FTC seeks public comment as part of its review of the Funeral Rule

FTC Funeral Rule Review – Comments Filed, Awaiting Review

The FTC designated 2019 for reviewing the Funeral Rule, but ultimately the review was not scheduled to occur until April 15, 2020. However, due to COVID-19, a 60-day extension was given, moving the comment filing period to June 15, 2020. ICCFA staff has been in discussions with the FTC throughout 2019 and 2020, and the FTC had indicated that the primary issue it wants to explore is requiring the posting of prices online. FTC staff has stated that this would most likely be in addition to providing written copies of the general price list. Ultimately the FTC requested comments on 22 separate issues of the current Funeral Rule. The issues included posting prices online, as well as modifications to the Rule; adapting the Rule due to new forms of disposition; changes due to technology; price list format changes; and also including cemeteries in the Rule. The findings on these issues may determine whether the Funeral Rule is substantially amended, perhaps repealed, or left as is. We continue to take the stance that ICCFA does not oppose the Rule – but rather supports the Rule AS IS. We believe the Funeral Rule works, and any further changes should not be mandated, but rather be up to the business to decide or – if necessary – the State to decide.

To date, there has been no further action by the FTC on the Funeral Rule while the five-commissioner panel is currently one short and divided two Democrats to two Republicans. Due to the presidential transition, there have been a number of changes at the commissioner and staff levels at the FTC that have likely led to a delay in considering updates to the Rule. Early in January 2021, then President-elect Biden nominated FTC Commissioner Rohit Chopra to be the next director of the Consumer Financial Protection Bureau (CFPB). On January 29, 2021, FTC Chairman Joseph Simons resigned from the Commission, allowing for there to eventually be a Democratic majority on the Commission under President Biden. Due to the Simons vacancy, Commissioner Chopra stayed on at the FTC until Simons’ replacement was confirmed to avoid a temporary 2-1 Republican majority. FTC Commissioner Rebecca Slaughter became Acting Chair of the Commission upon Simons’ leaving.

On March 24, 2021, President Biden nominated Lina Khan an associate professor at Columbia Law School and former legal advisor to FTC Commissioner Chopra to serve as an FTC Commissioner. The Senate confirmed Khan on June 15 and President Biden immediately appointed her to be Chairman of the Commission. On September 20, 2021, President Biden announced the nomination of Alvaro Bedoya as the fifth FTC commissioner who has yet to be confirmed by the full Senate. The Senate Commerce Committee has had to vote twice on his nomination because there was a tie vote on the nomination in December 2021 and the nomination expired with the end of the first session of the 117th Congress. President Biden renominated Bedoya to the FTC in January 2022 and the Committee revoted in another tie on his appointment March 3. Now his confirmation faces three votes in the full Senate to ultimately confirm Bedoya – a vote to discharge the nominee from committee; a cloture vote gaining 60 votes in favor of overcoming a filibuster; and finally, an up or down vote on the actual confirmation.

UPDATE: May 12, 2022

Senate Confirms Bedoya as a Commissioner of the FTC

The United States Senate voted 51-50 to confirm Alvaro Bedoya as a Commissioner of the Federal Trade Commission (FTC). Vice President Kamala Harris cast the tie-breaking vote. Now that he is confirmed, the FTC has a full slate of five commissioners – 3 Democrat-appointed and 2-Republican appointed. With a Democratic majority, the FTC is expected to begin implementing an aggressive agenda focused on consumer protection and price competition with the Funeral Rule on the list of rules to be considered. ICCFA is closely monitoring any movement at the FTC with respect to the Funeral Rule.

UPDATE: October 21, 2022

FTC Votes Unanimously to Move Forward with Updates to the Funeral Rule


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.

UPDATE: November 4, 2022

FTC Funeral Rule Update

On Wednesday, November 2, 2022, the Federal Trade Commission’s (FTC) Advanced Notice of Proposed Rulemaking (ANPR) for the Funeral Industry Practices Rule (Funeral Rule) was published in the Federal Register. This action kicks off a 60-day public comment period ending on January 3, 2023. The ICCFA encourages members to submit comments to the FTC and will also be preparing reply comments following participation in the October 20 FTC Open Meeting where General Counsel Poul Lemasters offered comments on behalf of the ICCFA.
See here for a summary of the changes the FTC is considering.

