NFDA Lawyer Uses Scare Tactics on Green Burial Customers

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An Open Letter to the National Funeral Directors Association

- Posted by Josh Slocum, Executive Director, Funeral Consumers Alliance

Dear NFDA,

I was delighted to see the latest issue of your magazine, The Director, staring at me with its inviting cover. "The Growth of Green" leaped out. NFDA is getting behind green funeral options? Great! FCA hears from so many consumers who want an ecologically friendly send-off, and the more mainstream funeral businesses that get on board, the easier it will be for us to help them.

As usual, Chris Raymond's editorial was spot-on:

Whether you're aware of it or not, presently strive to offer green options or just hope the whole thing will go away, I urge you not to dismiss growing consumer consciousness of the burden of their "ecological footprint" will have on future generations as a mere fad . . . .jump on the green bandwagon by making sure your firm offers a variety of green products/services at a range of prices and advertise this fact to your community.

Click "read more" for  our dissection of the unfounded nonsense NFDA has published about green burial. . .

Sound advice. Instead of fighting changing consumer preferences, embrace them and profit. Funeral homes win by offering services consumers want; consumers don't have to turn over every rock to find a funeral home that won't give them the traditional hard-sell. What a welcome change from the shortsighted and futile fight funeral service waged against cremation. Instead of getting on board, funeral service disparaged cremation and insulted cremation families, implying they wanted to "dispose" of their dead like so much trash. It backfired. Cremation continues to rise around the country, and consumers have turned to direct cremation-only firms in greater numbers to avoid the judgmentalism characteristic of too many conventional funeral homes. This time, I thought, the nation's largest funeral association is getting ahead of the curve.

But no. Page 56 of The Director tells us what it's really all about. The estimable T. Scott Gilligan, your longtime general counsel, has done it again. Well-known for his indemnification forms whose real purpose is to scare consumers away from unconventional options (click here for our class action casket lawsuit that discusses NFDA's Use of Third-Party Merchandise indemnification form), Gilligan has drafted a green burial form full of misinformation and outright falsehoods. It couldn't be more perfectly designed to scare the dickens out of funeral directors and consumers:

The Green Funeral choice is usually made for environmental reasons and a desire for a simpler disposition. It is an appropriate and meaningful choice for certain families. However, it does preclude certain options and poses several risks that the  REPRESENTATIVE has been advised of and is now acknowledging. The REPRESENTATIVE has been advised by the FUNERAL HOME that with a Green Funeral the FUNERAL HOME can provide no assurances regarding the appearance or the condition of DECEDENT's remains, that there will not be a public visitation or viewing of the DECEDENT, that there are possible health risks posed by handling an unembalmed body, that there can be substantial risks of physical injury to pallbearers from holding, carrying, and transporting a body in a container that may not be designed to hold the weight or to be safely lifted and carried, that burial of the body in a grave plot without an outer burial container may lead to the ground settling and sinking over the grave, that the body may not be able to be disinterred and moved at a later date, and that in later years it may be difficult or impossible to locate the grave due to the lack of a permanent marker or monument.
See the whole form here.

In one paragraph, Mr. Gilligan has managed to pervert a time-honored method of burial into a horror show. By encouraging your members to use this form, you've undercut the entire point of your "green" issue of The Director. What funeral director wants to tell a family, "Grandma might look terrible, we won't let you have a viewing, she might fall out the bottom of the casket, and you'll never be able to find her grave"?  In case you've been hypnotized by the vaguely-ominous-yet-hypberbolic language typical of a certain segment of lawyers,  let's take apart Mr. Gilligan's points:

1. The FUNERAL HOME can provide no assurances regarding the appearance or the condition of DECEDENT's remains. . .

Plain English: Without embalming, it's a crap-shoot whether we can do a thing to make Grandma presentable.

