The American Way of Death Revisited (28 page)

Also included in this survey are the names of twenty mortuaries in the area that will provide direct cremations for less than $700, cremation container and crematory fee included. The funeral homes owned by SCI and Loewen quote prices of $2,745 to $3,985 for the identical service. For more information, Father Henry’s Web site is: www.xroads.com/~funerals.

No one, not even fellow members of the ministry, has escaped the righteous wrath of this avenging angel who has chosen as his special target malfeasance in the funeral industry. The IFIC also uncovered what it regards as a pattern of mortuary manipulation of the clergy. According to the panel, some clergymen have relationships with morticians that entail receiving gratuities or inflated stipends for funeral services. The committee’s findings were the subject of a feature story in the
Arizona Republic
, which reported a pattern of offers—gifts to clergymen of country club memberships, trips on mortuary airplanes, and tickets to sporting events.

In Montana, one mortician makes it a practice to buy a side of beef at the 4-H fair and put it in a freezer for the local minister. Another keeps an RV available—for the local preacher to use for his vacation, and yet another provides the pastor with a “beeper.”

Then, of course, there’s the ubiquitous and somewhat more subtle calendar. Mortuaries supply churches with these for distribution to parishioners. The calendars prominently display the name of the funeral home, which is frequently thanked from the pulpit for its contribution.

In yet another instance, Green Acres Mortuary donated several kegs of helpful beer for a picnic at Our Lady of Perpetual Help Catholic Church in Scottsdale. When asked about this, the pastor said that such donations do make him uncomfortable. There is no question but that such a donation is a form of advertising, he said. “We want to receive the gifts, but at the same time I don’t want to bite the hand that gives it.” The mortuary’s spokesman saw things very much the same way. “Donations from mortuaries are a legitimate
business practice to solicit recommendations,” he is reported as saying. “Am I out there hustling business? You’re damn right I am.… You always hope you will get recommended when you make a donation. That’s why you do it. You expect your associations and friendships with priests and ministers will bring you some business.”

I
n 1975, after an intensive two-year study, the Federal Trade Commission’s Consumer Protection Bureau announced with much fanfare a proposed “trade rule” on funeral industry practices. The rule produced a flurry of articles in newspapers and magazines across the country, hailing it as a significant victory for consumer rights. At the heart of the original proposal were these requirements:

The Consumer’s Right to Choose
. Existing industry practice was to quote a package price based on a multiple of the cost of the casket, stating that “this includes our full range of services.” The FTC rule would require itemization so that the purchaser could choose or refuse such services as embalming, use of slumber room, or grief counseling (!), with a corresponding reduction in price for unwanted items.

Prices must be quoted over the telephone
. The undertakers had theretofore routinely refused to quote prices over the phone on the ground that this information was “too sensitive” to discuss by telephone. Come into my parlor, said the spider to the fly; and once there, there is little hope of escape.

Undertakers would be prohibited from misstating the law specifically with reference to embalming
. They must inform the buyer that this dubious and expensive procedure (the “financial foundation of the funeral profession,” as one industry spokesman put it) is nowhere required by law. They must not tell the buyer that a casket is “required by law,” likewise untrue.

The cheapest casket must be displayed with the others
. Typically, the cheapest casket would be discreetly tucked away in a closet or in the basement, where only the most persistent buyer might discover its existence.

Funeral providers would be prohibited from telling the customer that the “eternal sealer” casket will preserve the embalmed corpse for a long or indefinite time
.

Arthur Angel, an FTC lawyer from 1972 to 1978 who was the main author of the rule, gave me a mini-history of its genesis. “For many years, during the fifties and sixties, the FTC had been a quiescent bureaucracy largely populated by hack lawyers from second-rate schools, and cronies recommended by politicians, mostly Southern,” he said. “This changed dramatically around 1970 or 1971 as a result of the Ralph Nader report on the FTC which roundly criticized the agency for failing to carry out its mission as watchdog in the marketplace, and the protection of consumers from abusive practices.”

It so happened that President Nixon’s son-in-law Ed Cox was a “Nader’s Raider.” He brought the report to the President, who said somewhat testily that he could not take any action on the basis of a report by Ralph Nader, but he did agree to appoint a blue-ribbon panel of American Bar Association lawyers to examine the FTC’s performance.

The panel confirmed Nader’s findings, whereupon Miles Kilpatrick, head of the panel, was appointed chairman of the FTC and its counsel, Robert Pitofsky, director of the Bureau of Consumer Protection, with the mandate to revitalize the agency.

“Beginning around 1970, and over the next four years or so, the FTC began hiring lots of new lawyers, activists from the top law schools in the country,” Angel said. “I was hired in 1972 as part of that effort.”

His description of the newcomers—“young, aggressive, disdainful of and removed from political and lobbying pressures”—was to me reminiscent of the New Dealers of the 1930s, as was the dedicated way they set about doing battle for the beleaguered consumer. First, they tried to identify especially vulnerable groups, which included the poor, the bereaved, the handicapped, the elderly. The next step was to devise projects responsive to the abuses that affected them. “One item on the list was the word ‘funerals,’ ” Angel told me. “We then read your book, Ruth Mulvey Harmer’s
The High Cost of Dying
, trade journals, and the like.” Out of this emerged a pilot survey of funeral prices in the District of Columbia, which led eventually to the trade-regulation rule.

