[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4112 Introduced in House (IH)]






108th CONGRESS
  2d Session
                                H. R. 4112

 To establish consumer protections, including disclosure requirements, 
     relating to funeral service contracts, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 1, 2004

  Mr. Foley introduced the following bill; which was referred to the 
                    Committee on Energy and Commerce

_______________________________________________________________________

                                 A BILL


 
 To establish consumer protections, including disclosure requirements, 
     relating to funeral service contracts, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Death Care Disclosure Act''.

SEC. 2. DEFINITIONS.

    In this Act the following definitions apply:
            (1) Alternative container.--The term ``alternative 
        container'' means an unfinished wooden box or other nonmetal 
        receptacle or enclosure, without ornamentation or a fixed 
        interior lining, which is designed for the encasement of human 
        remains and which is made of fiberboard, pressed-wood, 
        composition materials (with or without an outside covering), or 
        similar materials.
            (2) Arrangement services fee.--The term ``arrangement 
        services fee'' means a reasonable fee that--
                    (A) is charged to cover professional and overhead 
                costs, including staff time dedicated to conducting 
                arrangement conferences, implementing arrangement 
                instructions, obtaining permits or other 
                authorizations, preparing notices for newspapers, 
                coordinating with clergy and monument dealers, and 
                similar activities; and
                    (B) is--
                            (i) calculated at an hourly rate; or
                            (ii) a series of flat-rate fees for 
                        specific arrangements made by a funeral service 
                        provider.
            (3) Cash advance item.--The term ``cash advance item'' 
        means any item of service or merchandise described to a 
        purchaser as a cash advance, accommodation, cash disbursement, 
        or similar term. A cash advance item includes any item obtained 
        from a third party and paid for by the funeral provider on the 
        purchaser's behalf. Cash advance items include cemetery or 
        crematory services, pallbearers, public transportation, clergy 
        honoraria, flowers, musicians, singers, nurses, permit fees, 
        obituary notices, gratuities, and death certificates.
            (4) Casket.--The term ``casket'' means a rigid container 
        which is designed for the encasement of human remains and which 
        is usually constructed of wood, metal, fiberglass, plastic, or 
        like material, and ornamented and lined with fabric.
            (5) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (6) Cremation.--The term ``cremation'' means a heating 
        process which incinerates human remains.
            (7) Crematory.--The term ``crematory'' means any person, 
        partnership, or corporation that performs cremation.
            (8) Deceptive practice.--The term ``deceptive practice'' 
        means an unfair or deceptive act or practice in or affecting 
        commerce that violates section 5(a) of the Federal Trade 
        Commission Act (15 U.S.C. 45(a)).
            (9) Direct cremation.--The term ``direct cremation'' means 
        a disposition of human remains by cremation without formal 
        viewing, visitation, or ceremony with the body present.
            (10) Funeral ceremony.--The term ``funeral ceremony'' means 
        a service commemorating a deceased person that occurs with the 
        body of the deceased person present.
            (11) Funeral goods.--The term ``funeral goods'' means goods 
        which are sold or offered for sale directly to the public for 
        use in connection with funeral services.
            (12) Funeral provider.--The term ``funeral provider'' means 
        any person, partnership, or corporation that sells or offers to 
        sell funeral goods or funeral services to the public.
            (13) Funeral services.--The term ``funeral services'' 
        means--
                    (A) any services which may be used to--
                            (i) care for and prepare deceased human 
                        bodies for burial, cremation, or other final 
                        disposition; and
                            (ii) arrange, supervise, or conduct the 
                        funeral ceremony or the final disposition of 
                        deceased human bodies; and
                    (B) services provided by funeral directors, 
                morticians, cemeterians, cremationists, and memorial 
                retailers.
            (14) Immediate burial.--The term ``immediate burial'' means 
        a disposition of human remains by burial, without formal 
        viewing, visitation, or ceremony with the body present, except 
        for a graveside service.
            (15) Memorial service.--The term ``memorial service'' means 
        a ceremony commemorating the deceased without the body present.
            (16) Memorial retailer.--The term ``memorial retailer'' 
        means a person who sells or offers to sell to the public any 
        memorial intended to mark the location of the internment of 
        human remains.
            (17) Outer burial container.--The term ``outer burial 
        container'' means any container which is designed for placement 
        in the grave around the casket including, but not limited to, 
        containers commonly known as burial vaults, grave boxes, and 
        grave liners.
            (18) Preneed contract.--The term ``preneed contract'' means 
        a funeral contract arranged for and paid, in part or in full, 
        prior to an anticipated death.
            (19) Purchaser of funeral goods or funeral services.--The 
        terms ``purchaser of funeral goods or funeral services'' and 
        ``purchaser'' mean any person who--
                    (A) purchases funeral goods or funeral services 
                from a funeral provider; or
                    (B) contacts a funeral provider, in any manner, 
                including in person, by telephone, by mail, or 
                electronically, to obtain information related to 
                purchasing funeral goods or funeral services.
            (20) Request for information related to funeral goods or 
        funeral services.--The term ``request for information related 
        to funeral goods or funeral services'' means any inquiry made 
        by a person to a funeral provider for information related to 
        such goods or services. Such request may be made in person, in 
        writing, by telephone, or electronically.

