[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Rules and Regulations]
[Pages 81443-81454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32273]
=======================================================================
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
16 CFR Part 23
Guides for the Jewelry, Precious Metals, and Pewter Industries
AGENCY: Federal Trade Commission (``FTC'' or ``Commission'').
ACTION: Final Guides Amendments.
-----------------------------------------------------------------------
SUMMARY: The Commission announces amendments to the FTC's Guides for
the Jewelry, Precious Metals, and Pewter Industries. The amendments in
particular provide guidance on how to mark and describe non-deceptively
an alloy of platinum and non-precious metals, consisting of at least
500 parts per thousand, but less than 850 parts per thousand, pure
platinum and less than 950 parts per thousand total platinum group
metals.
DATES: Effective Date: December 28, 2010.
FOR FURTHER INFORMATION CONTACT: Robin Rosen Spector, Attorney, (202)
326-3740, Division of Enforcement, Bureau of Consumer Protection, or
Janice Podoll Frankle, Attorney, (202) 326-3022, Office of the
Secretary, Federal Trade Commission, 600 Pennsylvania Avenue, NW.,
Washington, DC 20580.
SUPPLEMENTARY INFORMATION: Pursuant to public comments and consumer
survey evidence submitted in response to two Federal Register Notices,
the FTC amends the Platinum Group Metals Section (hereinafter
``Platinum Section'') of the Commission's Guides for the Jewelry,
Precious Metals, and Pewter Industries (``Jewelry Guides'' or
``Guides''), 16 CFR 23.7, and also amends the Scope and Application
Section of the Guides, 16 CFR 23.0. The amendments to the Platinum
Section provide that marketers may non-deceptively mark and describe
``platinum/base metal alloys,'' those containing at least 500 parts per
thousand (``ppt''), but less than 850 ppt, pure platinum and less than
950 ppt total platinum group metals (``PGM'') as ``platinum'' using
certain disclosures.\1\ In supporting this conclusion, the following
Federal Register Notice provides background information; summarizes the
record established by the public comments; analyzes this record based
on the applicable Commission standard; and sets forth the text of the
amendments to the Platinum
[[Page 81444]]
Section and to the Scope and Application Section of the Guides.
---------------------------------------------------------------------------
\1\ The Platinum Group Metals are platinum, iridium, palladium,
ruthenium, rhodium, and osmium. 16 CFR 23.7(a).
---------------------------------------------------------------------------
I. Background
A. The Platinum Section of the Jewelry Guides
The Commission issued the Jewelry Guides to help marketers avoid
making jewelry claims that are unfair or deceptive under Section 5 of
the FTC Act, 15 U.S.C. 45. Industry guides, such as these, are
administrative interpretations of the law. Therefore, they do not have
the force of law and are not independently enforceable. The Commission
can take action under the FTC Act, however, if a business makes
marketing claims inconsistent with the Guides. In any such enforcement
action, the Commission must prove that the act or practice at issue is
unfair or deceptive in violation of Section 5 of the FTC Act.\2\
---------------------------------------------------------------------------
\2\ The Commission is adding two new paragraphs to Section 23.0
to clarify the scope and application of the Jewelry Guides. This
does not represent a change in Commission law or policy.
---------------------------------------------------------------------------
To help marketers avoid unfair or deceptive acts or practices in
connection with the sale of platinum, the Platinum Section contains a
general statement regarding the deceptive use of the term ``platinum''
(and the names of other PGM) and provides examples of potentially
misleading and non-violative uses of the term ``platinum.'' \3\
Specifically, Section 7(a) states:
---------------------------------------------------------------------------
\3\ On April 8, 1997 (62 FR 16669), the Commission published the
current Platinum Section. The Commission revised this section as
part of its most recent comprehensive review of the Guides.
It is unfair or deceptive to use the words ``platinum,''
``iridium,'' ``palladium,'' ``ruthenium,'' ``rhodium,'' and
``osmium,'' or any abbreviation to mark or describe all or part of
an industry product if such marking or description misrepresents the
product's true composition.\4\
---------------------------------------------------------------------------
\4\ 16 CFR 23.7(a).
Section 7(b) provides three examples of markings or descriptions for
products containing platinum that may be misleading.\5\ Section 7(c)
provides four examples not considered unfair or deceptive.
---------------------------------------------------------------------------
\5\ These examples provide that it may be misleading: (1) To
describe a product with less than 950 ppt pure platinum as
``platinum'' without qualification; (2) to describe a product with
less than 850 ppt, but more than 500 ppt, pure platinum as
``platinum'' without qualifying the representation with a disclosure
identifying the ppt of pure platinum and the ppt of other platinum
group metals contained in the product; (3) to use the word
``platinum'' or any abbreviation to mark or describe any product
that contains less than 500 ppt pure platinum. 16 CFR 23.7(b).
---------------------------------------------------------------------------
B. Procedural History
On December 15, 2004, Karat Platinum, a jewelry manufacturer,
requested an FTC staff opinion regarding the application of the
Platinum Section to a new product consisting of 585 ppt platinum and
415 ppt copper and cobalt (non-precious metals). The request stated
that the company believed that the Platinum Section did not prohibit
marking or describing the product as ``platinum,'' or address how to
mark or describe the product other than to prohibit misrepresentations.
The staff responded on February 2, 2005, agreeing that the Guides did
not address the marketing of this product, and providing guidance.\6\
---------------------------------------------------------------------------
\6\ The request for a staff opinion and the staff's response to
that request are located at http://www.ftc.gov/os/statutes/jewelry/letters/karatplatinum.pdf and http://www.ftc.gov/os/statutes/jewelry/letters/karatplatinum002.pdf, respectively. The staff letter
stated that ``this alloy [is] sufficiently different in composition
from products consisting of platinum and other PGM as to require
clear and conspicuous disclosure of the differences.'' The staff
letter also explained that it did not appear ``that simple stamping
of the jewelry's content (e.g., 585 Plat., 0 PGM) would be
sufficient to alert consumers to the differences between the Karat
Platinum alloy and platinum products containing other PGM.''
---------------------------------------------------------------------------
Because of the public interest in this issue, the Commission
published a Federal Register Notice (``2005 FRN'') \7\ soliciting
public comment regarding whether it should revise the Guides to address
this new product. The Commission also sought comment regarding whether
the Guides should address how to mark or describe non-deceptively
platinum-clad, filled, coated, or overlay jewelry products.
---------------------------------------------------------------------------
\7\ 70 FR 38834 (July 6, 2005).
---------------------------------------------------------------------------
Based on the 2005 FRN comments and consumer survey evidence, the
Commission issued a Federal Register Notice in 2008 (``2008 FRN'')
soliciting comment on a proposed amendment to the Platinum Section to
address these issues. Prior to the close of the comment period on May
27, 2008, the Platinum Guild International (``PGI'') and the Jewelers'
Vigilance Committee (``JVC'') requested a 90-day extension. The
Commission extended the comment period until August 25, 2008.\8\
---------------------------------------------------------------------------
\8\ 73 FR 22848 (Apr. 28, 2008).
---------------------------------------------------------------------------
C. The 2005 FRN Comments
The vast majority of the 62 responsive comments \9\ recommended
that the Commission revise the Platinum Section to include guidance for
platinum/base metal alloy jewelry. These commenters further recommended
that the Commission provide that marking or describing platinum/base
metal alloy jewelry as ``platinum'' is deceptive. The commenters
asserted that platinum jewelry has always been produced as nearly pure
or combined with other PGM (hereafter ``platinum/PGM''),\10\ and that
platinum/base metal alloys do not share the same characteristics as
these products.\11\ Karat Platinum disagreed that the use of the term
``platinum'' to describe platinum/base metal alloys is deceptive.
---------------------------------------------------------------------------
\9\ The Commission's summary and analysis of the 2005 FRN
comments is detailed in the 2008 FRN, 73 FR 10190 (Feb. 26, 2008).
The 62 comments to the 2005 FRN are posted at: http://www.ftc.gov/os/comments/jewelryplatinum/index.shtm.
\10\ Currently the Guides specifically address the marketing of
products containing: (1) At least 85% platinum; or (2) at least 50%
and less than 85% platinum, and at least 95% total PGM.
\11\ See, e.g., JVC Comment 2005 at 4, 7-8; PGI Comment 2005 at
16-19.
---------------------------------------------------------------------------
The 2005 record included consumer perception studies and product
testing. PGI submitted a study it commissioned from Dr. Thomas J.
Maronick, (``2005 Platinum Awareness Study''),\12\ a 2003 marketing
survey conducted by Hall & Partners,\13\ and two tests evaluating
platinum/base metal alloys.\14\ The 2005 Platinum Awareness Study found
that 39.5% of consumers believe that products marked or described as
``platinum'' are pure or nearly pure and that certain qualities or
attributes typically associated with platinum are important to a
substantial number of consumers.\15\ The study also found that a
majority of consumers would not expect platinum/base metal alloys
containing more than 40% base metal to be called ``platinum'' if they
do not possess the attributes present in higher purity platinum or
platinum/other PGM products.\16\ In addition, the study showed that the
majority of consumers do not fully understand numeric jewelry markings,
particularly those using chemical abbreviations, such as 585 Pt./415
Co.Cu. The PGI product tests indicated that certain platinum/base metal
alloys are inferior to higher purity platinum jewelry in terms of wear
and oxidation resistance, as well as weight loss, and that they cannot
be resized using certain procedures.\17\ Karat Platinum submitted a
test of its alloy which suggested that the alloy is superior or
equivalent to higher purity platinum jewelry in several respects, but
[[Page 81445]]
is less dense than higher purity platinum jewelry. Karat Platinum did
not test whether its alloy is hypoallergenic.
