The author from time to time has been involved in legal matters where funeral directors and cemetery owners or their employees have been involved in disputes with consumers about alleged misrepresentations that have occurred during at need or pre-need funeral and cemetery arrangements. Sometimes this alleged misrepresentation had resulted in a court case or governmental action against the funeral director or cemetery owner. The author believes it is important for industry members to be aware of the areas where misrepresentations can occur.
The following is a summary of areas where misrepresentations have occurred that should be reviewed by all members of the industry for their own benefit and to refer to during employee training activities.
Misrepresentations made by funeral directors or their employees on both an at-need and pre-need basis have been in the following areas:
1. The FTC Funeral Rule provides the following are misrepresentation that could be the subject of a FTC fine:
a) Misrepresenting embalming is required when it is not
b) Misrepresenting a casket is required for cremation
c) Misrepresenting cemetery requirements
d) Misrepresenting legal requirements
e) Misrepresenting protective requirements of products
f) Requiring the consumer to buy one product or service in order to purchase another (illegal tying).
2. Selling a casket or container that had been used before without any disclosure.
3. Renting a casket without disclosing it had been used before.
4. Refusing to handle an AIDS victim or misrepresenting requirements for AIDS victims.
5. Unauthorized embalming.
6. Disparagement of less expensive caskets or containers.
7. Steering consumers to more expensive merchandise.
8. Misrepresentations about what is covered by the pre-need insurance or trust program that the consumer purchased and is now using.
9. Misrepresentations about cremation.
Violation of any of these acts may result in sanctions or penalties against the violator by a state or federal agency. In addition an industry member may incur liability to a consumer. The previous list is not exhaustive and there may be other areas where funeral and cemetery sales people can incur liability. Today because of the increased communication on the internet, federal and state agencies actively coordinate and share information. The result is an action by one of these agencies may result in an action by another agency in the same state or even in multiple states.
The areas of possible misrepresentations by cemetery owners and their employees will be covered in Part 2 of this article next month.
This article is for the information of subscribers and does not constitute legal advice about this subject. All subscribers should accordingly consult with their own attorney to make sure they are in compliance with the laws in their state when dealing with an incident.