SEC. 3. PRICE DISCLOSURES.

    (a) Deceptive Practices.--It shall be a deceptive trade practice 
under section 5(a) of the Federal Trade Commission Act (15 U.S.C. 
45(a)) for a funeral provider to fail to provide, in a timely manner--
            (1) in response to a request for information related to 
        funeral goods or funeral services--
                    (A) accurate, printed information regarding the 
                price of the funeral goods and funeral services 
                described in subsection (b); and
                    (B) the printed disclosures described in subsection 
                (c); or
            (2) in response to a specific request for the prices of 
        caskets, alternative containers, or outer burial containers, a 
        list of the prices of each model of casket, alternative 
        container, or outer burial container that the funeral provider 
        offers for sale.
    (b) Funeral Goods and Funeral Services.--The price of funeral goods 
and funeral services referred to in subsection (a)(1)(A) means the 
retail price, expressed as a flat fee or a price per hour, mile, or 
other unit, of all funeral goods and services offered by a funeral 
provider, including the following:
            (1) Embalming.
            (2) Transportation of remains.
            (3) The use of facilities.
            (4) Staff attendance at meetings, gatherings, or services.
            (5) Equipment usage or rental.
            (6) Casket and alternative containers.
            (7) Outer burial container.
            (8) Immediate burials.
            (9) Direct cremations.
            (10) Crematory services.
            (11) Viewing, without embalming.
            (12) Insurance or benefit processing fee.
            (13) Internment rights.
            (14) Opening and closing charges.
            (15) Monuments, markers, or memorials.
    (c) Disclosures.--The disclosures referred to in subsection 
(a)(1)(B) are the following disclosures:
            (1) The name, address, and telephone number of the funeral 
        provider's place of business.
            (2) The effective date of any prices provided.
            (3) The following statement: ``For information on the 
        purchase of funerals and consumer rights or to file a 
        complaint, you may contact ______.'', with the blank space 
        being filled with the name, address, phone number, and other 
        relevant information for contacting the State agency or 
        agencies responsible for handling consumer inquiries and 
        complaints pertaining to death care service providers.
            (4) Contact information, including a toll-free number, for 
        an agency that provides information related to veteran's 
        benefits.
            (5) In immediate conjunction with the price of embalming, 
        the following statements:
                    (A) ``Except in certain special cases, embalming is 
                not required by law. Embalming may be necessary, 
                however, if you select certain funeral arrangements, 
                such as a funeral with viewing. If you do not want 
                embalming, you usually have the right to choose an 
                arrangement that does not require you to pay for it, 
                such as direct cremation, immediate burial, or other 
                timely disposition.''. The phrase ``except in certain 
                special cases'' shall not be included in the disclosure 
                if State or local law in the area where the provider 
                does business does not require embalming under any 
                circumstances.
                    (B) ``If you selected a funeral that may require 
                embalming, such as a funeral with viewing, you may have 
                to pay for embalming. You do not have to pay for 
                embalming you did not approve if you selected 
                arrangements such as a direct cremation or immediate 
                burial. If we charged for embalming, we will explain 
                why below.''.
            (6) In immediate conjunction with the price of direct 
        cremations, the following disclosure: ``If you want to arrange 
        a direct cremation, you can use an alternative container. 
        Alternative containers encase the body and can be made of 
        materials like fiberboard or composition materials (with or 
        without an outside covering). The containers we provide are 
        ______.'', with the blank space being filled with a description 
        of the container and its construction.
            (7) In immediate conjunction with the price of any outer 
        burial container, the following disclosure: ``In most areas of 
        the country, State or local law does not require that you buy a 
        container to surround the casket in the grave. However, many 
        cemeteries require that you have such a container so that the 
        grave will not sink or settle. Either a grave liner or a burial 
        vault will satisfy these requirements.''. The phrase ``in most 
        areas of the country'' shall not be included in this disclosure 
        if State or local law in the area where the provider does 
        business does not require a container to surround the casket in 
        the grave.
            (8) In immediate conjunction with the price of any casket 
        or sealer casket, the following disclosure: ``There is no 
        scientific or other evidence that any casket with a sealing 
        device will preserve human remains.''
    (d) Timely Manner.--For the purposes of subsection (a), information 
is provided in a timely manner if it is provided to the purchaser of 
funeral goods or funeral services at the first opportunity, which may 
not be later than the first selling, showing, or making any 
representation about any funeral goods or funeral services.
    (e) Specific Application.--The requirements of subsection (a) apply 
to every communication between a funeral provider and a purchaser of 
funeral goods or funeral services, except an in-person request made by 
a funeral provider for authorization to embalm at the time a deceased 
human body is removed for transportation.