---------------------------------------------------------------------------
\12\ PGI Comment 2005, Attachment A. The Maronick study title is
``Platinum Awareness Study: An Empirical Analysis of Consumers'
Perceptions of Platinum as an Option in Engagement Ring Settings.''
\13\ Id., Attachment B.
\14\ Id. at 3, and Attachments C and D.
\15\ Id., Attachment A. These attributes included the product's
weight, durability, scratch and tarnish resistance, and whether it
was hypoallergenic and could be resized.
\16\ Higher purity platinum or platinum/other PGM products
include those containing at least 850 ppt platinum, or at least 500
ppt platinum and at least 950 ppt PGM.
\17\ It does not appear that the PGI tests evaluated a product
identical in composition to the Karat Platinum platinum/base metal
alloy.
---------------------------------------------------------------------------
Several comments also suggested that the Commission provide
guidance on how to describe platinum-clad, filled, plated, or overlay
products, but most did not discuss what guidance the Commission should
provide.
II. The 2008 FRN and Comments
A. The 2008 FRN
Based on the 2005 FRN record, the Commission issued a 2008 FRN
soliciting comment on a proposed revision to the Platinum Section to
address the marketing of platinum/base metal alloys.\18\ The Commission
explained that the record supported the conclusion that a substantial
number of consumers believed products marked or described as
``platinum'' are nearly pure and possess certain desirable qualities
that some platinum/base metal alloys may not possess. In addition, the
Commission stated that the record indicated that if a description of a
platinum/base metal alloy as ``platinum'' is qualified only with a
content disclosure using numbers and chemical abbreviations, consumers
likely would not understand the disclosure. However, there was no
evidence that a more descriptive disclosure would not adequately
qualify the claim. The Commission, therefore, proposed specific
qualifying disclosures.\19\
---------------------------------------------------------------------------
\18\ 73 FR 10190 (Feb. 26, 2008).
\19\ Id. at 10196-10197.
---------------------------------------------------------------------------
The Commission's proposal provided that marketers may physically
mark or stamp a platinum/base metal alloy jewelry article with the
product's chemical composition (e.g., 585 Pt./215 Co./200 Cu.), but
that when making any other representation that the product contains
platinum, marketers should clearly and conspicuously disclose,
immediately following the name or description of the product:
(1) That the product contains platinum and other non-platinum group
metals;
(2) The product's full composition, by name and not abbreviation,
and the percentage of each metal; and
(3) That the product may not have the same attributes or properties
as products containing at least 850 ppt pure platinum, or at least 500
ppt pure platinum and at least 950 ppt PGM.
The proposed amendment also included a substantiation provision that
allowed marketers to forgo the third disclosure if they had competent
and reliable scientific evidence that, with respect to all attributes
material to consumers (e.g., the product's durability,
hypoallergenicity, resistance to tarnishing and scratching, and the
ability to resize or repair the product), their product is equivalent
to products containing at least 850 ppt pure platinum, or at least 500
ppt pure platinum and at least 950 ppt PGM.
In the 2008 FRN, the Commission again sought comment whether it
should revise the Platinum Section to address platinum-clad, filled,
plated, or overlay products and, if so, how.
B. Summary of the Comments
In response, the Commission received 58 comments.\20\ Most were
short without detailed discussion. However, Karat Platinum; JVC, on
behalf of several industry associations; \21\ and PGI submitted
detailed comments. The JVC and PGI comments included survey evidence.
---------------------------------------------------------------------------
\20\ The 58 comments can be found at: http://www.ftc.gov/os/comments/jewelryplatinum2/index.shtm.
\21\ JVC submitted its comment on behalf of JVC, the
Manufacturing Jewelers and Suppliers of America, the Jewelers of
America, and the American Gem Society.
---------------------------------------------------------------------------
We summarize the comments and survey evidence below addressing: (1)
Use of the word ``platinum'' to describe platinum/base metal alloys;
(2) the Commission's proposed disclosures; (3) harmonization with
international standards; (4) the commenters' proposed amendments to the
Guides; and (5) guidance regarding platinum-clad, filled, plated, or
overlay jewelry.
1. Use of the Word ``Platinum''
Many commenters asserted that use of the term ``platinum'' to
describe a platinum/base metal alloy would deceive consumers in a
manner that could not be remedied with disclosures.\22\ Most made this
assertion without supporting evidence. JVC and PGI, however, relied on
the findings from PGI's 2005 Platinum Awareness Study and provided 2008
survey evidence (``2008 Platinum Attitude Study'').\23\ Specifically,
PGI pointed to the 2008 survey's findings that consumers expect
products marked or described as ``platinum'' to be nearly pure and that
products with ``platinum,'' in their name, such as ``Karat Platinum,''
``Platinum Five,'' or ``Platinum V,'' confuse or mislead consumers
concerning the products' metal content and attributes.\24\ PGI argued
that because of these perceptions, it is inherently misleading to refer
to platinum/base metal alloys as ``platinum,'' and the deception cannot
be cured by qualifying language.\25\ Therefore, JVC and PGI asserted
that marketers should describe platinum/base metal alloys using a name
that does not include ``platinum'' or ``plat,'' so consumers will not
be confused or misled about the alloy's contents or attributes.\26\
Tiffany & Co. (``Tiffany'') agreed, suggesting that platinum/base metal
alloys should be ``creatively and individually named by the
manufacturer.'' \27\ Several other commenters recommended that the FTC
``consider a new and different name'' for the alloy but did not propose
a particular name.\28\
---------------------------------------------------------------------------
\22\ See JVC Comment at 2; PGI Comment at 2-3.
\23\ Dr. Thomas J. Maronick conducted both studies. The title of
the 2008 Attitude Study is: ``Platinum Attitude Study: Four
Empirical Studies of Consumers' Attitudes Toward Platinum and
Substitutes as Options in Engagement Ring Settings.''
\24\ PGI Comment at 10-11. PGI's consumer surveys asked
consumers whether they would expect products described with these
terms to possess the attributes of higher purity platinum/other PGM
products. PGI Comment, Attachment A, 2008 Platinum Attitude Study 2
at 1-4. The survey found: Karat Platinum: Definitely Yes, 18%;
Probably Yes, 42%; Maybe, 21%; Platinum Alloy: Definitely Yes, 6%;
Probably Yes, 18%; Maybe, 24%; Platinum Five: Definitely Yes, 8%;
Probably Yes, 23%; Maybe, 36%; Platinum V: Definitely Yes, 8%;
Probably Yes, 25%; Maybe, 33%; Platifina: Definitely Yes, 3%;
Probably Yes, 8%; Maybe, 22%; Palarium: Definitely Yes, 4%; Probably
Yes, 8%; Maybe, 19%.
\25\ PGI Comment at 3. See also Tiffany & Co. Comment (stating
that consumers expect a product labeled ``platinum'' to contain an
industry standard metal of 500 ppt pure platinum with 950 total
PGM); Lowell Kwiat Comment (explaining that today's platinum is
generally 95% pure); Gaetano Cavalieri Comment (noting that the
industry standard practice for generations has restricted platinum
to alloys containing no fewer than 850 ppt pure platinum); Richard
Frank Comment (commenting that platinum has traditionally been 90%
platinum, 10% iridium); William Holland Comment (noting that
platinum jewelry has always been known to be 90% pure or higher);
Joseph Klein Comment (platinum was never less than 85% pure under
any definition); Charles Wallace Comment (``[p]latinum has forever
been sold as an item of purity and should remain so.'').
\26\ See PGI Comment at 2, 12, 26-28, 34-35; JVC Comment at 2-3,
6-7, 14, 18.
\27\ Tiffany Comment at 3. Kwiat agreed, stating that marketers
should call consumers' attention to this ``new innovation'' by
giving it ``a different name which reflects the fact that it is
different than what has been customary.'' Lowell Kwiat Comment at 2.
\28\ See, e.g., Birks & Mayors, Inc. Comment; Ben Bridge Jeweler
Comment; Joseph Cresalia Comment.
---------------------------------------------------------------------------
Karat Platinum disagreed, arguing that the term ``platinum'' can be
qualified sufficiently so that consumers understand that a product is
not pure platinum.\29\ Karat Platinum, however, did not submit any
survey evidence.
---------------------------------------------------------------------------
\29\ Karat Platinum Comment at 6-8.
---------------------------------------------------------------------------
2. The Commission's Proposed Disclosures
JVC and PGI asserted that the Commission's three proposed
disclosures were confusing, inadequate,
[[Page 81446]]
and unworkable. Karat Platinum disagreed, but suggested some revisions
to the third disclosure and asserted that marketers of higher purity
platinum or platinum/PGM jewelry should be subject to the proposed
second and third disclosures. Below, we discuss the three proposed
disclosures.
(a) First Proposed Disclosure
The first proposed disclosure provided that marketers of platinum/
base metal alloys state that their product ``contains platinum and
other non-platinum group metals.'' Several commenters argued that this
disclosure will confuse consumers. For example, 54% of consumers
surveyed in the 2008 Platinum Attitude Study did not know what the
phrase ``other non-platinum group metals'' meant.\30\ PGI further
stated that when the survey asked consumers to classify metals as
platinum or non-platinum group, they were largely unable to do so
correctly.\31\ Karat Platinum, by contrast, commented that this
disclosure would provide useful information to consumers about the
product.\32\
---------------------------------------------------------------------------
\30\ PGI Comment, Attachment A, 2008 Platinum Attitude Study 4
at 1-2. In addition, 26% stated they were not sure what ``other non-
platinum group metals'' were.