UPDATE: November 16, 2022
FTC Now Accepting Comments on Funeral Rule Rulemaking

The Federal Trade Commission is currently accepting comments on an Advanced Notice of Proposed Rulemaking (ANPR) related to the Funeral Industry Practices Rule (Funeral Rule). The ICCFA is preparing comments and will be providing members with an overview of the issues and the Association’s stance on each issue on which the FTC is requesting comment. Along with our comments, the ICCFA strongly encourages its members to submit comments individually to the FTC, as well as send a copy of those comments to their specific members of Congress (House representative and two senators). The ICCFA is putting together resources that will be available by early December so members can draft their individual comments. The comment period began November 2, 2022 and is open until January 3, 2023. All comments must be received by 11:59 PM EST on January 3, 2023. For more information, comments, or questions contact ICCFA’s General Counsel Poul Lemasters at poul@iccfa.com.
UPDATE: December 21, 2022
ICCFA FTC Comment Overview

The ICCFA continues to believe the Funeral Rule, as written, has achieved the founding goals the FTC intended, and as such the Rule does not need to be rewritten or modified. The Funeral Rule was created as a framework “to lower existing barriers to price competition in the funeral market and to facilitate informed consumer choice” and that framework provides the basis for not only past practices in the deathcare profession, but also allows for the inclusion of new trends in deathcare, such as the internet. If there are areas where more detail needs to be provided, then the ICCFA believes that States should be the ones issuing further guidelines and regulations, as they already oversee the deathcare profession in their respective State and are in a better position to determine what fits their needs.

Despite the ICCFA continuing to push for the Funeral Rule to stay as written, it appears that the Funeral Rule will be updated on some level to include several potential modifications. Rather than simply argue for no changes, the ICCFA believes it is important to offer solutions and suggestions for these changes proposed by the FTC. Listed below are suggested guidelines for changes to the Funeral Rule from ICCFA. These guidelines / proposals have been shared to all ICCFA members through a recent survey, and the following represent the results of the survey, and comments received from ICCFA members.
We encourage all members to read these guidelines and then share your own comments with the FTC. ICCFA has also provided its members with instructions on how to respond to the FTC request for comments. Members interested in responding should use these guidelines to help draft their own responses. We DO NOT recommend you simply cut and paste these comments and submit them. Instead, it is more helpful to draft your own response, and share a story or information that will help show why the changes will help or hurt your business and/or the consumer. You can let the FTC know you support the views and comments of the ICCFA, and then include your own reasoning as well.

If you have questions on any of the information included, the guidelines proposed by ICCFA, or the process of filing comments; please contact the ICCFA or Poul Lemasters, General Counsel poul@iccfa.com.

