1

 16 C.F.R. § 453.4(b)(1)(ii).

2

 16 C.F.R. § 453.2(b)(4)(iv).

3

 16 C.F.R. § 453.3(d)(2).

4

 16 C.F.R. § 453.3(d)(1).

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

December 21, 2011

Ms. Lynne Nelson, Compliance and Education Manager

Oregon Mortuary & Cemetery Board

800 Oregon St., #430

Portland, OR 97232

Dear Ms. Nelson:

You have asked whether the Funeral Rule permits a funeral home to include a nondeclinable charge on its General Price List and Statement of Funeral Goods and Services Selected

for disinfecting, washing and dressing remains in connection with an “identification viewing” when

state law does not require such a viewing. The purpose of this viewing is for a family member to

confirm the identity of the deceased prior to direct cremation or immediate burial of the remains. 

Section 453.4(b)(1)(ii) of the Rule prohibits a funeral provider from charging “any fee as a

condition to furnishing any funeral goods or funeral services to a person arranging a funeral other

than the fees for (1) services of funeral director and staff, permitted by § 453.2(b)(4)(iii)(C) (the

“basic services fee”); (2) other funeral services and funeral goods selected by the purchaser; and (3)

other funeral goods or services required to be purchased, as explained on the itemized statement in

accordance with § 453.3(d)(2).”1

 Section 453.2(b)(4)(iv) emphasizes that the basic services fee “is

the only funeral provider fee for services, facilities or unallocated overhead permitted by this part to

be non-declinable, unless otherwise required by law.”2

 

Section 453.3(d)(2), in turn, requires a funeral provider to “identify and briefly describe in

writing on the statement of funeral goods and services selected . . . any legal, cemetery, or

crematory requirement which the funeral provider represents to persons as compelling the purchase

of funeral goods or funeral services for the funeral which that person is arranging.”3

 This

affirmative disclosure is required by the Rule to prevent any misrepresentation prohibited by

Section 453.3(d)(1) “that federal, state or local laws, or particular cemeteries or crematories, require

the purchase of any funeral goods or funeral services when such is not the case.”4
Ms. Lynne Nelson

Page 2 of 3

5

 Staff has previously stated that a non-declinable charge for an identification viewing

would likely violate Section 453.4(b)(1) of the Rule if not required by law. Staff Opinion 97-4

(Oct. 31, 1997) available at http://www.ftc.gov/ftc/funerals/opinions/opinion97-4.pdf. 

6

 This opinion does not address the situation in many states and localities where a law,

regulation, or requirement of a cemetery or crematory imposes a duty on the funeral provider to

conduct an identification viewing.

7

 Section 453.4(b)(2)(ii) states that a funeral provider may “fail[] to comply with a request

for a combination of goods or services which would be impossible, impractical, or excessively

burdensome to provide.”16 C.F.R. § 453.4(b)(2)(ii). The Final Staff Compliance Guidelines for the

original Rule read this provision to allow a funeral provider to require and charge for embalming –

even in the absence of any state law embalming requirement – for a funeral with a formal public

viewing in hot weather because such a viewing would be impractical absent the availability of

reasonable alternatives, such as refrigeration or the use of a sealed casket. 50 Fed. Reg. 28062,

28072-73 (July 9, 1985); see also FTC, Complying with the Funeral Rule (June 2004) 24, available

at http://business.ftc.gov/documents/bus05-complying-funeral-rule.pdf.

8

 Although the Rule does not address identification practices, the availability of a variety of

reasonable identification alternatives is highly relevant to the issues of practical necessity and

excessive burden.

9

 The NFDA and other experts have acknowledged that a digital photograph of the decedent

that is positively identified by a family member is sufficient to protect a funeral provider from

liability for negligence. 

These provisions clearly prohibit a second, non-declinable fee for any purpose, including

an identification viewing, unless applicable law or the particular cemetery or crematory to be

used imposes such a requirement.5 As we understand your inquiry, no such external requirement

exists that would permit charges for disinfecting, washing and dressing remains in connection with

an identification viewing before a direct cremation or immediate burial.6

The National Funeral Directors Association argues that a funeral provider should be able to 

charge a non-declinable fee for disinfecting, washing and dressing remains in connection with an

identification viewing before a direct cremation or immediate burial because it is a “practical

necessity” for funeral providers to protect themselves from liability for cremating or immediately

burying the wrong body, or because it would be “excessively burdensome” to be prevented from

doing so.7

 We do not find these arguments persuasive given the ready availability of reasonable

alternatives to such a requirement.8

 

For example, a funeral provider could protect itself from liability in a variety of ways

depending on the circumstances, including providing families with a digital photograph of the

deceased for identification purposes,9

 requiring families to provide a recent photograph to permit
Ms. Lynne Nelson

Page 3 of 3

10 This alternative may suffice, for example, in cases where there are readily identifiable

distinguishing features such as scars or tattoos.

11 A waiver and indemnification may be sufficient whenever a family member is present

with the deceased at the time of removal.

12 Nothing in the Rule prevents funeral providers from adding the cost of verifying and

documenting the identity of the deceased before a direct cremation or immediate burial to the basic

services fee included in their prices for those two specialized services because identification is

equally important to “virtually all,” if not all, of those two services. See Staff Opinion 07-2 (Mar.

21, 2007) at 2, available at http://www.ftc.gov/ftc/funerals/opinions/opinion07-2.pdf. Staff has

previously determined that providers may reduce their standard basic services fee for direct

cremation and immediate burial to reflect the proportionate reduction for each of those services in

the actual professional services they provide and the accompanying overhead. Staff Opinion 09-6

(Nov. 24, 2009), available at http://ftc.gov/bcp/edu/microsites/funerals/opinions/opinion09-6.pdf. 

Thus, a funeral provider may recover its identification costs simply by adding them to the reduced

basic services fee that it includes in its prices for direct cremation and immediate burial. 

employees to conduct and document the identification,10 or securing an identification waiver and

indemnification from family members.11 The availability of such alternatives undermines any

argument that disinfecting, washing and dressing remains in connection with an identification

viewing before a direct cremation or immediate burial is a practical necessity. For the same reason,

the Rule prohibition of a separate non-declinable charge for those services cannot be excessively

burdensome.12 

It is therefore staff’s opinion that under the Funeral Rule a funeral provider may not require

and impose a separate special charge for disinfecting, washing and dressing remains in connection

with an identification viewing before a direct cremation or immediate burial absent a state law,

cemetery or crematory requirement that is disclosed in writing on the provider’s statement of

funeral goods and services selected. We note, however, that nothing in the Rule prevents a funeral

provider from offering and charging clients for services that go beyond an identification viewing,

such as a private family viewing rather than a formal public viewing, so long as that service is

entirely optional and listed on the provider’s General Price List.

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 now routinely

posted on the FTC website at http://business.ftc.gov/content/funeral-rule-opinions. 

Sincerely,

/s/

Craig Tregillus

Funeral Rule Coordinator

(Revised: 12/18/12)