Opinion 09-6

The Rule permits a funeral provider to charge a basic services fee to recover its1
costs “in arranging any funeral” for its overhead and the services of the funeral director and staff.
16 CFR §§ 453.1(p); 453.2(b)(4)(iii)(C). If this fee is non-declinable, the provider must disclose
either that the fee will be added to the cost of the funeral goods and services selected, or that it is
included in the price of the provider’s caskets, and that clients who provide their own caskets
will be charged the same fee. 16 CFR §§ 462.2(b)(4)(iii)(C)(l)-(2).
This group has prepared a manual for consumers who wish to care for the dead at2
home. Home Funeral Committee Manual Publishing Group, Undertaken With Love: A Home
Funeral Guide for Congregations and Communities (2007), available at http://www.
homefuneralmanual.org/homefuneralfinalfinal.pdf. Their request notes that a number of state
statutes require that a licensed funeral director be involved, however minimally, thus forcing
UN ITED STATES OF AM ERICA
FEDERAL TRADE COMMISSION
W ASH IN GTO N , D .C. 20580
D ivision of M arketing Practices
Craig Tregillus D irect D ial: (202) 326-2970
ctregillus@ ftc.gov Facsim ile: (202) 326-3395
November 24, 2009
Ms. Lisa Carlson, Executive Director
Funeral Ethics Organization
87 Upper Access Road
Hinesburg, VT 05461-4431
Ms. Holly Stevens
5918 Pepper Road
Oak Ridge, N.C. 27310-9631
T. Scott Gilligan, Esq.
Gilligan Law Offices
3734 Eastern Avenue
Cincinnati, OH 45226
Dear Ms. Carlson, Ms. Stevens, and Mr. Gilligan:
This staff opinion addresses the question of whether there are any circumstances under
which a funeral provider may charge a fee for its basic services and overhead that is less than the
non-declinable basic services fee listed in its General Price List (“GPL”). The Funeral Ethics1
Organization (“FEO”) questions whether the Funeral Rule permits a lower fee, the National
Funeral Directors Association (“NFDA”) argues that the Rule has always permitted a reduced
fee for certain services, and a group advocating home funerals contends that the Funeral Rule
should allow consumers to make limited use of the services of a cooperating funeral home
without being required to pay the full non-declinable basic services fee listed on its GPL.2

Ms. Lisa Carlson et al.
Page 2 of 4
consumers who want home funerals to pay the funeral provider’s non-declinable basic services
fee. Some states require the funeral director to do little more than sign the death certificate,
while other states simply mandate that a funeral director either “be present” at the final
disposition, or that the final disposition be conducted “under the supervision of” a licensed
funeral director.
16 CFR § 453.2(b)((4)(iii)(C)(1) (emphasis added).3
16 CFR § 453.2(b)(4)(iii)(C)(2) (emphasis added).4
The FEO questions whether, if the basic services fee listed on a GPL is non-declinable,
the funeral provider may charge less than the full amount of that fee for four services that must
be itemized in the GPL: forwarding remains, receiving remains, direct cremation, and
immediate burial. The NFDA counters that because these four specialized services require fewer
“services of funeral director and staff” and entail less use of facilities and overhead than
traditional funeral arrangements, requiring a funeral provider to charge its full basic services fee
would be unjustified. The NFDA adds that the Commission never previously indicated that the
Rule requires a funeral provider to charge its full non-declinable basic services fee for these four
services, and that it has been the long-standing practice of many funeral providers to charge a
reduced basic services fee for each of these four services.
The FEO’s question arises from the wording of a disclosure required by the Rule when
the basic services fee is non-declinable. Section 453.2(b)(4)(iii)(C)(1) of the Rule mandates that
the following prescribed statement appear in the GPL under the price and description of the
services provided if the basic services fee is non-declinable:
This fee for our basic services will be added to the total cost of the
funeral arrangements you select. (This fee is already included in
our charges for direct cremation, immediate burials, and
forwarding or receiving remains.)3
The FEO asks whether the two parallel references to “this fee” mean that a non-
declinable basic services fee must be the same for all funeral arrangements, including the four
services at issue that are specifically mentioned in the second sentence of the statement. We
think not, for three reasons.
First, the Rule uses the term “this same fee” when that is what it means. Section
453.2(b)(4)(iii)(C)(2) of the Rule specifies that when a funeral provider elects to include its
non-declinable basic services fee in the price of its caskets, it must be the very same fee it
charges to consumers who do not purchase a casket: “This same fee shall be added to the total
cost of your funeral arrangements if you provide the casket.” The use of two distinct terms,4
“this fee” and “this same fee,” therefore, suggests that the two are not necessarily synonymous.
Second, reading the Rule to prohibit a reduced basic services fee for forwarding remains,
receiving remains, direct cremations and immediate burials, would be inconsistent with a core

