(via Gem & Jewellery News, Vol.7, No.1, December 1997) Harry Levy writes:
The ulcer that has been plaguing our trade has flared yet again. You will recall the recent story about the jeweler in the United States who sold filled diamonds without declaring the process to his customers. That story ended tragedy with the jeweler in question taking his own life. One must emphasize that the filling of diamonds is one of the few treatments that is recognized by all sections of the trade to be declarable.
Another case has now occurred in the USA, this time over the fissure filling of an emerald and again the retail purchaser was reportedly not told of the treatment. It is difficult to work out exactly what has happened in this case as the reports one reads in the trade press do not tell the same story. Briefly, as I understand it, an emerald was sold for $14000 and has ended up costing the seller nearly $400000 in compensation and fines.
The case occurred in Washington DC. An emerald ring was sold, and after several months was taken to a jeweler for some alterations and the emerald was damaged in the process. The jeweler informed the owner that the emerald had been filled with Opticon resin and heating had caused the damage. The original sellers claimed that the emerald they sold had not been so treated and if Opticon was now present it had not been put there by them and must have been introduced into the stone after they had sold it.
The owner sued the seller and others including the appraiser (the valuer) and the insurance company. The case was heard in front of a jury and in spite of trade testimony as to the present ambiguity about disclosure of resin filling of emeralds in the trade, the jury found in favor of the owner. The jeweler was found guilty on a number of counts including Breach of Warranties, Unlawful Trade Practice and Outrageous Trade Practice. The consumer was awarded treble damages in the amount of $78000 and, with legal costs, the total amounted to $400000. At the time of writing an appeal against judgments has been lodged.
Total disclosure?
Those who have advocated ‘total disclosure’ over the years can now say ‘We told you so’. Disclose everything and sleep at nights.
Unfortunately it is not that simple, as I have tried to point out in previous articles, because it is often difficult to detect some treatments. Stones have been treated from the time that they were first used as ornaments and objects of value. Oiling, waxing, bleaching, heating and burning are all treatments, and even cutting and polishing can be considered a treatment. And when one cuts and polishes for example an emerald, oil is used and if the stone has open fissures some of this oil will penetrate the stone.
When the trade began to organize itself through bodies such as CIBJO and the Diamond Bourses, they tried to lay down guidelines as to what treatments should be disclosed. Some treatments had long been applied to certain stones and those early legislators introduced the concept of ‘accepted trade practice.’ As new processes come about the trade initially tries to slot them in to the existing rules and if it cannot do this then new rules were made.
They try to use commonsense and look at other trades. They too have their ‘accepted trade practices.’ When you buy an article made of real leather you are not told that it has been treated, oiled, stained, stretched and has had other things done to it. Or when you buy a woolen article again the various treatments it has undergone are not enumerated.
Perhaps we should regard our trade as being sui generic, i.e. it is unique of its kind and cannot be compared to other trades. In this modern age, when consumer rights have become paramount, the trade should no longer hide behind ‘accepted trade practices’ and should tell the consumer everything they know. But this is where the problems start. The only person who knows for certain if a treatment has been applied to a stone is the person who actually carries out that treatment. If he does not disclose, or someone in the chain does not disclose, then to detect the disclosure becomes detective work and not everyone is capable of carrying out such detection.
Repeated oiling
Let us look at the specific case of the fissure filling of emeralds—this after all is one of the problems still not solved within the trade. Emeralds, from the time they are taken out of the ground, are constantly oiled. They are oiled after the rough has been cleaned, they are oiled while the rough remains unsold, they are oiled after cutting, they are oiled after polishing. In the way everyone knows that leather is oiled, dealers and jewelers have assumed that everyone knows emeralds are oiled. Like leather the oil dries out, but in contrast to leather the consumer expects the emerald to retain its beauty. Emeralds are oiled because they have open fissures (only rarely are emeralds free from open fissures) and any oil that goes in will eventually come again, as is the case with leather.
Over the past few years attempts have been made to keep the oil thus introduced in the emerald for as long as possible. This has been tried using different oils, and also pressure is used in some cases to ensure that the oil penetrates further into the stone and will thus evaporate more slowly. Attempts have also been made to seal the oil in the emerald. In recent years resins are being used, especially ones with refractive indices similar to natural emerald to make them less visible. The most popular resin that was eventually used was a synthetic one marketed under the name Opticon. This was already being used in the building trade to cover the cracks and fissures in marble and other decorative stones. But since this was still a volatile substance, albeit with low volatility they tried to seal it into the stone. It was found that it reacted with a hardening substance and solidified. At first this was done with all Opticon when it was introduced into the emerald. When it dried it solidified, but in some stones it contracted and gaps appeared inside the stone which gave rise to a rainbow effect and made the appearance worse than the untreated stones. Some fillings also discolored in time, again spoiling the appearance of the stone. Some techniques involved introduction of the resin under pressure causing the stone to be in tension and liable to shatter if any pressure was applied.
Hardening substance
To overcome these problems the Opticon was introduced into the stone and the hardening substance was applied to the surface only. Thus the theory was that this would seal in the filler without incurring the problems encountered above. But again it was found that tension could remain in the stone rendering it more fragile than untreated stones. So in many cases now the Opticon is introduced into the stone in the way that oil was used in the old days without the use of any hardening material. The trade does not like to use the word Opticon, as this is a trade name and other similar resins may be used. So the term now used is resin filled and the resin may be natural or artificial, i.e. man-made.
The traditionalists wanted to differentiate between oils that they had used and the new resins now being used. It is difficult to find a rationale for such thoughts. Perhaps they wished to protect their old stocks, perhaps they were scared of change, but there was a clamor within the trade, but not by the public, to differentiate between oils and resins. Many more gem quality stones can have their appearance improved with resins than with traditional oils, which was perhaps the reason for a sudden increase in the number of such stones on the market.
Raman spectroscopy
The situation at present is that many people in the trade regard the fissure filling of an emerald with a resin to be inferior to that of an oil and refuse to buy resin-filled stones. The demand was made on the laboratories to make this differentiation, and most labs claimed they could do so. But then came the claim by some laboratories that with the use of Raman spectroscope they could now positively identify the filling materials. Such a claim implies that without the use of such a instrument, the detection of the filler to be a resin as opposed to an oil was, in many cases, more guesswork than knowledge.
How does the Raman spectroscope work? In Rapaport Diamond Report (20 (38)) it is made clear that even the use of this latest technology is not foolproof. Briefly a laser beam of light is pointed at the filler and the resulting spectra are compared with those of known substances. A stone may undergo several treatments with different substances and the Raman analysis will only give a result for the one spot on which the beam has been focused, which is minute. So, many spots would have to be examined to give a more complete answer. Such an instrument costs about $200000 so many laboratories cannot afford such an expense.
What is the answer?
Where does the answer lie to such a problem? The trade is beginning to realize the answer should come through education and not merely legislation. The education must be effective in the High Street shops, for it is the retailer who is in the front line. And it is the sales person who is obliged in law to sell correctly described goods—which means to a certain extent educating the customer.
Many dealers now feel that filling a stone with a resin is no different to filling a stone with an oil. If a hardener is used the situation is of course different. Information is transmitted down the line by the use of general disclosure that stones have fissures filled to improve their clarity and others, such as corundum, are heated to improve their color and sometimes clarity. This is the best that the trade has come up with at present.
How will all this stand up in a court here? I am no lawyer but I suspect that the judge will listen to the trade practice if the dispute is within the trade, but may apply other standards if a member of the general public claims that they have been cheated.
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