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.”