16 C.F.R. § 453.4(b)(1). 1

Staff Opinion 07-3 (Mar. 21, 2007) at p. 1-2, available at http://www.ftc.gov/ 2

bcp/conline/ edcams/funerals/opinions/opinion07-3.pdf; see also, Staff Opinion 04-1 (May 12,

2004), available at http://www.ftc.gov/bcp/conline/edcams/funerals/opinions/opinion04-1.pdf

Staff Opinion 07-3; Staff Opinion 04-1. 3

Staff Opinion 07-3; Staff Opinion 04-2 (June 22, 2004) available at 4

http://www.ftc.gov/ bcp /conline/edcams/funerals/opinions/opinion04-2.pdf.

UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

WASHINGTON, D.C. 20580

Division of Marketing Practices

Craig Tregillus Direct Dial: (202) 326-2970

ctregillus@ftc.gov Facsimile: (202) 326-3395

April 19, 2010

Ms. Margie Heckman

Universal Casket Co.

P.O. Box 107

Bellbrook, OH 45305

Dear Ms. Heckman:

You have requested staff’s views on whether the Funeral Rule prohibits a number of

practices by funeral providers that you allege Universal Casket has encountered when attempting

deliveries of third-party caskets purchased by consumers from Costco.

As you know, section 453.4(b)(1) prohibits a funeral provider from “tying” or

conditioning the purchase of any funeral good or service to the purchase of another funeral good

or service from the provider. Prior staff opinion letters have stated staff’s opinion that practices 1

by funeral providers “‘unreasonably’ burdening a consumer’s choice to purchase an item from a

third party” violate § 453.4(b)(1) of the Rule. Thus, we have previously stated that it is a 2

violation of § 453.4(b)(1) for a funeral provider to:

! Require a consumer’s presence at a funeral home at the time of delivery of a third-party

casket;3

! Refuse to sign an acknowledgment of delivery of a third-party casket in the consumer’s

absence;4
Ms. Margie Heckman

Page 2 of 3

Staff Opinion 07-4 (July 12, 2007), available at http://www.ftc.gov/bcp/ 5

conline/edcams/funerals/opinions/opinion07-4.pdf; Staff Opinion 07-8 (Aug. 21, 2007),

available at http://www.ftc.gov/bcp/conline /edcams/funerals/opinions/opinion07-8.pdf.

Staff Opinion 07-4. Although funeral providers may not charge consumers a fee 6

for disposal of the packaging, nothing in the Rule prevents a funeral provider from requiring, on

a non-discriminatory basis, that all of its casket suppliers take any casket packaging with them

and dispose of it themselves after a delivery.

As your inquiry notes, there are some small funeral homes that are not open 7

during regular business hours of 8:00 a.m. to 5:00 p.m. (e.g., because the sole proprietor is

employed elsewhere), and thus may not be able to receive caskets from any supplier during some

of those hours except by prior appointment.

! Charge a fee for storage of a third-party casket delivered in advance of an at-need

disposition; and 5

! Charge a fee for disposal of the container or packaging in which a third-party casket is

shipped.6

It continues to be staff’s opinion that practices that “unreasonably burden a consumer’s

choice to purchase an item from a third party” violate § 453.4(b)(1) of the Rule. Restrictions by

a funeral provider that unreasonably impede the delivery of a third-party casket create an

unreasonable burden on a consumer’s right to use such a casket, in violation of § 453.4(b)(1). 

As a general rule, a funeral provider should avoid acts or practices that treat third-party casket

retailers differently from the provider’s regular casket supplier. It is staff’s opinion that the

following acts or practices would violate § 453.4(b)(1), if applied exclusively to third-party

casket retailers that contact a funeral provider in advance to arrange delivery: 

! Refusal to accept delivery of a third-party casket more than a specified number of days in

advance of its use;

! Refusal to accept delivery of a third-party casket less than a specified number of days in

advance of its use;

! Refusal to accept delivery of a third-party casket during regular business hours except by

prior appointment; and 7

! Refusal to accept delivery of a third-party casket during regular business hours at a

particular date and time, unless the provider is unable to receive caskets from any

supplier at that date and time (e.g., because the provider will be conducting a funeral).

You also ask whether funeral providers “unreasonably burden a consumer’s choice” if

they decline to assist in the delivery of a third-party casket by helping the delivery person unload

and unpackage the casket, and by withholding standard equipment for wheeling the casket from
Ms. Margie Heckman

Page 3 of 3

15 U.S.C. § 45.

8

the delivery truck into the building. While a funeral provider cannot impose restrictions that

unreasonably impede a third-party provider’s ability to deliver a casket to the funeral home, staff

is not prepared to say that the Rule affirmatively requires a funeral provider to pay the labor cost

associated with unloading a third-party casket and removing its packaging, particularly when

small funeral providers may not have personnel who are physically capable of assisting in

unloading a heavy and cumbersome casket. 

On the other hand, withholding the use of a funeral provider’s standard equipment, such

as a utility “church truck” to assist in bringing the casket into the funeral home would impose an

unreasonable impediment to the delivery of a third-party casket. Indeed, such equipment is part

of the funeral provider’s overhead costs, which are charged to and paid by consumers in the form

of the funeral provider’s non-declinable basic services fee. It is an unreasonable burden to deny

consumers the benefits of equipment for which they must pay simply because they have

exercised their right to purchase a casket from a third party. 

Finally, your inquiry asks whether it is a violation of the Rule for a funeral provider to

disparage the quality of third-party caskets or mislead consumers about the savings available

from package pricing discounts. A primary purpose of the Rule, and of the price disclosures it

requires, is to prevent price and savings misrepresentations by assuring that consumers receive

accurate price information. Although disparagement of a competitor’s products is not prohibited

by the Funeral Rule, material representations that are false, misleading or deceptive may violate

Section 5 of the Federal Trade Commission Act, and expose a funeral provider to an FTC law 8

enforcement action.

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