The Federal Trade Commission has the authority to regulate unfair acts and practices under Section 5 of the FTC Act. With this and its authority to promulgate trade regulation rules under 16 C.F.R. § 1.8, the Commission established the Funeral Rule in 1984, and it is currently the subject of a proposed rulemaking by the Commission.
The Funeral Rule is a price disclosure regulation, designed to ensure transparency for consumers shopping for funeral goods and services. The Rule states:
[I]t is an unfair or deceptive act or practice for a funeral provider to fail to furnish accurate price information disclosing the cost to the purchaser for each of the specific funeral goods and funeral services used in connection with the disposition of deceased human bodies, including at least the price of embalming, transportation of remains, use of facilities, caskets, outer burial containers, immediate burials, or direct cremations, to persons inquiring about the purchase of funerals.
The disclosures required by the Funeral Rule aim to increase price transparency—and they do. Still, questions remain. What exactly is transparency under the FTC Act? How does the Funeral Rule, along with its required price disclosures, serve the goal of transparency? What sort of benefits and tradeoffs are made in this effort? And what do the discussions surrounding the current round of revisions to the Funeral Rule reveal about transparency in the deathcare industry? This Essay considers the growing need for transparency in the deathcare sphere over the last 150 years and the Federal Trade Commission’s responses to that need. First, we will explain the history of the funeral industry at a broad level, including reasons why establishing greater transparency—in the form of the Funeral Rule—was necessary. Next, we will explain the broader meaning of transparency under Section 5 of the FTC Act and the Funeral Rule. We will evaluate how the FTC has used the Funeral Rule to promote transparency through enforcement actions. Finally, we will apply these lessons to evaluate key issues that arose during the current rulemaking process.
