15. THE FEDERAL TRADE COMMISSION
In 1975, after an intensive two-year study, the Federal Trade Commission’s Consumer Protection Bureau announced with much fanfare a proposed “trade rule” on funeral industry practices. The rule produced a flurry of articles in newspapers and magazines across the country, hailing it as a significant victory for consumer rights. At the heart of the original proposal were these requirements:
Arthur Angel, an FTC lawyer from 1972 to 1978 who was the main author of the rule, gave me a mini-history of its genesis. “For many years, during the fifties and sixties, the FTC had been a quiescent bureaucracy largely populated by hack lawyers from second-rate schools, and cronies recommended by politicians, mostly Southern,” he said. “This changed dramatically around 1970 or 1971 as a result of the Ralph Nader report on the FTC which roundly criticized the agency for failing to carry out its mission as watchdog in the marketplace, and the protection of consumers from abusive practices.”
It so happened that President Nixon’s son-in-law Ed Cox was a “Nader’s Raider.” He brought the report to the President, who said somewhat testily that he could not take any action on the basis of a report by Ralph Nader, but he did agree to appoint a blue-ribbon panel of American Bar Association lawyers to examine the FTC’s performance.
The panel confirmed Nader’s findings, whereupon Miles Kilpatrick, head of the panel, was appointed chairman of the FTC and its counsel, Robert Pitofsky, director of the Bureau of Consumer Protection, with the mandate to revitalize the agency.
“Beginning around 1970, and over the next four years or so, the FTC began hiring lots of new lawyers, activists from the top law schools in the country,” Angel said. “I was hired in 1972 as part of that effort.”
His description of the newcomers—“young, aggressive, disdainful of and removed from political and lobbying pressures”—was to me reminiscent of the New Dealers of the 1930s, as was the dedicated way they set about doing battle for the beleaguered consumer. First, they tried to identify especially vulnerable groups, which included the poor, the bereaved, the handicapped, the elderly. The next step was to devise projects responsive to the abuses that affected them. “One item on the list was the word ‘funerals,’ ” Angel told me. “We then read your book, Ruth Mulvey Harmer’s
To the average reader, the FTC’s proposed rule might seem mild and unobjectionable; all it sought to do was to bring the funeral transaction into line with standard fair-business practices, and to require undertakers to refrain from lying about the law concerning embalming and caskets. But the industry responded with characteristic belligerence, as to a call to arms. IT WILL BE A COSTLY WAR, declared the
Mr. John C. Curran, past president of the New York State Funeral Directors Association, went him one better: testifying at the New York FTC hearing, he called the rule “a threat to the American way of life” and accused the FTC of “tampering with the soul of America.” The same thought was voiced in
As required by law, the FTC held hearings on the proposed rule in six cities across the nation, at which spokesmen for each side—consumer and industry—testified, and were then subject to cross-examination by the opposing side. I was asked to testify in favor of the rule at the hearing in Los Angeles, where, to my surprise and pleasure, the industry spokesman chosen to cross-examine me was none other than Howard C. Raether himself.
The hearing room was packed with partisans for and against: members of the Los Angeles Memorial Society, Unitarians, Quakers cheek by jowl with black-suited CEOs of the finest Los Angeles mortuaries, with plenty of press on hand to record the event. I spoke my piece, a brief rundown of how the Funeral Rule would serve to curb some of the worst excesses of undertakers, then sat back, agog for Mr. Raether’s questions.
Seeking to demonstrate that the undertaker does indeed have an obligation as “grief counselor” to guide the funeral purchaser in his choice of an aesthetically pleasing casket, he asked some hypothetical questions, and I found myself led on a merry chase into the fantasy world of the mortuary:
RAETHER: John Jones dies of a kidney disease. He is jaundiced. His wife is looking at a casket with an interior which will bring out the jaundiced condition. Should he [funeral director] suggest other caskets which would make a more aesthetic picture for the wife and members of the family?
MITFORD: Well, I like the idea of the matching casket, the jaundice-colored one. I mean, if
There was a gratifying clatter of laughter from the pro-rule members of the audience; the black suits sat stony-faced. But Mr. Raether, not to be deterred, continued doggedly:
RAETHER: Joanna Smith is a heavy person.
MITFORD: We are all getting a little stout.
RAETHER: Her husband is looking at a casket in which the funeral director knows she will not look proper because of the size and the nature of the casket. Should he so advise the husband?
MITFORD: Well, maybe the husband is trying to guy her up a bit. Perhaps he was always saying to her, “You should go on a diet,” and now he is just getting even. Who knows?
While on the surface the outlook for successful adoption of the rule appeared bright, behind the scenes the mortuary interests were having some success. Industry leaders exhorted rank-and-file undertakers to bring pressure on their elected representatives, and were able to report occasional victories, as when Mr. Thomas H. Clark, counsel for the National Funeral Directors Association, congratulated one industry group for its lobbying efforts: “Many of you were instrumental and helpful in trying to get to the various Congressmen of the United States…. You know, we got seventy-three Congressmen and thirteen Senators who signed resolutions condemning the FTC.”
Arthur Angel and his colleagues at the Federal Trade Commission soon began to feel the impact of this