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Mourning to Millions: The Capitalism of Death in America

Kiana Marques-Nicholson

Edited by Zac Krause and Vedanth Ramabhadran


It is often claimed that one’s legacy exceeds their time on earth. For some, this may be a Nobel Prize or some innovative invention, yet for others it may be the bill accrued after the fact. The funeral industry is a billion dollar industry, with its current market estimated to be 20 billion annually[1]. There are approximately 2.4 million funerals that take place each year, with the median cost being $7,848, according to a recent study conducted by the National Funeral Directors Association[2]. The question has been raised as to how much of this fortune is made not through honest business, but rather through the exploitation of customers during their most vulnerable state[3]. Most Americans will face the funeral industry at some point in their lives, and for some it may be more than once and in a multitude of capacities. Thankfully, due to the Federal Trade Commission’s handy “funeral rule,” Americans can be certain that they are safe from the hands (or scythes) of those who wish to capitalize on death… or so we think.

In early colonial life, death was frequent and abundant. In fact, with a child mortality rate of 40%, many children did not end up making it to adulthood[3]. With an overall general lack of desire for traditional funerals synonymous with medical advances, led to a decline in the number of funeral’s over time, a phenomenon that has occurred time and time again across the world. Throughout most of the 18th century, funerals were largely managed by families, with loved ones responsible for preparing the deceased, holding wakes in their homes, and burying them in family plots or local cemeteries. As America transformed in the 19th century, so too did its funeral practices. The Civil War brought about an immense demand for the transportation of dead bodies, which led to the rise of embalming and professional undertakers, later known as morticians[4]. This, coupled with population growth, fueled the establishment of dedicated funeral homes offering standardized services for the first time. Finally in the 20th century, there was the emergence of a modern consumer market as people's preferences shifted towards elaborate viewings and embalming becoming more commonplace. 

Synonymous with the rise in consumer interest for funeral services was an almost collective fear of consumer exploitation. After all, no one wants to be taken advantage of in one of their most vulnerable moments. This resulted in a great push for consumer protection and price transparency, which is where the FTC came into play. Following a period of in-depth investigation, the FTC implemented the Funeral Rule in 1984. This regulation aimed to empower consumers by mandating transparency in funeral arrangements[5]. The core principle of the rule was informed choice, in which funeral homes were required to provide a general price list upfront, allowing families to compare costs and select only the services they desired. This countered the potential for high-pressure sales tactics and ensured informed decision-making during a stressful period.

The impact of the Funeral Rule was immediate.  With it, families gained a crucial tool for navigating funeral arrangements with a greater degree of control. The ability to compare costs and customize services fostered competition within the industry, potentially leading to more affordable options for consumers[6]. The story of the Funeral Rule however, unfortunately does not end there. 

The FTC's Funeral Rule was the commission's legislative attempt to regulate an industry whose practitioners had spent decades operating under the radar; although the industry initially fought the implementation of the Rule, they later changed their tactics and framed themselves as "supporters" of the Rule. 

To ensure the implementation of the rule, the FTC conducts ‘undercover’ investigations to funeral homes, which has resulted in around one in four homes being found in violation of the rule[7]. Funeral homes with minor Rule compliance violations are ordered by the FTC to provide evidence that such discrepancies have been corrected. Funeral homes that commit major violations, the most common being failing to disclose price lists, may commit to a three-year training program called the Funeral Rule Offenders Program, which is often referred to by the FTC as the FROP program. Funeral homes that choose not to participate in the FROP program will be subject to FTC suits with fines of up to $41,484 per violation[8]. 

Most funeral homes play it safe, choosing the FROP program. In a study done by the Wall Street Journal, more than 500 funeral homes participated in the program from 1996 to 2018 for failing to comply with rules against customer exploitation[9]. There is an added incentive for the homes to participate on top of dodging the excessive fines. The FROP program option insulates funeral homes from any severe repercussions because the names of the funeral homes are not released to the public[10]. In addition to maintaining their anonymity, the FROP program allows violating funeral homes to trade their large civil penalties for nominal voluntary payments, and presents an out-of-court option. The program also enables the National Funeral Directors Association (NFDA) to reap an annual cut from paying members[11]. To put the NFDA’s earnings in perspective, each time a funeral home is found in violation of FROP, part of the fines to be paid are $1,900 to be paid to the NFDA to attend the remedial program [12]. And that’s just for one member.  These measures taken together demonstrate that funeral homes that violate the FTC’s Funeral Rule rarely face any severe repercussions.

If funeral homes get a back door for getting out of reparations from violating the funeral rule, regulators and consumers alike should contemplate the reality of the Federal Trade Commission’s efforts to protect consumers. The very essence of the Federal Trade Commission is to protect Americans consumer rights, what happens now that those rights have been put on the back burner in lieu of a pretty penny for the NFDA [13]?

As of September 2023, the Funeral Rule has been under reconsideration, and revision for the first time since 1994[14].  The rule has not been changed in over forty years, and with the cost of living on the rise, consumers are increasingly skeptical when it comes to the cost of death. One would think the FTC might seek to take a few notes from the enforcement of the Americans with Disabilities Act (ADA) by the Department of Justice (DOJ), but as the rule presently stands, there is little to no incentive to change the wheel of corruption enshrined between the FTC and the NFDA[15]. The origin of the Funeral Rule came a time of extreme regulation imposed by the FTC’s power trip, onto a population who had limited access fair price tools other than their landline [16]. While it is unclear what these potential changes to the FTC’s Funeral Rule will look like for Americans, it is safe to say changes have been long overdue. In the age of the internet and overall greater awareness of fraud in the funeral industry, the rule;s revisions need to account for the “bad actors” that are still slipping through the cracks.

 

[1]  Sara Marsden-Ille, The US Funeral Industry Today, US Funerals Online (Mar. 22, 2023),

[2]  Statistics, National Funeral Directors Association (Oct. 23, 2023), 

[4] Kelly Goles, Evolution of American Funerary Customs and Laws, Library of Congress Blogs (Sep 28, 2022),

[5] J. Conner Niceley, The Kentucky Way of Death: A History of the Development of Mortuary Laws in Kentucky, Eastern Kentucky University Honors Theses (Spring 2017), 

[6] Businessperson's Guide to Federal Warranty Law, Federal Trade Commission,

[7] Funeral Rule, Federal Trade Commission, 

[8] Funeral Scams, AARP (Nov 30, 2020),

[9] Complying with the Funeral Rule, Federal Trade Commission,

[10] Dominique Mosbergen,  How the Funeral Industry Got the FTC to Hide Bad Actors, The Wall Street Journal (Feb 5, 2024), 

[11] See Complying with the Funeral Rule

[12] Justin Crowe, FTC Releases Results of Undercover Funeral Rule Investigation… 4 Regions Bombed, Connecting Director (Jun. 18, 2018), 

[15 ] Poul Lemasters, Esq., FTC seeks public comment as part of its review of the Funeral Rule, The International Cemetery, Cremation & Funeral Association, https://iccfa.com/funeral-rule/#:~:text=The%20ICCFA%20was%20invited%20to,is%20available%20for%20playback%20here



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