CHARLES A. GRAHAM
3 Arlington Road
Woburn, Massachusetts 01801-4937
Tel. (781) 933-1422 Fax. (781) 933-7797

July 1, 1999

Secretary, Federal Trade Commission
Room H-159, 600 Pennsylvania Ave., NW
Washington, DC 20580

Dear Sirs:

SUBJECT: 16 CFR Part 453, Request for comments concerning the *Funeral Rule*

In accordance with my rights regarding the upcoming regulatory review of the FTC Funeral Rule, I submit the following comments:

The Definition of *Funeral Provider*

The FTC Funeral Rule should protect all funeral service consumers, and apply to any business that sells funeral goods or services. Casket retailers, cemeteries, monument dealers, funeral shoppers, internet sites, and other *non traditional* members of the funeral industry should be required, just like funeral homes, to comply with the FTC Funeral Rule.

A consumer who purchases only goods or services from a person, partnership or corporation, deserves the same rights and protections as a consumer who purchases both goods and services from a person, partnership or corporation. Therefore, the Funeral Rule*s definition of *funeral provider* should be expanded to include any person, partnership or corporation that sells or offers funeral goods or services to the public.

If a funeral provider chooses to charge a delivery fee in addition to the retail price of a casket, outer burial container or other funeral merchandise, this fee should be required to be listed on the applicable merchandise price list(s). If a funeral provider chooses to differentiate between a local delivery, and a delivery outside their *local* delivery area, a description of that provider*s local delivery area should be required to be included on the applicable merchandise price list(s). If a funeral provider chooses to charge an extra fee for delivery outside their local delivery area, this fee should be required to be listed on the funeral provider*s applicable merchandise price list(s). The funeral provider should be able to choose any pricing method, such as a flat fee, hourly charge, or a mileage charge for these delivery fees.

If a funeral provider chooses not to charge any delivery fees in addition to the retail price of a casket, outer burial container or other merchandise, a statement to this effect should be printed on the applicable merchandise price lists.

The requirement that a price list be given for retention should be expanded to include both the casket and outer burial container price lists.

Casket Handling Fees

A funeral provider*s expense of *handling* a casket from some other source should already be included in that provider*s non-declinable *Basic Services* fee. Therefore, the FTC*s prohibition of non-declinable fees, except those currently permitted by the Rule, should continue.

Non Declinable Fees Currently Allowed

Most funeral providers offer a wide array of services, goods and facilities from which to choose. However, there are certain fixed costs that are common to all funerals, regardless of how simple or elaborate they may be. In order to remain in business, the funeral provider must be able to recoup these costs.

Prohibition of the Non-declinable Basic Services Fee would force funeral providers to raise the price charged for each individual funeral good and/or service offering to include an adequate fixed overhead recovery, even if a particular item of service or merchandise was the only one chosen by the consumer. The result would be that those consumers who choose to utilize more of the funeral home*s staff, services, facilities and merchandise would pay for these common fixed costs many times over, and their funeral costs would rise disproportionately to the amount of goods and services actually chosen. In effect, forcing one group of consumers to subsidize the funeral costs of another group of consumers.

It is impractical for funeral homes to be required to depend solely on the sale of merchandise and services to cover all operating expenses. This is because, unlike any other business, the FTC prohibits funeral homes from requiring consumers to purchase a minimum amount of goods and/or services for each funeral in order to adequately cover the firm*s fixed per funeral operating expenses, except as provided for in the Basic Services Fee. Also, unlike any other business, the FTC requires funeral homes to accept and service a competitor's merchandise free of charge.

The Non-declinable Basic Services Fee allows a funeral consumer the widest choice among the many and varied funeral options available, while giving the advantage of paying for any common fixed overhead costs only once. Furthermore, a funeral provider*s Non-declinable Basic Services Fee is printed on the firm*s General Price List, and is available to all consumers over the telephone. If a consumer believes that a funeral provider*s Non-declinable Basic Services Fee is too high, that consumer is free to *decline* it by choosing a funeral provider whose Non-declinable Basic Services Fee is lower. Or, the consumer may choose to utilize a funeral provider who has lower per funeral fixed overhead costs and a lower *Basic Services fee*, such as a direct disposer, or other *alternative* funeral provider.

Therefore, unless and until funeral homes are given the same rights that all other businesses enjoy with regard to setting minimum levels of goods and services that must be purchased, and charging a fee to handle and service a competitor's product; the Rule*s provision for a Non-declinable Basic Services Fee should remain.

Revision of the General Price List as Recommended by FAMSA:

1) The cost of private viewing without embalming as a required option

- This is an unnecessary requirement because the FTC Rule already allows funeral providers to charge a fee for the *Use of Facilities and Staff for Viewing*. *Private Viewing Without Embalming* does not differ from *Use of Facilities and Staff for Viewing* significantly enough to warrant the requirement that they be separate services listed on the GPL.

Currently, it is common practice for funeral homes to offer this service to consumers at no charge. This is done not only as a convenience to the consumer, but also to limit the funeral provider*s liability for the misidentification of bodies that would otherwise not be positively identified by a family member prior to final disposition.

The requirement of this option on the GPL is merely FAMSA*s attempt to circumvent a funeral provider*s right to require embalming for a public viewing in that provider*s establishment, and not the result of a consumer need that is not currently being met. Therefore, the decision to charge a fee for a *Private Viewing Without Embalming* should be left to the discretion of the funeral provider. However, if a funeral provider does decide to charge a fee for this service, then it should appear on that provider*s GPL.

2) The cost for body donation to a medical school as a required

option - This option should be added to the GPL only if a funeral provider chooses to offer this service for a fee.

3) The cost for the cremation process as a required option - The cost for the cremation process should be included as a service of the funeral provider on the GPL. Cremation has a higher than average incidence of litigation, and carries with it more liability for the funeral provider than any other form of disposition. It has been shown that considering the crematory fee as a separate Cash Advance Item has afforded the funeral provider little, if any protection from liability with regard to the cremation process, or disposition of the cremated remains.

Therefore, a funeral provider should have the ability to recoup the added liability costs and litigation risks that other forms of final disposition do not carry. This can be accomplished by pricing cremation as a service of the funeral provider, with an appropriate mark up on the GPL, not as a Cash Advance.

Inclusion of this item on the GPL will also benefit the consumer by providing more complete information about the cost of cremation on the GPL.

4) The cost for a rental casket as a required option - This option should be included on the Casket Price List, not the General Price List. Placement of this option on the Casket Price List will aid the consumer in comparing the cost for the rental of a casket as opposed to the cost to purchase a casket. However, this option should be included on the Casket Price List only if a funeral provider chooses to offer one or more caskets for rent.

5) The cost of the cremation process should be included in the charge for *Direct Cremation*- The cost of the cremation process should be included in the charge for *Direct Cremation* to standardize Direct Cremation prices, thus making it easier for the funeral consumer to comparison shop for this service.

6) Any mark-up on Cash Advance Items should be disclosed with the actual amount to be charged - The amount charged for Cash Advance Items should be the actual cost to the funeral provider. Any overhead recovery needed for arranging for Cash Advance Items should be included in the Non Declinable Basic Services Fee. Therefore, the FTC should prohibit the mark up of Cash Advance Items, and no disclosure should be necessary

Charles A. Graham
Licensed Funeral
Director/Registered Embalmer

Enclosures:

3.5* floppy disk

cc: funeral@ftc.gov