Do you have to buy a Casket from the Funeral Home?
Generally speaking, anyone may sell caskets to the public without any sort of license, outside of those required from any other retailer. (A sales tax permit and an assumed name certificate are usually required of just about any retail outlet, for example.) But that has not always been the case, and many people in the funeral industry have put up legal fights in recent years to bring the United States back to the days in which only licensed funeral directors were allowed to sell caskets. For now, consumers can take comfort in knowing that they are well within their rights to tell their funeral directors that they wish to purchase a casket (usually for a lower price) from some other source, but consumers can also expect that lobbyists for funeral directors across the United States will continue their efforts to require that casket retailers receive (and pay for) special licenses. Here is a brief overview of this issue.
What does the Federal Government say about who can sell Caskets?
Officially speaking, the United States federal government is silent on the question of who can allow to sell caskets. And, funeral industry lobbyists sometimes use that as inspiration to push for enforcement of some state laws still on the books that require casket retailers to be licensed. But those efforts are usually blocked by the following fact: the federal Funeral Rule, passed by Congress in 1984, very specifically states that funeral directors are required to use any casket provided by a consumer as part of a memorial service. In other words, there is no federal requirement that caskets be purchased from a licensed funeral director. And any state law that makes such a requirement is on shaky legal ground because it might hinder a consumer from being able to exercise his or her rights freely under the federal rule.
In the most recent landmark court case on this issue, the United States 5th Court of Appeals (one step removed from the U.S. Supreme Court) declared unconstitutional a Louisiana law requiring all caskets be sold by licensed funeral directors. As a result of this decision, since 2013, an unlicensed group of monks has been able to sell their handmade caskets for thousands of dollars less than funeral homes typically offer them without threat of large fines and jail time.
And retailers throughout the 5th court’s jurisdiction area (Texas, Mississippi and Louisiana) can take solace in knowing that any state or local against them are not legally enforceable. This does not mean, of course, that states and municipalities will not make a legal attempt to enforce their laws. It just means that those laws, if tested, will likely be struck down. And, until such an attempt is made, unlicensed retailers can legally operate without fear of prosecution. The question remains in legal limbo throughout much of the rest of the country, however, until another appellate hears a related case and/or the Supreme Court takes up the matter itself. Only time will tell when or whether that will happen.
What States have tried to License Casket Sales?
In preparing this article, we were unable to locate a recent list of states that currently have (mostly unenforceable) laws requiring casket retailers to be licensed. So a list prepared by a law school professor in 1998 will have to suffice. The states are Alabama, Delaware, Georgia, Idaho, Louisiana, Main, Mississippi, Minnesota, Oklahoma, South Carolina, Tennessee and Vermont.
As noted above, Federal law generally overrides state laws when the two conflict, and the 5th court’s ruling should give Americans solace that these state laws are legally unenforceable. In fact, it is quite likely that, because this list was prepared in 1998, many of these states no longer have the laws on their books. (It is often the case that unconstitutional laws of all types remain part of state and local code for decades after they have been struck down by a federal court. So long as those laws are not enforced, there is no legal problem at hand. But many times opponents of a Federal Courts decision will assure that the state or local laws remain on the books – even if unenforced – so that they can perhaps be enforced again later, once the nation’s political climate has changed and a victory in federal court is more likely.)
How do Funeral Directors justify their demands for Licensing of Casket Retailers?
Federal courts, and the Federal Funeral Rule, have long argued that allowing unlicensed retailers to sell caskets is important for economic purposes because it inspires competition that helps keep prices reasonable for consumers. Funeral industry lobbyists, meanwhile, argue that licenses are needed to help protect consumers from retailers who may not be well trained or knowledgeable in funeral industry traditions and practices. In the Louisiana case mentioned above, for example, lawyers for funeral homes argued that unlicensed retailers could very well deliver a casket that was too big for the state’s typical grave size (especially in cases in which caskets are to be housed in above-ground vaults that are common in the low-lying areas of Louisiana). Those who argue on behalf of unlicensed retailers point out that reputable casket sellers will always make sure that their casket will meet a cemetery’s requirements before any sale is made. Consumers can (and certainly should) avoid any retailer that does not work with their cemetery in this way.
What other ways can Funeral Homes limit competition and keep Casket Prices Inflated?
Consumers should be aware that most of largest casket manufacturers in the United States – the ones with the most resources to make and sell caskets inexpensively for the lowest wholesale rates – have long sold their caskets exclusively to licensed funeral homes. And these companies are typically very reluctant to bring on unlicensed retailers as wholesale clients. There is nothing illegal about this business decision. But consumers should be aware of it and they should question any claims they may hear from funeral directors that certain makers of caskets are better than others. Such claims are likely motivated by the fact that the larger casket makers are willing to help funeral homes in their goal of eliminating competition from non-licensed retailers. It’s true that the non-licensed retailers typically must purchase their caskets from smaller manufacturers who, by virtue of economies of scale, must charge higher wholesale prices. But the smaller companies are just as capable of producing high quality work as the larger ones, and the lower over-head and lower profit margin requirements of the non-licensed retailers typically mean that they can sell their (higher wholesale priced) caskets for even less than a funeral home.