Division of Enforcement 

Bur~au of Consumer Protection 

VIA FEDERAL EXPRESS 

C.J. Erickson 

United States of America 

FEDERAL TRADE COMMISSION 

WASHINGTON, D.C. 20580 

August 7, 2012 

Cowan, Liebowitz & Latman, P.C. 

1133 Avenue of the Americas 

New York, NY 10036 

Re: Advisory Opinion Request ofMJ] Brilliant Jewelers, Inc. 

Dear Mr. Erickson: 

This letter responds to MJJ Brilliant Jewelers, Inc. ("MIJ" or "Company")' s request for a 

staff opinion concerning MIJ's proposed marking and advertising of jewelry constructed of an 

alloy comprising gold, silver, palladium, and non-precious metals.! . 

You state that MIJ has developed a proprietary alloy fOmlulation composed of. % 

gold (periodic element Au), 21 % silvcr (periodic eloment Ag), .' % palladium (periodic element 

Pa), and. % base metals, which MJJ will use in jewelry merchandise ("Jewelry Alloy,,).2 

Acknowledging the provisions in the Jewelry Guides3 that address misrepresentations regarding 

the content of gold or gold alloy in an industry prodUct, you ask whether your client's anticipated 

use of the term "gold" in its advertising and marketing materials to identifY the specific 

composition of the Jewelry Alloy would be "propel''' under Section 5 of the Federal Trade 

ConunissionAct ("FTC Act;'), 15 U.S.C. §45(a). Specifically, you request guidance on the 

acceptability of each of the following: (1) using the phrase: "consisting of a proprietary alloy of 

gold, silver, and platinum;" (2) proViding a link to a third-party assay report that identifies the 

precious metal content of the finished article; (3) identifying the specific percentage content of 

. all precious metals in the finished article; (4) stamping merchandise with the Company's 

", (" trademark. You did not provide any specific advertising or marketing materials for 

I Your letter requests "that the Commission of [sic] FTC Staff issue an advisory opinion," 

which could be interpreted as a request for a Commission advisory opinion. You also indicate, 

. however, that yourrequest is jn accordance with Section 1.3 (c) of the Commission Rules of 

Practice, by which FTC staff may render an opinion without prejudice to'the right of the 

Commission to rescind the advice at a later date and, as appropriate, to commence an 

enforcement action. 16 C.FR. §1.3(c). 

2 Your letter also states that the MIJ alloy.is "identified as 

• The Federal Trade Commission's Guides for the Jewelry, Precious Metals, and Pewter 

Industries ("Jewelry Guides" or "Guides"), 16 C.F.R. Part 23. 
Mr. C.J. Erickson 

August 7, 2012 

Page 2 

our consideration, nor did you make clear whether MJJ intends to use any of the proposed 

marketing claims in combination. 

As you are aware, the Jewelry Guides Ill'e administrative interpretations of Section 5 of 

the FTC Act, which prohibits unfair or deceptive acts or practices. The Guides state, in pertinent 

part, that "[iJt is unfair or deceptive to misrepresent the presence of gold or gold alloy in an 

industry product, or the quantity or karat fineness of gold or gold alloy contained in the 

product. ... " 16C.F.R. §23.4(a). The Guides also provide that it may be misleading to use the 

word "gold" or any abbreviation, or a quality mark implying gold content (e.g., 9 karat), "to 

describe all or part of an industry product that is composed throughout of an alloy of gold of less 

than 10 karat fineness." 16 C.F.R. §23.4(b)(9). In addition, the Jewelry Guides provide that "[i)t 

is unfair or deceptive to mark, describe, or otherwise represent all or part of an industry product 

as silver, ... un.less it is at least 925/1000ths pure silver." 16 C.F.R. §23.6(b). Additionally, the 

Jewelry Guides provide that "[i)t is unfair or deceptive to use the words 'platinum, ... 

'palladium,' ... 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," and further provide that it 

may be misleading to use the word "platinum" or any abbreviation ''to mark or describe any 

product that is not composed throughout of at least 500 parts per thousand pure Platinum." 

16 C.F.R. §§23.7(a), 23.7(b)(3). 

You concede that MJJ "cannot stamp or market its gold alloy jewelry with the traditional 

karat nmrking[, ... J as the alloy is admittedly less than 10 karat fineness." Indeed, given your 

representation that the Jewelry Alloy is comprised of '% gold by weight, the gold content of 

the product more closely approximates 6 karats, which falls short of the 10 karat minimum 

fineness set forth in the Guides. Likewise, your description of the Jewelry Alloy indicates that it 

contains, , % silver, which is below the 92.5% level stated in the Guides. The Jewelry Alloy 

also includes % palladium, but does not contain any pure platinum. 

As part of the 1996 review, the Commission considered whether to amend the Guides to 

permit gold alloys containing less than 10 karats of gold (i.e., less than 41.6% gold) to be 

marketed as containing gold. 61 Fed. Register 27185-86 (May 30, 1996). In addressing this 

issue, the Commission noted that it had previously sought comments in 1977 regarding a 

proposal to lower the 10 karat minimum threshold to permit sellers to market gold of less than 10 

karats If the quality was accurately disclosed. and also to lower the 92.5% level for silver. Based 

on the record and comments it received in response to the 1977 proposal, the Commission 

retained the 10 karat minimum fineness which appears in Section 23.4 of the Jewelry Guides, 

and the Commission also retained the 92.5% level for silver which appears in Section 23.6. ld 

at 27185 0.99. 