\31\ Id. at 2. Respondents were asked whether they understood
the phrase ``other non-platinum group metals'' and then were given a
list of metals and asked if any of them were ``other non-platinum
group metals.'' In response to the follow-up, 29% of respondents
stated that palladium was an ``other non-platinum group metal;'' 61%
said they were not sure; and 11% said no. Palladium is a platinum
group metal. Similarly, 39% stated copper was an ``other non-
platinum group metal;'' 47% stated they were not sure; and 13% said
no. Copper is a non-platinum group metal. Id.
\32\ See Karat Platinum Comment at 6.
---------------------------------------------------------------------------
(b) Second Proposed Disclosure
The Commission's second proposed disclosure provided that marketers
list the full composition of the product (by name and not abbreviation)
and the percentage of each metal. JVC and PGI asserted that consumers
will not comprehend this disclosure. In support of this position, JVC
cited the 2008 Platinum Attitude Study. Specifically, when consumers
were asked whether they understood the meaning of ``58.5% Platinum and
41.5% Copper/Cobalt,'' 55% said yes, 33% stated that they did not know,
and 12% stated that they were not sure.\33\ Moreover, JVC opined that
because consumers will not understand the disclosure, they will focus
only on the term ``platinum'' and believe that the product is the
equivalent of platinum products that are at least 85% platinum.\34\ PGI
added that listing the percentages of each metal still may not alert
consumers of the differences between ``diluted'' platinum alloys and
higher purity products.\35\
---------------------------------------------------------------------------
\33\ See JVC Comment at 8. See PGI Comment, Attachment A, 2008
Platinum Attitude Study 3 at 2. By contrast, when asked if consumers
knew what 585Pt.415Co.Cu. meant 81% said no, 13% said yes, and 7%
said they were not sure. Id. at 1.
\34\ JVC Comment at 8.
\35\ PGI Comment at 4.
---------------------------------------------------------------------------
Tiffany agreed and asserted that disclosing each alloying component
in full without abbreviation would not achieve consumer knowledge.
Tiffany noted that research has shown that consumers do not understand
metal content disclosures. Thus, it contended that ``disclosing that
the `platinum' piece has a certain percentage of copper * * * is not
instructive.'' \36\
---------------------------------------------------------------------------
\36\ Tiffany Comment at 2.
---------------------------------------------------------------------------
In contrast, Karat Platinum asserted that disclosing the
composition of platinum/base metal alloys using the full names and
percentages of the constituent metals is a good practice.\37\ It
explained that the Commission's proposed disclosures--that the product
contains platinum and other non-platinum group metals and the full
names and percentage of the metals--``provides the greatest likelihood
of effectively conveying information to consumers.'' \38\ However, it
noted that marketers of ``high grade and platinum/PGM'' do not have to
disclose their products' full composition.\39\ Karat Platinum asserted
that the Commission should remedy this inconsistency and modify the
second proposed disclosure to provide that all marketers of platinum
products make full compositional disclosures.\40\
---------------------------------------------------------------------------
\37\ Karat Platinum Comment at 6.
\38\ Id.
\39\ Id.
\40\ Karat Platinum Comment at 6-7.
---------------------------------------------------------------------------
Karat Platinum opined that full compositional disclosure for all
platinum products would benefit consumers in at least two ways. First,
it asserted that it is a ``myth'' that platinum/PGM products are
composed of an industry-standard material. It noted that high-grade
platinum products may have ``dramatically different'' characteristics.
For example, it compared two platinum rings, one containing 95%
platinum and 5% ruthenium with another containing 95% platinum and 5%
iridium. It stated that the former product is ``significantly more
scratch resistant and durable.'' \41\ Second, Karat Platinum explained
that certain marketers ``have engaged in the long-standing practice of
characterizing high-grade and platinum/PGM alloys as `pure' platinum''
when the products all contain less than 100% platinum.\42\ Karat
Platinum, however, did not submit any consumer perception evidence
indicating that the current marketing for higher purity platinum/other
PGM products misleads consumers.
---------------------------------------------------------------------------
\41\ Id. at 6.
\42\ Id. at 7.
---------------------------------------------------------------------------
(c) Third Proposed Disclosure
The Commission's third proposed disclosure provided that marketers
disclose ``that the product may not have the same attributes as
products containing at least 850 parts per thousand pure Platinum, or
at least 500 parts per thousand pure Platinum and at least 950 parts
per thousand PGM.'' \43\ The proposed amendment further provided that a
marketer need not make this third disclosure ``if the marketer has
competent and reliable scientific evidence that, with respect to all
attributes material to consumers * * * such product is equivalent to
[higher purity platinum/other PGM] products.'' Many commenters asserted
that this disclosure is confusing and unworkable.
---------------------------------------------------------------------------
\43\ 73 FR 10190, 10197.
---------------------------------------------------------------------------
(i) The Disclosure Is Confusing
Several commenters asserted that the third disclosure is confusing
because it does not require that marketers specify the attributes of
platinum/base metal alloys that differ from platinum/PGM products or
explain how the alloy differs with respect to these attributes. The
2008 Platinum Attitude Study asked consumers about eight separate
product attributes of platinum/base metal engagement rings: durability,
luster, density, scratch resistance, tarnish resistance, ability to be
resized or repaired, hypoallergenicity, and the retention of precious
metal content over time. From 40% to 80% of consumers surveyed
(depending on the product property) would expect a salesperson to
inform them about these attributes and would also want the information
physically attached to the product.\44\ JVC asserted that these results
demonstrate that the proposed disclosure ``will not impart any of the
information consumers want and need.'' \45\ The 2008 survey, however,
did not evaluate consumer understanding of the third proposed
disclosure.
---------------------------------------------------------------------------
\44\ PGI Comment, Attachment A, 2008 Platinum Attitude Study 1
at 3.
\45\ JVC Comment at 11.
---------------------------------------------------------------------------
JVC asserted that ``[t]o make this disclosure fair and complete,
full disclosure about each of the eight important attributes * * *
would be required.''\46\ JVC explained: ``[a] consumer could easily
purchase a [platinum/base metal alloy] ring without
[[Page 81447]]
understanding that it might not hold a diamond as well, or might
tarnish, or may not be hypoallergenic.''\47\ Other commenters expressed
similar concerns.\48\
---------------------------------------------------------------------------
\46\ Id.
\47\ Id. at 10-11.
\48\ See, e.g., Anne Howitt Comment; Michael Kranish Comment.
---------------------------------------------------------------------------
Tiffany, for example, explained that ``[o]ur experience has shown
that consumers who are in the process of buying a platinum product,
feel as though they understand the product's makeup (platinum is pure)
and characteristics (hypoallergenicity and others) and are there
(typically in a rush) to decide based on issues such as style and fit,
not a chemistry discussion of alloy makeup.'' \49\ Tiffany opined that
this disclosure, combined with the second, full composition disclosure,
will baffle and frustrate consumers, potentially causing them to walk
away from the sale.
---------------------------------------------------------------------------
\49\ Tiffany Comment at 4.
---------------------------------------------------------------------------
(ii) The Disclosure Is Unworkable
The comments further asserted that marketers cannot realistically
deliver the third proposed disclosure. Specifically, JVC and PGI
contended that the 2008 Platinum Attitude Study found that consumers
expect jewelry information to be physically attached to the
product.\50\ However, both JVC and PGI asserted that the volume of
information included in the disclosure, combined with the first and
second proposed disclosures, cannot be attached to the jewelry itself,
or on a small tag affixed to the jewelry.\51\ JVC further stated that
if the third proposed disclosure is revised to include additional
information necessary to fully inform consumers, this additional
information will make attachment to jewelry more difficult.\52\
Therefore, JVC noted, jewelry sales personnel will need to orally
disclose the information, or provide it in writing with the purchase.
---------------------------------------------------------------------------
\50\ JVC Comment at 12; PGI Comment at 11.
\51\ JVC Comment at 11-12; PGI Comment at 4.
\52\ JVC Comment at 12-13.
---------------------------------------------------------------------------
Several commenters asserted that reliance on the salesperson or on
written information delivered with the purchase is problematic. JVC
opined that the average jewelry salesperson would be hard pressed to
deliver this information.\53\ It further asserted that the jewelry
retail sales force is not equipped to discuss this complex
metallurgical disclosure and simply will not provide the information,
or will provide incorrect information.\54\ PGI noted that it would be
difficult, if not impossible, to ensure that the sales personnel impart
correct information comparing all of the differences between a
multitude of new alloys.\55\
---------------------------------------------------------------------------
\53\ Id. Similarly, a jeweler commented that it is unrealistic
for the public to depend on retail sales personnel to accurately
disclose and explain the differences between platinum/PGM products
and the platinum/base metal alloy. This jeweler stated that the
reality of the marketplace is that sales personnel are unlikely to
explain jewelry specifications unless they are specifically asked.
Lowell Kwiat Comment at 1.
\54\ JVC Comment at 12.
\55\ PGI Comment at 4.
---------------------------------------------------------------------------
In addition, JVC submitted a Jewelers of America (``JA'') study
that asked JA members about the ``realities'' of selling jewelry. The
JA study, in part, found that 57.4% of the respondents said that it
would be ``difficult'' or ``very difficult'' to tell consumers that the
jewelry may not have the attributes of higher purity platinum products
and to explain those differences.\56\ JVC asserted that such technical
disclosures--spoken or written--at the point of sale are likely to have
a ``chilling'' effect and that consumers ``may very well walk away from
any product that requires these confusing, lengthy and unappealing
disclosures.'' \57\
---------------------------------------------------------------------------
\56\ JVC Comment at 12-13; Attachment Six A.