SEC. 4. STATEMENT OF FUNERAL GOODS AND SERVICES SELECTED.

    (a) In General.--It shall be a deceptive trade practice under 
section 5(a) of the Federal Trade Commission Act (15 U.S.C. 45(a)) for 
a funeral provider to fail to give an itemized written statement for 
retention to a purchaser of funeral goods or funeral services at the 
conclusion of the discussion related to such goods and services and 
prior to providing any services beyond taking possession of a deceased 
human body for authorized embalming. The statement shall include the 
following information:
            (1) The funeral goods and funeral services selected by the 
        purchaser and the prices to be paid for each good or service.
            (2) A specific itemization of cash advance items to the 
        extent then known or reasonably ascertainable. If the prices 
        are not known or reasonably ascertainable, a good faith 
        estimate shall be given and a written statement that the actual 
        charges shall be provided before the final bill is paid.
            (3) The total cost of the goods and services selected.
            (4) If a sealer casket is selected by the purchaser, the 
        following disclosure: ``This product is not designed or 
        intended to preserve human remains, and may under certain 
        circumstances accelerate the decomposition of the body.''
    (b) Placement of Information.--The information required by 
subsection (a) shall be included on any contract, statement, or other 
document which the funeral provider would otherwise provide at the 
conclusion of a discussion related to funeral goods or funeral 
services.

SEC. 5. MISREPRESENTATIONS.

    It shall be a deceptive trade practice under section 5(a) of the 
Federal Trade Commission Act (15 U.S.C. 45(a)) for a funeral provider 
to--
            (1) inaccurately represent that Federal, State, or local 
        law or industry custom requires the purchase of any funeral 
        goods or funeral services, including to inaccurately represent 
        that--
                    (A) State or local law requires that a deceased 
                person be embalmed;
                    (B) State or local law requires a casket for direct 
                cremation; or
                    (C) a particular cemetery requires outer burial 
                containers;
            (2) fail to identify and briefly describe in writing on the 
        statement of funeral goods and funeral services selected any 
        legal requirement which the funeral provider represents to a 
        person as compelling the purchase of funeral goods or funeral 
        services for the funeral which that person is arranging;
            (3) fail to disclose that embalming is not required for--
                    (A) direct cremation;
                    (B) immediate burial; or
                    (C) a closed casket funeral without viewing or 
                visitation when refrigeration is available and when 
                State or local law does not require embalming; or
            (4) inaccurately represent the ability of funeral goods or 
        funeral services to delay the natural decomposition of human 
        remains for a long-term or indefinite time.

