16 CFR Part 453

ITEMS FOR CONSIDERATION ON THE RE-OPENING OF THE FTC FUNERAL RULES

Submitted by Karen Leonard and Bob Treuhaft on behalf of Jessica Mitford*s The American Way of Death Revisited Contact: P.O. Box 7501 Cotati CA, 94931 email: karenl@monitor.net www.mitford.org

I. The Inclusion of Cemeteries, Crematoriums and other sellers of After-death Services and Goods.

The Federal Trade Commission*s omission to include the cemetery industry in it*s original ruling has cost the consumer a heavy price.

The emergence of the corporate mortuaries and their acquisition of cemetery and crematory properties has increased prices for the public and created a stranglehold on the current cremation market.

Crematories have traditionally been built on cemeteries. The increase of cremation as disposition rather than burial, particularly within California, has funneled a tremendous amount of business to these structures.

In San Francisco, crematoriums have been banned from being built within the city limits. Colma, the bordering city has become renowned as the *City of the Dead* because it*s main industry is cemeteries and their crematoriums. Colma is the primary resource for all mortuaries within the greater Bay Area for both burial and cremation.

Currently, Service Corporation International owns ten of the twelve crematoriums in this central area. The prices charged to outside mortuaries has more than doubled in the past few years. These costs are obviously passed onto the consumer, and has resulted in rising cremation costs. Choices have been greatly limited, not only because of the anonymity of the corporate ownership, but due to the corporations* control over nearly all disposition for both burials and cremation in the entire Bay Area.

The cost and restrictions of building crematoriums prevent small businesses from being able to avoid these higher costs. It makes it possible for the corporation to force higher prices on their competitors and close the gap between them. This leaves the consumer with no way to avoid paying more for their death care.

In fact, corporate funeral industry stockholder reports state that cremation has become more profitable than the traditional burial. This flies in the face of logic, considering that the services and actions in the mechanics of cremation are far simpler than the conventional style of death care developed by this industry in prior years. This is particularly poignant since cremation was forced on the industry by consumers as a more economical choice not previously offered by the industry.

Market share of SCI in Colma far exceeds fifty percent. Their control of the majority of cemeteries and crematoriums means control of a very widespread area, impacting consumers in other cities and counties that must depend on these structures. Because the FTC does not oversee theses industries, SCI has been able to create monopolies that are unregulated.

II. Re-defining the Nondeclinable fee and the Cash Advance items.

The FTC has also created a hazard for the consumer by letting mortuaries list cremation charges as a cash advanced item. Without having to quote the additional cost of the retort fee, the mortuary can state their prices for a cremation for hundreds of dollars lower than their actual cost. It is not unreasonable for the consumer to consider that a price for a cremation would include the cost of the crematorium*s use.

Perhaps the assumption was on the part of the FTC, who thought that choice of crematoriums would be a choice left up to the consumer. This shows lack of understanding of the actual mechanics of death care. Mortuaries subcontract these services out if they do not own their own crematorium. They enter contracts to fix a price for utilizing a particular crematorium. Often the mortuary*s selection is limited due to the distance between retorts, and in reality there is no alternative. If the facility being used by a consumer is a corporate owned mortuary, the mortuary will of course utilize their own retort. In all of these scenarios, the consumer has no choice. They are not presented with a list of crematoriums and their charges, so that they could choose one closer or lower in price. An obituary may be a choice for a consumer, and it is an obvious cash advance item, but when ordering a cremation, using a retort is mandatory.

Another questionable practice consumer*s have been subjected to over the years is the practice of being charged for the storage of the body as a separate and additional charge from the advertised price for a cremation or burial. The charge for holding a body in refrigeration is not only new but has risen to often equal the charges for embalming. No type of death care can be accomplished without storing a body, nevertheless, it is also separated from the prices listed as nondeclinable and is often even separated from *packaged* prices in order to quote a lower price than the actual cost. Again, it is not likely to be thought of by the family to check for while doing comparison shopping. It seems odd that this charge is not a basic overhead charge, since it is standard for every procedure involved in the mechanics of death care.

Scrutiny of nondeclinable overhead charges will often show that double billing is taking place. If this fee is intended to cover all the facility and service expenses commonly used in every procedure, why is there an additional charge for every facility and service used in the mechanics of standard death care? If every death entails transporting the body from the place of death to the mortuary, storing the body, filing for permits, etc.... how do these items manage to be excluded from and in addition to the prices listed under *nondeclinable*? When a consumer calls for information on prices, will they think to ask if the quoted price for cremation involves the actual cost of cremation? Will they think to ask if there will be an additional charge for storing the body?

If you bring your car to a garage, once the mechanic decides the needed work for repairs, you are given an estimate before work is begun. If the consumer does not agree, the consumer has the car removed. They may be charged for an hour of labor for the time to determine damages. Unlike this situation, once the consumer in a mortuary sees prices or charges that were nexpected , it is very unlikely they will have the body removed. Even if this rare and determined individual does so, the funeral director can charge transportation, storage, etc.... on top of the nondeclinable fee.

The above scenario is the most likely one to happen. The average consumer will wait until death occurs, and call the mortuary to pick up the body before they ever talk about prices. They will assume the mortuary closest to them is the cheapest, and that choosing a mortuary farther away will incur additional transportation charges. They will also assume that the body preparations will be performed there. Both of these assumptions will most likely be wrong if the mortuary has been purchased by a corporate outfit.