\57\ Id. at 13.
---------------------------------------------------------------------------
Moreover, JVC explained that nearly half of the respondents to the
JA study stated that attribute disclosures could not be attached to the
jewelry in the form of a tag or other physical means.\58\ Several
commenters concurred, asserting that without physical attachment, the
disclosures likely will not remain with the jewelry product over time.
JVC explained that the jewelry could be re-sold, repaired, or appraised
without any identification of the alloy.\59\ It asserted that a jeweler
repairing a platinum/base metal alloy might not know the contents and
this could create the risk that the item will be damaged during the
repair process. A jewelry repair dealer expressed similar concern,
explaining: ``it will be virtually impossible for any jewelry repair
technician to properly repair or size * * * jewelry under the new
proposal.'' \60\ Another commenter opined that, short of an assay of
the jewelry piece, the platinum/base alloy product distinctions ``will
not be discernible even to the well trained professional.'' \61\
---------------------------------------------------------------------------
\58\ Id. at 12-13.
\59\ Id. at 13.
\60\ Steven DiFranco Comment. See also Anne Howitt Comment;
Peter LeCody Comment.
\61\ Lowell Kwiat Comment at 1.
---------------------------------------------------------------------------
In contrast, Karat Platinum asserted that the proposed disclosures
do not need to include more detailed information or be physically
attached to the platinum/base metal alloy products. It suggested that
marketers' inclusion of the proposed disclosures with the marketing
materials ``is more than sufficient to ensure that the information is
available to consumers.'' \62\ It further opined that, by making
marketing material available, consumers are ``provided with sufficient
information to put them in a position to inquire from their jewelers,
or from other knowledgeable sources, such as a company's marketing
information, Web site, or the Internet, as to the relative value,
properties, and characteristics of a product.'' \63\ Similarly, another
commenter stated that the point of sale is the ideal way to inform
consumers of the platinum/base metal alloy content.\64\
---------------------------------------------------------------------------
\62\ Karat Platinum Comment at 5.
\63\ Id.
\64\ Hoover & Strong Comment. Hoover & Strong is a wholesale
jewelry manufacturer.
---------------------------------------------------------------------------
(d) The Substantiation Provision
Many commenters asserted that the substantiation provision that
allows marketers to avoid making the third disclosure is inadequate and
unworkable because it is too vague and gives marketers too much
discretion. JVC and PGI explained that, even though the proposed
amendment lists five important attributes as examples,\65\ the seller
self-determines which product attributes are material.\66\ JVC asserted
that a disclosure that relies on a subjective standard presents endless
possibilities for non-compliance.\67\ Moreover, JVC explained that
because ``there are no industry-wide, universally-accepted testing
methods that produce `competent and reliable' evidence,'' there is no
standard for testing these attributes.\68\ PGI similarly noted that
marketers are inappropriately left to their own devices to ``cherry
pick'' which tests they should conduct to self-determine that they are
exempt from making a particular disclosure.\69\
---------------------------------------------------------------------------
\65\ The five attributes in the proposed amendment are:
durability, hypoallergenicity, resistance to tarnishing, resistance
to scratching, and the ability to re-size or repair the product.
\66\ JVC Comment at 9; PGI Comment at 4.
\67\ JVC Comment at 9.
\68\ Id.
\69\ PGI Comment at 4.
---------------------------------------------------------------------------
Karat Platinum raised three concerns with the adequacy of the
platinum attributes listed in the provision. First, it explained that
the five attributes listed in the provision do not include all the
attributes that the 2005 Platinum Awareness Study identified as
important to the greatest number of consumers.\70\ For example, in that
study a substantial majority of consumers indicated they would want to
know the weight of a product setting, yet that
[[Page 81448]]
characteristic was not included explicitly in the third proposed
disclosure. Second, Karat Platinum noted that because Dr. Maronick pre-
selected the attributes, the participants had no choice in deciding
which characteristics were important. Third, it asserted that when
participants were allowed to write in the characteristics important to
them they ``indicated that they would want to know `everything' about
the platinum product.'' \71\ Thus, Karat Platinum recommended the
Commission ``conduct independent fact finding to determine what
properties are material to consumers.'' \72\
---------------------------------------------------------------------------
\70\ Karat Platinum Comment at 4.
\71\ Id. at 5.
\72\ Id.
---------------------------------------------------------------------------
In addition, Karat Platinum contended that the Commission should
provide that all marketers of platinum products--not just those
marketing platinum/base metal alloys--``maintain evidence that their
product meets those expectations,'' or alert consumers that they do
not.\73\
---------------------------------------------------------------------------
\73\ Id.
---------------------------------------------------------------------------
3. Harmonization with International Standards
JVC, PGI, and numerous other commenters asserted that the
Commission's proposal is not in harmony with international standards
and will impede foreign commerce.\74\ JVC explained that products made
of platinum/base metal alloys cannot be sold as ``platinum'' in foreign
jurisdictions that have adopted standards promulgated by the
International Organization for Standardization (``ISO'') or the World
Jewellery Confederation (``CIBJO'').\75\ Moreover, JVC noted that
platinum/base metal alloys could not be sold as ``platinum'' products
in ``hallmarking'' countries--those that require that precious metal
jewelry (including platinum) be stamped by approved assaying guilds
before they are sold--because they contain base metals.\76\ Thus, JVC
opined that if platinum/base metal alloy products are marketed as
``platinum'' in the U.S., it ``will undermine the international
perception of U.S.-made products, threatening the integrity of the
entire U.S.-platinum jewelry market abroad.'' \77\ Tiffany agreed,
noting that the FTC should not take actions to place manufacturers in a
situation where their products are not salable overseas.\78\
---------------------------------------------------------------------------
\74\ See, e.g., JVC Comment at 14-18; PGI Comment at 5, 18-20;
Ben Bridge Jeweler Comment; Birks & Mayors Comment; Gaetano
Cavalieri Comment at 1-3; Joseph Cresalia Comment; Shannon Daly
Comment; Tiffany Comment at 1-2; Anne Howitt Comment; Norie Jenkins
Comment; Annette Kinzie Comment; Robert McGee Comment; Mark Noelke
Comment; Elizabeth Parker Comment; M. Strutz Comment; Craig
Warburton Comment.
\75\ JVC Comment at 14-18. JVC explained that the ISO and CIBJO
standards restrict the use of the word ``platinum'' to platinum/PGM
alloys. Id. at 16-17.
\76\ JVC explained that England, France, Germany, and
Switzerland are hallmarking countries. Id. at 15, n.22.
\77\ Id. at 18.
\78\ Tiffany Comment at 1.
---------------------------------------------------------------------------
4. Other Suggestions Regarding the Commission's Proposed Amendments
JVC proposed that the Commission amend the Guides to provide that
marketers cannot describe any product containing more than 5% non-
platinum group metal as ``platinum.'' \79\ JVC also proposed revising
the Guides to state that certain practices are unfair or deceptive
instead of stating that they may be misleading. Karat Platinum
suggested that the provision in the Commission's proposed amendment
allowing marketers to physically stamp platinum/base metal alloys with
their chemical composition and the substantiation provision be included
in section 23.7(c) of the Platinum Section, instead of section
23.7(b).\80\ Because section 23.7(c) discusses markings that the
Commission would not consider misleading, Karat Platinum explained that
the amendment permitting physical stamping is more appropriate in that
section.
---------------------------------------------------------------------------
\79\ JVC Comment at 2-3, Attachment One at 2.
\80\ Karat Platinum Comment at 3-4.
---------------------------------------------------------------------------
5. Platinum-Clad, Filled, Plated, or Overlay Products
In its 2008 FRN, the Commission also solicited comments concerning
whether it should amend the Platinum Section to address other products
that contain platinum, such as platinum-clad, filled, plated, coated,
or overlay products, which the Guides currently do not address. The
Commission received several comments in response. Most did not
recommend specific guidance, but asserted that, if the Commission
amends the Guides to provide that platinum/base metal alloy products
should be described with a ``non-platinum'' descriptor, then such
``descriptors should also apply to plated, filled, rolled, and any
other form that is not complete or near complete of platinum content.''
\81\
---------------------------------------------------------------------------
\81\ Michelle Broyles Comment; Don Broyles Comment; Walter
Hardin Comment; Vickie Martin Comment; Robert Pate Comment; Randall
Sims Comment.
---------------------------------------------------------------------------
JVC commented that the Commission should provide ``standards''
regarding the thickness of the plating to ensure durability--similar to
those set for gold--to protect consumers against deceptive
practices.\82\ Its proposed provision stated that surface-plating with
platinum should be composed of at least 950 ppt platinum and specified
a minimum thickness of .125 microns of platinum electroplate and .5
microns for heavy electroplate. JVC's proposal also provided that, if
the plating is of at least 950 ppt platinum, but does not meet the
minimum thickness, then the product should be described as ``platinum-
flashed'' or ``platinum-washed.'' The proposal also stated that certain
descriptions may be misleading: ``overlay,'' ``filled,'' ``clad,''
``rolled-plate,'' ``covered,'' or ``coated.'' \83\ However, JVC did not
provide evidence that consumers are being, or are likely to be,
deceived by any current marketing for platinum-plated jewelry or
evidence that JVC's proposed terms would not mislead consumers.
---------------------------------------------------------------------------
\82\ JVC Comment at 26-27. JVC commented that because there is
no indication that marketers are selling platinum-filled or
platinum-clad items, the Guides do not need to address those
products. Id.