SEC. 6. REQUIRED PURCHASE OF FUNERAL GOODS OR FUNERAL SERVICES.

    (a) Other Required Purchases of Funeral Goods or Funeral 
Services.--It shall be a deceptive trade practice under section 5(a) of 
the Federal Trade Commission Act (15 U.S.C. 45(a)) for a funeral 
provider to--
            (1) condition the furnishing of any funeral good or funeral 
        service to a person arranging a funeral on the purchase of any 
        other funeral good or funeral service, except as required by 
        law or as otherwise permitted by this Act;
            (2) charge any fee as a condition to furnishing any funeral 
        goods or funeral services to a person arranging a funeral, 
        other than--
                    (A) the fees for specific funeral services and 
                funeral goods selected by the purchaser;
                    (B) the fees for other funeral goods or funeral 
                services required to be purchased, as explained on the 
                itemized statement in accordance with section 4(a); or
                    (C) an arrangement services fee that--
                            (i) is disclosed as being either an hourly 
                        rate fee described in clause (i) of section 
                        2(2)(B) or a flat fee described in clause (ii) 
                        of such section; and
                            (ii) is elected by the purchaser;
            (3) fail to place--
                    (A) immediately above the prices disclosed as 
                described in section 3(a), the following disclosure: 
                ``The goods and services shown below are those we can 
                provide to our customers. You may choose the items you 
                desire. If legal or other requirements mean you must 
                buy any item that you do not specifically request, we 
                will explain the reason in writing on the statement we 
                provide describing the funeral goods and services you 
                selected.''; or
                    (B) in the statement of funeral goods and services 
                selected, as described in section 4(a)(1), the 
                following disclosure: ``Charges are only for those 
                items that you selected or that are required. If we are 
                required by law or by a cemetery or crematory to use 
                any items, we will explain the reasons in writing 
                below.''.
    (b) Exception.--A funeral provider shall not be treated as 
violating this section, if the funeral provider fails to comply with a 
request for a combination of goods or services which would be 
impossible, impractical, or excessively burdensome to provide.

SEC. 7. SERVICES PROVIDED WITHOUT PRIOR APPROVAL.

    (a) Deceptive Practices.--It shall be a deceptive trade practice 
under section 5(a) of the Federal Trade Commission Act (15 U.S.C. 
45(a)) for a funeral provider to embalm a deceased human body unless--
            (1) State or local law or regulation requires embalming in 
        the particular circumstances regardless of any funeral choice 
        which the family might make;
            (2) prior approval for embalming has been expressly 
        obtained from a family member or other authorized person;
            (3) the funeral provider is unable to contact the family 
        member or other authorized person after exercising due 
        diligence and reasonably believes the family wants embalming 
        performed; or
            (4) refrigeration is necessary and is not available in the 
        community where the provider does business.
    (b) Disclosure Required.--In seeking the approval required by 
subsection (a)(2), the funeral provider shall disclose that a fee will 
be charged if the family or other authorized person selects a funeral 
which requires embalming, such as a funeral with a public or private 
viewing, and that no fee will be charged if the family or other 
authorized person selects a service which does not require embalming, 
such as direct cremation or immediate burial.

SEC. 8. RETENTION OF DOCUMENTS.

    A funeral provider shall retain and make available for inspection 
by the Commission true and accurate copies of--
            (1) the price lists required by section 3(a) for at least 1 
        year after the date of the last distribution of such lists to 
        customers; and
            (2) each statement of funeral goods and services selected, 
        as required by section 4, for at least 1 year from the date of 
        arranging a funeral or memorial services.

SEC. 9. COMPREHENSION OF DISCLOSURES.

    A funeral provider shall make the disclosures required by this Act 
in a clear and conspicuous manner using type that is not smaller than 
12 points in size. A funeral provider shall not include in any price 
list, a statement or information that alters or contradicts the 
information required by this Act to be included in those lists.

SEC. 10. PROHIBITED SALES PRACTICES.