To the average reader, the FTC’s proposed rule might seem mild and unobjectionable; all it sought to do was to bring the funeral transaction into line with standard fair-business practices, and to require undertakers to refrain from lying about the law concerning embalming and caskets. But the industry responded with characteristic belligerence, as to a call to arms.
IT WILL BE A COSTLY WAR
, declared the
American Funeral Director
, which described the FTC hearings as “a Soviet-style set piece staged by FTC.” The rhetoric got pretty wild. Howard C. Raether, at the time the industry’s most influential spokesman, writing in the house organ of the National Funeral Directors Association, lambasted the proposed rule as “a veiled attempt by the FTC staff to reverse the philosophy of American funeral customs, which have been historically developed within our society by the American public to effectively meet their needs when confronted by a death in the family.… There is an implication that these rules may bring about that which will be revolutionary.”

Mr. John C. Curran, past president of the New York State Funeral Directors Association, went him one better: testifying at the New York FTC hearing, he called the rule “a threat to the American way of life” and accused the FTC of “tampering with the soul of America.” The same thought was voiced in
Mortuary Management:
“FTC staff are trying to force their agnostic, atheistic ways on the Godfearing, traditional family-oriented America.…”

As required by law, the FTC held hearings on the proposed rule in six cities across the nation, at which spokesmen for each side—consumer and industry—testified, and were then subject to cross-examination by the opposing side. I was asked to testify in favor of the rule at the hearing in Los Angeles, where, to my surprise and pleasure, the industry spokesman chosen to cross-examine me was none other than Howard C. Raether himself.

The hearing room was packed with partisans for and against: members of the Los Angeles Memorial Society, Unitarians, Quakers cheek by jowl with black-suited CEOs of the finest Los Angeles mortuaries, with plenty of press on hand to record the event. I spoke my piece, a brief rundown of how the Funeral Rule would serve to curb some of the worst excesses of undertakers, then sat back, agog for Mr. Raether’s questions.

Seeking to demonstrate that the undertaker does indeed have an obligation as “grief counselor” to guide the funeral purchaser in his
choice of an aesthetically pleasing casket, he asked some hypothetical questions, and I found myself led on a merry chase into the fantasy world of the mortuary:

There was a gratifying clatter of laughter from the pro-rule members of the audience; the black suits sat stony-faced. But Mr. Raether, not to be deterred, continued doggedly:

While on the surface the outlook for successful adoption of the rule appeared bright, behind the scenes the mortuary interests were having some success. Industry leaders exhorted rank-and-file undertakers to bring pressure on their elected representatives, and were able to report occasional victories, as when Mr. Thomas H. Clark, counsel for the National Funeral Directors Association, congratulated one industry group for its lobbying efforts: “Many of you were instrumental and helpful in trying to get to the various Congressmen of the United States.… You know, we got seventy-three Congressmen and thirteen Senators who signed resolutions condemning the FTC.”

Arthur Angel and his colleagues at the Federal Trade Commission soon began to feel the impact of this activity. He told me, “By 1976 the FTC’s activism and aggressive actions against many powerful interests had galvanized escalating lobbying efforts. Lobbyists for various groups swarmed over Capitol Hill complaining about youthful zealots who were running amok and who could not be reasoned with. The FTC began to feel the pressure. To try to placate its foes, some of the FTC’s leadership began trying to moderate or weaken various projects. The attempts to weaken the Funeral Rule were part of that effort.”

By 1978 two components of the rule had already been dropped: the requirement to display the cheapest caskets with the others, and the prohibition against trying to influence the buyer in his choice of funeral. Frustrated and foreseeing correctly, as it turned out, that the rule would be further gutted, Arthur Angel resigned.

The mills of the FTC grind slowly, yet (in terms of results) exceedingly small. To those involved, the process seemed interminable—from 1973, when Arthur Angel and colleagues had begun researching the funeral industry, to announcement of the proposed trade rule in 1975, on through the public hearings to final adoption of the rule in 1984.

By 1985 it would seem that all was now in place for at least some minimal protection for the funeral buyer as provided in the rule.

However, that year I had a letter from a Mr. H., a seventy-six-year-old resident of Palo Alto, California, who was thinking about his funeral. Wishing to spare his daughter the job of arranging it, he telephoned a funeral home and asked their price for a simple cremation. About $300, said the funeral home. Mr. H.’s next step was to ask the funeral home for a written quotation. When it eventually arrived, the listed price came to $525.

Mr. H. knew all about the FTC “Funeral Rule”; he had made quite a study of it. So he wrote a letter of complaint to the San Francisco regional office. He sent me a copy of his letter together with the reply from an FTC staff member:

That seemed to me ridiculous, for is not Mr. H. a member of the general public? And was not the funeral home’s misrepresentation exactly what the FTC rule was supposed to prevent?

My conversation with a lawyer in the same regional office, with whom I discussed this correspondence, was not reassuring. “We don’t represent individuals. This is an isolated case,” he told me. What, I asked, is considered to be “a significant number of consumers”? There is no set number, he answered. Would it be three? Six? A hundred? “I couldn’t say,” he said.

Frustrated, I telephoned FTC commissioner Patricia Bailey in Washington. She immediately saw the point; after that, things happened quickly. The director of the regional office, informed of the facts of this matter by Commissioner Bailey, promptly investigated and determined that Mr. H.’s case was “completely mishandled.” He assured me that the staff member who wrote the letter and the lawyer with whom I spoke had been “appropriately admonished.”