I. Online & Electronic Disclosures – Should the Rule be changed to require (a) all funeral providers (b) funeral providers that maintain websites or (c) funeral providers who sell funeral products or services online, to prominently display their GPLs, or a clearly labeled link to their GPLs, on their websites?
  • HOW to meet the requirement – The Rule should be modified to require that funeral providers who maintain a website under their control (as opposed to third-party sites like Facebook or Twitter) shall provide means on the website for consumers to request price information.
  • Funeral providers who do not have a website should be exempt from this requirement. Additionally, social media and advertisements should be exempt from the requirement because many of these platforms would not allow posting of a Price List and many of these platforms also are not always under the control of the business.
  • WHEN is the requirement triggered – The Rule should be revised to make clear that the obligation to produce price information under the Rule is only triggered when someone asks the funeral provider about pricing. (See additional Comment VIII regarding Timing of GPL and other Price Lists). We recommend that if a funeral provider completes funeral arrangements or a sale online, that funeral provider must provide its price lists online.
II. 3rd Party Crematory Fees and Additional Costs – Should all funeral providers be required to list third-party crematory fees in the description and price for direct cremation on the GPL?
  • This issue is addressed in the current Rule, so we recommend leaving the language as is. Crematory and other third-party costs are already included in the definition of Cash Advance Items and covered by the Rule. They must be presented to the consumer to the extent then known or reasonably ascertainable and itemized. If the prices are not known or reasonably ascertainable, a good faith estimate must be given, and a written statement of the actual charges shall be provided before the final bill is paid. Funeral providers are not able to control what third-party providers charge and should be compliant under the Rule so long as they disclose the additional fee at the time of contracting.
III. Reduced Basic Service Fees – Should the Rule be amended to clarify when funeral providers may charge a reduced basic services fee?
  • Yes, funeral providers should be allowed to offer reduced basic service fees, so long as the reduced fee is listed on the GPL and is based upon such things as the complexity and size of the funeral that the consumer requests. The funeral provider would not be able to charge more than their basic service fee but can reduce it. This merely an expansion of what the Funeral Rule already allows with services such as direct cremation, and immediate burial; but by expanding the Rule it could allow providers to have more limited-service options for the consumer.
IV. Alternative Forms of Disposition – Should the Rule language be amended to specifically address alternative forms of disposition, including alkaline hydrolysis and natural organic reduction?
  • While the Rule already covers disposition, and states have their own definitions for disposition, and what is allowed and not allowed, we recommend the language be revised to include other emerging alternative forms of disposition. We recommend that disposition become as neutral as possible allowing other forms of disposition as allowed by states. The language should be changed from, “Direct cremation” to “Direct Disposition or other forms of disposition as allowed by state law.”
V. Embalming Disclosure – Should the embalming disclosure contained in the Funeral Rule be amended to ensure consumers understand the specific circumstances in which embalming may be required under state law?
  • We recommend adding “refrigeration”: “Except in certain special cases as noted below, embalming and refrigeration is not required by law. Embalming or refrigeration may be necessary, however, if you select certain funeral arrangements, such as a funeral with viewing. If you do not want embalming or refrigeration, you usually have the right to choose an arrangement, such as direct cremation disposition or immediate burial, that does not require you to pay for it.”
  • We also recommend that if a provider does not offer embalming services (such as a cremation only provider), then it would not have to include the Embalming Disclosure.
VI. Price List Readability – Should the GPL, CPL, and/or OBCPL requirements be changed to improve readability for consumers?
  • We recommended that the Funeral Rule not be modified for this purpose as this matter is already addressed by Title III of the Americans with Disabilities Act as well as other state regulatory laws. We see no need for additional regulation.
VII. Impact on People in Underserved Communities – Are there any funeral provider practices that disproportionately target or affect certain groups, including lower-income communities, communities of color, or other historically underserved communities?
  • We recommend an update to the Funeral Rule that would allow, but not require, funeral providers to translate price lists and Statements of Funeral Goods and Services Selected into the languages of the communities they serve. However, Funeral professionals serve every community at every price point, and don’t refuse service to any population regardless of their race, creed, or background, therefore there are no communities underserved by the profession, and as a result we see no reason to update the Rule any further on this issue.
VIII. Timing Requirement for handing out GPL, CPL and OBCPL. (NOT ASKED by the FTC, but with other updates, this is an issue that should be addressed)
  • We recommend updating the Rule so that the trigger for when any price list is provided is based on the discussion of pricing. Currently, the trigger is based upon any discussion of funeral goods or services. This is a significant issue for funeral directors and would clear up one of the most confusing, subjective, and cited, elements of the Rule. The FTC should update the Rule with a more objective timing element of handing out the GPL, CPL and OBCPL; a timing element based upon the discussion of prices.
With an update of the Rule, and prices available to consumers online without having to talk or visit a funeral provider, the timing should be more defined and allow providers to provide a GPL, CPL or OBCPL upon the discussion of pricing. This will allow conversations among providers and consumers to be more natural, and less mandated by the immediate disbursement of pricing. The consumer will still be able to get prices immediately upon asking. If a consumer is concerned about prices and asks – this will immediately trigger the disbursement of pricing information. However, in cases where consumers just want general information, it will allow a provider to discuss their questions first, then once pricing is at issue, the provider can hand out any referenced price list.
UPDATE: February 15, 2023
FTC Commission Remains Fluid

The FTC, which has been operating with only four of five commissioners since October 2022 when Republican Noah Phillips stepped down, saw additional changes this week. The one remaining Republican commissioner, Christine Wilson, announced on February 14 that she would be stepping down, though it was not exactly clear when she would leave. Commissioner Wilson cited her own concerns with FTC Chair Lina Kahn’s, “disregard for the rule of law and due process.” Wilson’s resignation will allow President Biden to nominate two more Republicans to the Commission, but the White House has not indicated when that would happen, or who it has in mind. On February 13, President Biden nominated current Democratic commissioner, Rebecca Slaughter, to an extended term. Her term had expired in September 2022. While the shakeup could momentarily delay work at the FTC, it is still able to carry out its work without a full commission.
UPDATE: April 13, 2023
ICCFA Files Comments on FTC Proposed Rule Banning Non-Compete Agreements

As we reported in February, the Federal Trade Commission (FTC) has proposed a new rule that would basically ban all employers from imposing any type of non-compete agreement, no matter what form it may be written or provided. As proposed, this new rule would not only ban all non-competes, it would apply to all employers, no matter the size of the company, and it would also be retroactive, meaning that it would make any existing non-competes invalid.

