“A wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.”  –Thomas Jefferson

  James Madison wrote in the federalist papers, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself”.

  If you want to start a lively discussion amongst your colleagues, ask the question: Should we sunset the Federal Trade Commission Funeral Regulation?

  Some will say this is the best regulation that has happened to funeral service. We were forced to find out how our overhead related to these charges. We can now recover cost. Others recoil from the regulation claiming it gives ammunition to their competitors. It does; it is a free marketplace, you need to justify what you do for what price.

  Funeral service must examine whether the FTC rule should be eliminated (sunsetted) or continue. Let us examine the issue.

  When the 1984 regulation from the Federal Trade Commission was handed to funeral service there was much gnashing of teeth. Many funeral homes were using the Unit Pricing method. The cost of a “full traditional service” was added to the retail cost of the casket. When the federal government asked funeral service to itemize each and every charge that they offered and list it as such, the opposition was immense.

  Author and columnist Thomas Frank wrote: “The great fear that hung over the business community in the 1970s was death by regulation, and the great goal of the conservative movement, as it rose to triumph in the 1980s, was to remove that threat-to keep OSHA, the EPA, and the FTC from choking off entrepreneurship with the infernal meddling in the marketplace”.

  What it forced each and every funeral home to do was to determine what it cost them to provide each service. Many were shocked to realize what their investment was to conduct funeral service as we knew it then. The government had now given them a way to recover that cost. It was a hard adjustment, but most funeral directors of that era will admit it made them aware of their cost of doing business.

  As the reality of the FTC regulation settled on funeral practitioners, ways to present their service began. Package services were created. Full traditional services had their prices, graveside services without embalming had their price and direct burial and direct cremation and many other offerings were presented. Funeral homes recovered cost and the consumer purchased what they needed and declined what they did not.

  Almost thirty years of living with a regulation is getting a new look, realistic or not. Do we sunset the FTC Funeral regulation or do we keep quiet and keep it?

  Those who wish to sunset it say it is burdensome and the regulatory agency enforcing it does not understand funeral service.

  Those who support its continuance understand its contribution to our understanding of our own businesses, the consumer’s right to choose and most importantly the hopeful inclusion of our new competitors, third party providers of funeral goods (casket stores etc). That battle has yet to be won but it would level the playing field. If we sunset this regulation, we lose all of that.

  Then NFDA President Randy Earl testified before a subcommittee of the US Congress on House Resolution 3655, The Consumer Rights Bill, sponsored by Rep. Rush. Earl delivered the following testimony:

  “NFDA and its members today strongly support retention of the FTC Funeral Rule as a uniform standard for funeral homes, as well as a rule that protects consumers served by funeral homes.

  “Since the rule was enacted the marketplace has changed dramatically, with the introduction of many non-traditional sellers. Most recently, for example, Wal-Mart and Amazon.com began selling caskets directly to consumers. When consumers do business with these non-traditional providers, they receive none of the protections afforded by the FTC Rule when they purchased these same goods from funeral homes. It is therefore necessary, in our judgment, to establish a separate rule as outlined in HR. 3655”.

  The National Funeral Directors Association general counsel Scott Gilligan observed that there would be 40 states with nothing in law or regulation that would require price disclosure.

            The General Accounting office did a study of the funeral rule in 2011. It was entitled: Death Services: State Regulation of The Death Care Industry Varies and Officials Have Mixed Views on Need for Further Federal Involvement (GAO-12-65, Dec, 2011). In short their conclusions were: 1. Current standards promote uniformity within states. 2. States do not have the resources to regulate. 3. These minimum standards do prevent incidents and scandals.

  They also stated that only 25% of state regulators thought that there should be more federal regulation. The majority did not believe that more federal or state regulation was needed at the state level.

  The fear is that the sunsetting of the FTC Funeral Law would leave a void of enforcement. This void would give opportunity to consumer groups to craft their own regulation, perhaps much more severe than that of the existing federal regulations. “We know what we have now, it is the fear of what we might get” keeps many supporting the FTC Funeral law.

  “We have some real political differences among us, but we all share the same goals: clean air and water, injury free workplaces, safe transportation systems, to name a few of the good things that can come from regulation.”  –Former Senator, actor and short time presidential candidate Fred Thompson