The Commission included the minimum of 500 parts per thousand pure platinum for 

platinum markings pursuant to its 1997 revisions to the Guides. 62 Fed. Register 16673 (Apr. 8, 

1997). In developing the 1997 guidance, the Commission indicated that referring to an article 

containing less than 500 parts per thousand pure platinum as "platinum," without qualification, 

may be deceptive. 61 Fed. Register 27225 (May 30, 1996). When revising the platinum section 

agaln in 2010, the Commission noted that it had previously found that deception would likely 
Mr. C.J. Erickson 

August 7, 2012 

Page 3 

result if marketers were to describe platinurnlbase metal alloys as "platinum" without disclosing 

information regarding their composition and attributes. 75 Fed. Register 8 I 449 (Dec. 28,2010). 

In light of the foregoing, it is our opinion that MJJ's proposed use of the phrase 

"consisting of a proprietary alloy of gold, silver, and platinum" would contravene the plain 

language of the current Jewelry Guides. As discussed above, the Guides advise against using the 

word "gold" or any quality mark implying gold content on any product oflesa thim 10 karat 

fineness. 16 C.P.R. §23.4(b)(9). The Guides also advise against using the word "silver" to 

describe all or part of an industry product unless it meets the 92.5% threshold, 16 C.P.R. 

§23.6(b), and advise against using the word "platinum" to describe all or part of any product that 

is not composed throughout of at least 500 parts per thousand pure platinum. 16 C.F.R. 

§23. 7(b )(3). Furthermore, using the phrase "consisting of a proprietary alloy of gold, silver, and 

platinum" may misleadingly imply that the Jewelry Alloy is comprised solely of those three 

precious metals (gold, silver, platinum). Therefore, this claim would likely run afoul of 

Section 5 of the FTC Act, which prohibits deceptive acts or practices. 

The Jewelry Guides do not explicitly address the use of marketing claims that identify the 

total precious metal content of a jewelry product. Thus, in our opinion, the Guides would not 

prohibit MIJ from stamping the Jewelry Alloy merchandise with its .'" " trademark. 

Youxletter does not indicate whether MJJ's proposed "identification of the specific 

percentage content of all precious metals" would specifically describe the Jewelry Alloy as 

containing gold, silver, or platinum, not did you attach a copy of the "representative" assay 

report that MJJ anticipates using to market the product.4 On that basis, we cannot provide an 

opinion regarding those proposed practices. 

Marketing of the Jewelry Alloy would nevertheless be guided by the provisions cited 

above that prohibit misrepresentations regarding gold, silver, and platinum content, as well as the 

general prohibition against deception contained in Section 23.1 of the Jewelry Guides. MJJ's 

marketing would also be SU"Qject to Section 5 of the FTC Act. Your letter does not make clear 

whether the Company's marketing and advertising materials would adequately disclose the . 

Jewelry Alloy's full composition and attributes, such as by giving consunters complete 

information regarding all components of the product (including disclosure of the fact that '10 of 

the alloy consists of non-precious base metals). Moreover, to the extent MJJ anticipates 

providing qualifications or disclosures regarding the content of its Jewelry Alloy, any such 

disclosures or qualifications must be sufficiently clear and prominent, and proximate to the 

claim, 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. Finally, to the extent MJJ provides disclosures through a hyperlink reference to a 

third-party assay report, the information in such report must be truthful and non-misleading. 

4 We understand that an assay usually reflects a test made to determine the quantity of 

precious metal in a product compared to the weight of the whol" product. 
Mr. C.J. Erickson 

August 7, 2012 

Page 4 

In our opinion, a literal reading of the provisions in the Guides that discuss misuse of the 

words "gold," "silver," and "platinum" does not address how to describe the content of an alloy 

that contains those precious metals in amounts below the minimum thresholds. Pursuant to the 

Commission's systematic review process for all of its mles and industry guides, the Commission 

recently published a Federal Register notice soliciting comment on all aspects of the Jewelry 

Guides, including disclosures that relate to the content of precious metal alloys. 77 Fed. Register 

39201 (July 2,2012). We encourage MJJ to submit comments and supporting consumer 

perception evidence on this and any other issue relating to the Guides before the deadline of 

August 27, 2012. ' 

This letter sets out the views of the staff of the Bureau of Consumer Protection, as 

authorized by the Commission'S Rules of Practice. Those views are based on information you 

provided to Commission staff. Staff has not engaged in independent factual investigation 

regarding the proposed marketing and product stamping. In accordance with Section 1.3(c) of 

the Commission Rules of Practice, 16 C.F.R. § 1.3(c), this is a staff opinion only and has not 

been reviewed or approved by the Commission or by any individual Commissioner, and is given 

without prejudice to the right of the Commission to rescind the advice at a later date and, as 

appropriate, to commence an enforcement action. In accordance with Section 1.4 of the 

Commission's Rules of Practice, 16 C.F.R. § 1.4, your request for advice and this response will 

be placed on the public record. 

Thank you for contacting the Federal Trade Commission. If you have any questions, 

please do not hesitate to contact me at 202·326·2272. 

Sincerely. 

,;. ':. f . 

. , 

, , .