Ms. Lisa Carlson et al.
Page 3 of 4
50 Fed. Reg. 28062, 28068 (July 9, 1985) (emphasis added). The accompanying5
Analysis of Public Comments Received on Staff Compliance Guidelines notes that the original
Rule modified the proposed definition of “services of funeral director and staff,” and the final
Guidelines added this clarification, in response to a concern of the Continental Association of
Funeral and Memorial Societies (“CAFMS”) that services associated with forwarding or
receiving remains, cremation, and immediate burial would be “packaged” into the basic services
fee. 50 Fed. Reg. 28081, 28087 (July 9, 1985). The clarification barred any such “packaging”
by specifying that a funeral provider should include “any charges” for its professional services in
the price listed on its GPL for these four services.
“A ‘direct cremation’ is a disposition of human remains by cremation, without6
formal viewing, visitation, or ceremony with the body present.” 16 C.F.R. § 563.1(g).
“An ‘immediate burial’ is a disposition of human remains by burial, without7
formal viewing, visitation, or ceremony with the body present, except for a graveside service.”
16 C.F.R. § 453.1(k).
purpose of the Rule, which is to enable consumers to purchase only the funeral goods and
services they want by requiring funeral providers to "unbundle" their offerings. During the era
of industry-wide package pricing that was prevalent before the Rule took effect, consumers who
wanted only direct cremations or immediate burials often had no choice but to pay the same
package price as consumers who wanted a traditional funeral. Requiring funeral providers to
charge the same non-declinable basic services fee for a full traditional funeral as for these four
more limited services similarly would require consumers to pay for facilities and services that
they would not necessarily use or receive.
Finally, we note that this interpretation is entirely consistent with prior staff views on the
issue. The Final Staff Compliance Guidelines for the original Rule make it clear that funeral
providers may include “any charges” for their professional services in their prices for forwarding
remains, receiving remains, direct cremation and immediate burial:
b. Forwarding and Receiving Remains, Direct Cremations and Immediate
Burials: Sections 453.2(b)(4) (ii) (A)-(D). The Rule requires funeral providers to
disclose their prices for forwarding and receiving remains, direct cremations and
immediate burials. Unlike the remainder of the goods and services which must be
disclosed on the General Price List, any charges for the professional services of
the funeral provider should be included in the total price of these four types of
services.5
For these reasons, it is staff's view that the Rule permits funeral providers to reduce their
basic services fees for forwarding remains, receiving remains, direct cremations, and immediate6
burials, in order to reflect the proportionate reduction in facilities overhead and services of the7
funeral director and staff required to provide them.
Prior staff opinions have stated, and we re-emphasize here, that a funeral provider may
not include a reduced or discounted non-declinable basic services fee in any discount package of

Ms. Lisa Carlson et al.
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Staff Opinion 09-1 (Feb. 17, 2009), available at http://www.ftc.gov/bcp/conline/8
edcams/funerals/opinions/opinion09-1.pdf; Staff Opinion 97-3 (Apr. 16, 1997), available at
http://www.ftc.gov/bcp/conline/edcams/funerals/opinions/opinion97-3.pdf.
Staff Opinion 07-6 (Aug. 21, 2007), available at http://www.ftc.gov/bcp/conline/9
edcams/funerals/opinions/opinion07-6.pdf.
goods and services it offers, but must include in the price of the discount package the full non-
declinable basic services fee listed in its GPL. As another staff opinion has stated, however,8
that forwarding remains, receiving remains, direct cremation and immediate burial are not
“packages,” and thus are not subject to this prohibition.9
The Rule does not address home funerals because they were not considered at the time of
the initial rulemaking proceeding or the subsequent amendment proceeding. Home funerals are
analogous to the four basic services, however, because they likewise involve reduced or minimal
use of a funeral provider’s facilities and staff. As a matter of enforcement policy, therefore, and
consonant with the fundamental goals of the Rule, staff will not object to a reduction in the basic
services fee for home funerals if it is commensurate with the limited use of the provider’s
facilities and services.
The views expressed in this letter are those of the FTC staff. They have not been
reviewed, approved, or adopted by the Commission, and they are not binding on the Commission
or any individual Commissioner. However, they do reflect the views of FTC staff charged with
enforcement of the Funeral Rule. Staff Funeral Rule opinions are routinely posted on the FTC
website at http://www.ftc.gov/bcp/conline/edcams/funerals/staffopinions.shtm.
Sincerely,
/s/
Craig Tregillus
Funeral Rule Coordinator