ANALYSIS OF AGREEMENT CONTAINING 

PROPOSED CONSENT ORDER TO AID PUBLIC COMMENT

In The Matter of Missouri Board of Embalmers and Funeral Directors, File No. 061-0026 

The Federal Trade Commission has accepted for public comment an Agreement 

Containing Consent Order with the Missouri Board of Embalmers and Funeral Directors (“the 

Board” or “Respondent”). The agreement settles charges that the Board violated Section 5 of the 

Federal Trade Commission Act, 15 U.S.C. § 45, through particular acts and practices described 

below. The Agreement has been placed on the public record for thirty (30) days for receipt of 

comments from interested members of the public. Comments received during this period will 

become part of the public record. After thirty (30) days, the Commission will review the 

agreement and the comments received, and will decide whether it should withdraw from the 

agreement or make the proposed Order final. 

The purpose of this analysis is to facilitate comment on the proposed consent Order. This 

analysis does not constitute an official interpretation of the agreement and proposed Order, and 

does not modify the terms in any way. Further, the proposed consent Order has been entered into 

for settlement purposes only, and does not constitute an admission by the proposed Respondent 

that it violated the law or that the facts alleged in the Complaint against the Respondent (other 

than jurisdictional facts) are true. 

I. The Respondent 

Respondent is the sole licensing authority for the practices of funeral directing and 

embalming in the State of Missouri. It is authorized to promulgate, adopt and enforce rules and 

regulations governing and defining those practices. Respondent is able to seek a court order to 

enjoin any person from engaging or offering to engage in any act that requires a license from the 

Board. The unlicensed practice of funeral directing or embalming in Missouri may be prosecuted 

as a class A misdemeanor. 

At the time it adopted the regulation at issue in the proposed complaint, the Board was 

composed of five (5) licensed funeral directors, all of whom competed in the sale of at-need 

funeral caskets to consumers in Missouri. 

II. The Conduct Addressed by the Proposed Consent Order 

The proposed Complaint alleges that Respondent violated Section 5 of the Federal Trade 

Commission Act by unlawfully restraining competition in the retail funeral casket market in the 

State of Missouri by promulgating a regulation that defined the practice of funeral directing to 

include selling at-need funeral merchandise. 

The at-issue regulation stated: “No person other than a duly licensed and registered 

funeral director may make the following at-need arrangements with the person having the right to 

control the incidents of burial: . . . (C) sale or rental to the public of funeral merchandise, 
services or paraphernalia.”1 Under the laws of the State of Missouri, however, licensing 

qualifications and conditions for persons practicing or offering to practice funeral directing and 

embalming do not apply to anyone engaged simply in the furnishing of at-need burial receptacles 

to the public.2 

The proposed Complaint alleges that the Board’s regulation had anticompetitive effects 

by discouraging non-licensed persons from selling funeral caskets to the public in Missouri, 

depriving consumers of the benefits of price competition, and reducing consumer choices 

concerning the purchase of funeral caskets. 

The Commission has previously found that funeral director conduct that limits entry by 

non-licensed casket sellers harms competition. In its 1994 review of the Funeral Rule,3 the 

Commission found that funeral-director-imposed “casket handling fees” excluded competition 

from third-party casket sellers, and the record evidence indicated that the fees “prevent[ed] 

potential price competition and reduce[d] consumer choice.”4 The Commission further found 

that “the long-term effect of [banning these fees] will be increased competition in the casket 

market such that prices will eventually go down and all consumers will pay less.”5 

The courts have likewise found that state laws prohibiting the sale of caskets by nonlicensed persons harm competition. The Sixth Circuit concluded that a Tennessee state law 

forbidding anyone but state licensed funeral directors from selling caskets imposed “a significant 

barrier to competition in the casket market” and “harm[ed] consumers in their pocketbooks.”6 A 

district court in Oklahoma found that “[a]s long as independent sellers stay in the market, casket 

sales from independent sources ... place downward pressure on casket prices as a result of 

increased competition.”7

 A district court reviewing a similar statute in Mississippi also 

1 4 CSR 120-2.060(18). 

