A tying arrangement exists when a seller requires a purchaser to buy an unwanted item in order to obtain a desired good or service. For example, if a funeral director only offers funeral services if the consumer agrees to have the body embalmed, the seller has tied the provision of funeral services to the required purchase of embalming.
The Funeral Rule prohibits tying arrangements subject to certain specific exceptions. These exceptions are as follows:
As discussed earlier, the fee for the Basic Services of Funeral Director and Staff may be made nondeclinable by the funeral director. In other words, it is not a violation of the Rule to require consumers to pay this charge as a condition of receiving funeral services. All other fees, however, must be declinable unless a different exception would be applicable.
To the extent that state or local law requires the purchase of a funeral good or service, the funeral director may tie the purchase of that good or service to the provision of funeral services. For example, if state law requires embalming of contagious disease cases, the funeral director may require embalming of all contagious disease cases as a condition of providing funeral services.
The amended Funeral Rule provides that funeral directors are not required to honor a request for a combination of goods and services which would be "impossible, impractical or excessively burdensome" to provide. This standard supplies little guidance to funeral directors. Although the funeral director will have to make the initial judgment as to what is "impossible, impractical or excessively burdensome," the ultimate judgment would be made by the FTC if a Rule violation is charged.
The practical necessity of embalming is one area which falls under this exception. For example, a funeral director may refuse a family's request for the public viewing of an unembalmed body on the grounds of practical necessity. It may be offensive to members of the public to view an unembalmed body. Embalming in such circumstances is widely recognized as a practical necessity. On the other hand, if the family requests a brief viewing of an unembalmed body for just family members, the funeral director cannot refuse this request.
Reliance on this exception as the basis for refusing service should be carefully considered. What strikes a funeral director as impractical or excessively burdensome may not be so regarded by the FTC. The personal taste of the funeral director is not a relevant factor. Any refusal of service should be based on objective criteria or subjective standards that are widely recognized.
The anti-tying provision of the amended Funeral Rule has direct application to the purchase of caskets. A funeral director may not insist that a consumer purchase a casket from the funeral home in order to obtain funeral service. If a consumer purchases the casket elsewhere, the funeral director may not refuse service for that reason.
Under the original Funeral Rule, funeral directors could charge consumers a fee for handling caskets purchased from third parties. The amended Funeral Rule has now prohibited casket handling fees and any other type of surcharges for handling third-party merchandise. Therefore, all handling fees must be eliminated from price lists by July 19, 1994
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