Reality Check: A skilled funeral director can set the features, apply makeup, and keep the body cool if preservation is needed. You competitor publication, Mortuary Management, ran a series of articles in 2006 from funeral directors who do just that. Given the number of complaints about botched embalming jobs FCA receives, shoddy work has little do with the presence or absence of formaldehyde. Perhaps Mr. Gilligan would like to try his hand at a disclaimer form for embalming. It might go something like,

"REPRESENTATIVE acknowledges embalming is an invasive process that involves the puncture of internal organs, and the suctioning of their contents with reverse vacuum pressure. REPRESENTATIVE also acknowledges various materials, including but not limited to, formalin-soaked cotton,  and threaded screw-type plastic cylinders, may be introduced into the deceased's. . ."

I thought not.

2. . . . that there are possible health risks posed by handling an unembalmed body. . .

Plain English:
My staff, and your family members, are going to get sick if you don't let us embalm.

Reality Check: It's astonishing Mr. Gilligan would make this claim. I can't even give him the benefit of the doubt based on ignorance - it's so well-documented by medical science that unembalmed bodies pose no substantial health risk that I can only conclude this is outright mendacity. He knows better, and so do you. As a refresher, here's FCA's pamphlet on the subject, Dead Bodies and Disease: The Danger That Doesn't Exist. Note that we cite scientists and medical organizations. Where's your evidence?

3. . . . that there can be substantial risks of physical injury to pallbearers from holding, carrying, and transporting a body in a container that may not be designed to hold the weight or to be safely lifted and carried. . .

Plain English: Unlike the fine caskets at my funeral home, those "other" caskets might give pallbearers a hernia. Or, grandpa might fall through the bottom.

Reality Check: Despite the urban legends, there's no evidence dead people are crashing onto church steps from the bottoms of unconventional coffins. It's hard to believe NFDA continues to stoop to fear tactics to keep grieving families buying caskets only from a mortuary, especially since your previous efforts ended up as evidence in FCA's class-action lawsuit.

4. . . . that burial of the body in a grave plot without an outer burial container may lead to the ground settling and sinking over the grave. . .

Plain English: Dad's grave is going to turn into a sinkhole.

Reality Check: Let's get acquainted with elementary physics. Collapsing graves are a problem largely because American caskets displace a lot of earth with empty space. When the coffin inevitably caves in, there's empty space to fill. When a body is directly in the earth, there's no air pocket to collapse. Green cemeteries - and common-sense sextants - figured out a simple solution long ago: mound the earth over the grave so the earth fills in any minor subsidence. It's also clear you don't realize families interested in green burial are not obsessed with having their dead buried in a flat, manicured landscape - that's the point.

. . . . that the body may not be able to be disinterred and moved at a later date. . . .

Plain English: Your wife's body will be significantly less portable should you choose to upgrade her accommodations in the future.

Reality Check:
Are you serious?

6.   . . . it may be difficult or impossible to locate the grave due to the lack of a permanent marker or monument. . . .

Plain English: If you can't find Mom's grave, where will you put flowers on her birthday, Eddy McEco-pants?  Oh, and did you know Carrara marble is the stone of choice for durability, beauty, and dignity? Our line of memorials . . . .

Reality Check: Simply surveying the land and recording the coordinates of a grave would solve this "problem."  Had Mr. Gilligan given the most cursory glance at any established green cemetery, he would have found many of them locate graves with near pin-point accuracy through GPS plotting systems.

NFDA, you have let your lawyers run amok. Scott Gilligan is not serving you or your members; he's making you look like reactionary dinosaurs.  Instead of giving guidance on how to wisely accommodate family needs, he appears to be writing policy for you. Shortsighted, retrograde policy.  You can do better. Your members and the families they serve deserve better.

Your green issue of The Director was a missed opportunity to show real leadership in funeral service. You could have offered practical, business-savvy advice that would have helped your member funeral homes make a profit in a changing market while giving families what they want. Here are some story ideas you can feel free to use for a future issue, without attribution. My treat.

