Opinion 04-1

431-
UNITD STATES OF AMER
FEDERA TRADE COMMSSION
WASHIGTON, D.C- 20580
May 12, 2004
T. Scott Giligan, Esqq.
Statman Rars Siegel & Eyrch, LLC
2900 Chemed Center
255 East Fifth Street
Cincinnati, OR 45202
Re: Third Par Merchandise Issue
Dear Scott:
Than you for your letter of March 25, 2004. I also was pleased with the meetings I had
with NFA and the state associations in March, and hope that we wil continue to keep good
lines of communication open.
Your letter requests an informal staff opinion on an issue related to delivery of caskets
that consumers have purchased from third-pary sellers. You note that you have consistently
advised funeral homes that they are not required. to sign receipt forms because the homes are not
par of the casket purchase contract. In addition , you note that the receipt forms frequently
contain written representations that the delivered casket is the merchandise that was originally
purchased, is acceptable , and/or was delivered without damage. You have advised funeral homes
that they cannot attest to those conditions or representations because they are not a pary to the
contract. You request an informal FTC staff opinion on whether the FTC' s Funeral Rule ("Rule
would prohibit a funeral home from refusing to sign a receipt acknowledging delivery of a casket
a from a third-par casket seller.
The FTC staf has addressed this issue in the past, in opinions relating to practices that
may violate the Rule s prohibition in Section 453.4(b)(1) against conditioning the furnishing of
any funeral goods or services to a person aranging a funeral upon the purchase of any other
funeral good or service. Staff opinions in 1988 and again in 1997 make clear that this prohibition
includes situations in which the funeral provider unreasonably burdens the consumer s choice to
purchase the casket elsewhere. Moreover, a staff opinion, dated March 10, 1988 , is directly on
point. In that opinion, Commission staff stated:
In my view, a funeral provider may not unreasonably burden a
consumer s choice to purchase an item such as a casket from a
third par . . , I believe that refusal of the funeral I1rovider to sirm
for the merchandise. or acknowled!!e deliverv. al1l1ears

tantamount to refusal to accel1t deliverv and therefore may be in
violaon of the Rule. (emphasis added) (A copy of the opinion is
enclosed..
Those words reflect the FTC staff's opinion in 1988 and they continue to reflect the current
thinking of the FTC staf charged with enforcing the Funeral Rule. Accordingly, I reaffirm the
staf opinion that refusal to sign for merchandise or acknowledge delivery is tantamount to
refusing to accept delivery and thus may violate the Funeral Rule s prohibition against tying, in
Section 453.4(b)(l).
I hope ths information is helpful to you. Please note that the views expressed in this
letter ar those of the FTC staff. They have not been reviewed, approved or adopted by the
Commssion, and they ar not binding on the Commssion or any individual Commssioner.
However, they reflect the opinions of the staff members who are charged with enforcement of the
Funeral Rule. If you have any questions, please feel free to contact me at (202) 326-3115 (email
cdanielson (gftc. gov)
Sincerely,
Carole 1. Danelson
Senior Investigator and
Funeral Rule Coordinator
Division of Marketing Practices

xx U /I / - /1 , 3/9
UNITED STATES OF AMERICA
FEDERAL TRAE COMMISSION
WASHINGTON, D.C. 20580
BUREAU OF
CONUMER PRTECT March 10, 1988
Pittsburgh, Pennsylvania
Dear Mr.
15236
I am writing in response to your request for a staff opinion
of December 1, 1987, and your follow-up letter of January 22,
1988. Your question is two- fold: In a situation where a person
arranging a funeral has elected to purchase a casket from a third
party casket seller rather than from the funeral director who is
arranging the funeral, (1) can the funeral director require that
person or family to be present when the casket is delivered to
the funeral home, even if they do not wish to be present: and (2)
can the funeral director refuse to sign for the casket when it is
delivered to the funeral home.
Please be advised that the views expressed in this letter
are those of the FTC staff. They have not been reviewed,
approved or adopted by the Comm 5sion, and they are not binding
upon the Commission. However, they reflect the opinions of the
staff members charged with enforcement of the Funeral Rule.
As you know, under Section 453. 4(b)(1) of the Rule,
funeral provider cannot condition the furnishing of any funeral
goods or services to a person arranging a funeral upon the
purchase of any other funeral good or service (except as required
by law or otherwise permitted by the Rule). Under this section,
the funeral provider cannot require the purchase of a casket from
the funeral home as a condition of arranging a funeral for the
individual or family. The FTC staff has taken the position that
funeral providers can assess a casket handling fee to cover any
added labor or liability costs incurred because a family chooses
to provide a casket purchased elsewhere.
In my view, a funeral provider may not unreasonably burden a
consumer s choice to purchase an item such as a casket from a
third party. I believe that requiring a family to be present for
delivery, when that family has expressly asserted they do not
wish to be present for delivery, is placing an unreasonable
burden upon the consumer "s choice to purchase the casket
elsewhere. Moreover, I believe that refusal of the funeral
provider to sign for the merchandise, or acknowledge delivery,
Bicentenn of the United States Constitution
11787- 1987)

Page 2
appears tantamount to refusal to accept delivery and therefore
may be in violation of he Rule.
If, as you allege, there is concerted action among funeral
providers in your area to engage in certain practices designed to
discourage or halt third party sales of caskets, such concerted
action might also constitute a violation of Section 5 of the FTC
Act, which. prohibi ts"unfair methods of competition in or
a1fecting commerce. 15 U. C. Section 45(a) (1).
Thank qu for writing to the Commission.
bringing these matters to our attention. We appreciate your
Sincerely yours,
Funeral Rule Coordinator