Funeral Consumer Advocate Wins

Arlington, Va.—Thanks to the efforts of the Institute for Justice (IJ), Missouri consumers should find it easier to provide affordable funeral services for their loved ones—or even to perform funeral services for friends and family themselves.

In a consent judgment entered earlier this month [on May 18, 2006], in the Circuit Court of Dallas County, the State Board of Embalmers and Funeral Directors acknowledged that it had no business regulating the sale of caskets and other burial receptacles. The State also conceded that it could not prohibit Larry Gegner—a consumer advocate from Buffalo, Missouri—from providing information to Missouri citizens about how to conduct private burials without hiring a licensed Missouri funeral director.

“The State conceded that its regulations only apply to those who conduct funerals as a business,” said Clark Neily, a senior attorney with the Institute for Justice, which represented Gegner in the lawsuit. “The regulations on the books vastly exceeded the Board’s statutory authority.”

“You don’t need a funeral director’s license to sell what amounts to no more than a box,” said Valerie Bayham, an IJ staff attorney. “Direct casket retailers ensure that consumers get the best dollar value for their caskets and encourage funeral directors to keep their own costs down. This was an open and shut case of the State working with established funeral directors to bury the competition.”

In May 2005, the State Board of Embalmers and Funeral Directors filed suit against Gegner, seeking—among other things—to enjoin him from selling caskets or helping consumers plan private burials. While Gegner operated Serenity Discount Caskets, his consumer advocacy in support of private burials wasn’t something he charged for. He simply wanted folks to know that they had options—buying a casket from the funeral director or from a retail casket outlet; embalming or using dry ice; hiring a funeral director or dealing directly with the local cemetery to arrange the burial themselves.

In June 2005, the Institute for Justice stepped in to defend Mr. Gegner and filed counterclaims against the Board of Embalmers and Funeral Directors, arguing that it had exceeded its legitimate authority in trying to prevent Gegner from selling caskets or informing people about their right to conduct home burials without hiring a state-licensed funeral director. Within short order, the State Board retreated to simply asking Gegner not to conduct private burials as a business—something he never intended to do anyway—and is now working on amending its regulations to make them more consumer-friendly. A new regulation removing the restriction on casket sales has been published for public comment and regulations making clear that family and church members can conduct private burials without hiring licensed funeral directors is in the works.

“This was a win for the people of the state of Missouri,” said Gegner. “They have a choice about how to bury their loved ones. Retail casket stores can save them a bunch of money, as can performing the funeral services themselves. I want the people of Missouri to know that they don’t have to be intimidated by licensed funeral directors.”

“This is a victory for the citizens, but the situation never should have happened.” said Joshua Slocum, Executive Director of the Funeral Consumers Alliance, a national organization dedicated to protecting consumers’ rights to meaningful, dignified, and affordable funerals. “The Board’s responsibility is to protect the public from unscrupulous funeral businesses, not to protect funeral homes from citizens who exercise their right to avoid mortuary markups. Let’s hope they remember this in the future.”

The Institute for Justice is a nonpartisan, nonprofit public interest law firm that litigates under state and U.S. constitutions to protect individuals whose rights are being violated by the government. Through strategic litigation, training, communication and outreach, IJ secures greater protection for individual liberty and extends the benefits of freedom to those who have been deprived of it by the government. In this lawsuit, State Board of Embalmers & Funeral Directors v. Gegner, IJ has ensured that Missourians have the right to learn about alternatives to high cost funerals conducted by the funeral establishment.