061 0026 

UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS: Deborah Platt Majoras, Chairman 

Pamela Jones Harbour 

Jon Leibowitz 

William E. Kovacic 

J. Thomas Rosch 

In the Matter of 

MISSOURI BOARD OF EMBALMERS AND Docket No. CFUNERAL DIRECTORS

COMPLAINT 

Pursuant to the provisions of the Federal Trade Commission Act, and by virtue of the 

authority vested in it by said Act, the Federal Trade Commission, having reason to believe that 

the Missouri Board of Embalmers and Funeral Directors has violated Section 5 of the Federal 

Trade Commission Act, 15 U.S.C. § 45, and it appearing to the Commission that a proceeding by 

it in respect thereof would be in the public interest, hereby issues this complaint stating its 

charges as follows: 

NATURE OF THE CASE 

This case involves Respondent Missouri Board of Embalmers and Funeral Directors (the 

“Board”), which is the sole licensing authority for the practices of embalming and funeral 

directing in Missouri. The Board is composed of six members, five of whom must be licensed 

embalmers or funeral directors. At the time it adopted the regulation at issue in this matter, the 

Board included five licensed funeral directors. Funeral directors compete in the sale of funeral 

caskets at-need to consumers in Missouri. Respondent is authorized to promulgate, adopt and 

enforce rules that it deems necessary for the public good and consistent with the laws of the State 

of Missouri. The Missouri statute that created and empowered Respondent to regulate the 

professions of embalming and funeral directing includes a provision stating that its licensing 

qualifications and conditions (Mo. Rev. Stat. Chapter 333 (2005)) shall not apply “to any person 
engaged simply in the furnishing of burial receptacles for the dead.” Mo. Rev. Stat. § 333.251 

(2005). The Board promulgated a regulation that defined the practice of funeral directing to 

include selling funeral merchandise on an at-need basis to consumers in the State of Missouri. 

This regulation deterred competitive entry into the retail sale of funeral caskets. 

RESPONDENT 

1. The Board is an agency of the State of Missouri, established and existing pursuant to Mo. 

Rev. Stat. § 333.151, for the purpose of administering and enforcing Chapter 333 and portions of 

Chapter 436, Mo. Rev. Stat., and the regulations promulgated thereunder. It has authority to 

license and regulate those persons in the businesses of embalming and funeral directing in 

Missouri. 

2. The Board’s principal office and place of business is located at 3605 Missouri Boulevard, 

Jefferson City, Missouri, 65102-0423. 

3. The Board is comprised of six members; one public member and five members that hold a 

license in either funeral directing or embalming, or both. Each member is appointed by the 

governor with the advice and consent of the state senate. 

4. Except to the extent that competition has been restrained as alleged below, and depending on 

their geographic location, licensed funeral directors in Missouri compete with each other and 

with funeral director members of the Board in, among other activities, the sale of funeral caskets 

at-need to the public. 

5. The Board is the sole licensing authority for those who engage in the business of embalming 

and funeral directing in Missouri. It is unlawful for an individual to practice or offer to practice 

embalming or funeral directing in Missouri unless he or she holds a current license to practice. 

6. Under Mo. Rev. Stat. § 333.241 (2005), the Board is empowered to seek a court order to 

enjoin any person from engaging or offering to engage in any act that would require a license 

from the Board. 

7. The unlicensed practice of embalming or funeral directing in Missouri may be prosecuted as a 

class A misdemeanor under Mo. Rev. Stat. § 333.261 (2005). 

JURISDICTION 

8. The Board is a state agency and is a “person” within the meaning of Section 5 of the Federal 

Trade Commission Act, as amended, 15 U.S.C. § 45. 

9. The acts and practices of the Board, including the acts and practices alleged herein, have been 

or are affecting “commerce” within the meaning of Section 4 of the Federal Trade Commission 

2
Act, as amended, 15 U.S.C. § 44. In particular, funeral directors in Missouri purchase and 

receive funeral caskets and other funeral merchandise that are shipped across state lines by 

manufacturers and suppliers in other locations, transfer substantial sums of money that cross state 

lines in payment for that merchandise, perform funerals for residents of other states, and receive 

substantial sums of money that cross state lines in payment for funeral services and merchandise 

including funeral caskets. Furthermore, the regulation at issue deterred competitors in other 

states from selling funeral caskets to Missouri consumers at need, and affected interstate 

commerce in funeral merchandise in neighboring states. 

10. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and 

of Respondent, and the proceeding is in the public interest. 

THE CHALLENGED CONDUCT 

11. The “practice of funeral directing” is defined in Mo. Rev. Stat. § 333.011(7) (2005) as 

“[E]ngaging by an individual in the business of preparing, otherwise than by embalming, for the 

burial, disposal or transportation out of this state of, and the directing and supervising of the 

burial or disposal of, dead human bodies or engaging in the general control or supervision or 

management of the operations of a funeral establishment.” 

12. Mo. Rev. Stat. § 333.251 (2005) states that: “Nothing in this chapter shall apply to nor in any 

manner interfere with the duties of any officer of local or state institutions, nor shall this chapter 

apply to any person engaged simply in the furnishing of burial receptacles for the dead, but shall 

only apply to persons engaged in the business of embalming or funeral directing.” 

13. Beginning on or about June 30, 1998, and continuing through approximately July 29, 2004, 

Regulation 4 CSR 120-2.060(18) stated that: “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) For the sale or rental to the public of funeral 

merchandise, services or paraphernalia from a funeral establishment.” 

14. Prior to July 30, 2004, Regulation 4 CSR 120-2.060 (18) prohibited the sale of at-need 

funeral merchandise “from a funeral establishment” by anyone other than a licensed funeral 

director. 

15. Beginning on or about July 30, 2004, and continuing through approximately 

September 29, 2006, 4 CSR 120-2.060(18) stated that: “No person other than a Missouri licensed 

funeral director shall be allowed to make the following at-need arrangements with the person 

having the right to control the incidents of disposition: . . . (C) Sale or rental to the public of 

funeral merchandise, services or paraphernalia.” 

3
16. During the process leading up to the amendment of 4 CSR 120-2.060 that took effect in 

July 2004, the Board sought to amend other portions of the regulation but not 4 CSR 120­

2.060(18)(C). 

17. After the period for public comments for amending 4 CSR 120-2.060 was completed, the 

Board amended subsection 4 CSR 120-2.060(18)(C) by deleting the phrase “from a funeral 

establishment.” 

18. Regulation 4 CSR 120-2.060(18)(C) as amended was published in the Missouri Register on 

June 1, 2004. This amended regulation, which was in effect beginning on or about July 30, 2004, 

and continuing through approximately September 29, 2006, is hereinafter referred to as the 

“Regulation at Issue.” 

19. Funeral directors in Missouri sell funeral caskets and provide funeral services to consumers. 

20. Non-licensed persons who market and sell funeral caskets to consumers in Missouri compete 

with funeral directors for those sales. 

21. Adoption and publication of the Regulation at Issue had the effect of restraining competition 

and injuring consumers in the following ways, among others: 

A. discouraging non-licensed persons from selling funeral caskets to the public atneed in Missouri; 

B. depriving consumers of the benefits of price competition that could have been 

offered by retail sellers of funeral caskets who were not licensed funeral directors; 

and 

C. reducing consumer choices in Missouri concerning the purchase of funeral 

caskets. 

22. The Board filed an amended order of rulemaking on February 16, 2006 to initiate the process 

for rescinding the Regulation at Issue. After receiving public comment on a proposed 

amendment, the Board voted unanimously to rescind the Regulation at Issue on May 10, 2006. 

The amended regulation, published at 20 CSR 2120-2.060(18)(C), became effective on 

September 30, 2006. 

VIOLATION 

23. The combination, conspiracy, acts and practices described above constitute anticompetitive 

and unfair methods of competition in violation of Section 5 of the Federal Trade Commission 

Act, 15 U.S.C. § 45. Such combination, conspiracy, acts, and practices or the effects thereof, 

4
continued for approximately two years and may recur in the absence of the relief herein 

requested. 

WHEREFORE, THE PREMISES CONSIDERED, the Federal Trade Commission on 

this day of , 2007, issues its Complaint against Respondent Missouri Board of 

Embalmers and Funeral Directors. 

By the Commission. 

Donald S. Clark 

Secretary 

SEAL 

5