    (a) In General.--Each of the following sales practices shall be a 
deceptive trade practice under section 5(a) of the Federal Trade 
Commission Act (15 U.S.C. 45(a)):
            (1) Unsolicited telephone offers to sell funeral goods, 
        funeral services, crematory services, interment rights, or 
        other cemetery and memorialization goods and services.
            (2) Door-to-door direct offers to sell funeral goods, 
        funeral services, crematory services, interment rights, or 
        other cemetery and memorialization goods and services.
    (b) Identification of Affiliation.--A person who is an operator, 
funeral provider, funeral director, embalmer, or memorial dealer 
shall--
            (1) state the person's affiliation with any publicly traded 
        company in all contracts and on all business letterhead, 
        advertising, and marketing materials; and
            (2) state the person's licensed business location in all 
        directories, advertising, and marketing materials in which 
        offsite telephone numbers are used.

SEC. 11. CASH ADVANCE PROVISIONS.

    It shall be a deceptive trade practice under section 5(a) of the 
Federal Trade Commission Act (15 U.S.C. 45(a)) for a funeral provider 
to--
            (1) represent that the price charged for a cash advance 
        item is the same as the cost to the funeral provider for the 
        item when such is not the case;
            (2) fail to disclose to a person arranging a funeral that 
        the price being charged for a cash advance item is not the same 
        as the cost to the funeral provider for the item when such is 
        the case; or
            (3) fail to place in the itemized statement of funeral 
        goods and funeral services selected, in immediate conjunction 
        with the list of itemized cash advance items required by 
        section 4(a)(2), the following statements:
                    (A) ``We charge for our services in obtaining 
                ____.'', with the blank space being filled with a list 
                of cash advance items, if the funeral provider marks up 
                the price for or receives and retains a rebate, 
                commission, or trade or volume discount on a cash 
                advance item.
                    (B) ``You have the right to arrange for the 
                purchase of these items on your own behalf.''.

SEC. 12. CONSUMER PROTECTIONS IN PRENEED AND PREPAID FUNERAL SERVICE 
              TRANSACTIONS.

    It shall be a deceptive trade practice under section 5(a) of the 
Federal Trade Commission Act (15 U.S.C. 45(a)) for a funeral provider 
to fail to comply with the following prepaid contract requirements:
            (1) Prepaid contracts shall conform to all applicable 
        Federal and State statutes and regulations.
            (2) Prepaid contracts shall be written in plain English, 
        and clearly state the merchandise and services that purchasers 
        are buying and their prices. Use of legal or industry-specific 
        jargon shall be avoided to the extent possible.
            (3) Charges for funeral goods or funeral services shall be 
        itemized. The itemization shall be in greater detail than a 
        recitation of prices and shall include a complete description 
        of the services to be rendered and an unambiguous description 
        of the merchandise to be delivered.
            (4) When prices of merchandise or services to be delivered 
        in the future are not guaranteed, or an additional payment may 
        be required in the future, a statement to that effect shall be 
        included in the prepared contract and initialed by the 
        purchaser.
            (5) The contract must clearly state what happens if 
        merchandise is not available at delivery time and substitution 
        is necessary. The description of the merchandise shall be 
        sufficiently complete for the person authorized to make funeral 
        arrangements to make a decision, based on objective criteria, 
        about the comparability of a needed substitution.
            (6) No substitution shall be made without the consent of 
        the purchaser, or upon the purchaser's death, the person 
        authorized to make funeral arrangements. A prepaid contract 
        must contain a provision, which is initialed by the purchaser, 
        either prohibiting any changes, or, alternatively, specifying 
        what instructions may be modified and by whom.
            (7) There shall be an explanation of how the purchaser's 
        funds will be protected to assure the seller's performance in 
        compliance with the prevailing prepaid contract law. The name 
        of the institution where funds will be deposited in escrow must 
        be disclosed. The buyer must receive an annual report from the 
        escrow agent. An administrative fee, not to exceed 1 percent of 
        the contract, may be withdrawn annually by the escrow agent.
            (8) The prepaid contract shall provide for cancellation and 
        refund or transfer of the contract with no loss of benefits 
        paid by the purchaser along with accrued interest.
            (9) A prepaid contract may be made irrevocable only when 
        the beneficiary will be applying for medicaid or other social 
        benefits within the next 6 months. The irrevocability of the 
        prepaid contract shall not affect the right of the purchaser to 
        change the provider.
            (10) Copies of the prepaid contract and supplemental 
        material, such as information on credit life insurance and 
        transfer or exchange plans, shall be provided to the purchaser 
        at the time of the preneed sale.
            (11) Copies of the prepaid contract and at-need 
        documentation shall be provided to the person authorized to 
        make the final funeral arrangements at the time of death to 
        ensure that the merchandise and services match those specified 
        in the prepaid contract. A list of items substituted shall be 
        in writing and included in the at-need documentation.
            (12) Copies of all prepaid contracts and at-need 
        documentation shall be retained by the seller for a period of 1 
        year after performance of the contract.

