On October 20, the Federal Trade Commission (FTC) held its monthly Open Meeting at which it voted unanimously (4-0) to move forward with issuing an Advanced Notice of Proposed Rulemaking (ANPR) to make changes to the Funeral Rule. The FTC is a five-person body, but only three commissioners are required for a quorum. One of the two Republican commissioners resigned his position last week. However, that will not at all impact the Commission moving forward with the rulemaking process.

The next step in the process is for the ANPR to be published in the Federal Register. That is expected to happen in the coming weeks and when it publishes, the 60-day comment period will commence. ICCFA is in the process of digesting the entire 68-page ANPR and then will begin drafting comments with the input of its members and in consultation with other industry groups.

This action follows on comments solicited by FTC in June 2020 to review the Funeral Rule. Based on the comments FTC received in response to the Rule Review, along with the prior rulemaking records and the Commission’s experience enforcing the Rule, the Commission has determined that the Rule continues to serve a useful purpose and should be retained. The Commission now seeks additional comment on possible modification to the Funeral Rule.

Issues to be Considered:

The Commission is seeking additional input regarding the following seven topic areas:

(1) whether and how funeral providers should be required to display or distribute their price information online or through electronic media;

(2) whether funeral providers should be required to disclose third party crematory or other fees on the General Price List (GPL);

(3) whether the Rule’s requirements regarding reduced basic services fees should be amended;

(4) whether the Rule should be amended to account for new forms of disposition;

(5) whether the Rule’s embalming disclosure requirements should be amended;

(6) whether the Rule should be changed to improve the readability of the price lists; and

(7) whether changes should be made to the Rule to avoid negatively impacting underserved communities.

Further Details:

On the question of online and electronic price disclosure, the Commission is seeking comments on eight options to revise the Rule’s requirements regarding the distribution of price information to include new technologies. The Commission is particularly interested in suggestions about how to tailor changes in ways that facilitate the ability of small businesses to comply with the Rule using new technologies.

The Commission is considering whether to amend the Rule to provide more disclosure for consumers about third-party crematory-related fees, as well as other costs not required to be listed on the GPL. In addition to third-party crematory fees, the Commission wishes to explore whether the Rule should be clarified to state when other fees, not included in the price of the services, should be disclosed on the GPL.

The Commission does not believe the basic services fee should be eliminated, however, is interested in exploring whether consumers and businesses could benefit from a limited expansion of two of the basic services fee provisions – direct cremation and immediate burial. Therefore, the Commission is considering clarifying in the Rule that funeral providers may charge a lower basic services fee for forwarding and receiving remains, immediate burial, and direct cremation, if they wish, because of the limited use of the funeral provider’s facilities and staff time generally associated with those services. In addition, the Commission is considering modifying the definition of direct cremation and immediate burial to allow those offerings to include limited viewings or visitations.

The Commission is considering modifications to clarify application of the Rule for providers of new forms of disposition, such as alkaline hydrolysis and natural organic reduction, and consumers considering these options. The intent is that the Rule could then clarify that such providers could offer direct or immediate services with a reduced basic services fee. The Commission is also considering updating the Rule to adapt to new methods of disposition, for example the Rule requirements to offer and provide disclosures about alternative containers for direct services. The Commission wants to ensure that the Rule does not stifle innovation and believes that the proposed changes help level the playing field for providers of new alternative methods.

Regarding embalming disclosure, The Commission is considering changing the language of this disclosure and seeks comment on how the disclosure can be improved to educate consumers accurately on the limited circumstances when embalming may be required under the laws of some states.

The Commission is interested in obtaining additional comment on how the itemized price lists could be improved to maximize consumers’ access to accurate itemized price information in ways that minimize the burden on funeral providers, particularly small providers. Options being considered include requirements on how the information in the GPL is laid out and in which order; requirements that the items be in the same font, color, and size as the rest of the content in the price lists; and requirements that any price list posted online or conveyed electronically be in machine-readable format so that third parties could collect and aggregate this information. The Commission notes that even if it declines to mandate a standardized form, it could issue new templates for the itemized price lists based on the input received on how to improve readability and consumer comprehension, as an optional tool for businesses to help them comply with the Rule.

The Commission is interested in receiving comment on the Rule’s effect on the purchase of funeral goods and services in historically underserved communities, low-income communities, those with limited or no English proficiency, from recent immigrant communities, those living in communities of color, or families of veterans. The Commission is interested in knowing whether there are any issues or concerns related to the disclosure of price information when consumers make arrangements using such benefits to cover some or all of the funeral costs.

In the Rule Review, The Commission considered other issues as well, such as whether to include cemeteries in the Rule. In a big win for ICCFA, The Commission in the ANPR decided against expanding the Rule to include cemeteries and stated its position on this issue remains the same – that no evidence of changed circumstances has been submitted that would warrant a fresh look at this issue. Similarly, The Commission will not “re-open” the Rule’s state exemption provision, as requested by some stakeholders. And, with regard to the Funeral Rule Offenders Program (FROP), The Commission indicated it will take comments received during the Rule Review into consideration as it deliberates whether to continue the program, or potentially modify it, as it re-assesses its enforcement program.

Next Steps:

ICCFA will continue to provide updates on the Funeral Rule regulatory process, including the deadline to submit comments to FTC.