commenters to the 2020 rule
review

[[Page 66116]]

who shared their views and experiences and I whole-heartedly support
the FTC's publication of the advance notice of proposed rulemaking
asking specific questions about whether and how to modernize the
Funeral Rule to better protect consumers trying to make a huge purchase
under the worst circumstances. I encourage all consumers and other
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stakeholders to weigh in on the questions posed by the ANPR.

[FR Doc. 2022-23832 Filed 11-1-22; 8:45 am]
BILLING CODE 6750-01-P

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