2 See Mo. Rev. Stat. § 333.251 (2005). The at-issue regulation was revised during the 

course of the investigation and published in 20 CSR 2120-2.060 (18)( C) effective September 2006. 

3 The FTC’s Funeral Rule, which was promulgated by the Commission in 1982 and 

revised in 1994, requires providers of funeral goods and services to give consumers itemized lists of 

funeral goods and services that not only provide price and descriptions, but also contain specific 

disclosures. The Funeral Rule removed the primary industry restraint on consumer choice (package-only 

funeral goods and service pricing) and makes clear that consumers may select and purchase only the 

goods and services they want. See 59 Fed. Reg. 1592 (1994). 

4 59 Fed. Reg. at 1603-04. 

5 Pa. Funeral Directors Ass’n, Inc. v. FTC, 41 F.3d 81, 91 (3d Cir. 1994). See also 

Memorandum of Law of Amicus Curiae The Federal Trade Commission, Powers v. Harris, Case No. 

CIV-01-445-F (W.D. Okla. Aug. 29, 2002). 

6 Craigmiles v. Giles, 312 F.3d 220, 222, 228 (6th Cir. 2002). 

7 Powers v. Harris, 2002 WL 32026155 at *6 (W.D. Okla. Dec. 12, 2002). 

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concluded that such requirements result in less price competition and consumer choice in 

selecting a casket.8 

The Missouri statute that created the Board and grants it the authority to act was not 

intended to displace competition in the sale of funeral merchandise with regulation. Indeed, it 

appears that Missouri intended to preserve price competition with respect to the retail sale of 

funeral caskets by excepting from application of the at-need funeral statute “any person engaged 

simply in the furnishing of burial receptacles for the dead.”9 

III. Terms of the Proposed Consent Order 

The Board has signed a consent agreement containing the proposed consent Order. The 

proposed Order would prevent the Board from prohibiting, restricting, impeding or discouraging 

any person from engaging in the sale or rental to the public of funeral merchandise or burial 

receptacles for the dead, directly or indirectly, or through any rule, regulation, policy, or conduct. 

The proposed Order requires the Board to publish in the Newsletter of the Board of 

Embalmers and Funeral Directors, the full text of Mo. Rev. Stat. § 333.251 (2005), the Order, 

and an accompanying statement that: “The Rules and Regulations of the Board of Embalmers 

and Funeral Directors do not prohibit persons not licensed as funeral directors or embalmers 

from selling caskets, burial receptacles or other funeral merchandise to the public in the State of 

Missouri.” 

The proposed Order also requires the Board to display an advisory on its public website 

stating that it has settled FTC allegations regarding restrictions and prohibitions on the sale of 

funeral merchandise or caskets, and to provide a link to the Board’s website that contains the full 

text of Mo. Rev. Stat. § 333.251 (2005), a link to Mo. Code Regs. Ann. tit. 20, § 2120-2.060 

(2006), and a link to this Order. The proposed Order further requires the Board to publish notice 

of the Order and settlement in three consecutive issues of Missouri Funeral Directors’ 

Association Magazine and in the Missouri State Board of Embalmers and Funeral Directors 

Rules and Regulations, Chapters 333, 436, 193, 194, which shall be provided to all licensees 

within one (1) year from the date the Order becomes final. 

The proposed Order includes requirements that the Board notify the Commission at least 

thirty (30) days prior to any filing with the Missouri Secretary of State of any Proposed Order of 

Rulemaking concerning the Board’s rules or regulations, or prior to proposing any change in 

Respondent that may affect compliance obligations. The proposed Order contains standard 

provisions requiring the filing of regular written reports of the Board’s compliance with the terms 

of the Order for each of the next five years. The Order will expire in ten (10) years. 

8 Casket Royale, Inc. v. Mississippi, 124 F.Supp. 2d 434, 440 (S.D. Miss. 2000). 

9 Mo. Rev. Stat. § 333.251 (2005). 

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