After a complaint from the Federal Trade Commission that the Missouri State Board of Embalmers and Funeral Directors illegally stopped retail casket sales, the Board agreed to never adopt regulations prohibiting third-parties from selling coffins to the public.

The Long Arm of the (Unenforceable Law)

UPDATE 3/09/07 — FTC v. MISSOURI FUNERAL BOARD — After a complaint from the Federal Trade Commission that the Missouri State Board of Embalmers and Funeral Directors illegally stopped retail casket sales, the Board agreed to never adopt regulations prohibiting third-parties from selling coffins to the public.

From the Federal Trade Commission:

“Missouri funeral regulators have agreed to settle antitrust charges by the Federal Trade Commission, affirming that they will not prohibit or discourage the sale or rental of caskets, services, or other funeral merchandise by persons not licensed as funeral directors.

“According to a draft FTC complaint, the Missouri State Board of Embalmers and Funeral Directors illegally restrained competition by defining the practice of funeral directing to include selling funeral merchandise to consumers on an at-need basis. The six-member Board, which included five funeral directors, ended the restriction last year. Under the settlement, the Board will not adopt such anticompetitive regulations in the future.

“According to the complaint, the Board’s regulation deterred competitive entry in the retail sale of caskets because only licensed funeral directors could sell caskets to consumers on an at-need basis. The regulation discouraged non-licensed persons from selling caskets, deprived consumers of the benefits of price competition among casket retailers, and reduced consumer choice in selecting caskets, the complaint alleges, all in violation of Section 5 of the FTC Act.

“Under the proposed settlement, the Board must include in its newsletter and Web site the consent order and a statement that its rules and regulations “do not prohibit persons not licensed as funeral directors or embalmers from selling caskets, burial receptacles or other funeral merchandise to the public in the State of Missouri.” Also, in half-page ads in Missouri Funeral Director’s Association Magazine, the Board must announce the agreement, including a statement that, “Persons may offer for retail sale caskets and other funeral merchandise to customers in Missouri without obtaining a license from the Board.”

“The Commission vote to approve the consent order was 5-0. The order will be subject to public comment for 30 days, until April 9, 2007, after which the Commission will decide whether to make it final. Comments should be sent to: FTC, Office of the Secretary, 600 Pennsylvania Avenue, N.W., Washington, DC 20580.

“NOTE: A consent agreement is for settlement purposes only and does not constitute an admission of a law violation. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of $11,000.”

For copies of the FTC complaint and the Consent Order, click here.

Note: the story below gives an overview. Readers who want details on the laws discussed should see Funeral Consumers Alliance’s letter to the Missouri Board of Embalmers and Funeral Directors (attached below).

Jefferson City, Mo., January 4, 2006 — Consumer advocates successfully pushed back an attempt by the Missouri State Board of Embalmers and Funeral Directors to prohibit families, next-of-kin, and other non-funeral directors from exercising their rights to bury their own dead freely, without interference from commercial funeral homes, and without having to hire an undertaker. After a joint letter from Funeral Consumers Alliance National, and the Funeral Consumers Alliance of Greater Kansas City (attached below), as well as outstanding advocacy from the Institute for Justice (a libertarian watchdog law firm in Washington that stands up for individual rights), the Board amended some proposed regulations that would have done just that.

We’re still waiting for the Board to clear off some current regulations that still claim only commercial funeral directors can care for the dead, but we expect they’ll be struck soon (more below).

The whole affair came up after Larry Gegner, a Buffalo, Missouri man who sells caskets privately, encountered resistance from the Board when they found out he was telling citizens they had the right to bypass funeral homes and bury their own dead. In the first half of 2005, the Board (made up of five funeral directors or embalmers, and only one public member , a classic case of the fox guarding the hen house) took Gegner to court and filed a laundry list of charges against him. Astonishingly, these included “unlicensed activities” such as selling caskets to the public, even though Missouri Law specifically allows retail casket sales. The Board also charged Gegner with vague “violations” such as “arranging” funerals without a license.

