Opinion 09-5

Staff Opinion 08-1, available at http://www.ftc.gov/bcp/conline/edcams/funerals1
/opinions/opinion08-1.pdf.
47 Fed. Reg. 42260, 42285 (Sept. 24, 1982).2
73 Fed. Reg. 13740, 13742 (Mar. 13, 2008). The Commission observed that under3
the FTC Act, 15 U.S. C. § 45, it would have jurisdiction over for-profit cemeteries, but not over
non-profit cemeteries, and that the “lopsided application of the Rule to some, but not all, cemeteries
would likely prove unduly costly.” 73 Fed. Reg. at 13744-45.
16 CFR § 453.1(h).4
16 CFR § 453.1(j). The definition of “funeral provider” in § 453.1(i) of the Rule5
requires the offer or sale of both “funeral goods” and “funeral services.” 16 CFR § 453.1(i).
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
April 16, 2009
Michael P. A. Cohen, Esq.
Paul, Hastings, Janofsky and Walker, LLP
875 15 Street, N.W.th
Washington, DC 20005
Dear Mr. Cohen:
On behalf of Selected Independent Funeral Homes (“SIFH”), a professional association of
independent, locally owned funeral homes, you have requested a staff opinion on the application
of the Funeral Rule to cemeteries. You state that many SIFH members also own cemeteries, and
argue that staff’s analysis in Opinion 08-1 of the Rule’s application to crematories “applies with1
equal force to cemeteries,” and compels a conclusion that the Rule likewise applies to cemeteries.
As you may know, the Commission noted when it promulgated the Rule that a cemetery
“would generally not be considered a ‘funeral provider’” because it “only arranges or conducts
final dispositions” and “does not prepare human remains for burial or other dispositions.” In2
2008, the Commission decided not to commence a rulemaking proceeding to amend the Rule to
cover all cemeteries operated for profit. Nothing in Opinion 08-1 is inconsistent with these3
determinations.
In Opinion 08-1, staff noted that the Rule applies only to “funeral providers” that sell or
offer to sell both “funeral goods,” as defined by § 453.1(h) of the Rule, and “funeral services,” as4
defined by § 453.1(j). We stated that if a crematory sells or offers to sell “funeral goods,” such5

Michael P. A. Cohen, Esq.
Page 2 of 2
16 CFR § 453.1(j)(1)-(2).6
as urns, it would be covered by the Rule because crematories also perform “funeral services.”
Staff’s view that crematories perform “funeral services” was based, in turn, on our analysis of the
two tests prescribed by the definition of that term:
‘Funeral services’ are any services which may be used to:
(1) Care for and prepare deceased human bodies for burial, cremation
or other final disposition; and
(2) arrange, supervise or conduct the funeral ceremony or the final
disposition of deceased human remains.6
While we agree that the second element in the definition applies equally to cemeteries and
crematories, because both “arrange, supervise or conduct . . . the final disposition,” staff is not
persuaded that most cemeteries “care for and prepare deceased human bodies for burial, ”as
required by the first element. Unlike cemeteries, crematories typically must refrigerate and store
remains for waiting periods prescribed by state law, and physically handle remains to transfer
them from regular or rental caskets to flammable containers, check for and remove prosthetics,
pacemakers, and jewelry prior to cremation, and collect the ashes when the process is completed.
It cannot be said that cemeteries likewise “care for an prepare deceased human bodies for burial”
since they generally deal only with casketed remains.
While the Funeral Rule generally does not apply to cemeteries, there may be some
circumstances in which commercial cemeteries are “funeral providers” and are obliged to comply
with the Rule. For example, if a commercial cemetery provides “funeral services” and offers or
sells “funeral goods,” it would be obligated to comply with the Rule.
As you know, 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