activity. He told me, “By 1976 the FTC’s activism and aggressive actions against many powerful interests had galvanized escalating lobbying efforts. Lobbyists for various groups swarmed over Capitol Hill complaining about youthful zealots who were running amok and who could not be reasoned with. The FTC began to feel the pressure. To try to placate its foes, some of the FTC’s leadership began trying to moderate or weaken various projects. The attempts to weaken the Funeral Rule were part of that effort.”
By 1978 two components of the rule had already been dropped: the requirement to display the cheapest caskets with the others, and the prohibition against trying to influence the buyer in his choice of funeral. Frustrated and foreseeing correctly, as it turned out, that the rule would be further gutted, Arthur Angel resigned.
The mills of the FTC grind slowly, yet (in terms of results) exceedingly small. To those involved, the process seemed interminable—from 1973, when Arthur Angel and colleagues had begun researching the funeral industry, to announcement of the proposed trade rule in 1975, on through the public hearings to final adoption of the rule in 1984.
By 1985 it would seem that all was now in place for at least some minimal protection for the funeral buyer as provided in the rule.
However, that year I had a letter from a Mr. H., a seventy-six-year-old resident of Palo Alto, California, who was thinking about his funeral. Wishing to spare his daughter the job of arranging it, he telephoned a funeral home and asked their price for a simple cremation. About $300, said the funeral home. Mr. H.’s next step was to ask the funeral home for a written quotation. When it eventually arrived, the listed price came to $525.
Mr. H. knew all about the FTC “Funeral Rule”; he had made quite a study of it. So he wrote a letter of complaint to the San Francisco regional office. He sent me a copy of his letter together with the reply from an FTC staff member:
We have only limited resources to take formal actions against possible violators. Our actions are designed to correct those violations which affect a significant number of consumers.
That seemed to me ridiculous, for is not Mr. H. a member of the general public? And was not the funeral home’s misrepresentation exactly what the FTC rule was supposed to prevent?
My conversation with a lawyer in the same regional office, with whom I discussed this correspondence, was not reassuring. “We don’t represent individuals. This is an isolated case,” he told me. What, I asked, is considered to be “a significant number of consumers”? There is no set number, he answered. Would it be three? Six? A hundred? “I couldn’t say,” he said.
Frustrated, I telephoned FTC commissioner Patricia Bailey in Washington. She immediately saw the point; after that, things happened quickly. The director of the regional office, informed of the facts of this matter by Commissioner Bailey, promptly investigated and determined that Mr. H.’s case was “completely mishandled.” He assured me that the staff member who wrote the letter and the lawyer with whom I spoke had been “appropriately admonished.”
At the time, I thought this incident did raise some troubling questions: How many potential funeral shoppers would have the gumption of Mr. H., the tenacity to make a complaint to a government agency, and to a writer whom he had never met? Should one have to go to the expense of a phone call to Washington, D.C., to resolve the difficulty? But at least, thanks to the intervention of Commissioner Bailey, there was every reason to believe that the FTC staff members would never again treat a correspondent with a legitimate complaint in this patronizing and dismissive manner. Not so, as it turned out.
I remember once asking an editor at
Ten years after our efforts on behalf of Mr. H., I discovered that Commissioner Bailey and I had been victims of a similar stratagem: evidently the alleged “appropriate admonishment” of some imaginary staff member was a convenient fiction adopted to shut us up.
In February 1995 I sought out Gerald Wright, the attorney responsible for enforcing the Funeral Rule in the San Francisco regional office of the FTC. What would happen today, I asked him, if an individual wrote to his office with a complaint like that of my long-ago Palo Alto correspondent? Mr. Wright produced a form letter, dated February 3, 1995, which read:
Unfortunately, we have only limited resources to take formal action against possible violators. Our actions are taken only on behalf of the general public and are designed to correct those violations which affect a significant number of consumers.
Further on enforcement, Mr. Wright told me that from 1984 to February 1995 there had been a total of thirty-eight cases “formally filed” against funeral directors; of those, only two had gone to trial. Fines imposed for violations range from $10,000 to $100,000; the average is about $30,000.
He estimated that it takes eight months to a year to finish a case. An average of a little over three cases a year for eleven years seemed very slim pickings. I asked Mr. Wright how the assignments for any given FTC project are handled—how much staff time would be allotted to enforcing the rule? Reverting to the bureaucratic idiom of his calling, he explained that the FTC employs some six hundred attorneys nationwide and three hundred economists; “about half of them will cover consumer protection measures. When you get down to enforcing the Funeral Rule, maybe two work years out of six hundred will be delegated to covering that particular rule,” but he was unable to estimate how much time he personally devoted to enforcing the Funeral Rule.
In 1990 the FTC, after a review by its Bureau of Economics Analysis, concluded—to no one’s surprise—that “the Rule has not contributed to a general reduction in the price of funerals.” By a subsequent series of capitulations to industry lobbyists, the agency has abandoned any pretense of consumer protection and has cleared the way for an era of unprecedented profitability.
In June 1994 the commission adopted an amendment to the rule to permit sellers to add their overhead to a nondeclinable fee, to cover a laundry list of items such as insurance, taxes, staff salaries, maintenance of common areas including the parking lot, and, not least, an unrestricted allowance for profit. The FTC thereby, in a single stroke, obliterated the import of itemization and the consumer’s right to choose established only a decade earlier. Package pricing, under the guise of the now FTC-endorsed nonnegotiable fee, has come back with a vengeance, and with it, for the funeral director, an exhilarating upward spiral of prices and profits.
The added fee is another device to enable the funeral seller to further confuse his already befuddled customer. In the bad old days—before there was any FTC rule and when package pricing was the norm—the consumer at least knew that the price of the casket was the cost of the entire funeral. Now, however, the standard general price list looks like this:
| Basic services of funeral director and staff $1,525 |
| Transfer of remains to the funeral home $ 255 |
| Embalming, or $ 370 |
| No embalming, refrigeration $ 375 |
| Dressing, cosmetics, casketing $ 215 |
