Cemeteries and The Funeral Rule and The FTC
The Federal Trade Commission’s famous “Funeral Rule,” specifically outlaws certain practices that had once been common among funeral homes and which regulators, politicians, and consumer advocates deemed unfair. Since the rule’s inception in the late 20th century, the vast majority of funeral homes in America have eagerly complied with the law, and, as a result, funeral home clients today have an ever increasing number of options for their products, and the prices continue to fall every day. (Though consumers who want the best prices will often have to devote significant time to research, price comparison and negotiation — something that many people find uncomfortable in the midst of mourning and grief.)
But the question often arises in today’s world as to whether the funeral rule extends to cover cemeteries as well as funeral homes. And the answer to that question is a bit complicated:
In a strictly technical sense, lawmakers have (for a variety of reasons upon which the late legendary journalist Jessica Mitford speculates cynically in her book “The American Way of Death.”) never seen fit to specifically include cemeteries in the funeral rule. So, no, the Funeral Rule does not officially cover cemeteries.
But, practically speaking, the funeral rule does certainly cover cemeteries in a variety of ways, and today’s consumers can usually rest assured that the vast majority of American cemeteries run their operations under the broad consumer-friendly guidelines set forth in the funeral rule.
In general, the funeral rule requires that funeral homes stay clear of the anti-competitive practices that developed over the early part of the 20th century and were common amongst even reputable funeral homes by the 1960’s and 70’s when congress first began looking into the issue. Under the funeral rule, funeral establishments may no longer require customers to buy products such as cremation urns and caskets exclusively from them. Historically, funeral homes had used such requirements to inhibit competition and keep prices in the industry artificially high – which greatly took advantage of grieving consumers – but now they can no longer legally do that. The Federal Trade Commission’s enforcement of the funeral rule has resulted in a number of large fines and high-profile cases in recent years but, for the most part, the FTC has seen that voluntary compliance with the rules has been good.
And, voluntary compliance with the spirit of the funeral rule is what consumers can usually expect from cemeteries today.
Cemeteries generally follow the basic guidelines of the funeral rule — even though they are not necessarily legally compelled to do so — for a number of reasons. Perhaps the most important is that it’s simply good for public relations to keep a competitive spirit alive. A grieving family being charged too much for a headstone simply because a cemetery does not allow headstones from competitors would likely gain plenty of sympathy if they decided to share their story with a local newspaper. And that would likely translate into lost sales for the cemetery. So, it is this market pressure that keeps cemeteries from playing the kinds of anti-competitive games that got funeral homes in trouble once before.
Cemetery owners also know that, should they not voluntarily adopt the spirit of the funeral rule, it is very likely that legislators would eventually decide to formally include cemeteries in the funeral home. Such a move has been talked about for years, of course, but cemeteries have been able to keep that at bay because they have done what many people consider to be a sufficient job of policing themselves on this issue.
And, finally, many cemeteries today are owned by large memorial corporations that also own funeral homes, and, since the companies have already made adjustments to live by the rules on the funeral side of their business, they have simply found that it is a prudent business practice to adopt the same rules for their cemeteries.
All of that said, it is still an unfortunate fact of life that some cemeteries do not necessarily follow the spirit of the funeral rule. While it is not common, some cemeteries do have rules that require customers to buy their headstones from either the cemetery itself or from a select dealer (who then, almost certainly, pays the cemetery a cut). Legally speaking, customers do not have much recourse in such cases. No laws are broken, so the cemetery does not risk a fine simply for trying to make a sale under such conditions (as a funeral home would). But there are plenty of other ways that customers can enforce the spirit of the funeral rule themselves.
First, they can appeal politely to the cemetery owner’s sense of ethics and ask the policy be changed (even if only on a case-by-case basis). Should that not work, cemetery clients can, as we noted above, tell their story to a local reporter in hopes of possibly shaming the cemetery into changing its policy. And, then, of course, the client can contact his or her representatives about the case and request that they begin taking action to change the funeral rule to cover cemeteries.
And probably the most significant action a client can take to assure that the funeral rule applies to cemeteries is to simply refuse to do business with any cemetery that does not voluntarily comply.