\83\ Id. Attachment Three, which contains a comment by Michael
A. Akkaoui from Tanury Industries, regarding platinum plating, is in
accord with JVC's comment.
---------------------------------------------------------------------------
III. Analysis
Based on the complete record, the Commission amends the Guides to
address the marketing of products containing platinum/base metal
alloys. The purpose of the Jewelry Guides is to help marketers avoid
deceptive or unfair conduct.\84\ The record demonstrates that deception
will likely result if marketers describe platinum/base metal alloys as
``platinum'' without disclosing additional information. The record,
however, does not show that the qualified use of the term ``platinum''
would be deceptive. Moreover, the record furnishes sufficient evidence
for the Commission to provide guidance on qualifying disclosures.
---------------------------------------------------------------------------
\84\ See 16 CFR 1.5. The purpose of the Guides is to prevent
deception, not to codify the rules set by standard setting bodies.
See id. Sec. Sec. 1.5-1.6.
---------------------------------------------------------------------------
Thus, the Commission concludes that it should amend the Guides to
state that marketers may describe platinum/base metal alloys as
``platinum'' with appropriate disclosures. Amending the Guides in this
manner is superior to the other available options: (1) Amending the
Guides to state that marketers should not describe such products as
``platinum,'' or (2) not addressing the issue in the Guides at all.
Commenters, however, raised several concerns about the disclosures
the Commission proposed in its 2008 FRN. The Commission has considered
these comments and addresses them below, either revising its previous
proposal or explaining why the record does not
[[Page 81449]]
support revision. Finally, the Commission declines to amend the Guides
to address the marketing of products with platinum plating or coatings
at this time.
A. The Record Shows That Deception Will Likely Result if Marketers
Describe Platinum/Base Metal Alloys as ``Platinum'' Without
Qualification
In 2005, the Commission found that deception would likely result if
marketers describe platinum/base metal alloys as ``platinum'' without
disclosing information regarding their composition and attributes.\85\
The 2008 comments do not dispute this finding.\86\ In fact, newly
submitted consumer perception data further supports this conclusion.
---------------------------------------------------------------------------
\85\ See 73 FR 10190, 10192-10194 for a detailed summary of the
2005 FRN comments.
\86\ See, e.g., PGI Comment at 1-2; JVC Comment at 5; Karat
Platinum Comment at 2.
---------------------------------------------------------------------------
Specifically, the 2008 Platinum Attitude Study, like the 2005
Platinum Awareness Study, shows that most consumers expect products
described as ``platinum'' to contain a high percentage of platinum.
Fifty-nine percent (59%) of the consumers surveyed expect a product
described as ``platinum'' to contain at least 80% pure platinum and 69%
expect at least 75% pure platinum.\87\ The new data also show that many
consumers expect products described using names that include the word
``platinum,'' or the root ``plat,'' to have the same attributes as
products traditionally marketed as ``platinum'' to consumers in the
United States.\88\ For example, 60% of those surveyed expect that a
product described as ``Karat Platinum'' would definitely or probably
have the same attributes as ``platinum;'' and 24% expect that even a
product described as ``Platinum Alloy'' would definitely or probably
have the same attributes as platinum.\89\
---------------------------------------------------------------------------
\87\ PGI Comment, Attachment A, 2008 Platinum Attitude Study at
5 (these percentages are cumulative).
\88\ PGI identified the four most commonly used platinum alloys
in the United States: 90% Platinum/10% Iridium; 95% Platinum/5%
Iridium; 95% Platinum/5% Cobalt; and 95% Platinum/5% Ruthenium.
Maerz, Jurgen J., ``Platinum Durability vs. Scratching,'' posted at
http://www.platinumguild.com/files/pdf/V6N8W_platinum_durability.pdf. All four alloys have at least 90% platinum. Several
comments explained that platinum jewelry generally or traditionally
has had at least 85%, 90%, or 95% platinum. See supra note 24.
\89\ PGI Comment, Attachment A, 2008 Platinum Attitude Study 2
at 1-4.
---------------------------------------------------------------------------
These expectations, however, will often not be met with products
made from platinum/base metal alloys. Specifically, PGI's 2005 testing
indicates that certain platinum/base metal alloys are inferior to
platinum/PGM products in terms of wear and oxidation resistance, as
well as weight loss, and that they cannot be resized using certain
procedures.\90\ Moreover, Karat Platinum's 2005 testing shows that its
platinum/base metal alloy is less dense than platinum/PGM products.\91\
Therefore, describing such products as ``platinum'' without
qualification is likely to result in deception regarding their purity
and attributes.
---------------------------------------------------------------------------
\90\ PGI Comment 2005, Attachments C and D. It does not appear
that the PGI tests evaluated a product identical in composition to
the Karat Platinum platinum/base metal alloy.
\91\ Karat Platinum's testing showed that its alloy is superior
to platinum/PGM products in terms of strength, hardness, and casting
ability, and that its ability to resist corrosion is equivalent to
other platinum products. See Karat Platinum Comment 2005 at 2-3.
---------------------------------------------------------------------------
B. The Record Does Not Support Amending the Guides To State That Using
the Term ``Platinum'' To Describe Platinum/Base Metal Alloys Is
Necessarily Deceptive
As noted earlier, JVC, PGI, and numerous retailers opposed amending
the Guides to state that marketers of platinum/base metal alloys may
describe them as ``platinum'' in a qualified manner. These commenters
contended that marketers cannot describe such alloys as ``platinum''
without deceiving consumers no matter what information they disclose.
Accordingly, they recommended that the Commission amend the Guides to
state that marketers should not describe such alloys as
``platinum.''\92\
---------------------------------------------------------------------------
\92\ JVC and PGI acknowledged that a qualified use of the word
``platinum'' could, in theory, address consumer confusion or
deception stemming from the use of the term ``platinum'' to describe
platinum/base metal alloys. Yet, JVC and PGI asserted that it would
be impracticable and likely ineffective to make the lengthy,
detailed disclosures that they believe marketers would need to make
to prevent deception.
---------------------------------------------------------------------------
In evaluating whether a representation is misleading the Commission
examines not only the claim itself, but the net impression of the
entire advertisement.\93\ Thus, in order to state that marketers should
never describe platinum/base metal alloys as ``platinum,'' the
Commission would have to conclude that no reasonable qualification is
sufficient to render the term non-deceptive. The record, however, does
not support this position. The 2008 Platinum Attitude Study suggests
that a clear majority of consumers (55%) understood the proposed full
name and percentage content disclosure.\94\ In contrast, only 13% of
consumers said they understood disclosures using abbreviations.\95\
---------------------------------------------------------------------------
\93\ Deception Policy Statement, 103 F.T.C. at 179 n.32 (when
evaluating representations under a deception analysis, one looks at
the complete advertisement and formulates opinions ``on the basis of
the net general impression conveyed by them and not on isolated
excerpts''). Depending on the specific circumstances, qualifying
disclosures may or may not cure otherwise deceptive messages or
practices. Id. at 180-81.
\94\ See PGI Comment, Attachment A, 2008 Platinum Attitude Study
3 at 1-2. When asked if they understood the meaning of ``58.5%
Platinum and 41.5% Copper/Cobalt,'' 55% said yes, 33% stated no, and
12% stated that they were not sure.
\95\ Id. When asked if they knew what 585Pt; 415CoCu meant, 81%
said no, 13% said yes, and 7% said they were not sure.
---------------------------------------------------------------------------
Moreover, the study likely understates the effectiveness of the
proposed full name and percentage content disclosure for several
reasons. First, this disclosure is designed to work in tandem with the
third proposed disclosure (that the product may not have all the
attributes of platinum/PGM), and the study did not test the third
disclosure, either alone or in conjunction with the full name and
percentage content disclosure. Second, some consumers who stated that
they did not understand the disclosure may have understood that the
item contained 58.5% platinum but found the phrase ``41.5% Copper/
Cobalt,'' which did not disclose the percentage of each metal,
confusing. Third, as discussed in section III.C.2 below, consumer
perception data regarding gold jewelry shows that the proposed full
name and percentage content disclosure likely would be even more
effective than the above figures suggest. On its face, this second
disclosure appears to be clear, and the record lacks any evidence to
the contrary.
Finally, guidance stating that marketers cannot describe platinum/
base metal alloys using the term ``platinum'' would deprive consumers
of truthful information, specifically that those products are primarily
comprised of platinum.\96\
---------------------------------------------------------------------------
\96\ Advising marketers not to use the term ``platinum'' to
describe platinum/base metal alloys would prevent them from
describing a product composed of 84% platinum and 16% copper as
``platinum,'' while competitors could use the term to describe a
product composed of only 50% platinum, 45% iridium, and 5% copper.
---------------------------------------------------------------------------
C. The Record Demonstrates That Disclosure Is the Appropriate Means for
Attempting To Prevent Deception
Having determined that describing platinum/base metal alloys as
``platinum'' without qualification will likely lead to deception, and
that the record does not show that the qualified use of the term
``platinum'' would be deceptive, the Commission concludes that
disclosures are the appropriate means for attempting to prevent
deception. Because the comments and new consumer perception evidence
[[Page 81450]]
reinforce the concerns the Commission considered in its 2008 FRN, the
following analysis begins with the Commission's proposed three-tiered
disclosure regime.