On February 23, 2023, ICCFA sent out a survey to our members to determine what position, if any, would best serve the membership on this issue. We took that feedback and crafted comments opposing the Non-Compete Rule as it relates to the sale of a business, as the general exception provided by the proposed Non-Compete Rule is too broad. Our thanks to everyone who participated in the survey.

If you would like to be heard on this issue, the deadline to file comments is Wednesday, April 19, 2023. Please refer to the information below on how to file comments with the FTC. On the subject line of your letter, please include “Non-Compete Clause Rulemaking, Matter No. P201200.”

UPDATE: September 25, 2023

Recording of the ICCFA Speaking at the FTC Funeral Rule Workshop Available for Playback

The ICCFA was invited to be a panelist during the Federal Trade Commission’s public workshop on Thursday, September 7, 2023. The purpose of the workshop was to seek further input on proposed changes to the Funeral Rule.
If you missed the live airing or want to rewatch the workshop, it is available for playback here.
UPDATE: September 25, 2023
Senate Commerce Committee Holds Hearing on FTC Nominees

On September 20, the Senate Commerce, Science and Transportation Committee held a confirmation hearing on President Biden’s nominees to fill two vacant commissioner seats on the Federal Trade Commission (FTC). The nominees would fill Republican vacancies on the Commission. One nominee is Melissa Holyoak who is currently Solicitor General for Utah and the other is Andrew Ferguson who is currently Solicitor General for Virginia. The Committee also considered the renomination of Democratic FTC Commissioner Rebecca Slaughter to continue in her role. The hearing today indicates the confirmation process is moving forward. The next step would be for the Senate Commerce Committee to vote to report the nominees to be considered by the full Senate. The final step is an up or down vote on the nominations on the Senate floor. Both votes are expected later this fall.
UPDATE: October 18, 2023
Senate Commerce Committee Confirms Federal Trade Commission Nominees

Today, the Senate Commerce, Science and Transportation Committee approved three nominations for Federal Trade Commission Commissioners. The Committee reported nominations of Andrew Ferguson, Melissa Holyoak, and current commissioner Rebecca Slaughter to the full Senate for consideration. The Committee unanimously approved the nominations signaling Senate confirmation once the votes are scheduled sometime later this year. Once the nominees are confirmed, the FTC will be operating at full capacity with a majority of three Democratic commissioners and two Republican Commissioners. The new Republicans, Holyoak and Ferguson, are expected to be in place at the FTC by the time proposed changes to the Funeral Rule are issued.

UPDATE: January 29, 2024
FTC Sends Warning Letters to Funeral Homes After First Undercover Phone Sweep

On January 25, 2024, the Federal Trade Commission (FTC) announced it is sending warning letters to 39 funeral homes across the country who allegedly failed to provide accurate information. This action is a result of the agency’s first undercover phone sweep and determination by the FTC of several violations of the Funeral Rule, including funeral homes that reportedly failed to provide accurate pricing information or failed to give out price information entirely. According to the FTC, “Throughout 2023, investigators and other staff from the FTC’s East Central Region, Northwest Region, Southeast Region, Southwest Region, Midwest Region, Western Region – Los Angeles, Western Region – San Francisco offices and the Bureau of Consumer Protection’s Division of Marketing Practices placed undercover calls to more than 250 funeral homes from across the country to try to obtain price information. Staff determined that 39 funeral homes violated the Funeral Rule on these calls.” The FTC also stated, “The letters reiterate that the Funeral Rule requires funeral providers to disclose prices and other information to people arranging funerals, including itemized price information over the telephone, and asks the funeral homes to take prompt remedial action to make sure they are no longer violating the Funeral Rule. Failure to comply with the rule result in penalties of up to $51,744 per violation.”
This action comes as the FTC prepares to issue a Notice of Proposed Rule-making on the Funeral Rule, which is expected in the coming months, possibly during this first quarter of 2024.
The ICCFA is preparing an FTC Refresher course and will also be reviewing the future and current state of the Funeral Rule during the Legal and Legislative Luncheon from 1:00 – 3:00 PM on Saturday, April 13 at the upcoming 2024 ICCFA Annual Convention & Exposition in Tampa, Florida. If members have questions, please contact ICCFA General Counsel Poul Lemasters, Esq., at poul@iccfa.com. To see the FTC Press Release, please find it here.

Poul Lemasters, Esq.

ICCFA General Counsel