The ability to use the nondeclinable fee to pad perceived possible losses due to competition has been a grievous wrongdoing to the consumer. The ability to save money by utilizing third party sellers has been undermined by this move on the part of mortuaries, who the public is forced to seek for services. It unjustly forces higher costs onto those not even purchasing a casket.

III. The need to disclose ownership of facilities and their locations.

Another area where choices and information is withheld from the consumer is the common practice used by corporate companies to *cluster* their facilities, utilizing storage and embalming facilities apart from the mortuary contacted by the family. Often it is a shock for the surviving kin to learn (and then only after something has gone wrong) that the body of their family member never even came close to the mortuary called, but instead was handled by facilities many miles away.

A major difference in other democratic countries is the fact that their governments do indeed feel that the consumer has a right to know true ownership of the facility they utilize for death care. To them, it is a basic freedom of choice. In England, when SCI bought up crematoriums along with their mortuary holdings, they directed all cremations to their own retorts. Just as they do here. The British government stepped in to force them to list other crematoriums in the area as well as the competing prices in order to give the consumers the choices important to decision making. In this country these decisions are not in the hands of the public, but given over to industry control. These types of business practices increase consumer ignorance, restricts their choices, and gives additional control to the sellers in a market that is already imbalance by the emotional burden that falls on the customer having to make financial transaction during grief.

Perhaps is would be more understandable if these practices somehow benefited the consumer by lowering their costs. But this is solely done to increase profits at the expense of the consumer. Disclosure of ownership must be on all printed literature as well as signs. It is imperative that it be attached to the name, and disclosed where ever the name is displayed.

IV. Restraint of Trade:

If mortuary prices were truly structured for the consumer to pick and choose what they want, there would be an ability for the consumer to choose not to purchase services and goods they could procure themselves.

As an example, in other countries permits for dispositions are usually procured by the survivors. In this country, if a consumer would like to save money and obtain the required permits hemselves, the bill would not deduct this service. It is indeed nondeclinable.

Restraint of trade has so proliferated within the United States concerning this industry that the consumer cannot contract for simple disposition that would require only transportation of a body to a crematorium or cemetery and/or obtaining permits without having to incur the costs of fcilities and services not needed. Laws prevail to make small business that do not require the use of a mortuary , such as disposition providers, from existing. Regardless of the FTC*s stand on the right of the consumer to purchase a casket outside a mortuary, some states insist only a licensed funeral director can sell them.

V. Better disclosures concerning embalming

Unlike death care in other countries, it is virtually unheard of in the United States for people to wait before engaging a funeral director. In England, where the average time between death and calling a funeral director is two days, it is possible for families to say their good-byes or hold their own rites in their own environment before turning the body over to a business. The eroneous belief that once dead a body is an immediate health hazard prevails largely due to industry propaganda. Funeral Directors still lie about laws concerning death care. General Price lists commonly state that within 24 hr. the funeral director must embalm, refrigerate, cremate or intern a body. this statement is often adjoined to the phrase* for public health reasons*. These State laws were put in place to prevent the funeral director from allowing the body to decompose if immediate payment wasn*t made from the families. It was meant to protect the consumer from abuse. When stated in such a manner, this law has been used by funeral directors to mislead people into thinking that after death occurs they must have the body removed within 24 hours for health reasons.

The FTC does not prohibit mortuaries from implying that embalming is necessary for sanitation and public health reasons even though the facts prove just the opposite. Although the FTC has insisted that mortuaries inform the consumer in writing that embalming is not required by law, they allow mortuaries to force embalming onto consumers who simply want to view the body privately. As the required statement is printed on General Price lists; *You may choose a service that does not require embalming* creates the false impression that embalming IS legally required for viewing a body.

VI. Prepaid contracts:

Pre-purchased funerals are not well regulated in most states, particularly in cemetery sales, and has lead to a loss of hundreds of million of dollars to consumers. Backloading, the failure of cemeteries to disclose all services and goods that would have to be purchased for interment, finds many consumers standing at the graveside to bury a relative, only to be presented with an expensive bill involving services and goods that the family thought had been paid for.

Even with cemetery contracts that state *Paid in Full*, years later when the cemetery has been taken over by a corporation, families will find additional costs have been added, such as *grave enhancement fees*. These are the type of items that never existed when the plot was originally purchased. These bewildering fees have no clear meaning, but are nonetheless nondeclinable. Add to that fact, that cemetery purchases are likely to be far more emotionally charged than mortuary choices due to the emotional need to have burial alongside relatives.

Although many consumers have been warned that they should not enter a mortuary prepaid contract that isn*t *portable*, cemetery purchases never are. there is no good resale market for grave plots. They may be the most expensive reality purchase on earth, but the consumer has no real property rights in cemeteries. Prepaying for cemetery purchases is even more common than prepaid funeral expenses because they are almost always sold while a person is burying a family member, and the emotional need to reserve a final resting place next to the dead family member is very great.

VII. FROP the funeral rule offenders program:

Any program that allows secrecy from the public of wrongdoing is inherently unjust to the consumer. When a mortuary has been defrauding the public over decades, it is an important right for those past customers to know that they have lost hundreds to thousands of dollars because the mortuary did not give them the right to choose. They have a right to confront the criminal to redress their grievances. Your stand to protect people who knowingly failed to disclose information that could increase their profits and thwart the consumer*s right to choose less expensive alternatives is patently anti-consumer. It also conflicts with the States right to prosecute wrongdoing.

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