1. The Commission's First Proposed Disclosure
The first proposed disclosure provided that marketers of platinum/
base metal alloys disclose that their products ``contain platinum and
other non-platinum group metals.'' The 2008 Platinum Attitude Study,
however, suggests that few consumers understand this disclosure. Only
20% of those surveyed indicated that they knew what the phrase ``other
non-platinum group metals'' meant.\97\ Moreover, many consumers who
said either they ``knew'' or ``were not sure of'' the disclosure's
meaning did not know whether cobalt, copper, palladium, rhodium, and
silver are non-platinum group metals (over 60% for cobalt, palladium,
and rhodium, and 47% for copper and silver).\98\ The Commission,
therefore, concludes that this disclosure is unlikely to provide useful
information. Accordingly, the adopted amendment excludes this
provision.\99\
---------------------------------------------------------------------------
\97\ PGI Comment, Attachment A, 2008 Platinum Attitude Study at
16.
\98\ Id. at 16-17.
\99\ The Commission considered revising this provision to state
that marketers should disclose that platinum/base metal alloys
contain ``platinum and other metals'' or ``base metals.'' The
record, however, does not include any consumer perception evidence
suggesting that these disclosures would provide useful information.
Furthermore, the second disclosure already provides the metal
content of platinum/base metal alloys. More importantly, many
platinum/PGM products also contain metals other than platinum,
including base metals; therefore, such a disclosure would not likely
help consumers distinguish platinum/base metal alloys from such
products.
---------------------------------------------------------------------------
2. The Commission's Second Proposed Disclosure
The second proposed disclosure provided that marketers of platinum/
base metal alloys disclose the product's full composition, by name and
not abbreviation, and the percentage of each metal in the product.\100\
The consumer perception data suggests that the majority of consumers
understand this disclosure. Indeed, 55% of those surveyed indicated
that they knew what the phrase ``58.5% Platinum and 41.5% Copper/
Cobalt'' meant.\101\ In addition, the ``vast majority'' of those who
indicated either they ``knew'' or ``were not sure'' what the disclosure
meant correctly identified the platinum and copper/cobalt combination
or indicated that the product had a combination of the metals.\102\
---------------------------------------------------------------------------
\100\ The 2005 Platinum Awareness Study suggests that most
consumers do not understand numeric jewelry markings using parts per
thousand and chemical abbreviations, such as ``585 Pt./415 Co.Cu.''
PGI Comment 2005, Attachment A, 2005 Platinum Awareness Study at 7-
8, 25-26. Indeed, only 7.5% stated they knew what this marking
meant, and only 6.9% of those consumers actually understood that the
marking described the proportion of platinum and other metals in the
jewelry product. Id. at 26. The 2008 Platinum Attitude Study
suggests that most consumers do not understand chemical
abbreviations. Indeed, 81% of those surveyed said they did not know
what ``585 Pt; 415 CoCu'' meant. PGI Comment, Attachment A, 2008
Platinum Attitude Study at 14-15. Of those who said they knew or
were not sure, only one correctly responded that it meant ``585
parts platinum, 415 parts cobalt/copper.'' Therefore, keeping the
percentage disclosure will assist consumers' understanding of the
product's content.
\101\ PGI Comment, Attachment A, 2008 Platinum Attitude Study at
14-15. Thirty three percent (33%) stated that they did not know, and
12% stated that they were not sure. Id.
\102\ Id. at 15. The 2008 Platinum Attitude Study did not
indicate the number or exact percentage of respondents who responded
in this manner, only this characterization.
---------------------------------------------------------------------------
Although a substantial minority of consumers surveyed said they did
not understand the disclosure, or were not sure what it meant, many of
those consumers may have understood that a product with 58.5% platinum
is less ``pure'' than traditional platinum products.\103\ Indeed,
consumer perception data addressing gold jewelry suggests that this is
the case. Specifically, even though many consumers cannot define the
term ``14 karat gold'' accurately, they understand that ``14 karat''
represents the amount of gold in the product and that 18 karat gold
jewelry contains more gold than 14 karat gold jewelry.\104\ Similarly
it is reasonable to conclude that consumers would understand that a
product labeled 58.5% platinum would contain a lower percentage of
platinum than a product they expect to have 85% platinum. Therefore,
the Commission concludes that the second proposed disclosure is the
best option for addressing possible deception regarding the purity of
platinum/base metal alloys.
---------------------------------------------------------------------------
\103\ Id. at 14-15; see also PGI Comment at 10-11.
\104\ PGI Comment 2005, Attachment A, Platinum Awareness Study
at 24.
---------------------------------------------------------------------------
Furthermore, consumer perception data suggests that this type of
disclosure would also help prevent deception regarding the attributes
of platinum/base metal alloys. Specifically, survey participants were
asked whether a ring containing 58.5% Platinum and 41.5% Copper/Cobalt
is likely to differ from a platinum ring on eight specific
attributes.\105\ Depending on the attribute, between 28% and 43% of the
respondents indicated the ring would differ from platinum.\106\ This
data suggests that many consumers exposed to this type of disclosure do
not have the impression that platinum/base metal alloys have the same
attributes as platinum/PGM products. More than half the consumers
surveyed, however, indicated that they ``were not sure'' or ``did not
know'' whether the product differed from platinum.\107\ Therefore,
further disclosure is needed to avoid deception.
---------------------------------------------------------------------------
\105\ The attributes were durability, luster, density, scratch
resistance, tarnish resistance, ability to be resized,
hypoallergenicity, and retention of precious metal over time. PGI
Comment, Attachment A, 2008 Platinum Attitude Study at 16.
\106\ Id.
\107\ Id. Between 47% and 55% of those surveyed indicated they
``did not know'' or ``were not sure'' whether the product differed
from platinum, depending on the attribute.
---------------------------------------------------------------------------
3. The Commission's Third Proposed Disclosure
The third proposed disclosure advised marketers to state that a
platinum/base metal alloy may not have all the attributes that
consumers associate with higher purity platinum/PGM products. It also
provided that marketers need not make this disclosure if they possess
competent and reliable scientific evidence that, with respect to all
attributes material to consumers, such product is equivalent to
products containing at least 850 ppt pure platinum, or at least 500 ppt
pure platinum and at least 950 ppt PGM. The comments filed in 2008
raise six concerns regarding this provision.
First, commenters noted that many consumers do not understand the
terms ``platinum group metals'' or ``other non-platinum group
metals.''\108\ As a result, it is likely that these consumers would not
fully understand this disclosure. To address this issue, the Commission
has revised the disclosure to replace the reference to PGM with the
phrase ``traditional platinum products.''
---------------------------------------------------------------------------
\108\ JVC Comment at 8; see also PGI Comment at 13, 35-36 (The
2008 Platinum Attitude Study revealed that 80% of consumers do not
understand the phrase ``other non-platinum group metals.'');
Attachment A, 2008 Platinum Attitude Study at 16-17.
---------------------------------------------------------------------------
The most common platinum jewelry currently marketed in the United
States contains at least 85% platinum.\109\ Consumers, therefore, would
reasonably understand that traditional platinum products are those
having the attributes of products containing at least 85% platinum.
This conclusion is further supported by the 2008 survey and comments
from industry demonstrating that consumers expect platinum products to
be from 85% to all or almost all pure. The amended Guides,
[[Page 81451]]
therefore, treat ``traditional platinum'' as that containing at least
85% pure platinum. This change provides consumers with a short, clear
disclosure which is consistent with their current views. Additionally,
the new definition provides a more limited universe of comparison,
which should help marketers respond to questions precipitated by the
disclosure.\110\
---------------------------------------------------------------------------
\109\ The Commission derived this percentage from the comments
and PGI's Web site. See also supra notes 25 and 88.
\110\ Instead of comparing attributes to all products containing
either at least 85% platinum or at least 50% but less than 85%
platinum and at least 95% PGM, platinum/base metal alloys marketers
need only compare their products' attributes to any one traditional
platinum product.
---------------------------------------------------------------------------
Second, several comments suggested that the Commission specify each
material attribute identified in the consumer perception data instead
of merely listing examples. Adopting this suggestion should provide
greater clarity for marketers. Accordingly, the provision now states
that marketers need not make this disclosure if they have the required
evidence ``with respect to the following attributes or properties:
durability, luster, density, scratch resistance, tarnish resistance,
hypoallergenicity, ability to be resized or repaired, retention of
precious metal over time, and any other attribute or property material
to consumers.'' \111\
---------------------------------------------------------------------------
\111\ The last phrase, ``and any other attribute or property
material to consumers,'' does not provide the certainty some
commenters may desire, but the surveys never asked consumers which
attributes they think are material. Instead, the surveys simply
provided a list of attributes and asked consumers to comment.
Therefore, the record does not demonstrate that the terms provided
are comprehensive. Moreover, over time consumers may find additional
attributes material. The uncertainty posed by the catch-all phrase,
however, puts platinum marketers in no different position than all
other marketers in the economy who must substantiate all their
material claims.
---------------------------------------------------------------------------
Third, Karat Platinum contended that the Commission provides
insufficient guidance regarding the evidence needed to substantiate
that platinum/base metal alloys have the same material attributes as
higher purity platinum products. Specifically, Karat Platinum explained
that marketers would not know which higher purity platinum products to
which they should compare their products. To support this point, Karat
Platinum submitted evidence showing that traditional platinum products
can differ from each other with respect to scratch resistance and
durability.\112\
---------------------------------------------------------------------------
\112\ Karat Platinum cited to PGI data showing that products
containing 95% platinum and 5% ruthenium are more durable and
scratch resistant than products containing 95% platinum and 5%
iridium. The data also showed that both of these products are more
durable and scratch resistant than a product containing 100%
platinum. Karat Platinum Comment at 2-3.