SEC. 13. CONSUMER DISCLOSURES IN PREPAID CONTRACTS.

    Not later than 1 year after the date of enactment of this Act, the 
Commission shall establish minimum standards and requirements with 
respect to State mandated consumer disclosures in prepaid contracts for 
the purchase of funeral, cemetery, or crematory goods or services, 
including--
            (1) basic information identifying the seller, the 
        purchaser, the entity that will provide the goods and services 
        (if different from the seller), the prices of the goods and 
        services being purchased on an itemized basis, and the total 
        price of the purchase;
            (2) funding information disclosing where, how, and with 
        whom the prepaid funds will be deposited and invested, and what 
        portion of the prepaid funds, if any, will be paid to the 
        seller prior to the performance of the contract;
            (3) price and payment disclosures regarding to what extent 
        the prices of the goods and services are guaranteed or not 
        guaranteed, who is responsible for any payment shortfalls, and 
        who is entitled to receive excess funds; and
            (4) cancellation and transfer information disclosing 
        whether the consumer may cancel or transfer the prepaid 
        contract, the method for exercising such rights, the amount of 
        revocation or transfer fees, if any, retained by the seller, 
        and safeguards for the consumer if the seller is unable to 
        provide the goods and services in the contract.

SEC. 14. PRIVATE RIGHT OF ACTION.

    In addition to the remedies identified in the Federal Trade 
Commission Act (15 U.S.C. 41 et seq.), a person who is injured by a 
violation of this Act may commence a civil action against the funeral 
provider. Such person shall be entitled to recover the greater of 
actual damages or $5,000 for each violation proved by a preponderance 
of the evidence.

SEC. 15. ENFORCEMENT BY THE COMMISSION.

    The Commission shall enforce the provisions of this Act in the same 
manner, by the same means, and with the same jurisdiction, powers, and 
duties as though all applicable terms and provisions of the Federal 
Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and 
made a part of this Act.

SEC. 16. ADMINISTRATION AND RULEMAKING.

    (a) Administration.--The provisions of this Act shall be 
administered by the Commission.
    (b) Rulemaking.--Notwithstanding any other provision of law, the 
Commission may prescribe rules in accordance with section 553 of title 
5, United States Code (commonly known as the ``Administrative Procedure 
Act'') to carry out the provisions of this Act.

SEC. 17. STATE EXEMPTIONS.

    A provision of this Act, or a regulation issued by the Commission 
pursuant to this Act, shall not be in effect in a State if--
            (1) the appropriate State agency requests such provision or 
        regulation not be in effect in the State;
            (2) there is a State requirement in effect that applies to 
        a transaction to which the provision or regulation applies;
            (3) the State requirement affords an overall level of 
        protection to consumers that is equal to, or exceeds, the level 
        of protection afforded by the provision or regulation; and
            (4) the Commission determines that the State is 
        administering and enforcing the State requirement in a manner 
        that affords a level of protection to consumers that is equal 
        to or exceeds the level of protection afforded by the 
        Commission's enforcement of such provisions or regulations.

SEC. 18. DECLARATION OF INTENT.

    This Act does not apply to the business, or acts in the conduct of 
the business, of insurance.

SEC. 19. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated to the Federal Trade 
Commission $5,000,000 for each of fiscal years 2005 through 2010 to 
carry out this Act.
                                 <all>