Dear Funeral Directors Letter Re Food in Funeral Homes
January 11, 2017
Dear Funeral Director(s):
This letter is to inform you about recently enacted legislation, Chapter 101 of the Laws of 2016, which was signed into law by the Governor on July 21, 2016 and goes into effect January 17, 2017. The law amends Public Health Law (PHL) Article 34 by creating an additional section 3444 to allow certain types of food and/or beverages to be served to consumers attending vistitation hours and funeral services in funeral establishments. The New York State Department of Health (the Department) is issuing this guidance to clarify both the requirements and expectations of funeral directors, funeral firms/funeral homes (to be used interchangeably) and funeral establishments with respect to food service in funeral homes.
Prior to the enactment of this law, neither food nor beverages could be served in funeral establishments. This new law allows certain types of food and non-alcoholic beverages to be served in a funeral establishment (apart from the embalming and preparation room or chapel), in an effort to address the needs of the decendent's family members and loved ones during long calling hours or where there is limited access to food near the funeral establishment.
The law is permissive and allows the funeral firm to choose whether or not it will provide food services. If the funeral firm determines that it will provide food services the law authorizes a funeral firm to provide space, facilities, equipment or supplies for the preparation, sale, service, distribution or consumption of "incidental refreshments," foods required for religious practice, or nonalcoholic beverages in the funeral establishment for individuals attending a ceremony or service at the establishment. While the law does not a define "incidental refreshments," it does provide some examples, specifically, "baked goods, sandwiches, snacks and platters." Any activity by the funeral home employees or catering employees will be limited to:
- Preparing beverages; and
- Serving incidental refreshments or nonalcoholic beverages.
A caterer may be used for the provision of incidental refreshments and non-alcoholic beverages as long as the caterer is not owned by or affiliated with the funeral firm. Whether or not a caterer is "affiliated" with a funeral home is not defined in the law and would depend on the circumstances. For instance, a funeral home could not establish an exclusive contractual relationship with a caterer to offer food to its customers. Furthermore, a non-contractual relationship between a funeral home and a caterer that has the effect of limitng the consumers' choice to that particular caterer would likely run afoul of the law's intent. The Department may interpret the word "affiliated" broadly to ensure consumers have a range of choices where possible.
Pursuant to state law and regulations, the Department regulates and oversees "food service establishments" in order to protect public health by ensuring food safety and reducing the incidence of food-borne illnesses. Because funeral establishments cannot operate in the same manner as a food service establishment licensed and regulated by the Department, this law specifically prohibits a funeral establishment from operating as a food service establishment or caterer. As such, funeral homes and their employees are only authorized to serve food and/or beverages, and may not engage in food preparation. However, a funeral firm may purchase food as specifically requested by the decedent's family members. If purchased, the funeral firm should arrange for the time and pick up in accordance with the family's request. Once the food is delivered, it is transferred to the custody of the family, and all food items not consumed by the family and callers must either be given to the family to take home or discarded at the conclusion of the services. The law also allows family members or friends to bring their own food, in addition to the use of a caterer.
If the funeral firm uses a caterer or purchases food items for its customers, the associated costs may be treated as a "cash advance item" as described in Title 10 New York Codes Rules and Regulations (10 NYCRR) § 79.4(f)(1). Similarly, as stated in the regulation, services and merchandise provided as cash advance items will be billed at the same amount paid by the funeral firm.
Alternatively, the funeral firm may list the catering services or prepackaged food items on the Statement of Goods and Services under "Additional Services and Merchandise" as described in 10 NYCRR § 79.4(e). The range of prices for the food services offered in this manner must appear on the General Price List (GPL) under Additional Services and Merchandise. When the funeral firm does not treat food services as "cash advance items," the funeral firm may charge a reasonable mark-up for their services in arranging a caterer or purchasing pre-packaged food items. It is important to note that, pursuant to state and Federal Trade Commission regulations the funeral firm must present a printed or typewritten GPL to individuals who inquire in-person about the prices and availability of funeral services. If the funeral firm routinely arranges food or catering services, an in-person inquiry regarding such services may trigger this requirement. Whether a funeral firm chooses to list food services as a "cash advance item" or "Additional Services and Merchandise," PHL section 3444 allows a funeral firm to limit the types and choices of food items offered, but not restrict the consumers' choice of caterer or vendor of prepackaged food.
If a funeral firm decides not to provide food services to its customers, the funeral firm may still provide space, facilities and equipment, accomodations or supplies at the funeral establishment for the family or their caterer so that food and/or beverages may be prepared, distributed, or consumed. The funeral firm may charge a facility fee for this service to recover expenses and assess a reasonable charge for use of facilities, equipment and space. This facility fee would be treated as a "use of the facilities" as described in 10 NYCRR § 79.4(f)(6). The Department expects to promulgate rules and regulations related to food service in funeral establishments. Should you have questions, please contact the Bureau of Funeral Directing at (518) 402-0785 or by email at funeral@health.ny.gov.
Sincerely,
Thomas Fuller, Director
Bureau of Funeral Directing
