This is a reminder about a FTC Staff Advisory Opinion about misrepresentations about burial containers and caskets that could be in violation of the FTC Funeral Rule. Since the FTC Funeral Rule was enacted, the FTC Staff responds to requests about interpretations by issuing Advisory Opinions. Several years ago the author inquired whether an ad by a funeral director that was placed in a local paper in a Midwestern state violated Section 453.4(e)(2) of the Funeral Rule which prohibits claims that “funeral goods have protective features or will protect the body from gravesite substances, when such is not the case”

  The advertisement was in response to a vault sales program by a local cemetery and it was represented in the ad that consumers could buy “a quality VAULT that is waterproof and had a warranty in writing” that costs “less than you paid for a plastic or concrete box.”

  The FTC Staff, in its opinion, indicated that the Funeral Rule did prohibit claims about caskets and burial vaults being airtight, watertight or offering special protection against the elements or being waterproof, if the claims were not true. The opinion further noted that even if the funeral provider were merely repeating a claim of a manufacturer about protective features the funeral provider could be held liable for making a false or unsubstantiated claim if the manufacturer’s claim was not true. This view is based on the concept that the funeral provider that repeats a claim is deemed to have adopted the claim as their own under Section 453.4(e)(2) the Funeral Rule.

  The FTC Staff did end the opinion with the usual disclaimer that the views expressed are those of the staff that while they have not been reviewed, approved or adopted by the Commission, they do represent the views of the FTC Staff charged with enforcement of the Funeral Rule. The opinion letter also noted that Staff Funeral Rule opinions are routinely posted on the FTC website at http://www.ftc.gov/bcp/conline/edcams/funerals/staffopinions.shtm. Accordingly, any reader that wishes to view the full letter can do so at that location.

  The implications of this opinion, in the author’s view, are clear. First, the Funeral Rule applies to untrue protective claims. Second, funeral providers should be very careful about repeating claims by manufacturers about protective features unless the funeral provider is sure that the claims are true. It also should be noted that ads similar to the one referenced above might also be in violation of state laws dealing with unfair competition.

  This article is for the information of readers and does not constitute legal advice about this subject. All readers should accordingly consult with their own attorney to make sure they are in compliance with the laws, rules and cases applicable to their business.