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VII. Misrepresentations

The amended Funeral Rule prohibits misrepresentations in six specific areas: embalming, caskets for direct cremations, outer burial containers, general legal and cemetery requirements, preservative and protective claims, and cash advance items. In addition, the FTC has prescribed several mandatory disclosures (all of which were discussed earlier) that the Commission believed were necessary to prevent consumers from being mislead in these areas. This chapter will review the scope of each misrepresentation provision.

  1. Embalming

    The Rule prohibits the following two types of misrepresentations regarding the need for embalming

    1. Legal Necessity for Embalming

      The Rule prohibits any misrepresentations regarding the legal necessity of embalming. It is a violation of the Rule to represent that state or local law requires embalming when such is not the case. It is furthermore a violation of the Rule if a funeral director fails to inform a consumer that embalming is not required by the law, except in special circumstances. Your obligation to so inform the consumer is met if your GPL contains the mandatory disclosure regarding embalming that was discussed in Section C(3) of Chapter I. If the GPL does not contain this disclosure, a violation of the Rule has occurred.

       

    2. Practical Necessity For Embalming

      Unless state or local law requires embalming, it is a violation of the Rule to inform consumers that embalming is required as a practical necessity in the following cases:

      1. When the consumer wishes to have a direct cremation;

         

      2. When the consumer wishes to have an immediate burial; and

         

      3. If refrigeration is available and there is to be a funeral with no viewing and there is to be a closed casket.

      Funeral directors should ensure that their policy regarding when bodies must be embalmed as practical necessity is not in conflict with any of the three requirements set out above.

      To avoid problems in this area, funeral directors should properly document on the Statement of Funeral Goods and Services Selected the reason embalming was performed. This serves as a possible protection for the funeral home in the event that an accusation is made against it for engaging in unnecessary embalming.

     

  2. Caskets For Direct Cremation
    1. Legal Requirements

      The Rule prohibits a funeral director from representing that state or local law requires a casket for direct cremation. A direct cremation is defined by the Rule as one that occurs without a formal viewing of the remains, or any visitation, or ceremony with the body present.

       

    2. Practical Requirements

      Funeral directors may not represent to consumers that caskets (other than unfinished wooden boxes) are required for direct cremations. Moreover, if a funeral director offers direct cremations, alternative containers or unfinished wood boxes must be made available for consumers of direct cremation. In addition, as a preventative measure against misrepresentations, the FTC has prescribed a mandatory disclosure regarding alternative containers which must be printed on the GPL in conjunction with the direct cremation listing (see Chapter I, Section C(6)).

     

  3. Outer Burial Containers
    1. Legal Requirements

      It is a violation of the Rule to misrepresent that outer burial containers are required by law when such is not the case. It is also a violation of the rule for the funeral director to fail to affirmatively inform consumers that state law does not require outer burial containers. This duty to affirmatively inform consumers is satisfied by the printing on the outer burial container price list of the mandatory disclosure discussed in Chapter III, Section D.

       

    2. Cemetery Requirements

      Misrepresentations regarding cemetery rules and regulations on outer burial containers are also prohibited by the amended Funeral Rule. As a precaution against such misrepresentations, funeral directors may wish to obtain updated rules and regulations of local cemeteries so that they are knowledgeable concerning outer burial container requirements.

     

  4. Legal and Cemetery Requirements

    The amended Funeral Rule provides a catchall prohibition against any type of misrepresentation concerning legal or cemetery requirements. In addition, this section of the Rule requires funeral directors to list and describe on the Statement of Funeral Goods and Services Selected any legal, cemetery or crematory requirement that compelled the consumer to purchase any funeral good or service. As an example, if a family is forced to purchase an outer burial container because of a particular cemetery requirement, this requirement should be noted and briefly described on the Statement. Again, this type of documentation will protect funeral directors against unsubstantiated claims of regulators or consumers.

     

  5. Preservative and Protective Claims
    1. Misrepresentations Regarding Decomposition

      Funeral directors may not represent to consumers that funeral goods or services will delay natural decomposition of remains for a long or indefinite period. This does not mean you cannot explain the beneficial preservative qualities of embalming. You are certainly free to inform families that embalming provides a temporary preservation of the body. However, if you choose to provide information regarding embalming or any other funeral good or service, you should make no claims regarding their preservative value that cannot be readily supported.

       

    2. Misrepresentations Regarding Protective Claims

      Misrepresentations regarding the protective features of caskets and vaults constitute a violation of the amended Funeral Rule. Any claims regarding the ability of caskets and vaults to protect the body from gravesite substances should not be made unless they can be substantiated. If the protective claims are made by the manufacturer of the casket or vault, it is prudent for the funeral director, when selling the items to the family, to indicate that these claims are made by the manufacturer, not the funeral home. Indeed, as a matter of customary business practice, we advise funeral directors to place the following warranty disclaimer on their price lists:

      Disclaimer of Warranties "Our funeral home makes no representations or warranties regarding caskets, outer burial containers or other funeral goods sold by the funeral home. The only warranties, expressed or implied, granted in connection with the goods sold with this funeral service are the express written warranties, if any, extended by the manufacturers thereof. No other warranties, expressed or implied, including the implied warranties of merchantability or fitness for a particular purpose, are extended by the funeral home."

     

  6. Cash Advance Items

    If a funeral director marks up cash advance items or receives a commission, rebate or discount which is not passed on to the consumer, it is a violation of the amended Funeral Rule to represent to the consumer that the charge represents the same amount that the funeral home paid for these items. It is furthermore a violation if the consumer is not informed which particular cash advance items have been marked up. This disclosure requirement is fulfilled if the Statement of Funeral Goods and Services Selected identifies each of the cash advance items that were marked up. The disclosure requirement in this regard is described in Section B(3) of Chapter IV.