1.This Act may be cited as the &short-title1;
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2.In this Act the following definitions apply:
(1)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)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)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)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)The term Commission means the Federal Trade Commission.
(6)The term cremation means a heating process which incinerates human remains.
(7)The term crematory means any person, partnership, or corporation that performs cremation.
(8)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)The term direct cremation means a disposition of human remains by cremation without formal viewing, visitation, or ceremony with the body present.
(10)The term funeral ceremony means a service commemorating a deceased person that occurs with the body of the deceased person present.
(11)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)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)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)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)The term memorial service means a ceremony commemorating the deceased without the body present.
(16)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)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)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 servicesThe 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 servicesThe 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.
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(a)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 servicesThe 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)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.
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(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)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)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.
4.Statement of funeral goods and services selected
(a)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)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.
5.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.
6.Required purchase of funeral goods or funeral services
(a)Other required purchases of funeral goods or funeral servicesIt 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.
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(b)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.
7.Services provided without prior approval
(a)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)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.
8.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.
9.Comprehension of disclosuresA 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.
10.Prohibited sales practices
(a)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 affiliationA 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.
11.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.
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12.Consumer protections in preneed and prepaid funeral service transactionsIt 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.
13.Consumer disclosures in prepaid contractsNot 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.
14.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.
15.Enforcement by the CommissionThe 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.
16.Administration and rulemaking
(a)The provisions of this Act shall be administered by the Commission.
(b)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.
17.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.
18.This Act does not apply to the business, or acts in the conduct of the business, of insurance.
19.Authorization of AppropriationsThere 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.