---------------------------------------------------------------------------
Although the record shows that traditional platinum products can
differ from each other with respect to certain attributes, these
differences may be insignificant to consumers, and the record does not
indicate that consumers have been deceived as a result. If some
traditional platinum products differ from each other in immaterial
ways, it follows that some platinum/base metal alloys may likewise
differ from traditional platinum in immaterial ways. The Commission,
therefore, concludes that a platinum/base metal alloy marketer need not
make the third disclosure to prevent deception if the material
attributes of its product do not differ materially from the attributes
of any traditional platinum product.
Fourth, JVC argued that only full disclosure of every materially
different attribute would prevent deception because consumers want and
expect this information.\113\ JVC further contended that it would be
impractical for marketers to make such disclosures; and therefore, the
Commission should amend the Guides to prevent marketers from using the
term ``platinum'' to describe platinum/base metal alloys. The
Commission disagrees. The purpose of the Guides is not to maintain
uniformly high product standards, but to prevent unfairness and
deception.\114\ The potential deception here is consumers' assumption
that platinum/base metal alloys are as pure as traditional platinum
and/or that they have the same attributes as traditional platinum. A
clear and conspicuous disclosure of a product's composition and that
its attributes may differ from those of traditional platinum addresses
this potential deception. If consumers are then interested in how this
new product differs from traditional platinum products, they can seek
further information before purchasing a jewelry product.\115\
---------------------------------------------------------------------------
\113\ JVC Comment at 10-11.
\114\ 61 FR 27224, 27225 (May 30, 1996). See also 16 CFR 1.5.
\115\ The Commission followed a similar approach in 1997 when it
revised the Guides to provide that fully disclosing the content of
platinum/PGM products that contain less than 85% platinum would be
sufficient to avoid deception. The Commission reasoned that ``[a]n
informative marking or description will put consumers on notice that
the product contains certain precious metals, thereby putting them
in a position to inquire of the jeweler as to the relative value of
the different metals and the overall value of the product.'' 62 FR
16669, 16673 (Apr. 8, 1997). Other Commission Guides and Rules
similarly prevent deception by providing that marketers disclose
enough information for consumers to make an informed choice or to
seek the information needed to do so. See, e.g., Section 260.7(d) of
the Guides for the Use of Environmental Marketing Claims (Example
4), 16 CFR 260.7(d); Section 424.1 of the Retail Food Store
Advertising and Marketing Practices Rule, 16 CFR 424.1.
---------------------------------------------------------------------------
Fifth, some commenters argued that the substantiation proviso is
too subjective, and therefore, unworkable.\116\ They contended that
marketers will differ in their understanding of which attributes are
material and the tests they should use to determine differences. They
added that no industry-wide, universally-accepted testing methods or
standards relating to the attributes of jewelry currently exist.
---------------------------------------------------------------------------
\116\ JVC Comment at 5-6, 9; PGI Comment at 4, 17.
---------------------------------------------------------------------------
Neither of these arguments warrants further modifying the proposed
proviso. Marketers are responsible for substantiating their
claims.\117\ In this case, the evidence demonstrates that using the
term ``platinum'' to describe a platinum/base metal alloy conveys the
claim that the product has the same attributes as traditional platinum.
Marketers, therefore, may make disclosures to dispel this claim, avoid
the claim altogether, or obtain competent reliable scientific evidence
to substantiate the claim. For marketers seeking to avoid the
disclosure and still use the term ``platinum'' to describe their
platinum/base metal alloys, the proviso identifies eight material
attributes of jewelry based on the consumer perception data in the
record. If additional attributes are, or become, material to consumers,
marketers are responsible for determining what those attributes are and
obtaining the corresponding substantiation.\118\ This places jewelry
sellers in no different a position than any other marketer.\119\
---------------------------------------------------------------------------
\117\ The law requires marketers to have substantiation for
their claims. See Telebrands Corp., 140 F.T.C. 278, 342 (2005),
aff'd, 57 F.3d 354 (4th Cir. 2006); FTC Policy Statement Regarding
Advertising Substantiation, Appendix to Thompson Medical Co., 104
F.T.C. 648, 839 (1984).
\118\ The provision does not specify every material attribute or
the type of scientific substantiation necessary to avoid making the
disclosure, although it does identify material attributes that seem
likely to remain material over the long term. Because we may
discover that consumers find other attributes material now or in the
future, and the nature of the substantiation may change over time,
the Commission believes that flexible guidance is appropriate and
that members of the jewelry industry are well-positioned to comply
with such guidance.
\119\ See Sears, Roebuck & Co., 95 F.T.C. 406, 511 (1980),
aff'd, 676 F.2d 385 (9th Cir. 1982) (finding that an advertiser is
responsible for all claims, express and implied, that are reasonably
conveyed by the advertisement).
---------------------------------------------------------------------------
Furthermore, the record shows that tests do exist for determining
how some material attributes of jewelry products differ from each
other. Indeed, both Karat Platinum and PGI submitted tests showing
whether, and to what extent, certain material attributes of various
platinum/base metal alloys differ from those of platinum/PGM products.
Moreover, marketers need not rely on industry-wide, universally-
accepted
[[Page 81452]]
tests or standards, so long as they have competent and reliable
scientific evidence.\120\ Indeed, marketers frequently develop evidence
to substantiate their claims even in the absence of industry-wide,
universally-accepted tests or standards.\121\ The challenges in
developing such evidence cited by commenters are not unique to the
jewelry industry and do not warrant further modification of the
proviso.
---------------------------------------------------------------------------
\120\ ``Competent and reliable scientific evidence'' means
tests, analyses, research, studies, or other evidence based on the
expertise of professionals in the relevant area, conducted and
evaluated in an objective manner by persons qualified to do so,
using procedures generally accepted in the profession to yield
accurate and reliable results. See Guides for the Use of
Environmental Marketing Claims, 16 CFR 260.5; and Telebrands Corp.,
140 F.T.C. 278, 347 (2005), aff'd, 57 F.3d 354 (4th Cir. 2006). In
the absence of industry-wide, universally accepted tests, marketers
can rely on tests conducted and evaluated objectively using
procedures generally accepted by professionals in the area.
\121\ See, e.g., Mohawk Petition, 74 FR 13099, 13102-13103 (Mar.
26, 2009).
---------------------------------------------------------------------------
Finally, some commenters contended that the third proposed
disclosure would present endless possibilities for non-compliance and
enforcement would be hopelessly difficult.\122\ The Commission issues
guidance to help those marketers who are trying to comply with the law,
not for those who are intent on violating it. The Guides themselves,
however, are not independently enforceable. Therefore, the Commission
would have to bring any enforcement action under Section 5 of the FTC
Act and prove that a marketer lacked substantiation for its claims,
regardless of what the Guides provided.
---------------------------------------------------------------------------
\122\ JVC Comment at 9, 14; PGI Comment at 2, 4, 17-18.
---------------------------------------------------------------------------
D. Commenters' General Objections to the Disclosure Provisions Do Not
Justify Further Modification
The comments filed in 2008 raise four general objections to the
proposed amendment, none of which warrant modifications. First,
commenters contended that the proposed disclosures are unworkable
because: Consumers will not read lengthy, technical written
disclosures; the average jewelry sales personnel lack the expertise to
make oral disclosures effectively; and the disclosures will likely have
a chilling effect on sales.\123\
---------------------------------------------------------------------------
\123\ See, e.g., JVC Comment at 12-13; PGI Comment at 15-16, 23;
Lowell Kwiat Comment at 1; Tiffany Comment at 4.
---------------------------------------------------------------------------
These objections are not persuasive. With regard to written
disclosures, there is no evidence in the record indicating that
consumers will not read written disclosures regarding a platinum/base
metal alloy's composition and a simple statement that it may differ
from traditional platinum. Moreover, the Commission has reduced the
size of the proposed disclosures by eliminating the first proposed
disclosure, and has simplified the language in the third proposed
disclosure. These changes make the disclosures shorter and non-
technical, and therefore, easier to comprehend. Additionally, the 2008
Platinum Attitude Study suggests that most consumers can read and
understand disclosures regarding the composition of jewelry using the
full name and percentage of each metal.
With regard to the inability of sales personnel to make oral
disclosures, the record includes the JA e-mail survey showing that
52.5% of the retailers surveyed would find it ``difficult'' or very
``difficult'' to make the disclosures orally. Sales clerks, however,
need not make any disclosure if marketers clearly and conspicuously
make the written disclosures provided in the amended Guides. Moreover,
simply because making a disclosure is difficult does not mean that it
cannot reasonably be done.\124\
---------------------------------------------------------------------------
\124\ Presumably marketers are already accustomed to answering
questions about the differences between the jewelry products they
sell and competing products. If marketers can explain the difference
between jewelry made from platinum/PGM, gold, or platinum/base metal
alloys not currently described as platinum, for example, they should
be able to explain the differences between platinum/PGM products and
platinum/base metal alloys described as platinum. In fact, the JA e-
mail survey also showed that 23.1% of the retailers surveyed would
find it ``easy'' or ``very easy'' to make the disclosures orally
(the remaining 24% responded ``not sure'' or did not answer the
question).
---------------------------------------------------------------------------
With regard to any chilling effect disclosure may have on sales, no
commenter has a larger stake in robust sales of platinum/base metal
alloy products than Karat Platinum. Yet Karat Platinum, an entity that
would be responsible for making the disclosures, indicated that the
disclosures are workable and does not object to them. The Commission,
therefore, finds this argument unpersuasive.
