Staff Opinion 08-1, available at http://www.ftc.gov/bcp/conline/edcams/funerals 1

/opinions/opinion08-1.pdf.

47 Fed. Reg. 42260, 42285 (Sept. 24, 1982). 2

73 Fed. Reg. 13740, 13742 (Mar. 13, 2008). The Commission observed that under 3

the FTC Act, 15 U.S. C. § 45, it would have jurisdiction over for-profit cemeteries, but not over

non-profit cemeteries, and that the “lopsided application of the Rule to some, but not all, cemeteries

would likely prove unduly costly.” 73 Fed. Reg. at 13744-45.

16 CFR § 453.1(h). 4

16 CFR § 453.1(j). The definition of “funeral provider” in § 453.1(i) of the Rule 5

requires the offer or sale of both “funeral goods” and “funeral services.” 16 CFR § 453.1(i).

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 16, 2009

Michael P. A. Cohen, Esq.

Paul, Hastings, Janofsky and Walker, LLP

875 15 Street, N.W. th

Washington, DC 20005

Dear Mr. Cohen:

On behalf of Selected Independent Funeral Homes (“SIFH”), a professional association of

independent, locally owned funeral homes, you have requested a staff opinion on the application

of the Funeral Rule to cemeteries. You state that many SIFH members also own cemeteries, and

argue that staff’s analysis in Opinion 08-1 of the Rule’s application to crematories “applies with

1

equal force to cemeteries,” and compels a conclusion that the Rule likewise applies to cemeteries. 

As you may know, the Commission noted when it promulgated the Rule that a cemetery

“would generally not be considered a ‘funeral provider’” because it “only arranges or conducts

final dispositions” and “does not prepare human remains for burial or other dispositions.” In

2

2008, the Commission decided not to commence a rulemaking proceeding to amend the Rule to

cover all cemeteries operated for profit. Nothing in Opinion 08-1 is inconsistent with these 3

determinations.

In Opinion 08-1, staff noted that the Rule applies only to “funeral providers” that sell or

offer to sell both “funeral goods,” as defined by § 453.1(h) of the Rule, and “funeral services,” as 4

defined by § 453.1(j). We stated that if a crematory sells or offers to sell “funeral goods,” such 5
Michael P. A. Cohen, Esq.

Page 2 of 2

16 CFR § 453.1(j)(1)-(2). 6

as urns, it would be covered by the Rule because crematories also perform “funeral services.” 

Staff’s view that crematories perform “funeral services” was based, in turn, on our analysis of the

two tests prescribed by the definition of that term:

‘Funeral services’ are any services which may be used to:

(1) Care for and prepare deceased human bodies for burial, cremation

or other final disposition; and

(2) arrange, supervise or conduct the funeral ceremony or the final

disposition of deceased human remains.6

While we agree that the second element in the definition applies equally to cemeteries and

crematories, because both “arrange, supervise or conduct . . . the final disposition,” staff is not

persuaded that most cemeteries “care for and prepare deceased human bodies for burial, ”as

required by the first element. Unlike cemeteries, crematories typically must refrigerate and store

remains for waiting periods prescribed by state law, and physically handle remains to transfer 

them from regular or rental caskets to flammable containers, check for and remove prosthetics,

pacemakers, and jewelry prior to cremation, and collect the ashes when the process is completed. 

It cannot be said that cemeteries likewise “care for an prepare deceased human bodies for burial”

since they generally deal only with casketed remains.

While the Funeral Rule generally does not apply to cemeteries, there may be some

circumstances in which commercial cemeteries are “funeral providers” and are obliged to comply

with the Rule. For example, if a commercial cemetery provides “funeral services” and offers or

sells “funeral goods,” it would be obligated to comply with the Rule. 

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