April 28, 2005
Funeral Homes Not Required to Sell Merchandise
Recently, a family made funeral arrangements with a New York funeral home, but later decided to use a competing funeral home for the funeral and cremation services. However, during the initial arrangements, the family had seen an urn at the original funeral home which they wished to purchase. When they contacted the funeral home to purchase the urn, the funeral director refused to sell the urn since his funeral home was no longer providing funeral services to the family. The family subsequently complained to the FTC.
The issue before the FTC staff was whether the refusal to sell an urn by the funeral home constituted a violation of the Funeral Rule's anti-tying provision. The anti-tying requirement of the Funeral Rule prohibits funeral homes from conditioning the purchase of a funeral good or service upon the required purchase of another funeral good or service. In this case, the family was alleging that the funeral home violated the anti-tying provision because it refused to sell an urn unless the family also purchased a funeral service from the funeral home.
Based upon previous opinions issued by the FTC staff, NFDA advised the New York funeral director that the funeral home was not required to sell an urn under the circumstances. Prior FTC staff members have advised that if the funeral home is not hired to provide funeral services, it would not be compelled by the Funeral Rule to sell a casket or other merchandise. NFDA contacted the FTC staff when it learned about the complaint against the New York funeral home and reiterated its position that the anti-tying provision of the Rule would not require the funeral home to sell an urn under these circumstances.
The FTC confirmed to NFDA that its position is correct. According to the FTC Division of Marketing Practices, the anti-tying provision of the Funeral Rule was never intended to require funeral homes to sell caskets, urns, or other funeral merchandise to families they were not serving. Therefore, while a funeral home is certainly free to sell merchandise to families they do not serve, they are not required by the Funeral Rule to do so.
Any members with questions regarding the FTC Funeral Rule, may contact General Counsel Scott Gilligan at (513) 871-6332.
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