Second, many commenters objected to the proposed amendment because
it conflicts with international standards. As the Commission explained
in its 2008 FRN, however, this is not a basis for rejecting the
amendment. Although the Commission generally prefers to harmonize its
guidance with international laws and standards, Commission Guides must
be based upon deception or unfairness.\125\ The commenters base their
argument on conflicts between the Commission's proposed amendment and
ISO and CIBJO standards. These standards, however, are technical
industry standards developed through a consensus-building process based
on a variety of considerations--such as facilitating trade and
promoting international cooperation--and not solely upon
deception.\126\ Harmonization with international standards is typically
favored. Where, as here, however, there is insufficient evidence that a
particular claim (i.e., a qualified platinum representation) is
deceptive, the Commission cannot promulgate a guide stating that
marketers should not make the representation solely to achieve
harmony.\127\
---------------------------------------------------------------------------
\125\ The Trade Agreements Act of 1979 states that no Federal
agency ``may engage in standards-related activity that creates
unnecessary obstacles to the foreign commerce of the United States
and that Federal agencies must, in developing standards take into
consideration international standards and shall, if appropriate,
base the standards on international standards.'' 19 U.S.C.
2532(2)(A). The term ``standard'' in the Act includes guidelines
that are not mandatory, such as the Jewelry Guides. The Act
provides, however, that ``the prevention of deceptive practices'' is
an area where basing a standard on an international standard ``may
not be appropriate.'' Id. at Sec. 2532(2)(B)(i)(II).
\126\ See http://www.iso.org/iso/standards development/process
and procedures how are standards developed.htm. Gaetano Cavalieri
Comment at 2.
\127\ Moreover, the current Guides already conflict with ISO and
CIBJO standards in that they allow marketers to mark products as
platinum, with certain qualifications, even though they contain less
than 85% platinum (provided they contain at least 50% platinum and
95% PGM).
---------------------------------------------------------------------------
Third, some commenters argued that any written disclosure regarding
the composition of platinum/base metal alloy jewelry would likely
become separated from the jewelry over time.\128\ They contended that,
as a result, jewelers could not effectively appraise, resize, or repair
the jewelry at a later time. However, the commenters' proposed
solution, amending the Guides to state that marketers should not
describe platinum/base metal alloys as ``platinum,'' fails to resolve
this problem. Specifically, describing such alloys as something other
than ``platinum'' at the time of purchase does not insure that jewelers
would have the information necessary to identify, value, resize, or
repair the jewelry in the future.
---------------------------------------------------------------------------
\128\ See, e.g., JVC Comment at 13.
---------------------------------------------------------------------------
Physically stamping or marking jewelry to indicate its composition
would address this concern. The Guides currently do not require
stamping, and there is no evidence that such a requirement is necessary
in this case. In fact, Karat Platinum already marks its products with
composition information.\129\ However, the Commission amends Section
23.7(c) of
[[Page 81453]]
the Guides to clarify that marketers may mark or stamp platinum/base
metal alloy jewelry accurately to indicate composition using parts per
thousand and standard chemical abbreviations (e.g., 585 Pt., 415 Co.)
without triggering the new disclosure. This amendment should insure
that marketers are not deterred from marking their products based upon
the Commission's new platinum guidance. The Commission proposed this
amendment in its 2008 FRN, and no commenter specifically objected. If
actual deception occurs based on the lack of marking, or the lack of
further disclosure, the Commission may consider amending the Guides at
a later date.
---------------------------------------------------------------------------
\129\ Karat Platinum Comment 2005 at 2.
---------------------------------------------------------------------------
Finally, although Karat Platinum supported the Commission's general
approach, it argued that the Commission should level the playing field
by amending the Guides to provide that marketers of both platinum/base
metal alloys and platinum/PGM products make the same composition and
attribute disclosures detailed above. Karat Platinum argued that
consumers do not understand the chemical abbreviations used to describe
platinum/PGM products containing less than 95% platinum any better than
they understand the chemical abbreviations used to describe the content
of platinum/base metal alloys. It also argued that platinum/PGM
products differ from each other with respect to material attributes
such as durability and scratch resistance.
The record suggests that marketers of at least some products
consisting of at least 50% but less than 85% platinum and at least 95%
PGM may need to make additional disclosures when describing their
products as ``platinum'' to avoid deception; however, further evidence
is needed. The attributes of these products may vary depending upon the
combination of metals used. We have no evidence whether these
differences are material to consumers. Absent such evidence we decline
to amend the Guides to provide for additional disclosures. Marketers of
these products must ensure that they are not making deceptive
statements about their products based on reasonable consumer
perception.
We, therefore, conclude that the disclosures, described above, are
the best option for addressing deception regarding the attributes of
platinum/base metal alloys described as ``platinum.''
E. The Record Is Insufficient To Warrant Amending the Guides To Address
the Marketing of Products Containing Platinum Plating or Coatings
Several comments proposed that the Commission provide detailed
guidance regarding the marketing of products containing platinum
plating or coating. The JVC comment, for example, proposed addressing a
number of issues relating to the marketing of such products, including
the platinum content and thickness of platinum plating, washing or
flashing, and heavy plating. The record, however, does not include any
evidence regarding how consumers perceive products with platinum
plating or coating or the claims made for them. Nor does the record
include any evidence showing how the industry proposal would address
any problem that may exist, or how consumers would perceive the
disclosures contemplated by the proposal. Accordingly, the Commission
declines to amend the Guides to address the marketing of products with
platinum plating or coatings at this time.\130\
---------------------------------------------------------------------------
\130\ The Commission agrees with Karat Platinum that one
provision in the amendments adopted herein belongs in Section
23.7(c) rather than 23.7(b). Accordingly, the Commission decided to
add this provision to Section 23.7(c) and revise it in a non-
substantive manner so that the wording is consistent with the other
parts of Section 23.7(c).
---------------------------------------------------------------------------
List of Subjects in 16 CFR Part 23
Advertising, Jewelry, Labeling, Pewter, Precious metals, and Trade
practices.
0
For the reasons set forth in the preamble, the Federal Trade Commission
amends 16 CFR part 23 as follows:
PART 23--GUIDES FOR THE JEWELRY, PRECIOUS METALS, AND PEWTER
INDUSTRIES
0
1. The authority citation for part 23 is revised to read as follows:
Authority: 15 U.S.C. 45, 46.
0
2. Amend Sec. 23.0 by adding paragraphs (d) and (e) to read as
follows:
23.0 Scope and application.
* * * * *
(d) These guides set forth the Federal Trade Commission's current
thinking about claims for jewelry and other articles made from precious
metals and pewter. The guides help marketers and other industry members
avoid making claims that are unfair or deceptive under Section 5 of the
FTC Act, 15 U.S.C. 45. They do not confer any rights on any person and
do not operate to bind the FTC or the public. The Commission, however,
may take action under the FTC Act if a marketer or other industry
member makes a claim inconsistent with the guides. In any such
enforcement action, the Commission must prove that the challenged act
or practice is unfair or deceptive in violation of Section 5 of the FTC
Act.
(e) The guides consist of general principles, specific guidance on
the use of particular claims for industry products, and examples.
Claims may raise issues that are addressed by more than one example and
in more than one section of the guides. The examples provide the
Commission's views on how reasonable consumers likely interpret certain
claims. Industry members may use an alternative approach if the
approach satisfies the requirements of Section 5 of the FTC Act.
Whether a particular claim is deceptive will depend on the net
impression of the advertisement, label, or other promotional material
at issue. In addition, although many examples present specific claims
and options for qualifying claims, the examples do not illustrate all
permissible claims or qualifications under Section 5 of the FTC Act.
0
3. Amend Sec. 23.7 by adding paragraphs (b)(4) and (c)(5) to read as
follows:
23.7 Misuse of words ``platinum,'' ``iridium,'', ``palladium,''
``ruthenium,'' ``rhodium,'' and ``osmium.''
* * * * *
(b) * * *
(4) Use of the word ``Platinum,'' or any abbreviation accompanied
by a number or percentage indicating the parts per thousand of pure
Platinum contained in the product, to describe all or part of an
industry product that contains at least 500 parts per thousand, but
less than 850 parts per thousand, pure Platinum, and does not contain
at least 950 parts per thousand PGM (for example, ``585 Plat.'')
without a clear and conspicuous disclosure, immediately following the
name or description of such product:
(i) Of the full composition of the product (by name and not
abbreviation) and percentage of each metal; and
(ii) That the product may not have the same attributes or
properties as traditional platinum products. Provided, however, that
the marketer need not make disclosure under Sec. 23.7(b)(4)(ii), if
the marketer has competent and reliable scientific evidence that
such product does not differ materially from any one product
containing at least 850 parts per thousand pure Platinum with
respect to the following attributes or properties: durability,
luster, density, scratch resistance, tarnish resistance,
hypoallergenicity, ability to be resized or repaired, retention of
precious
[[Page 81454]]
metal over time, and any other attribute or property material to
consumers.
Note to paragraph (b)(4): When using percentages to qualify
platinum representations, marketers should convert the amount in
parts per thousand to a percentage that is accurate to the first
decimal place (e.g., 58.5% Platinum, 41.5% Cobalt).
(c) * * *
(5) An industry product consisting of at least 500 parts per
thousand, but less than 850 parts per thousand, pure Platinum, and not
consisting of at least 950 parts per thousand PGM, may be marked or
stamped accurately, with a quality marking on the article, using parts
per thousand and standard chemical abbreviations (e.g., 585 Pt., 415
Co.).
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2010-32273 Filed 12-27-10; 8:45 am]
BILLING CODE 6750-01-P