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