The Institute for Justice, which represents Gegner, objected on Constitutional grounds, asserting Gegner had a right to freely disseminate accurate information to families about their rights, as well as the right under state law to sell caskets. Gegner maintains he never performed any of the usual functions of a funeral director – transporting bodies, etc. – anyway. IJ and Gegner are still waiting for a resolution to the case, though the Board looks to be backing off its claims.

But in an attempt to stop Gegner and others like him through the back door, the Board drafted new regulations that would have stripped Gegner and every other Missouri family of the right to bury their own dead. Trouble is, the Board has no legal authority to do so. In every state, statutes (the law) give regulatory boards the right to take certain actions and to regulate certain businesses. In most cases, these boards can only regulate the commercial business they attend to – they can’t oversee what private citizens do. For example, a state Barbers and Hairdressers Board can set standards for people who cut hair for money, but they can’t tell private families they can’t cut their own children’s hair.

The Missouri Funeral Board thought it could go a lot further. A new regulation discussed at their January 4, 2006 meeting redefined the practice of funeral directing to bring every person, private or commercial, into their grasp. The offending sentence defining the “practice of funeral directing” read: “Whether a fee is charged shall not be dispositive in determining whether one is engaged in the practice of funeral directing.” Translation from Lawyerese to English: “We have the right to control anything anyone in Missouri does with a dead body, even private families or religious groups, whether or not money changes hands.”

Whoa, nelly. The state statute controlling the Board gives it no such power. Under Missouri Law, the Board of Embalmers and Funeral Directors may adopt and enforce rules for the “professions of embalming and funeral directing.” And the state law defines the “practice of funeral directing” as “the business of preparing . . . for the burial or disposal of dead human bodies . . . [emphasis added].” Bottom-line: the Board can regulate commercial funeral homes, but not private family funerals.

After the letter from FCA, the Board must have reconsidered the scope of its power. The revision to the regulation defining the Board’s oversight of funeral directing now reads, in part, “Nothing in this subsection shall be construed to apply to persons exempt from Chapter 333, RSMo [the statute mentioned above].” And who is exempt? Obviously private people caring for their own dead. But the state law already exempts “any person engaged simply in the furnishing of burial receptacles for the dead . . .[and this law] shall only apply to persons engaged in the business of embalming and funeral directing.”

Where did the Board get the idea that it could act in loco parentis whenever a private citizen sold a casket or buried a relative? That’s not clear, but the record shows they’ve been under this impression for a long time. Here are two more unenforceable regulations still on the Board’s books:

  • 4 CSR 120-2.060
    (16) A Missouri licensed funeral director shall be present and personally must supervise any disinterment, entombment, or cremation as defined in 4 CSR 120-1.040. . . .
    (17) An unlicensed person may transport dead human bodies from the place of death to another location or may transport dead human bodies out of this state if these services are performed under the direction of a Missouri licensed funeral establishment.
  • 4 CSR 120-2.070
    (27) No dead human body shall be buried, cremated, disinterred, interred, or cremated within this state or removed from this state, unless . . . under the direction of a Missouri licensed funeral establishment or Missouri licensed funeral director, unless otherwise authorized by law . . .

FCA will be watching to make sure these regulations are struck, too.

It might do the Missouri Board good to check out the consumer-friendly Web site of the Kansas Board of Mortuary Arts. In stark contrast to Missouri, the Kansas Board’s site includes a helpful Frequently Asked Questions page for consumers that plainly tells families that they may care for their own dead so long as they follow the law. The The Kansas site also has an excellent “frequently asked questions” section for consumers that explains their rights and funeral options in plain English.

Note — Special thanks are in order for Clark Neily and Valerie Bayham, staff attorneys for the Institute for Justice. Clark and Valerie have gone above the call of duty, not only to protect their clients’ interests, but to stand up for the rights of all families and citizens to care for their own dead without the unwarranted intrusion of the the state or the funeral industry.

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