By T. Scott Gilligan, NFDA General Counsel

Last year, the FTC initiated a review of the Funeral Rule to determine if it needed to be updated or modified. NFDA, along with 784 other interested parties, submitted written comments to the FTC by its June 15, 2020, deadline. Funeral Rule Coordinator Patti Poss is now in the process of reviewing and evaluating these comments. It would then be up to FTC senior staff to recommend to the five FTC commissioners whether to initiate a formal review of the Funeral Rule (this has only been done once in the rule’s 37-year history).

However, the election of Joe Biden has apparently caused a shake-up at the top of the commission that could impact the Funeral Rule review in several ways. On January 19, 2021, FTC Chairperson Joseph Simons announced that he was departing the commission on January 29, 2021. In addition to Simons’ departure, key senior staff members are also leaving the FTC. The director and deputy director of the Bureau of Competition, the director of the Bureau of Consumer Protection and the FTC general counsel will all leave their posts in the next month.

Another major change to the five-member commission’s makeup has been hinted at this week. Rohat Chopra, a liberal Democrat commission member, is rumored to be President Biden’s next chair of the Consumer Financial Protection Bureau (CFPB). If that appointment takes place, it would create a second FTC vacancy, which Biden would fill.

The FTC is traditionally split, with three members from the president’s political party and two from the other party. With the departure of Simons (a Republican) and Chopra (a Democrat), Biden will be appointing two Democrats, thereby swinging the commission to a Democrat majority.

What does this mean for the Funeral Rule review? While no one can say for certain, as a general rule, Democrats tend to lean more toward consumers while Republicans traditionally favor business interests. Therefore, the appointment of two Democrats may push the commission more toward modifying the Funeral Rule to add provisions advocated by consumer interest groups, such as requiring funeral homes to post price lists on their websites.

The departure of Chairperson Simons may also be detrimental to positions advocated by NFDA on behalf of funeral service. Simons was a protégé of former FTC Chairman Tim Muris, who was opposed to the Funeral Rule when he worked at the FTC. NFDA stressed in its comments on the review of the Funeral Rule that Muris accurately predicted that the rule would not lead to the promised benefits of increased price competition and a decrease in funeral pricing. It was hoped that the empirical evaluation of how the Funeral Rule failed to deliver its promised benefits would resonate with Simons’ economist background.

On the other hand, Rohat Chopra has shown himself to be an outspoken proponent of consumer protection issues. He is also on the record as criticizing the level of funeral home compliance with the Funeral Rule. If he resigns from the commission to take the CFPB chair, it will be a loss for proponents of expanding the rule to require price lists be posted online.

Another possible result of the mass exodus of senior staff could be further delay in the review of the Funeral Rule. It will take months for the new Biden administration to appoint and obtain confirmation of two new commissioners, as well as senior staff members. And as with any new administration taking charge, there will be a number of new issues that the FTC will be charged with handling, which could further push the review of the Funeral Rule down the pecking order of FTC priorities.

This article originally appeared in the January 20, 2021, issue of the Memorial Business Journal.