  • Go Green and Make Green - How to team up with the woodworker and casket-maker in your town to offer families a simple, natural coffin from local materials. Customers who want to support local businesses will appreciate that you stock handmade coffins from a local business they know and trust, and you'll keep the casket sale.
  • Keeping the Faith - Green burials mirror funeral practices that have been followed by Jews and Muslims for thousands of years. If you serve these customers, highlighting the convergence between environmentalism and their religious practices will appeal to families who care about historical  traditions and want to marry them with contemporary respect for the environment.
  • Post-formaldehyde Funerals: Don't Let "No Embalming"  Become "No Viewing" - Green burial families want a funeral without  the formalin, but that doesn't mean they don't want a viewing. Do you know how to preserve and present an unembalmed body?
  • Preservation 2.0: What We Can Learn From Europe - Embalming is almost unknown in Western Europe, but our overseas cousins have figured out how to preserve the deceased for viewing. Dutch funeral homes use portable refrigeration units that sit beneath the casket. Is it time for American equipment suppliers to bring this technology to the USA?

NFDA has a reputation as a sluggish organization, too large to turn around in response to changing funeral customs. It doesn't have to be this way. As the largest funeral service trade association in the world, you can have an enormous impact on funeral practice for your members and their customers. You have an opportunity to ensure that impact is a positive, forward-thinking one.

Last Updated ( Wednesday, 03 September 2008 17:57 )  
Comments (7)
1 Wednesday, 03 September 2008 15:12
How refreshing it would be for Funeral Directors to approach green burial as an option in order to better serve their families. For some families, this could be the most appropriate way to bury their loved one. By pursuing their business-as-usual approach, Funeral Directors are perpetuating their own bad press (that they are self-serving and fear based) and confirming their own worst fears (that alternatives will undermine their business). As people become more knowledgeable, they will choose what best serves their needs--both emotional and financial--and funeral homes will be left in the dust, mistakingly thinking that others took their business rather than acknowledging that they themselves gave it away.
2 Wednesday, 03 September 2008 16:12
I find it hard to understand how Scott Gilligan's form made it into print. Are they all sniffing formaldehyde at NFDA headquarters on Bishop's Drive?
3 Wednesday, 03 September 2008 19:17
Gilligan's so-called advisory is an excellent example of self-serving language meant to scare and manipulate people in grief. Aside from that, it was a pretty amusing read. It reminds me of something I"d see in a Jasper Fforde book. That's a compliment to Fforde, not Gilligan.
4 Thursday, 04 September 2008 02:14
What kind of crap is this? Mr. Gilligan is forgetting the fh is an employee hired to do a job for the family (the employer) for consideration (money.)

If the family desires a green funeral, the fh should provide only those services requested. I know fd's who are accommodating to the families and everything always works out well.

If the fh refuses to cooperate, fire him and find a fd who will not force NFDA forms on you. There are plenty of principled fd's out there who are above this slimy tactic. You have supreme authority and you may have to find a non-NFDA fh. It always helps to take your Uncle Carmine and Aunt Bertha (and others) with you to level the playing field.

Mr. Gilligan's form is really designed to harass and manipulate the grieving family in the name of protecting the fh. In reality, the purpose is to protect fh business and to dinminish a less profitable green funeral market. His remarks are designed to disparage third party caskets.

The way Mr. Gilligan makes green burials sound, it is a miracle mankind has survived thousands of years without today's embalming methods.

I would ask for a copy of the statute requiring the form, and when they can't produce it, simply refuse to sign it.
5 Thursday, 04 September 2008 23:06
These Associations of Professionals (and I'm including doctors, dentists, real estate brokers, funeral directors etc) wouldn't be so scary if it weren't for the fact that incorrect beliefs they perpetuate tend to lead to more restrictive laws, and people becoming objects of abuse and financial pillage.

I'd like to see more professionals rally together and speak out for their own Associations to reform. I loved how Josh's humor made the point! They should use it!
6 Monday, 08 September 2008 12:52
What an excellent rebuttal. Way to be Mr. Slocum!
7 Thursday, 11 December 2008 14:49
D. Hayes
How could the NFDA support this, when they have not been allowed for years to say that embalming protects public health, because there is no evidence? That's exactly why there's no more statement about embalming and public health on their web site. They absolutley knew they were lying.

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